CENSIS white paper: Intellectual Property in Business

Intellectual Property in Business: IP basics, IP management, IP strategy
IP Management during Growth (continued)
The open-source software example shows that there
are sometimes strong reasons to let others use your
intellectual property with fewer restrictions than the law
establishes on your behalf automatically. 46
Another great example of the open access model, from
a less technical field, is the Creative Commons initiative
which facilitated access to many creative works under
‘some rights reserved’, such as giving the author credit,
attribution or a share. 47
The mindset behind ‘open access’ spilled over into the
patent world, resulting in ‘patentleft’ models – in an
analogy to copyleft – where the patent owner releases
its patents to the public in the spirit of the open-source
movement, with the assumption that any follow-on
solutions will be released under the same ‘open terms’.
In 2014, Tesla shocked the public by making its patents
available to everyone interested in using its technology
in good faith. This patent pledge had one condition,
namely that the interested party did not assert any IP
rights against Tesla or any other party and did not copy
Tesla’s designs. The outcome: Tesla gained access
to various improvements in technologies relating to
electric vehicles. The move also helped Tesla to grow
the EV customer base more quickly than it could
have done by working alone in what was at the time a
nascent market.
A similar move was taken by GlaxoSmithKline (GSK)
when it opened its patent pool of 800 granted and
pending patents to boost development of new
formulations against neglected tropical diseases in
least-developed and low-income countries. GSK
expanded its pledge to not file for patent protection in
these regions. 48
Co-creation 49 and co-design models also assume ‘open
access’ to the knowledge and innovation of a company
and the involvement of ‘outsiders’ in the ideation
process. Very often these outsiders are the source
of new ideas and new IP. That fresh perspective in
designing processes and business ideation is extremely
valuable for companies that generously use this source
of innovation as part of an ‘open innovation’ approach.
Take-home message: The entrepreneurial journey
assumes a great deal of experimentation in terms of
business models, collaborations and IP strategy. The
same applies to experimentation with open-access
business models. After Palfrey, there might be great
value in ‘open’ exploitation of your IP portfolio and
letting others access your company know-how. For
start-ups, it might be less appealing to open their
patent portfolio where so much resource has been
invested in patent registration. But as open-source
software success stories teach us, such collaborative,
shared-benefit approaches are more common among
software developers who take solutions into the
businesses they are part of.
46
Palfrey (n 5) 107.
47
Ibid 107.
48
‘GSK expands graduated approach to patents and intellectual property to widen access to medicines in the world’s poorest countries’ (GSK, 31 March 2016)
accessed 2 December 2022.
49
C.K. Prahalad and Venkatram Ramaswamy, ‘Co-opting Customer Competence’ (Harvard Business Review, From the Magazine (January–February 2000)
accessed 2 December 2022.
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