Fred Wilson has a brilliant post on policy. Fred is one of the world’s top VCs and is a partner in Union Square Ventures. If you have never heard of them then you need to. Also he has the same name as myself and that is also cool.
Anyway Fred talks about why he and his firm spend so much time on policy stuff (even having an activist in residence). He says that his portfolio companies are right at the edge of a connected future disrupting incumbents, reshaping markets and lowering costs. Today’s incumbents will fight this disruption tooth and nail leading to policy fights.
Wilson cites Om Malik who says that the challenges of a connected future are less technical and more legislative, political and philosophical.
We couldn’t agree more with Fred and Om and would also add that those of us who are working with innovation and disruption need to communicate the policy insights that we are seeing happening before our eyes.
Here we spend a lot of time on policy analysis and debate. We are strong believers that citizens should be empowered with the tools to access and analyse information in the interests of a truly democratic society. This disrupts the power and control nexus of the state bureaucracy and insiders, however the challenges such as global warming and the future of capitalism and democracy are too important to be delegated.
The second policy issue that captures our attention concerns the way in which companies that do business in Ireland can be globally competitive. This is our market. We want to make sure that the policies and ecosystem exist that can help these companies achieve global scale. The day when big companies and state owned enterprises were the key job creators is long gone. We now need innovative, scalable international companies to be established and to grow in Ireland. We believe that these companies need a range of skills including the ability to use the world IP system to their advantage.
If not them it will be another company in another country.
With the focus on the “patent wars” and the activities of patent trolls we sometime forget that patents are not the only types of intellectual property rights that underpin multi-billion dollar industries.
Our view on here is that although the patent industry is attracting a lot of attention because new money is flowing into patent portfolios there is far more at stake in the development of copyright laws. We already discussed the consequences that the fragmentation of the European digital single market has for the development of new business models for the commercialisation of content. While most of the arguments we have seen have been very sensible but quite general we recently came across an econometric analysis of a single US Appeals Court copyright decision which spawned more than a billion dollars in new investment.
Professor Josh Lerner of the Harvard Business School analysed venture capital investment dynamics in the years after the US Second Circuit Court of Appeal’s decision in The Cartoon Network, et al. -v- Cabelvision. In that decision the court found that transient copying and subsequent transmission to a subscriber to a virtual digital video recording service did not constitute copyright infringement. Lerner argues that this decision brought legal certainty to a key element of cloud services and with that legal certainty the amount of VC funding increased by up to $1.3 billion in the two and a half years after the decision was handed down.
According to Lerner’s report:
This paper examines the effect of copyright policy changes on venture capital (VC) investment in cloud computing companies. To do this, we analyze the effect on venture investment in cloud computing firms of the U.S. Second Circuit Court of Appeals’ August 2008 decision in The Cartoon Network, et al. v. Cablevision, which was widely seen as easing certain ambiguities surrounding the intellectual property standing of these firms in the U.S. Our findings suggest that decisions around the scope of copyrights can have significant impacts on investment and innovation. We find that VC investment in cloud computing firms increased significantly in the U.S. relative to the EU after the Cablevision decision. Our results suggest that the Cablevision decision led to additional incremental investment in U.S. cloud computing firms that ranged from $728 million to approximately $1.3 billion over the two-and-a-half years after the decision. When paired with the findings of the enhanced effects of VC investment relative to corporate investment, this may be the equivalent of $2 to $5 billion in traditional R&D investment
This is the best analysis of the financial consequences to internet business models of copyright changes that we have seen.
However it might not be the full picture. Notwithstanding the efforts of the publishing industry, European copyright law has permitted transient copying since the enactment of the InfoSoc Directive in 2001. However even with this seven year head start over the USA, Europe’s cloud industry is still much less developed than the USA. Perhaps the fragmentation of the digital single market is still too great or there may be other reasons. Food for further study no doubt.
The conclusion, however, is that good copyright laws are necessary but they may not be sufficient to seed entire new industries.
In February 227 patent applications and patents were published or issued to Irish applicants at the USPTO, EPO and WIPO including one US design patent. We analysed these publications to get a glimpse of the type of applicant and the range of technology which is being invented by Irish based applicants. Given the benefits of foreign direct investment in Ireland a large proportion of the invention owned by Irish applicants comes from this sector and we can see clearly a range of both overseas and domestic inventions being assigned to Irish based applicants.
In summary for February 2013:
- 227 published applications or patents issued to Irish applicants through USPTO, EPO and PCT
- The top three assignees: Accenture Global Services, Digital Optics Corporation and Zamtec
- Main technology sectors (53% of total): Medical/Veterinary Science, Computing and Electric Communication
- Third level institutions accounted for 11% of Irish invention published this month
- 37% of publications were Irish originating inventions
Its always exciting whenever competition law meets intellectual property law so I invited my colleague and friend Conor Maguire expert on all things EU and Competition to write a little note on the proposed revision to the European Technology Transfer Block Exemption Regulation which offers a safe harbour from competition law for agreements which otherwise might infringe Article 101 of the Treaty on the Functioning of the EU. This is the second revision in the history of exemption and the updates reflect what the Commission has learnt from the implementation of the current version.
For those of you who don’t know Conor and his company Brussels Matters I would heartily encourage you to sign up for his discussion on 13 March in which some of the senior officials from the European Commission discuss the new revision for the first time with a select audience of professional advisers from around the world. You can attend in person in Brussels or dial in, in each case for a very reasonable fee.
According to Conor:
On 20 February, the European Commission’s DG COMP launched a second public consultation as part of the review of the EU’s antitrust rules governing the licensing and use of intellectual property, the Technology Transfer Block Exemption Regulation (‘TTBER’).
Following the first consultation in 2011-’12, DG COMP is now inviting comments on the proposed new TBBER and draft new Guidelines.
Against the backdrop of DG COMP’s current cases in innovative industries with economy-wide significance, in many important areas if adopted the new proposals would significantly tighten the application of the EU antitrust rules by subjecting more IP licensing practices to scrutiny and limit the types of agreements that enjoy automatic (so-called ‘safe harbour’) protection under the existing TTBER regime.
By restricting the protection from the sanctions of the EU antitrust rules offered by the existing TTBER regime – which includes the legal unenforceability of the offending parts of the underlying IP licensing agreement – the proposed new TTBER regime could be particularly problematic for small innovative rights holders licensing to much larger IP users.
In other aspects, the proposed new rules would introduce welcome new levels of legal clarity for particular uses of IP, such as the collective licensing of certain IP rights via ‘technology pools’ to third-party licensees.
The consultation documents – including the proposed revised TTBER and new Guidelines – can be found here
A detailed memo setting out the key proposed changes – including on settlements and technology pools – can be found here
The deadline for responses to the consultation is 17 May 2013.
As part of the consultation, for the first time DG COMP’s TTBER review team will discuss the proposed new regime in detail with an international audience live from Brussels on Wednesday, 13 March 2013 – details at www.brusselsmatters.eu
The European Commission-hosted Competition Forum that took place in Brussels yesterday was quite an event.
Italian prime minster, Mario Monti, gave the keynote address, which was amply reported in the Financial Times so I won’t go into it here. Other speakers and panelists included, Cisco CEO John Chamber, US ambassador to the EU William Kennard, Competition Commissioner and Commission Vice President Joaquin Almunia, Angela Merkel’s economic adviser.
You get the picture: serious power brokers and policy makers in the EU and US.
The event consisted of three sessions:
- The State in the global economy
- Competition, innovation and the Single Market
- The Single Market for financial services and competition policy
There were several strong themes that ran through the programme. The first was the unemployment crisis in Europe. Ambassador Kennard described it as a humanitarian crisis that was driving talented individuals to leave Europe in search of opportunity, particularly in the US. Kennard urged Brussels policy makers to go and personally interview some of these people as they leave to find out what is in their heads. To solve this problem there needs to be a radical acceleration of the Single Market project, particularly in telecoms where there continues to be 27 markets with 27 regulators and an inefficient use of spectrum. John Chambers identified this as a major barrier to growth. Chambers, whose command of statistics was impressive, pointed out that the next internet involved “digitisation of everything” and that a doubling of broadband penetration generated an additional 0.6% GDP.
A second issue revolved around SMEs. The speakers acknowledged that innovative SMEs would be the only source of significant employment growth in the future and therefore there needs to be efficiency in the market which helps inefficient companies exit and which finances the establishment and growth of innovative companies. The CEO of Belgian mining giant, Umicore, felt that state aid should not be used to subsidise consumers pointing in particular to the distortions this caused in the photovoltaic and electric car sectors. Some of the panelists from the financial sector pointed to the need to exercise care when designing new financial regulations that SME financing through debt or equity would not be impeded. Again the depth of the US market for SME financed was contrasted with the lack of dynamism in Europe.
There was an inchoate discussion of intellectual property and its role. John Chambers called it as a no brainer since in his opinion there is a 1:1 correlation between R&D investment and economic growth five years later and that there needs to be an intellectual property system to protect the results of R&D. He also pointed out that his company is seeing recovery in the European countries that are highest ranked by the World Economic Forum for innovation. MEP and patent attorney, Sharon Bowles, caused a little murmur of controversy when she opined that there should be no injunctions for unpractised patents and that there should be a register of patent coverage of products.
Competition law involves the intersection of law and economics two topics that would challenge the wakefulness of most when you throw in intellectual property you get a nerdfest extrordinaire. However given the importance of the issues debated yesterday it behoves us all to understand and engage with the issues concerning the financing of business, creation of a true single market with lowered barriers to entry and the challenge of reducing unemployment and skills leakage in the EU.
We are delighted to announce that journalist Gavin Sheridan has achieved a landmark access to information judgment in Ireland’s High Court. Mr Sheridan is a journalist and activists who runs the transparency blog TheStory.ie.
Under European Law a wide range of public bodies are obliged to make information on the environment available to the public on the basis that access to information is one of the key elements of transparent decision making in a democratic society (the other’s being public participation in decision making and access to judicial review or equivalent).
In 2010 Mr Sheridan requested access to environmental information held by Ireland’s bad bank, NAMA. NAMA refused access on the basis that it did not come within the scope of the definition of a public body under the Irish implementing regulations. The decision was appealed internally and subsequently to the Commissioner for Environmental Information who decided that NAMA was a public body and so should release environmental information. NAMA appealed this decision to the High Court of Ireland where judge Colm Mac Eochaidh today upheld the Commissioners 2011 decision.
This decision is the first judicial review of the implementation of the access to environmental information directive in Ireland and is a victory for advocates of transparency and access to information rights. NAMA does not come under Irish Freedom of Information law and although there are proposals to include it in the a draft bill, there is a strong possibility that NAMA will be offered special exemptions to cover a broad range of information that it holds.
New Morning IP managing director, Fred Logue, acted as a pro-bono consultant to Mr Sheridan during his appeal to the Information Commissioner.
The judgment is currently unavailable but we will link to it as soon as it is released.
See below for links to coverage of the decision in the Irish media
Is cloud computing going to be the next litigation battleground?
Well this presentation seems to think so.
It says that cloud has almost all the same characteristics as the mobile space where there have been intense patent litigation battles. The author analyses the market size and the number and scope of patent claims in the sector and asks us what we think?
Well we think that cloud patents are important, many massive scalable business are being built in the cloud and it is a matter of time before patent owners come looking for deals.
This is a concern for Irish companies. But you wouldn’t think it. Ireland holds itself out as one of the leading countries for cloud R&D and business yet Irish companies by and large have virtually no patents. This means that when these companies grow to be internationally significant they will face a crisis when they discover that they are infringing other patents.
In January 230 patent applications and patents were published or issued to Irish applicants at the USPTO, EPO and WIPO. We analysed these publications to get a glimpse of the type of applicant and the range of technology which is being invented by Irish based applicants. Given the benefits of foreign direct investment in Ireland a large proportion of the invention owned by Irish applicants comes from this sector and we can see clearly a range of both overseas and domestic inventions being assigned to Irish based applicants.
In summary for January 2013:
- 230 published applications or patents issued to Irish applicants through USPTO, EPO and PCT
- The top three assignees: Accenture Global Services, Skype and Zamtec
- Main technology sectors (49% of total): Medical/Veterinary Science, Computing and Electric Communication
- Third level institutions accounted for 23% of Irish invention published this month
- 38% of publications were Irish originating inventions
In our last post we looked at how data on global R&D spend and number of patent applications could lead to seemingly anomalous conclusions being drawn including that on a per capita basis Luxembourg, Barbados, Liechtenstein and Switzerland were the greatest generators of European patent applications in 2012. Or that the Cayman Islands and Bermuda were home to 30 of the world’s greatest R&D spending corporations.
We have been tracking patent filing dynamics in Ireland for some time now and have noticed that at least in terms of US, PCT and EPO over 50% of publications assigned to Irish applicants do not cite any Irish inventors.
A commentator surmised that some of the numbers are distorted due to geography or by the size of the country which may have one or two big companies. So based on the recent EPO patent league table and the comments on our last blog we decided to probe this further.
We looked at granted US patents in 2012 and counted the number of grants for a selection of countries and calculated the percentage of those grants that included at least one resident inventor.
The results of this calculation for selected countries are summarised in the graph below.
It seems to us that there is indeed an effect, industrialised countries such as the USA, Germany, the UK all have in the region of 90% of grants with locally resident countries whereas less industrialised but perhaps more “financialised” countries including Ireland have a significant portion of US patents granted to residents but invented elsewhere.
Switzerland sits somewhere in the middle since it has a highly developed industrial base but also hosts many companies established for tax optimisation purposes.
The data for Luxembourg and Liechtenstein may be somewhat distorted due to their small size and probability that many workers in these countries live in neighbouring countries. Barbados is also a special case since its output is dominated by a single well known US medical device manufacturer which brings it into the top tier of patent filers in the world.
Ireland is interesting since Irish resident inventors actually invented 40% more patents assigned to US companies than were assigned to Irish companies in 2012. A reflection of Ireland’s attractiveness for R&D focussed foreign direct investment.
Measuring R&D activity is notoriously difficult all the more so when measurement seek to quantify R&D activity along geographic lines. The reason for this is multinational corporations incorporate headquarters and subsidiaries in many countries and it is virtually impossible to assign aggregate R&D data within a large multinational to individual countries.
Two recent league tables brought this point home.
The first was the European Commission’s 2012 Industrial R&D Investment Scoreboard which places Ireland 10th amongst the 27 EU member states for R&D spend in 2012. In an Irish Times article Chris Horn pointed out some anomalies in the figures including the influence of corporate HQ migration on the numbers.
For example Ireland is home to 14 of Europe’s top 1000 R&D performing companies and 8 of the world’s top 1500. However of the 14 companies that appear in the 2012 list the top three are Seagate, Covidien and Accenture which are hardly what the public would consider to be Irish companies. And indeed these three alone account for more than 50% on the Irish R&D spend on the basis of corporate domicile. In fact 8 of the 14 companies accounting for almost two thirds of the spend are in this category.
If we take these companies out of the reckoning it is clear that Ireland moves far down the list of top R&D performing countries in the EU.
On the other hand Horn points out that R&D spend by Microsoft at its Irish operation which employs many thousands of skilled researchers is accounted for as US R&D due to Microsoft being head-quartered in the USA.
On a global scale the picture is the same with only two of the eight Irish entries being Irish originating and who account for a mere 15% of the R&D spend of Irish domiciled companies. Corporate relocations are even more apparent in other countries with the Cayman Islands and Bermuda being home to 22 and eight of the top 1500 R&D performing companies in the world.
The second league table that caught our eye is the top applicant countries in the European Patent Office in 2012. Ireland is the 26th most prolific applicant.
IAM magazine pointed out some interesting trends when the number of applications is quantified in terms of population per application. Under this measure Ireland moves to 20th among the top 50 in the world in between Canada and France in the rankings.
However we made the following observation on the blog.
If you do the exercise on the entire top 50 list and start to look at inventor residence some interesting trends emerge.
Firstly if the entire top 50 list is recategorised by population per application the top five jurisdictions are Liechtenstein, Switzerland, Luxembourg, Barbados and Finland. Interestingly the top four have quite friendly tax regimes. While one cannot draw conclusions about tax effects from this data alone there is a strong suggestion that tax does play a role in patenting dynamics around the world.
Ireland is a good example and is a jurisdiction where we track patent publications in some detail. It comes 26th by number of applications and 20th by population per application putting it between Singapore and Canada on the latter measure.
Obviously we don’t have application data for 2012 but we can look at the number of European patents granted to Irish resident applicants in 2012 and we find that of these only 45% had any Irish resident inventors. There is strong evidence based on the identity of the applicants to support the assumption that the 55% of patents with Irish resident applicant but foreign resident inventors reflect a tax driven assignment of patent ownership. If we strip this proportion out of the equation, Ireland moves back down the list to 26th with roughly 16,000 persons per application putting it between New Zealand and Cyprus.
It is clear that corporate structuring is a significant factor in many measures of R&D activity and that policymakers and commentators need to take care when quoting and using R&D statistics as a measure of the success or otherwise of incentives and other policy measures directed at innovation and R&D.