Espacios. Vol. 34 (6) 2013. Pág. 1
Freedom To Operate (FTO) for management of new technologies: the importance of intellectual property
Libertad Para Operar (LPO) para la gestión de las nuevas tecnologias: la importancia de la propiedad intelectual
Recibido: 21-03-2013 - Aprobado: 18-06-2013
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The economy and the global society have been through a period of major transformations which modify, sometimes radically, the paradigms and the dynamics that characterize the evolution in the last 50 years. At the same time as the society continues with a liability for human development to solve, it faces new challenges – such as environmental and energy ones – and with a renewed demand related to poverty, hunger and diseases matters, which affect billions of people all over the world.
In this context of restructuring of capitalism, the sources of growth and power move from natural resources and physical capital to the domain of knowledge, which control and application are even more essential to ensure the survival of human beings and the improvement in the quality of life. In short, Science, Technology and Innovation (S,T&I), products of knowledge and information, are the main drivers of the development of economy and the contemporary society.
The boundaries of knowledge are constantly being displaced and the new Technologies are distinguished by a higher density in scientific knowledge and qualified personnel. Thereby, public and private research institutes are even more inventing in R,D&I (Research, Development and Innovation), with the dissemination of Technologies of major relevance, mainly in agriculture, in an effort to increase the competitiveness in their products, developing an important role in the increase of the diversifying of food supply and addition of value of some specific chains.
Although the controversy over the contribution of intellectual property (IP) to the increase of investments in R&D, it is admitted that intellectual property rights play a role which in many areas is indeed strategic and pro-development; when ensuring the exclusivity in processes, products and innovative services in the market, IP motivates and reduces the cost of risk investments which contribute to sustain the innovative drive that marks the dynamics of contemporary society.
The new report released by the World Intellectual Property Organization – WIPO – (november/2011), describe how intellectual property (IP) rights became essential to strategies of companies worldwide. Between 1980 and 2009, the requests for new patents increased from 800 thousand to 1,8 million, mostly because of investments in innovation and because of globalization. The document points out that many other factors that contribute to the increase of requests for intellectual property rights, such as the uptake of knowledge market, which allows companies to become experts and, as a consequence, more efficient. Another contributing factor are the complex technology industries – Telecom, software, Smartphone, tablets, among others – which work with an intense invention and innovation process in which the patent property is often disseminated.
In the evaluation of OECD - Science, Technology and Industry Scoreboard Report-, even more, innovation is seen as essential to effectively face new challenges 5. Besides helping in the recovery of growth, innovation will play a key role in the emergence of new sustainable sources of growth and competitiveness. Nevertheless, the patenting activity rate has quickly increased in economies which are not members of OECD. In average, more than 40% of OECD inventions are also protected in China. These technology flows mirror the strategic behavior of companies, location of branches and competition, and the attractiveness of emerging markets.
However, the application of these innovations depends upon intellectual property systems, which is different in developed and developing countries. In order to implement an innovation in certain country, it is necessary to search for anteriority in many intellectual property systems, in countries which have intention of commercializing this new product. In the absence of restrictions, the company has freedom to operate – FTO).
In this respect, the present article has the objective to analyze the importance of innovation to the economic development, as well as the role of intellectual property in order to guarantee these rights. In this sense, there is a need of an early analysis, by means of the mechanism of freedom to operate, in order to guarantee the intellectual property rights, holders of such Technologies. This article has four structures. This introduction is the first analysis. The second one is a quick analysis on innovation. The third analysis regards the construction of institutionality in the intellectual property field. The fourth analysis is about freedom to operate. Finally, it is presented the final considerations.
According to the biannual study Science, Technology and Industry Scoreboard held by OECD 6, in general, innovative companies match technological innovation (in products and processes) and non-technological innovation (marketing and organizational) in their strategies for conquer and/or increase market. Such verification is valid for industry and service companies 7. In this regard, it is verified that the increase of innovations is an essential condition for the economical increase and social advancement.
In this new geography of growth, the leadership of mature economies is being eroded by the international competition of new players. However, the capacity for action of governments of developed economies is limited due to some effects of the recent economic recession, particularly the high levels of unemployment and public debt. Is the evaluation made by OECD, more and more, innovation is seen as essential for effective facing these challenges. In addition to help in the recovery of growth, innovation will play a key role to the emergence of new sustainable sources of growth and competitiveness.
This report also highlights that the emergence of new actors promoted significant changes in the global scenario of research and development (R&D). The emerging economies which are not members of OECD account for an increasing share of global activity of research and development, measured in terms of number of researchers and R&D expenses. With expenses around USD 400 billion in 2008, the United States remain a leader in R&D investments. However, China already undertook Japan and occupies the second position, with expenses a tone third of the American total in purchase power parity 8.
Bell and Pavitt (1993) point out that the diffusion of ideas, knowledge and information play an important role in generating innovation. This diffusion involves more than an acquisition of machinery or product designs and the assimilation of knowledge operations; it also involves the continuous technical change by which the first innovation is adapted to specific conditions of use.
In accordance to Schumpeter (1982, 1984), innovation must be held – in a new product/service or process in order to gain strategic advantages, or in an intense process of “creative destruction”, in which a constant search for the creation of something new which simultaneously destroy old rules and establish new ones – oriented by the search of new sources of creativity. Accordind to the author: what counts is the competition for the new consumer good, new technology, new source of supply, new kind of organization – such competence does not achieve the profit and results margin, however achieve its grounds.
Thus, according to Coase (1937), the attribution and compliance of well defined intellectual property rights (IPRs) would avoid the immediate diffusion of innovations. The transformation of a public good (knowledge) into a private good (intellectual property), by granting conditions of appropriability, would generate incentives needed to its production. Under this perspective, given that in a competitive market the cost of innovation reproduction – its marginal cost – tends to be zero, the value of an innovation originates itself from its monopolization. The IPRs, such as patents and industrial designs, would be the only source of value in technological innovations, and the only way to turn them profitable (DOSI, MARENGO and PASQUINI, 2007). Hence, the protection would be the mechanism of innovation induction.
Arrow (1962, apud ANDERSEN, 2004), although he supports the argument that the only way to obtain value of intangible assets is to protect it by means of property rights, claims that such protection is inefficient in the stimulation of technological development. According to the author, even in the presence of a IP legislation, the activity of research tends to be held in suboptimal levels, by reasons related to the uncertainty and limitations in appropriability. The result of the invention is uncertain, given that the inventor is not able to estimate the risks involved in this implementation; problems of appropriability are related to the (possible) decision made by the innovator of not exploring his/her idea due to the risks involved, by not taking over the outcomes related to this idea. According to Arrow, the information can course even with legal protection, which would be only a partial barrier (ANDERSEN, 2004).
In theory, society gain many benefits from concessions of temporary monopolies to innovators, as an incentive not only to inventions, but to innovations, by assuring appropriability conditions to innovators, new knowledge on the productive system; dissemination of knowledge generated to other actors of society; indication of respect to IPRs in private sector, making the attraction of investments possible; and possibilities of incentive to technology transfer developing to countries in long term. Posner (1982, apud ANDERSEN, 2004) claims that, in a world without IPR, where everyone is free to use everybody’s ideas free of charge, the inventive activity would be biased in favor of inventions that would be kept in secret and/or inventions that would demand limited investments. Given the impossibility of recovering R&D expenses, the agents would not be stimulated to hold inventive activities. In short, the prevailing argument is that, although IPRs create inefficiencies, they are the price to be paid by the generation of new ideas and to turn these ideas public.
The changes in regional and worldwide political scenario, the advent of new technologies, the openness and higher integration of worldwide economies provoked a real revolution in intellectual property systems that complied during the 20th Century in a large number of treaties and international agreements which were consolidated during the Uruguay Round of GATT (General Agreement on Tariffs and Trade), which originated WTO (World Trade Organization). The final agreement of the Uruguay Round harmonizes and defines strict rules with respect to intellectual property, introducing a mechanism of enforcement of principles and rules until then lacking, substantiated in the TRIPs (Trade-related Aspects of Intellectual Property Rights).
This treaty stipulated deadlines so that signatory countries to get adapted to the national legislation which regulates the matter to principles and rules established in this international treaty. However, in the post-TRIPs concept, the possibility of commercial retaliation or exclusion of important negotiations in international markets had led some developing countries to approve, in the shortest time possible, new legislations on intellectual property, since improver’s rights until the production and marketing of seeds (VIEIRA & BUAINAIN, 2005). Such as Brazil, which chosen to shorten the adjustment process, while other countries, such as India, preferred to use their entire period allowed as a transition time for the full implementation of TRIPs.
Throughout history, property – and property rights – is taking many features, from its initial manifestation in early times, to all complex forms which demand specific regulations that allow the formal, legal discipline, of many kinds of appropriation of goods and values, including the ones without tangible existence.
The intellectual property system became important after the advent of “economy of knowledge”, in which it was justified the creation of mechanisms of appropriability in the form of legal rights to exclusive use of knowledge benefits (Brousseau & Rossi, 2012).
Yet the tradition reserves the word “property” to the control over things (tangible goods), concepts and use of intellectual property, industrial property, commercial property etc., had emerged in order to describe rights exercised with respect to certain tangible goods. These goods, subject to a property regime, become assets.
Conceptually, the objective of intellectual property is to promote scientific and technological progress of applied art, by granting the temporal monopoly of rights to economically explore the property, as well as to prevent the use of an invention with commercial goals without authorization of economic gains for the inventor. However, in practice, this system, yet protects in part the inventor’s rights, succumbs to a number of factors that, in fact, result in the loss of these rights (Dal Poz & Barbosa 2008).
According to the definition of the 1883 Paris Convention, intellectual property “is the set of rights that include invention inventions, utility models, industrial designs or models, trademarks, service marks, trade names and indications of source or appellations of origin, and the repression of unfair competition”. The Convention emphasizes that, although it is qualified as “industrial”, this area of Law is it not related to industrial creations themselves, however “it shall be understood in the broadest sense and shall apply not only to industry and commerce proper, but likewise to agricultural and extractive industries and to all manufactured or natural products, for example, wines, grain, tobacco leaf, fruit, cattle, minerals, mineral waters, beer, flowers, and flour” (BARBOSA, 2003).
The Article 7 of TRIPs defines the goals to be reached by the States in a common position in a schedule of commitments:
“the protection and application of protection standards for intellectual property rights must contribute for the promotion of technological innovation and for transfer and diffusion of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations”.
According to Basso (2000), the parties undertake to search “reciprocal benefits”, “social and economic well-being” and, mainly, the “balance of rights and obligations”. The acknowledgement and observance of IP rights depend on relevant social values and, particularly, on the balance among users of technological knowledge.
As we can see, the intellectual property rights were linked to the stimulation to technological innovation, becoming increasingly important with the intensification of globalization, as stimulation to development. According to Varella (2005), the social function of the property must be interpreted in a systemic manner, with constitutional precepts in order to get an interpretation for these documents.
The countries with higher scientific and technological production are more interested in IP rights, comprising many productive sectors with higher efficient and internationally valid periods of protection. Since they have a higher production, they guarantee the monopolies of exploitation and Sales exclusivity in other markets; as well as higher prices, due to the monopoly on receipt of royalties (VARELLA, 2005).
The definition of which strategy to use in order to defend intellectual property rights depends on each country. However, certain sectors such as pharmaceuticals or food are generally considered strategic sectors due to their own nature. In order to preserve international agreements, since they restrict the performance of the State, each country must create rules of intellectual property in benefit of their political decisions, accepting or not the rules of international agreements (VARELLA, 2005).
However, as considered by Di Bliasi (2005), technology is about creation, which if correctly used will enable the author to achieve the aspirations of technological innovation of well-being and progress to society. Scientists are interested in disclose their creation, experiment and scientific works through the publication in papers. The technology holder, in his/her turn, prefers to keep the invention in secret. In this scenario, patents arise – since it is fair that the inventor has the property right of his/her creation or technological innovation. However, it is also fair that the society enjoy the benefits that technological exploitation may provide.
In this set of research, many kinds of research institutes – public, private, large or small – operate with a set of equipment and inputs from all kinds and origins. These production research inputs are subject to agreements and licensing that may be neglected by researchers, especially public institutes which work with public funding, in which researchers believe they do basic research.
However, with research advancements, more and more inventors need new mechanisms for their protections, such as freedom to operate (FTO) in order to assure intellectual property rights of all material and equipment involved in the research.
The complexity of protection systems, the nuances of national legislations and international rules, the demands and cost involved in the search for protection and, mainly, the asymmetry of innovation capacity between developing countries and other countries make uncertain in which extent a protection system of intellectual property may create a proper framework and motivate the development of new innovations (VIEIRA & BUAINAIN, 2012).
According to Orsenigo (1989), “large or small-size companies, universities and public agencies in general establish complex relationship systems between them. This involves cooperation and competition, mediated or not by contractual interactions, in many kinds of hierarchic interaction”.
The challenge is to understand how intellectual property rights should be negotiated in a mutable, recursive context, in which each step of “research” or “development”, or the processes between them, as well as the roles and functions of the actors of this network are being defined and redefined. The technology demands are highly dependable on the initial outcomes of this basic research (DAL POZ, 2007).
FTO is not an evaluation of market potential for new Technologies, despite of sharing the issue if authority investigation. While this is basically “static” with respect to generate decision-making reports for the owner of an innovation, FTO is a constant feedback process, focused on the continuous administration of technology before, after and during investments and commercialization in a globalized economy context.
The main issue is the governance of contractual relations in the research productive chain with implications of monopoly rents due to patent structure. The researcher, even when is conscious of all market potential of his/her invention, is unfamiliar to this issues. The technological management of this process should reduce transaction cost, which involves reduction of cost, litigations and judicial disputes on IP rights.
This is a crucial issue to FTO: where to produce and to whom they may sell in accordance to the intellectual property laws of these countries 9. This is the macroeconomic core of the question.
When a research is held, there is a “microeconomics” applied in Project management, which involves the following steps:
Another problem that may arise is the patent investigation of ingredients linked to agreements and non-reported licenses, for any reasons, by the investigator. There is, for example, dilemmas regarding the result as faster as possible in scientific journals in accordance to “quantitative” demands of research funding agencies or to elaborate a patent requirement which may demand much time and money and, in addition, it can take some time until the requirement is granted or refused by the responsible board.
In this context, an investigation on the evolution of economics based on knowledge comprehends to demonstrate the extent of “long term contractual relations”, which generate goods and services founded on protection (patents), trade secret and in disclosing the information for public domain. This economy is, therefore, immerse in economical agents with asymmetrical information, building relations of confidence and using opportunistic actions when strategically adequate, in public or private sphere; the last one is subject to pressure of politically organized groups.
In great extent, some considerations of an economics manual Market are no longer applicable in an economy based on knowledge, which functions more as a complex network economy with multiple determinants and logics. In one hand, for productive reasons, as an involvement of tacit knowledge, which transmission involves the proximity of “apprentices” (hence the importance of partnerships with universities); On the other hand, the side of consumption: salespeople need to “teach” the consumer how to use the good or service and convince him/her of its utility and superiority over similar products (from ATM machines and computerized harvesters to manipulation of agricultural defenses). The fact is that production and consumption are nowadays strongly regulated by government for many reasons: from patent itself to environmental protection (this is a dangerous, difficult, however inevitable discussion in the extent of which turns an intangible asset with strong characteristics of public benefit into an asset of a new economic configuration).
The Project administration from FTO does not finish when the research begins and the planning is done. In fact, during the development of the project, it is made constant research in specialized media with respect to technology because the administrator of this project knows that there is a patent “run” and that the technologic prospection were not held only by his/her research group, but by other groups around the globe. This monitoring is a difficult, full of uncertainties task, however it must be conducted in order to minimize losses and to allow a constant re-evaluation of all strategies available for research groups and companies involved in the development of this new technology.
The first step to use the FTO tool is to determine the research scope, in which a preliminary search (clearance) is held in places such as: News websites, general information about technology, patent documents (the search should start from this point). After this analysis, the scope of FTO should be defined, since it is crucial to the comprehension on technology in order to delimit and select the document(s) of interest. From the core identified document, through its analysis and by searching the technology which is described in it, it is possible to identify other documents that need to be part in a technology FTO.
From this analysis, it is needed to identify and describe the main technology, in order to make the comprehension of technology easier. After its detachment, it should be analyzed: territoriality 10, scope of protection for requests because of the technology of interest (search for patents or requests for patents), proposition of action compared to bottlekecks and/or barriers identified during the process.
Companies strategically choose the countries where they intend to request patent protection for their Technologies. In many cases, technologies can be protected in main markets; however, the same technology may be of public domain in other countries, where commercialization is less probable. In this case, the owner of the patent does not ask for permission (or license) for commercialization of this product, since it is of public domain.
For instance, all Technologies related to sugarcane ethanol are being developed in many laboratories from universities and companies worldwide, taking into account their use in Brazil (the case of Sugar Booster technology, developed in the University of Queensland, Australia). The use of this technology is inevitable in Brazil, as well as the payment of royalties to Syngenta, a Swiss company (hence the hypothesis of a new conservative modernization). Bayer, in a partnership with CTC, is also developing a technology, with name not yet defined, which aims to increase the sugar concentration in%. The launch of this technology is about to be done in 2017, while Syngenta’s technology will be launched in 2019 – it is supposed to accumulate isomaltulose, a special sugar, from 10% to 50%.
Despite of many partnerships with Brazilian institutions, these multinational companies begin and base their technological features abroad. This happens mainly because of the high R&D investments made by companies.
The illustration above shows that there was a Q1 technology in the beginning of the project. However, during the development of this technology, the monitoring of FTO detected a technology which requested a patent in order to obtain precedence. The technological administration needs to make decisions such as accepting the risk of losing some independent claiming and begin negotiations for licensing, keeping the development of this technology in the search for the expected results, course of Q2 action. Or, it can deviate for another path in time for redefining the results and restructure the patent chain, expecting to avoid restrictions (freedom to operate) in the target country licensing technology already available, Q3; Or, to develop partnerships with institutions in the target country, expecting for preference of regulatory agencies and users of this possible technology in the target country Q4.
The conclusion of a FTO analyzes the information on possibility of use of technology and its territoriality, so that the company can delimitate strategies of action in the identified scenario. Thus, the company can suggest: partnerships with company(ies) or institution(s) involved; information on partnership contracts are important in the feasibility evaluation of possible partnerships; In case a non-patentable technology is being considered but not allowed, it may be evaluated the feasibility of monitoring, followed by opposition or subsidy to patent exam (EMBRAPA, 2011).
To conclude, the analysis of FTO involves a multidisciplinary knowledge and, therefore, it must involve a group of analysts with know-how on technological aspects, notions of commercial aspects of the object, as well as knowledge in intellectual property. Yet, it should be analyzed together with the document which originated it, taking into account that it is generally preceded by privilege analysis, as well as a search for patents or prospective studies. Thus, it must be considered for any diagnosis regarding a technology (EMBRAPA, 2011).
The patent system provides two important consequences of redirecting R & D: better matching technology to market conditions and the organization of information from the patent coverage as is the basis for the generation of new knowledge and innovations. Indeed, this information allows the exploration of new areas of knowledge, such as biotechnology, which in turn enables coordination between stakeholders. On the other hand, holds the information and others who can use it with their utility in innovation strategies, and business development. Brazil has been able to count on a solid base to generate new technologies in strategic areas for development.
As pointed out by Vieira Filho and Vieira (2013, p.51), knowledge has become a strategic variable of technological development, leaving only an attribute to be incorporated into products. The link between science and knowledge was considered the main asset of the global economy - called knowledge economy. At the same time, ensuring intellectual property established himself as a pillar of the institutional development of new knowledge (Avila, 2008).
And the increasingly growing number of proprietary technologies, becoming increasingly complex innovation in all areas of knowledge.
Given this scenario, it is increasingly important to plan, by searching in patent databases available, with efforts for competitiveness and development sectors. Thus, companies have the possibility to define action strategies using these instruments FTO.
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