American history predicts SIPO innovation

This week it is important to bring up a book review I did not write.

Patently-O had a patent quote from 1895, and last week IP Dragon posted about how Chinese policy is reducing the restrictions on skilled workers. Both reminded me of my time as a reviewer for the Journal of the Patent and Trademark Office Society.

The most interesting book which just missed Journal inclusion was "Trade Secrets: Intellectual Piracy and the Origins of American Industrial Power" by Doron S. Ben-Atar, history professor at Fordham University. Professor Ben-Atar presented rare and remarkable narratives about the intersection of individual and IP rights at the time of America's formation; however he calibrated his work in the modern context of misappropriation, and centrally posited that American industrial power was born, essentially, of IP theft.

A pitch perfect review was later published by Harvard Business School here.

The book details many 18th century European nations having strict anti-emigration laws for skilled artisans, as a method of protecting native technology. This led to global patent regimes where, regardless of inventor, the first to file a patent application in an individual country would be granted the patent rights in that country. So a successful invention in Germany could be patented in France by anyone aware of the German patent.

America realized that by granting inventors the right to their inventions only if they invented the claimed invention would make them attractive to "real" innovators. If an inventor is willing to risk life and limb, indeed breaking local laws in leaving their home country to seek a better existence, why would they go to a country where there is a chance that someone else may have already patented their core technology?

It can be easily argued that contrary to the "TS" thesis, America grew their industrial power by having a strong and innovative IP scheme, with few restrictions on inventors and allowing them protections in a global first to invent system.

So how does this relate to China? As they move toward strengthening their IP rights and encouraging technology development, they have limited the restrictions placed on Chinese employees with access to "critical trade secrets". They have made non-competition agreements include limiting "duration to two years, geographic scope to a reasonable area and the employer must pay compensation to the employee during the period that the non-competition restriction is in effect." These provisions seem far more inventor/entrepreneur friendly than any I have encountered.

On the face of it, this may discourage some investment. However, it also prevents a company from labeling merely confidential information as "critical trade secret" and allows skilled employees greater freedom to diffuse throughout China.

If the early American pattern actually holds true, I would expect some interesting IP innovations to come out of SIPO in the next few years.