We can talk about creativity and innovation all day long, meld the culture, design the space, set up the infrastructure, and have a repeatable process for bringing ideas to market; but, the ultimate constraint and arbiter — making all other efforts useless — is the legal system.

Protecting something as intellectual property is about balancing returns to society and compensation to a creator. We want society to benefit from a creator’s creation, but enough incentive must compel creators to do their thing.

Enough being the key word and one big, gray space. If a government misses that mark of protection in either direction, society can lose out on innovation. The issue is this mark changes based on the type of intellectual property. Business methods, when protected, have a different balance of returns to society and creator, than software, and pharmaceuticals.

Not that everyone views it that way or the law treats it that way, which is why a current Supreme Court case is important to watch.

Monday, the Court heard Bilski v. Kappos, a case that brings business method patents to the forefront. Previously, the Federal Circuit ruled Bilski’s business method wasn’t patentable because it wasn’t “…tied to a particular machine or apparatus, [nor did it] transform a particular article into a different state or thing.”

Bilski is calling into question the efficacy and legitimacy of what’s called the “machine-or-transformation” test. By telling Bilski his business method wasn’t protected, the Federal Circuit may have invalidated existing patents for business methods.

But, bringing into question the machine-or-transformation test may also have implications for the software industry. At one end, since source code must be run on a machine to do anything, it could be interpreted all software is patentable.

Or, in the view of the Software Freedom Law Center, source code is simply an algorithm we can comprehend, and algorithms themselves aren’t patentable.

Additionally, there are economic arguments that creativity and innovation in software just doesn’t really work that way. Allowing patenting of software led to significant societal inefficiencies like patent thickets, bloated legal departments, patent trolls, and risk-averse companies—all wasting money and limiting innovation.

Just thinking about business methods, does having a legal-based incentive to come up with a new way of doing business increase the rate of new business creation or improve the quality of innovation?

Without the protection, does the effect of essentially forcing businesses to compete on other aspects (really, compete at all), rather than just on who did it first, outweigh what we would gain from preserving/expanding business method patents?

(Of course, this is the economic view, and potentially only figures into a portion of court decision making.)

Leaving the issue of software aside, the Justices showed quite some skepticism of Bilski’s claims yesterday:

“Let’s take training horses,” said Justice Antonin Scalia. “Don’t you think that some people, horse whisperers or others, had some … insights into the best way to train horses? Why didn’t anybody patent those things?”

“I think our economy was based on industrial processes,” responded [Bilski's lawyer].

“It was based on horses, for Pete’s sake!” said Scalia.  “I would really have thought somebody would have patented that.”
(Joe Mullins Reports in American Lawyer)

It’s predictable, but still interesting to see who lines up on each side, or who actively doesn’t choose a side in the amicus briefs.

For a longer treatment on the economics of innovation, check out this book.

Hopefully, many of you are aware of a project Matthew Muñoz and I have undertaken with Leslie Boney — www.changepapers.org. In a recent post, one of our readers posted this quote from Machiavelli:

“One should bear in mind that there is nothing more difficult to execute, nor more dubious of success, nor more dangerous to administer than to introduce a new system of things: for he who introduces it has all those who profit from the old system as his enemies, and he has only lukewarm allies in all those who might profit from the new system. (more…)

When I first entered the corporate world five years ago after nearly twenty years of running my own business, I was definitely a fish out of water. As a direct report to the CEO, I participated in many of the most important conversations taking place in the company. Being a designer, I often had points of view rather different from the other executives sitting around the table. Sometimes, after offering such a point, I would find them looking at me like I was insane.

The last two days I’ve posted blogs based on articles in recent editions of MITSloan Management Review and the Harvard Business Review. I thought I would share a sample of the best quotes from these magazines— today I’ll focus on HBR (JULY/AUG 2009); tomorrow I’ll look at the MITSloan. While these thoughts and research-based ideas may be new to the business world, they are not to the design world.

The Big Shift— Measuring the Forces of Change

“One of the easiest but most powerful ways firms can achieve the performance improvements promised by technology is to jettison management’s distinction between “creative talent” and the rest of the organization. All workers can continually improve the performance by engaging in creative problems solving, often by connecting with peers inside and outside the firm.”

from HBR; July/Aug 2009; “Leadership in the New World”

“An executive team on its own can’t find the best solutions. But leadership can generate more leadership deep in the organization.”

“Embrace disequilibrium— keeping people in a state that creates enough discomfort to induce change, but not so much that they fight, flee, or freeze.”

from HBR; July/Aug 2009; “Strategy in the New World: The 10 Trends You Have to Watch”

“Corporate leaders need to demonstrate to civil society that they understand popular and political concerns related to executive compensation, risk management, board oversight, and the treatment of employees facing layoffs.”

Management models “need to incorporate more-realistic version of human behavior— most likely by drawing on behavior economics, becoming more dynamic, and integrating real-world feedback— and… business leaders need to get better at using them.”

Regulation in the New World: Government in Your Business

“The changes afoot have been on the horizon for some time, thanks to long-term trends such as deepening public distrust of business.”

Shareholders First? Not So Fast…

“Why should past labor (capital) receive so much preference over current labor (employees)?”

“Consider that there are literally scores of recent studies showing the gains in profitability and productivity that companies have made— not by putting investors’ interests first but by implementing high-commitment work practices. These include investing in training, decentralizing decision making, and having pay contingent on organizational, not just individual, performance. Other sources show the benefits companies reap from customer loyalty and high levels of customer satisfaction.”

[DB NOTE: I was struck by the use of "high-commitment" rather that "accountability" in the paragraph above. Machine parts need to be "accountable" but innovative organizations thrive via deep personal commitment. Fodder for a future blog]

Restoring America’s Competitiveness

“Corporate management must overhaul its practices and governance structures so the no longer exaggerate the payoffs and discount the dangers of outsourcing production and cutting investments in R&D.”

“Stop blaming Wall Street for short-term behavior… When companies promise to increase returns quarter after quarter, that’s what Wall Street expects. But when they articulate a credible long-term strategy and demonstrate a capacity to execute that strategy, the capital markets have given them the necessary room to achieve it.”

“Managers would serve their companies more wisely by recognizing that informed judgment is a better guide to making such decisions than an analytical model loaded with arbitrary assumptions. There is no way to take the guesswork out of the process.

“Only be rejuvenating its innovative capabilities can America return to a path of sustainable growth.”

Sane or insane? You decide. More tomorrow…

Famed social ecologist and the “father of modern management,” Peter Drucker once advised that the only purpose of a business is to create customers. That type of thinking lead companies to conduct marketing research, determine who their customers are and what their customer want to hear. They created positioning platforms, messaging, advertising— the whole nine yards— in an effort to create customers. For the second half of the 20th century, that model kicked ass. At least for the advertising and marketing firms who did it well. Or could convince their clients they did it well.

Today’s world is different. Duh. Customers are in control. They don’t believe authoritative voices. They don’t trust their messages. They no longer trust the media such companies employ. They don’t have to; they now connect to more authentic voices that they trust via the internet and other social media. It’s second nature.

The broad and rapidly growing consumer preference for networked media means that traditional advertising is now suspect.  The media of advertising comes with an underlying meaning— an agreed upon contract that the advertiser may bullshit you if that helps them make a sale.  That’s the meaning. We all know it. The medium is the message.

So what’s a company to do? Branding is about building credibility. About establishing and scaling your reputation. So, why use social or networked media— such trendy media— to build brand?

Networked media isn’t important because it’s trendy. It’s important because it creates customer-driven innovation. It creates brand evangelists. It can help build a collaborative internal culture and engaged work force. It demands authenticity— especially in the form of customer experience.

So can Twitter really save brands that don’t provide good experiences? That’s the question asked by Fast Company blogger Rupa Chaturvedi, who cautions companies against relying on social media to influence customer behavior when the brand doesn’t live up to the hype they’re trying to create.

These networks can be a highly effective way to build your brand externally. But there’s a catch. It only works when the messages are true. You know they’re true when they’re open. And transparent. And valuable. You know they’re successful when the network grows organically.

But Twitter, Facebook, etc. are the media. They are not the strategy. The strategy is community building. Community building is the ‘new’ marketing.