"Tweakers" and "Pioneers" in the World of Innovation

DESCRIPTIONSuzy Allman for The New York Times

Kal Raustiala, a professor at UCLA Law School and the UCLA International Institute, and?Chris Sprigman, a professor at the University of Virginia Law School, are?experts in?counterfeiting and intellectual property. They have been?guest-blogging for us about copyright issues. Today, they write about the roles of “tweakers” and “pioneers” in the innovation world.

Who’s the True Innovator? Pioneers and Tweakers Among Football Coaches
By Kal Raustiala and Chris Sprigman


In our last post, we discussed football as an example of creativity without copyright.? Football coaches dream up new plays and formations without protection from intellectual property law. And their rivals, predictably, freely copy them.? Football nonetheless remains the most consistently innovative American sport.

In this post, we use football to think about another aspect of innovation. Innovators, like innovations, come in many varieties.? Some innovators create radically new ideas.? These people – the Thomas Edisons of the world – are the kind that we most commonly associate with innovation.? Let’s call them “Pioneers.”

But the Pioneers aren’t alone.? There are many innovators who improve ideas by refining what others have done.? We call these “Tweakers.” Tweakers don’t get as much attention as Pioneers.? In particular, IP law is focused mostly on the interests of Pioneers, and treats Tweakers as an afterthought.? We think this might be a mistake. Here’s why.

Football is full of both Pioneers and Tweakers.? Let’s take as an example the spread offense. The origins of the spread are disputed, but most observers agree that the principal Pioneer was Darrel “Mouse” Davis, the 1970s-era coach of the Portland State Vikings.? In the years since Davis pioneered the spread, it has proliferated like kudzu.? And – most importantly – it has been repeatedly tweaked by others.

Tweakers like Mike Leach, the former head coach at Texas Tech, took the spread and oriented it further toward aerial attack – Leach’s spread offense was built around great wide receivers and threw on virtually every down.? The result was an offense that led the NCAA in passing yardage for four straight seasons.? Leach also tweaked the spread by speeding it up (his Texas Tech Red Raiders ran an average of 90 plays per game versus about 70 for an ordinary team) and spreading out not just the wide receivers, but also the linemen. Rich Rodriquez, formerly head coach at West Virginia and now at Michigan, is another Tweaker.? Rodriguez moved the spread back toward a more balanced attack – i.e., mixing runs with passing.? And he did so by mashing up the spread with an older offensive system, the triple option, to create his signature “spread-option.”

There are dozens of similar examples. So what does football tells us about the big picture of Pioneers and Tweakers?? Clearly, Pioneers provide big insights that improve the game.? But Tweakers diversify and improve upon what the Pioneers create – often with great success.? And, importantly, by pushing foundational offensive innovations to their limits, Tweakers open up the next round of basic innovations.? So both Pioneers and Tweakers are essential to sustained innovative change.

Let’s turn back now to legal rules – specifically, to patent and copyright.? How good a job does IP law do at creating an environment where both Pioneers and Tweakers can thrive?? The answer, unfortunately, is that both patent and copyright come up wanting.

Patent law is ambivalent about tweaking.? On the one hand, it allows Tweakers to gain rights in their improvements to others’ inventions.? So if you invent a patentable machine, and I come up with a new and useful tweak, you can get a patent on the machine and I can get one on the tweak.? I can’t sell my tweaked version of your machine, because doing so would violate your patent rights on the machine.? But you can’t use my tweak without violating my patent rights.? The patent law expects that you and I will get together and make a deal to deploy the improved machine.

So far, so good.? But there’s a catch.? A patentholder owns exclusive rights to make, use and sell his or her patented technology.? When you invent your new machine and patent it, you are the only one authorized to make, use or sell it.? If I want to tweak it, often I’ll have to use it to understand better how it works, or even make an entirely new one. I don’t have the right to do this, and you may be reluctant to give me those rights if you don’t want me to tweak.

There used to be a broad exception for “experimental use” – in many instances, Tweakers were permitted to do their work without fear of liability.? But that ended in a case called Madey v. Duke University. The court in that case found Duke liable when Duke continued to use Madey’s patented laser for research purposes after Madey had left the university.? Previously, courts had held that researchers were free to use patented technologies for basic scientific research that was not directly aimed at commercial use. Madey narrowed this exception significantly – any use that was motivated by more than “mere curiosity,” and that could lead eventually to a commercial use, was now out of bounds.

This change is a bad idea from a Tweaker’s point of view, and moreover puts patent law at war with itself.? On the one hand, patent law grants rights to Tweakers who make an improvement.? But on the other hand, it makes it hard for Tweakers to make that improvement in the first place.

In our next post, we’ll talk more about how copyright law treats the Pioneer-Tweaker divide. (Preview: even worse.) The key point here is that in many endeavors, Tweakers innovate significantly, can really improve an interesting but unrefined innovation, and can also illuminate the path for the next Pioneer. But far too often, IP rights stymie this sort of tweaking in favor of the work of Pioneers. Certainly, Pioneers like Mouse Davis made the spread offense possible. But just imagine how stale football might be today had the original spread not been so successfully tweaked by Leach, Rodriguez, and many others.


BenK

intellectual property law is meant to protect the vulnerable. tweakers take something good, make reliable improvements, and get reliable awards. pioneers engage in hail mary's and need some protection so that the tweakers are forced to acknowlege and reward that initial risk.

Do we do it right, now? Heck no. IP is definitely broken. But the concept of protecting pioneers and letting optimizers fend for themselves is not necessarily a bad one.

Drill-Baby-Drill Drill Team

There is a term of EVOLUTIONARY PROGRESS( Small, Slow Deliberate Incremental Steps) and REVOLUTIONARY PROGRESS (Rapid Acute Big Change) There is a role for both.

Revolutions can be dead ends and have low success rates, but when they succeed, they are game changing. An example would be the steam engine, the first internal combustion car, the Wright Flyer, or the telephone.

Evolution relies on small steps in progress. Like the automotive industry and the new fall models and the constant improvement in the personal computer industry and now Smart phones.

Lone inventors are more associated with Revolutions, such as Darwin, Einstein and Newton. Also the govenment can spur Revolution in technology like the Internet, GPS and satellite weather. But there are a lot of Revolutionary dead ends like the Jet Backpack, Room Temperature Fusion, and Lava lamp.

Evolution can be the model of whole industries as they race to innovate over decades like the automobile industry.

We should invest in both, like diversifying a portfolio. --- Why won't anyone invest in my Time Machine Concept based on Giant Atomic Clocks?

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SpreadOffense.com

Interesting article as it relates to the evolution (pioneers and tweakers) of the spread offense, I actually posted an article on what I called the 'Long Tail Of The Spread Offense', see it at: http://www.spreadoffense.com/ssp/news?news_id=49

Eric M. Jones

It is tempting to separate innovation into two camps, Tweakers and Innovators; but there are certainly infinite variations of both--and they overlap.

Patents called, "Improvements in..." are the vast majority. Truly revolutionary patents are more rare. Many turn out to be just showmanship when the earlier predecessors are studied.

The Wright Flying Machine patent of 1906 (Google it), was for an aircraft that was controllable in three axes. It was not the first airplane. So you could call this either "Tweaking" or "Revolutionary". Their flying machine borrowed extensively from others' ideas.

The Wright's relative failure (note that everything on an airplane has a French name), was that they believed the legal system would ensure their place in industry and history. Reality ran them over. By the time they had spent all their money on lawsuits, they were old-history in aviation.

"Ideas are in the air...I just pick them." --Edison

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Joseph K

Patent law definitely encourages the pioneers and discourages the tweakers, and raises the question of whether patent law, on balance, does more to encourage innovation or not. Since tweaks far outnumber real pioneering innovations and patent law discourages tweaks it seems like a lot of innovation is lost due to patent law. The question is whether this lost innovation is more than compensated by the encouragement of pioneering innovations. I'm skeptical. Should we scrap the whole thing and try no patents? I guess that depends on whether we can tweak the patent law so that we can maximize the benefit of both. I'm not confident that we can find that right balance in practice. It seems way too complex, something that would be different from industry to industry, and constantly changing due to new innovations.

science minded

Hello from the Rockies- so where does my work fall? Somewhere in between these extremes perhaps or a bit of both or in between.

William R

I believe it is important to point out the inherent difference in the NFL and the real world. One is truly a zero-sum game and the other is not. In an environment that is not zero-sum, free-riding is much more likely because there are more than two outcomes. Also, I believe the costs of innovation are quite low in the NFL and tend to occur by realizing something during normal prep work and practice, while in the real world, they are often quite high, years of expensive R&D.

buck

why doesn't Philly start both Kolb and Vick? do NFL rule prohibit in some quarky way?

1) Imagine have two QB in shot gun. one lefty one righty
2) has anyone ever tried having the QB in shot gun where the punter ususally stands? with new nfl rules protecting the WR that should really open the field. (with a althletic qb and a RB with good hands, speed and vision as the safety dump)

DMS

I'm with Eric M. Jones. The car like the airplane did NOT come full-blown from the lab of a genius but was the slow accretion of technical brilliance and business acumen.

The pioneer and tweaker dichotomy is just another manifestation of hero worship -- the John Gault lone genius pioneer versus the antlike tweakers.

Curious to hear what the professors suggest.

TBallgame

What about the exhaustion doctrine? The sale of the patented good allows the buyer to experiment with the good ad nauseum and exhausts the control of the patent holder over the good. Why can't the tweakers of the world buy the patented good from the pioneers and then set about tweaking?

Nick

I think that all types of formations in the game of football like for tweakers or pioneers in some of the related posts are acceptable, because anything should be used for the different types of colleges or teams not included. The spread and that stuff are just to trick the other teams for some mixed varieties of passes and runs.

Greg

One (of many) things you missed is that the patent system not only encourages innovation it forces innovation. If you have a product, you MUST innovate or others will get patents that improve your product. This is a good thing. It forces companies to continue to innovate.

Along this same line of reasoning, one way to view the problems the patent system has had lately is that the lawyers got ahead of some of the companies. The NPE's or non-practicing entities got patents for innovations ahead of the companies that make the products.

One reaction to this can be to destroy the patent system, a more productive response to this is for the companies to adapt and out innovate the NPE's so they can't get patents.

The second option is what is happening now.

Paul F. Morgan

This article states that: "There used to be a broad exception for "experimental use" - in many instances, Tweakers were permitted to do their work without fear of liability. But that ended in a case called Madey v. Duke University."
This is repeating an academically-popular "scare story" which overstates the effect of this holding, on very unusual facts, of this one rare Federal Circuit panel decision.
It would indeed be "Freakonomics" for any normal, rational, patent owner to spend millions of dollar on patent suits with no opportunity to recover any significant money, as would be the case for almost any patent suit against mere researchers.
Also, as another comment notes, anyone can buy and freely take apart to evaluate for possible improvements most sold products, unless they have contracted not to.

Eric Scheuerlein

The exhaustion doctrine will only work once the company is actually producing and selling products that comprise the patented invention. At the cutting edge of research this will not suffice.
I agree with the authors that the experimental use exception is absolutely necessary to promote the progress of science and the useful arts in the United States. However, I do not agree that Madey v. Duke forecloses the existence of the exception in US law.
A critical distinction that is being glossed over is the difference between "experimenting on" and "experimenting with". The laser in Madey v. Duke was a research tool. If Duke had been experimenting with the laser for purposes of developing a better laser or improving the laser itself the case would have come out quite differently.

Allen Yu

I agree with Eric M. Jones.

The semantics of pioneers and improvers is an oversimplification. Most of reality is a combination of both.

If we go back to the spread offense analogy, who is to say Davis really invented spread offense as we understand it today?

One might say: when Davis invented the "spread offense analogy" - he only had a limited understanding of what he created. It took other giants to make things work and expand to what we understand to be spread offense today.

One might call that tweaking, but it can equally be called pioneering.

In patents, a pioneer might invent a "broad" idea - but without work by follow-on innovators, that "broad" idea is but a plan, a research agenda...

Also remember if innovation is 1% inspiration, 99% perspiration - and if the copycatters only copy inventions that have been shown to work (if copycatters make inventions that have not been shown to work work, they would be considered innovators, not copycatters), then why do we protect "inspiration" not "perspiration"? The work of both can be copied...

This is why I don't like the semantics of pioneers vs. improvers. Sure, not all inventions are created equal: some inventions are more important than others, some deserve more protection than others. But the line to be drawn is based on the contribution to the field - not pioneers vs. improvers.

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SBW

We humans are all tweakers.

We all stand on the shoulders of those before us, and no human being ever created something from nothing.

True, some tweaks are larger than others.

But all tweaks are worthy of reward: the patent system will protect the tweak, and the market will decide the amount of reward for the tweak.