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"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.