Non-linear innovation.

AuthorShur-Ofry, Michal

Contemporary intellectual property theory concentrates on the cumulative and incremental nature of innovation and creation. A prevalent image depicts authors and inventors as "standing on the shoulders of giants." This article focuses on a different type of innovation that has been largely overlooked by intellectual property theory and doctrine: innovation in the domains of science and art that breaks with convention, disputes existing paradigms, and "steps off' giants' shoulders. I term it "non-linear innovation".

Drawing on multidisciplinary research ranging from the history of science, through network analysis of radical inventions, to studies of creativity, this article illuminates an embedded socio-cultural preference for incremental and linear novelty over paradigm-changing innovation. It then inquires whether intellectual property doctrine reflects this bias and whether the intellectual property regime can better foster nonlinear innovation. The examination yields a series of counterintuitive recommendations concerning numerous patent and copyright law doctrines. More broadly, the analysis indicates that neither the "shoulders of giants" metaphor nor the opposite image of the "lone genius" adequately capture the dynamics of non-linear innovation. It further suggests that expanding intellectual property's narrative of progress to accommodate non-linear innovation, alongside cumulative innovation, could significantly contribute to the ecosystem of innovation and creation.

La theorie de propriete intellectuelle contemporaine se concentre sur le caractere cumulatif et incremental de l'innovation et de la creation. Les auteurs et inventeurs sont depeints >. Cet article se penche sur un type d'innovation neglige par la theorie et la doctrine de la propriete intellectuelle : l'innovation, en science et en art, qui deroge aux conventions, remet en question les paradigmes dominants et descend des epaules des geants. L'auteure la qualifie d'>.

A partir de travaux multidisciplinaires allant de l'histoire des sciences aux etudes de la creativite, en passant par l'analyse de reseaux, l'article met en lumiere un biais socio-culturel favorisant une conception lineaire du progres. II cherche ensuite a savoir si la doctrine en propriete intellectuelle reflete ce biais, et si la propriete intellectuelle pourrait stimuler davantage l'innovation non-lineaire. Une serie de recommandations contre-intuitives quant aux doctrines du droit des brevets et des droits d'auteurs en decoule. De fagon generate, cette analyse indique que ni la metaphore des > ni celle du > ne saisissent adequatement la dynamique de l'innovation non-lineaire. Selon notre analyse, etendre le concept de progres a l'innovation non-lineaire, sans delaisser l'innovation cumulative, pourrait contribuer significativement a l'ecosysteme d'innovation et de creation.

Introduction I. Conceptualizing Non-Linear Innovation II. The Non-Linear Innovation Bias III. Non-Linear Innovation and Intellectual Property A. Does Intellectual Property -Have a Role? B. Access 1. Fair Use in Copyright Law 2. Experimental Use in Patent Law 3. Patent Law's Disclosure Requirements C. Time 1. Droit de Suite in Copyright Law 2. Commercial Success in Patent Law D. Targeted De-Biasing Mechanisms: Identifying Non-Linear Innovations 1. Patent's Nonobviousness Threshold 2. Pioneering Inventions IV. Beyond Intellectual Property Doctrine: De-Romanticizing the Giants Conclusion Introduction

The year was 1982 when Dan Shechtman, a junior scientist in the field of materials science, discovered a quasi-periodic crystal. (1) The discovery was not merely novel; it stood in sharp contrast to the then-prevalent scientific belief that explicitly denied the existence of quasicrystals. It went against the textbooks in the field of crystallography and contested the position of the prominent scientists of the period. (2) Shechtman decided to publish his findings. In doing so, he was stepping off the shoulders of giants. And the giants responded. Shechtman was sent to re-read the textbooks and was later asked to leave his research team. (3) Linus Pauling, a two-time Nobel Laureate, famously declared that "[t]here is no such thing as quasicrystals, only quasi-scientists." (4) For many years, Shechtman was the subject of contempt and ridicule. In 2011, he won the Nobel Prize for his discovery. (5)

This article uses the story of Dan Shechtman as a starting point for exploring a broader phenomenon of non-linear innovation and its interrelations with intellectual property law. Intellectual property scholarship in recent decades has concentrated on the cumulative and incremental nature of creativity and innovation. (6) That literature frequently describes authors and inventors as "standing on the shoulders of giants"--a phrase often attributed to Isaac Newton. (7) This perception portrays progress as a linear and incremental process of puzzle-solving where each author and inventor builds upon the works and achievements of her predecessors. Indeed, the dwarfs-and-giants aphorism has become a most powerful meme not only in intellectual property discourse, but also in general culture. (8)

This prism, while undoubtedly valuable for shaping intellectual property policy, does not provide a complete and accurate picture of innovation and progress. Whereas most works and inventions are indeed linear and cumulative, there is an additional type of innovation that occurs in both cultural and scientific spheres: innovation that is not concerned with linear and incremental improvements, but with dissent and discontinuity-innovation that breaks up with convention, identifies misconceptions, or disputes existing paradigms. Such innovation "steps off' the shoulders of giants rather than stands on their shoulders. I term this type of innovation "non-linear innovation".

This article demonstrates that the notion of non-linear innovation is well recognized by various disciplines including history of science, (9) economics, (10) and socio-cultural studies of creativity. (11) Yet, despite its significance, non-linear innovation as a phenomenon has largely been overlooked by intellectual property theory. Rather, the prevailing image of innovation in contemporary intellectual property literature portrays a narrative of linear, cumulative, "shoulders of giants" progress. (12) While a handful of studies in recent years importantly highlighted several aspects of the interface between paradigm shifts and patent law, (13) there is still no systematic exploration of non-linear innovation as a socio-cultural phenomenon affecting all fields of innovation and creativity. Moreover, the implications of non-linear innovation for intellectual property's narrative of progress, and for numerous doctrines in patent and copyright law, are largely unexplored. This article seeks to fill in this void and shed light on a rather neglected area of the innovation system. Drawing on multidisciplinary research, it conceptualizes non-linear innovation and offers an analytical framework for exploring its interrelations with intellectual property theory and doctrine. The discussion illuminates common patterns in seemingly disparate areas of innovation, namely technological inventions and artistic creativity, and provides a more holistic account of our innovation ecosystem.

The analysis in this article reveals that the narrative of strictly linear progress is prevalent in broad social contexts. It further highlights a strong socio-cultural preference for incremental novelty over paradigm-changing innovations and a parallel difficulty to appreciate and absorb works and inventions that break with convention. (14) This "non-linear innovation bias" creates various obstacles for innovators wishing to step off the shoulders of giants and produces significant social costs. Based on these insights, I argue that intellectual property law, entrusted with the task of promoting progress, cannot remain oblivious to non-linear innovation. Rather, intellectual property theory should actively seek ways to facilitate it and explicitly include non-linear innovation in its narrative of progress.

This article then takes a closer look at several prominent traits of nonlinear innovations and examines their implications for various intellectual property doctrines. Such exploration yields three principal insights.

First, counterintuitively, fostering non-linear innovation does not mandate a policy of enclosure, but rather supports policies of disclosure and access to intellectual property-protected subject matter. More specifically, a system that seeks to promote non-linear innovation should be particularly concerned with providing potential innovators with access to errors, misconceptions, and additional negative knowledge. (15) Against this insight, this article examines several access-facilitating mechanisms in copyright and patent law and proposes adjustments to these tools that would facilitate non-linear types of innovation.

Second, the analysis highlights the relatively slow diffusion of nonlinear innovations in comparison to incremental innovations in professional and social networks. It then explores the implications of this trait for intellectual property doctrines that are time-sensitive, specifically copyright's doctrine of droit de suite and patent law's doctrine of commercial success. (16)

Third, relying on recent network analyses of radical inventions in economic studies, this article suggests that it is possible to identify nonlinear innovations in technological fields in a more accurate manner. It further explores how the insights emerging from network analyses can be incorporated into patent law doctrines--primarily the nonobviousness threshold and the doctrine of pioneering inventions--so as to better capture non-linear innovations. (17)

Finally, beyond specific doctrinal recommendations, the analysis demonstrates that accommodating non-linear...

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