Do Patents Encourage or Stifle Innovation?

What to do when you can’t use someone else’s intellectual property.

Published in

Frameplay

6 min readJan 23, 2018

If you check out my GoodReads profile, you’ll see I’ve read a LOT about different approaches to building successful products and businesses, and tried many of them in my time as a product strategist, intrapreneur and manager of innovation.

One area of particular interest is Jobs to be Done. This is a very powerful lens to approach all aspects of making and launching successful products, from innovation and design to product management and marketing.

Tony Ulwick from Strategyn holds a number of patents related to innovation. He’s registered Outcome-Driven Innovation®, an 84-step “strategy and innovation process that ties customer-defined metrics to the ‘job-to-be-done’, making innovation measurable and predictable.”

Some folks in the Jobs to be Done community have expressed strong disdain for these patents. (Although these are all by Alan, I assume others hold this view)

Patents exist to protect intellectual property. In this case, Tony and his team have spent decades working on an incredibly robust process and want to be compensated for their work.

By patenting this process, Strategyn can share case studies of their successes and select details about what they’ve uncovered, but still benefit from their initial development efforts. If there were no patent in place, would we have any insight into what they were doing, or would the rest of us be completely in the dark?

Absent protection for intellectual property, ODI may be a black box process. Companies hire Strategyn and products come out. Instead, we get glimpses into what they’re doing, which helps the whole industry advance their thinking about innovation and customer needs.

Are Patents “Fair”?

I’m a consultant who helps companies design and market new products. I’ve read several of Tony’s books, and the case studies shared about his successes make the process compelling. I could probably find some clients who’d be interested in it. Is it unfair that I can’t sell his intellectual property to my clients?

Is Open Source An Option?

We see a lot of open source work in the software community, but it’s not a viable business strategy. Someone, somewhere, needs to be seeing a return on their investment.

This is not greed. Developing something without a line of sight on eventual returns is a pastime, not a business.

From “How IP-Protected Innovation is Driving Economic Growth:”

Over the past 50 years, IP has grown from a narrowly specialized legal field into a major force in American social and economic life mainly because of the increased importance and appreciation for the value of IP by companies and their investors, according to Marino. Silicon Valley, for example, is all about the expertise of its tech workforce, which is why most leading tech companies in the world have major operations in Silicon Valley. A large portion of the market cap of [leading tech] companies can be directly attributed to intangible — or in other words intellectual property — assets. IP law is the primary tool used to protect the value of that innovation, and as we see from countries without meaningful IP laws there is simply no way to protect innovation absent a strong intellectual property system.

Patents Actually Encourage Innovation

Scarcity is a known driver of innovation. If something is valuable but not readily available to all, efforts will be made to compensate. By Strategyn saying “not every consultant can just use our process”, others are forced to develop competing approaches.

In so doing, the community directly benefits. Strategyn promotes an 85% success rate; can someone else see higher results? Strategyn is basically the mamma bird pushing squawking babies out of the nest: go, do better. Learn to fly on your own!

Let Results Speak for Themselves

There are exactly two reasons someone would argue against the Strategyn patents.

One is that ODI doesn’t work. The other is that it does.

Argument 1: ODI doesn’t work

If Outcome-Driven Innovation® doesn’t work, then clients will find this out and stop working with Strategyn. Other approaches to innovation will be recognized as superior. Clients will choose the best provider to maximize their likelihood of success.

Argument 2: ODI works

If Outcome-Driven Innovation® does work, but some consultants are not able to practice it, then the onus is on those consultants to develop a better way. Either ODI or another approach to innovation will be recognized as superior. Clients will choose the best provider to maximize their likelihood of success.

Either way, clients will benefit from access to strong processes.

The developers of such processes will benefit. This obviously incentivizes innovation and the development of intellectual property.

If someone sees these patents as being unfair, they’re not thinking about what’s best for clients and innovation. They’re not thinking about how to encourage the development of superior innovation processes. They’re thinking about how they can’t ride the wave of someone else’s hard work.

Besides, let’s be honest, very few of us are lamenting the fact we can’t go out and build our own Commercial investment analysis (US 8543442 B2):

“A technique for performing commercial venture analysis involves establishing an empirically-derived structure and evaluating companies using analytical techniques within that structure. The technique may involve defining jobs, or goals a customer is attempting to reach, with dozens or even hundreds of outcomes. Ideally, the structure and tools facilitate analysis that would not be possible otherwise. Moreover, the nature of the system enables real-time input for changing conditions and the ability to calculate returns for new markets in which products or services do not exist.”

Do Patent-Holders Inhibit Advancements?

One criticism voiced above is that “Is honest debate even possible w/ someone who holds patents on the topic? Won’t they always try to bend things to fit their patent?”

Think again about what a patent is. According to the US Patent Office, it’s ‘the right to exclude others from making, using, offering for sale, or selling the invention in the United States.’

Once you’re holding a patent on something, why is there any expectation you’ll engage in debate over your own intellectual property?

By the way, though, here are some of the patents held by Strategyn:

Notice something here? There’s no patent on Jobs to be Done. Rather, the patents are around a process to develop commercially-successful innovations. So claiming that these patents limit discussions around Jobs to be Done is foolish. Rather, they protect a process with a reported 86% success rate.

A patent protects an inventor from others attempting to benefit financially from their work. It doesn’t protect an inventor from competitors developing alternative (superior) processes.

Developing an alternative to ODI isn’t about ‘evolving Jobs to be Done Theory’. It’s about developing an alternative process. Another way to consistently create winning products that help customers get Jobs Done better or cheaper.

Patents stimulate innovation. They allow inventors to share limited information about their creations, which advances the community, while rewarding them for their initial investment and efforts. If someone feels stifled by the existence of a patent, they are free to develop a superior competitive offering, which also benefits the market as a whole.

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Andrea Hill is the principal consultant at Frameplay. Frameplay is an innovation consultancy that helps companies become more customer-focused and thrive in a rapidly changing world. Learn more at frameplay.co