Stable patent law underpins aerospace progress.

Aerospace engineering is not just a glamorous branch of engineering and technology, it is also one of the most intellectually demanding on innovative talent and a prolific source of cutting edge technologies. They must therefore be protected by intellectual property rights (IPR) especially those that embody high scientific intellectual content with potential for commercial application in ultra-high-valued products. Ideally, at the university level, imparting knowledge on IPR should therefore be part of any aircraft design curriculum. It usually is not. This paper introduces a historical perspective and provides examples of how new technologies in the past were advanced, their IPR protected and fought when patents were alleged to have been infringed. The intent is to encourage aerospace departments in universities to include IPR as a core component in their design courses.

Key words: aircraft design, intellectual property rights, patent litigation, history of aircraft design.

1. Introduction

Intellectual property rights (IPR) underpin today’s global economy. It is therefore necessary for those in R&D, S&T, and business management to be knowledgeable in IPR, understand their relevance to the business of their company or institution, and determine when it is cost-effective to invest in and protect an IP portfolio.

Engineers are agents of cultural change. Creating designs and new inventions are core activities of the engineering profession. Inventions and designs, made in the context of socio-economic activity, frequently give rise to great economic value. This paper highlights the need for protecting that economic value when it is warranted.

In the 1960s, nothing perhaps underscored the remarkable breadth of human ingenuity in developing technology than accomplishing the safe landing and walking on the Moon by two U.S. astronauts, Neil Armstrong and Buzz Aldrin, on 20 July 1969 and their subsequent safe return to Earth on 24 July 1969 with the event being broadcast live on TV to a global audience. In Adam Smith’s days (1723-1790) such a feat was possible only in science fiction, fairy tales and mythology.

Since late 1980, technology has advanced at a phenomenal pace and expanded on an unprecedented scale. Advances in automation, electronics, plastics, communications, biotechnology, super-conductivity, nanotechnology, and more have fundamentally changed society including the goals, ambitions, and lifestyles of the masses. Today, trillions of dollars, millions of jobs, and economic and geopolitical power flow from the exploitation of technologies with deep roots in science rather than from raw materials and smoke belching factories.

Future technologies will be even more breath-taking given the R&D strides already made in biotechnology (stem cell manipulations, synthetic DNA, rapid DNA sequencing, etc.), nanotechnology (carbon nanotubes, graphene, etc.), super-fast switching of quantum light sources, cloud computing, data analytics, efficient conversion of solar energy to electricity, and so on. The source of economic prosperity is no longer the brawn but the brain.

It is now evident that highly industrialized nations became so not because of science alone but because they also assiduously built the “vital underlying institutions of property rights, scientific enquiry, and capital markets.” Over time, these factors have become encoded in their culture and broke their chains of poverty. The industrial stage emphatically showed that recovery from disaster, such as World Wars, is faster and surer when property rights are guaranteed. In the post-industrial economy, manufacturing has steadily lost ground to knowledge-intensive services, which require lesser land and labour but need huge capital investment and a very talented, university educated workforce grounded in science-rooted innovative technologies that can support global markets.

The average-skilled workforce in the service sector is scalable due to its natural ability to self-learn, learn by association with others in the community or be trained in large groups. It is the continuous need for highly skilled people in the knowledge services that is not easily scalable—it requires world-class research universities to maintain the quality of this workforce, which, in turn, must continuously stay on a learning curve to be competitive. Finally, the post-industrial society, whose potential for growth appears to be even higher than ever, requires an informed citizenry, versatile policy makers, and undoubtedly, new forms of government.

In the post-industrial society, economic growth depends on its ability to create knowledge and efficiently use it to produce marketable products and services. The industrial economy dealt with mainly physical stuff – chemicals, steel, minerals, etc. The knowledge worker of that age, though important, was more focused on what the future could be than the immediate present. That is, the temporal (time) gap between scientific discovery and its application in industry was large; today that gap has greatly shrunk, especially in aerospace, nanotechnology, and biotechnology.

Physical stuff is subject to the laws of scarcity; prices of material goods depend on demand and supply. Knowledge on the other hand increases and is embellished as education spreads, and the sharing of knowledge spreads it further; knowledge catalyses new ideas. There is no ceiling on new ideas, and modern-day communications permit global seeding of ideas instantly.

“Necessity is the mother of invention” no longer dominates industrial growth; invention-driven necessity does. Obvious examples include the mobile telephone, the credit card, the Internet, and the Windows computer operating system—each became widespread enough to become a daily necessity. These facts have accelerated the creation of innovative, marketable and desirable products that in turn drive the global economy. Economic growth is now limited only by the availability of innovators.

2. Ideas are not physical

There are important differences between physical property and intellectual property. Physical properties have well-defined boundaries; a physical property owned by one cannot occupy the same space as that of another. Protection of physical property depends on this fundamental fact. Intellectual property is derived from ideas that occur and reside in human minds. The acquisition (by legal or illegal means) and use of one person’s idea by another does not alter the amount or availability of the idea to the former. In fact, the latter may even enhance and embellish the idea further without trespassing. Indeed, most new ideas are built upon old ideas, frequently in unpredictable ways. The ethereal nature of ideas, the fact that they do not occupy physical space, and that different people may have overlapping ideas, requires a different set of rules to decide ownership of intellectual property and means of protecting that ownership from those of a physical property. Ownership of ideas is far less easily protected.

A related question immediately arises – which intellectual property should belong to the public domain and which to the private and for what duration and with what levels of protection against infringement. Law makers, jurists, knowledge producers, and economists continue to struggle with these questions, since the answers they choose will decide how the interests of innovators and of the beneficiaries of their inventions are balanced. For example, inventors from developing countries are more likely to improve upon already patented inventions. They will therefore face the problem of cumulative innovation, i.e., how the new contributions are dependent on and intermingle with earlier innovations. This becomes important in litigation because multiple inventors may try to claim common territories, while patent law apparently presupposes clear boundaries among the inventions. Such contentious issues often lead to expensive and lengthy litigation.

Intellectual property is a nation’s new treasure. To protect and increase it, a nation must provide IPR protection to novel and non-obvious inventions, to works of art and literature, to distinguishing marks that indicate the source of a product or service, to new varieties of plants, to new industrial designs and layout-designs of integrated circuits. Patents, in particular, form the backbone of the global economy. The fact that developed nations with their towering research universities, R&D labs, pools of innovators, and mega corporations have already established a natural monopoly in building massive IP portfolios has placed lesser developed nations at a disadvantage substantial enough to antagonise them towards patent monopolies. Such disadvantaged nations not only lack inventors but also lack expertise to make informed IPR policy and develop enforcement capacity. Their current inferior IPR assets and their inability to compete in such assets in the near future makes them wonder if the aggressive IPR protection regime being thrust upon them by developed nations is indeed a conspiracy hatched by these nations to use IPR to subjugate and exploit them in perpetuity. The political debate must, therefore, be sensitive to such perceptions and seek an equitable balance that allows the widest possible availability of advanced technologies for useful economic exploitation and generation of economic activity, creation of advanced knowledge, and training of future work-forces.