IP and immigration: are there winners and losers?

The September 2013 issue of JIPLP is now available online. Details will be posted in a couple of days. Meanwhile, here's the guest Editorial by Neil J. Wilkof.

Is there an IP position regarding immigration? The subject of immigration has enjoyed increased visibility in light of the activity of the United States Congress to enact comprehensive legislative reform. At the time of this writing, the precise contours of the anticipated legislation are not yet settled. Still, IP has, in a background sort of way, played a significant role in providing some of the impetus for the legislation. For several years, the claim has been loudly made that the present immigration policy in the United States has limited the number of potential immigrants who can be expected to contribute to the creation of IP, this both by preventing their right to immigrate and then forcing some of those who legally have entered into the United States to leave, together with their hi-tech skills. As such, one of the goals of the legislation is to enable more IP-savvy immigrants both to enter the United States and, once having arrived, to stay without the fear that their right to remain will be revoked.

Anecdotally, it is often described how Silicon Valley is awash with hi-tech immigrants from around the globe, with particular attention to immigrants from such places as India, Israel, Taiwan and China. At the more analytical level, studies have been carried out, the results of which suggest that certain immigrant communities in the United States are disproportionately represented as named inventors of patent applications. While it is devilishly difficult to assess who exactly is an immigrant for such purposes, and hi-tech and innovation are not simply a function of patent filings, the overall impression seems to be that hi-tech savvy immigrants punch above their weight when it comes to the creation of IP. Against this backdrop, it might seem that the IP community should unabashedly be in favour of more accommodative immigration policies. However, the issue may be more nuanced than that.

For better or worse, IP is typically viewed from the national level. From that vantage, while a less restrictive immigration policy might be conducive to creating more IP in the aggregate, there will inevitably be winners and losers at the national level. Seen in this way, immigration and IP are a zero-sum game, a ‘brain drain’ whereby the immigrants' adopted country benefits from greater IP creation, while the home country is denied the inventive contributions of the émigré. Indeed, knock-on effects may result in the creation of IP increasing in a non-linear fashion in the adopted country, while declining in a non-linear fashion in the home country.

Pushing against this ‘zero-sum game’ scenario is the view that immigration may actually serve the interest of both the home and adopted countries. Research has suggested that, when a critical mass of hi-tech immigrants is reached, a diaspora effect is created. By this I mean that the immigrant does not turn her back on the home country, but rather a form of inventive symbiosis is created. Immigrants in the adopted country actively interact with their creative colleagues back home. The ease of digital communication enhances this interaction. When this happens, there is a reasonable likelihood that both the diaspora community and its home country colleagues will both be more inventively productive, leading to a win–win IP result. Indeed, this interaction may make it more likely that some of the immigrants will seek to return to their home country voluntarily. Having increased the level of inventive activity in the home country, professional opportunities at home are enhanced as well—as a ‘rising tide raises all IP boats’. This makes going home for the erstwhile immigrant not only attractive for a variety of personal and emotional reasons, but professionally enticing as well.

Of course, immigration is not the entire IP story. Take the situation of Japan, which scores at the top of most patent tables for the number of patents filed, while at the same time having low levels of immigration. Indeed, despite the robust nature of Japanese patent activity, the country's overall economy has endured a long period of substandard growth. It does not appear that Japan can be expected to embrace the kind of immigration inflows that characterize various Western countries. But for countries with more vigorous traditions of immigration, enhancing the inflow of hi-tech savvy immigrants may well be associated with increased inventive and creative IP activity.