A bad IP policy is worse than nothing.
The purpose of an IP policy is (1) to change in the defaults of law, (2) to provide clarity with regard to employment obligations, (3) to set out protocols to manage IP, (4) to identify those responsible for the policy, and (5) to establish the conditions under which the policy may be changed.
One may ask why universities need an IP policy. Everyone seems to have one, and so many of them are truly wretched things. Believe me, I’ve had to read scores of them. Various justifications or rationalizations may be made, but really, there isn’t any compelling need for university IP policy. The defaults of IP law are perfectly fine. And the drafting of anything else by university committees often makes things worse, not better.
Here are some possible justifications for IP policy. I won’t labor over them.
1) Bayh-Dole requires it. Nonsense. Bayh-Dole is self-implementing. Bayh-Dole requires a written agreement to protect the government’s interest and identification of personnel responsible for patent matters. No need for policy here.
2) Inventors can’t handle their own IP. Perhaps. But neither can most universities. Policy doesn’t change competence.
3) A policy is necessary to avoid disputes. Not really. Many disputes appear to take place because of policy, badly written or otherwise. One can have a great policy, and schmucks abusing it. Where’s the university policy prohibiting schmucks?
4) It is inappropriate for university inventors to use university facilities to develop stuff they own, like IP. Maybe. But why? And in any event, that’s a conflict of interest/use of facilities issue, not an IP issue.
5) The public cries out for university administrators to take the creative works of university researchers and sit on them for money. Well, sure. Okay. That sounds right. Can’t you hear those tiny cries? Really try.
6) An IP policy defends the faculty from the predations of administrators who think they hear the tiny cries of the public and mistake this otitis for a mandate for an IP policy. Well, no. An IP policy doesn’t defend a faculty. Without an IP policy, the faculty would have a lot more say in their own defense.
Okay, enough of that. Perhaps someone can come up with a compelling rationalization for university IP policy.