How the Grudging Farmer Really Feels About the Hens

Here is an entirely typical start to a university IP policy.  I have picked it almost at random.  I don’t have any particular agenda with the school involved.  This sort of reading can be done with most any university’s IP policy.   Let’s take a look, sentence by sentence.

Our text consists of three sentences of Preamble and goes thus:

As a state-supported institution of higher learning, the University of Arkansas has a responsibility for and an interest in the advancement of knowledge and creative work that will enhance its educational mission and promote the economic and social welfare of the public it serves, particularly the people of the State of Arkansas. This responsibility and interest are advanced by engaging in research, the results of which may, on occasion, have commercial applications which are patentable or copyrightable. While Inventions and copyrightable works are not the primary objectives of University Research, when they occur the University has the responsibility of insuring that such Inventions and Works are used and controlled in a manner that benefits the public, the Inventor or Author and the University to the fullest extent possible.

It rather flows along.  The first sentence connects “advancement of knowledge and creative work” with “educational mission and economic and social welfare” and limits this connection to “the public served” by the university, and particularly people of Arkansas.    What does this mean?   Let’s try to unpack it.

We note that things come in pairs:  “responsibility for” and “interest in”; “knowledge” and “creative work”; “educational mission” and “welfare of the public”.  We have both  “economic” welfare and “social” welfare;  advancement that will “enhance” and “promote”.   When we get pairs like this, we may ask, are these pairs just flowery language to add diversity to a sentence?  Are they specific areas of interest that limit focus, from everything possible, to just these matters?  Are they general areas that may overlap, identified to give the gist of the subject without attempting any particular precision? Are they words drawn from something of a high administrative style to establish a high theme?   Or do they aim to balance one thing the public might desire with another that administrators might desire, so that something may be true in each case of a pair, even if it may not be both?  Let’s drill down.

Consider:  of all the forms of welfare a public may have, why only economic and social welfare?  Are these different things?  That is, separate and distinct?  One might think not.  One would think that economic welfare would be a subset of social welfare.  Or is it that economic welfare means people are making money from patents and copyrights, while social welfare means people are buying new products that help them with their lives.  One might take this further to mean, administrators and companies making money when the public buys stuff it wants.  That would cover both elements of the pair nicely.

But what about other forms of welfare?  Physical welfare (safety)?  Spiritual welfare (imagination, duty, sense of belonging)?   We don’t have much to go on. It may be that “economic” welfare is specially called out, being the less expected term, because the policy theme will turn to making money from licensing patent rights, and “economic” welfare marks out not quite prosperity but rather, with some delicacy, licensing income.   We might see in “promote” also the idea of marketing “promotion” or perhaps “participate in the economic activity in the state and so promote university interests, which are taken to be on behalf of the welfare of the people of the state.”   But we don’t actually have this.  We just have this somewhat enigmatic statement of responsibility and interest.

A similar thing can be inferred from the pair “responsibility” and “interest”.   Here, “interest” likely doesn’t mean a duty of curiosity or emotional support.  It suggests “financial interest” or “administratively controlling interest”.   Certainly, nothing else in the policy suggests that the university as a state-supported institution gets an imaginative high out of seeing way-cool things faculty come up with in their research.  No, it’s not likely that kind of interest. It’s rather more of the form that the university’s administrators are made to take on a responsibility to assert an economic or controlling interest in patents and copyrights to promote administratively desired outcomes.

We can push this further.  What is at stake here is whether the administratively desired outcomes match with the outcomes that others might desire.  That is, does the policy mandate that administrators come to understand what innovators need and align their activities and resources–their interests–with these needs, or do administrators have somewhat different interests than others, and the point of the policy is to mandate that innovators need to conform to the administrative view of things?  It’s rather a fundamental point, and there is no way here to figure out which is meant.  For all that, neither may be meant–nothing of the sort may be meant–it’s just an accident of the words.   There is, however, nothing in the policy to indicate that any of the subject matter is uncertain, open to changing conditions, diverse relative to different circumstances, or the subject of continuing dialog among all those involved.  Instead we find a confident tone, spanning state funding, advancement of knowledge, public benefit, responsibilities.  It would appear that the policy has as a goal, even, forestalling any such dialog.  It is perfectly normal to connect these things, the things themselves are settled, and the policy states a mandate.  Even that statement takes a rather fundamental stance with regard to innovation–that university innovation, at least, is a settled thing that a written policy can address in general terms and with particular guidance, down to setting a royalty schedule that fairly divides proceeds before anyone knows what has been invented, and under what circumstances.

If one wanted something that went the other way, one might expect something of the form:  “New knowledge and creative works tend to disrupt even the best laid plans of administrators, especially in state-funded institutions like ours.  Therefore, it is the policy of the University that administrators with authority over the allocation of institutional resources will use their best judgment in consultation with the public to advance the interests of inventors and authors in the University community when these inventors and authors make their discoveries, inventions, and creative works known to the University.  In this way, the University best serves the public interest, and in particular the people of the State.”  Something like that.

Returning to the policy we have, however, we might rephrase the first sentence with a more direct interpretation:

….The University… has a responsibility for and an interest in….
The University asserts a right to administrative control of….

…the advancement of knowledge and creative work….
…marketing and monetizing patents and copyrights…

…that will enhance its educational mission…
...that will generate supplementary income for the university through licensing…

…and promote the economic and social welfare…
…as companies make money and sell products that people want…

…of the public it serves, particularly the people of the State….
…especially when the companies and products are in-state.

From this, one might take away that the thrust of the first sentence is university control of IP, with supporting knowledgeable and creative folk for the benefit of all as a premise rather than a goal.   The statement of responsibility is subordinated to standing as a state-supported institution (“As a state-supported institution…”).  The suggestion is, the responsibility might not be this way but for the state support.  Do private universities not have such a responsibility for advancement of knowledge and creative work?  Or is it that the origin of their responsibility is in something else, such as a charter?   That is, the implicit claim here is that the state mandates this responsibility.  It is not chosen by the faculty of the university.  It is not requested by the people of the state.  Rather, it is a duty arising from the payment of taxpayer funds.   One might find it odd to connect taxes, knowledge, and creativity in this manner, but there it is.

Let’s continue.  The second sentence builds on the first by repeating “responsibility and interest” but now with a twist, since “advancing” is used again, but not with regard to knowledge and creative work but rather with regard to responsibility and interest.  That is, “engaging in research” advances the responsibility and interest of the University in advancing knowledge and creative work that enhances “mission” and promotes “welfare”.    There is no indication who engages in research–whether that is faculty, staff, and students, or the university as a corporate entity or commissioning party.   Perhaps it does not matter, since the interest of the second sentence is not in who does the research, but in “commercial applications” that are patentable or copyrightable.  We will leave aside that things haven’t been “copyrightable” in the US since 1989 (they either are or aren’t–there is no registration process necessary to claim a potential copyright) when the US joined the Berne Convention.  Instead, let’s look at the logic:  research results may have commercial applications for which IP ownership may be claimed.  It is not the results, here, that are patentable, but rather the application of the results.

This is a nuance worth contemplating.  By engaging in research, the University advances its responsibility and interest in advancing knowledge and creative work that enhance its mission and promote welfare.  The University’s research produces results.   The results may have commercial applications, and it is these applications of the results, not the results themselves, for which the IP interest is raised.  Perhaps however, this reading is too close for the purpose of the text.   The burden of the sentence perhaps is no more than that research sometimes results in stuff that has commercial applications that can be owned. How this stuff relates to the theme of “advancement of knowledge and creative work” is not at all clear.  Perhaps the writers imagined some analog with the Constitution’s interest in promoting progress in science and the useful arts.  Here, however, the effort is to drill down to patents and copyrights, which brings us to our next sentence.

The third sentence uses a leading subordinate clause and a main assertion.  Let’s look at each in turn.  The subordinate clause is that inventions and copyrightable works are not the primary objectives of the University’s research.   This is a remarkable thought.  First, it makes no sense.  Invention and works of authorship one would expect are at the heart of university research.  Invention means that a problem has been solved in an unexpected, non-obvious way.  That’s what research is all about.  Not all research, but certainly a whole bunch of it–finding cures, designing new sensors, all that is about invention.   More than that, however, is that every scholarly article produced at the university is a work of authorship and as such carries a copyright.   The clause argues that a primary objective of research is not to publish an account of the results!  What then *is* the primary objective of research, if not to solve problems and publish results?

We note as well the lack of parallelism.  “Inventions” is capitalized, while “copyrightable works” is not.  “Inventions” carries no adjective, such as “patentable” while works is restricted by “copyrightable”.   One might expect that what the sentence is struggling toward, like a high school introductory paragraph in a 5-paragraph theme, is that of all the things that may matter in the world, patents and copyrights are the topic of the policy and are connected to important things to be got to shortly in the rest of the policy.   That might be fine, as far as it goes, and certainly true enough–which would be a big step from the clause we have in front of us, which is not true at all, and in addition looks a bit sloppy and out of date.

The import of the sentence as a whole drives after two quite different things.  The first is that patents and copyrights are not of primary interest in research (if this is actually what is meant by “Inventions and copyrightable works”, and which might be true–that most research is not directed at obtaining patents or copyrights), but that this lack of primary objective should not prevent the University from taking an interest in them.   Even if patents and copyrights are a minor theme of research, they are still important.   Patents and copyrights (or even inventions and works of authorship) have no particular importance in the university.  This is the implicit claim.  It is backed up by the drafting of the first sentence, which does much the same thing.  There in the middle is “the advancement of knowledge and creative work”, and one would think, this is good stuff, this is what it is all about.  But no, the mandate of state support is not this, it is the part only that “enhances its educational mission and promotes the economic and social welfare of the public” the University serves.  That is, take all the knowledge and creative work you want, but the only stuff that state funding cares about, that the University therefore cares about, is money-making stuff that benefits people in-state.

It’s a preposterous implied vision, backed into through restrictive and subordinate clauses.  It is not making the case that patents and copyrights are legitimate objectives of research, to be used to advance knowledge and creative work for the benefit of the public.  It is making just the opposite case, that these are things that the university grudgingly has to look to, to sully itself with issues pertaining to the commercial world, out of a sense of duty arising from state funding.  Even these dull things might also have some bit of worthiness.  It really is quite the empty statement.  Is it written out of a loathing for the subject?   Or does it evidence a lack of appreciation for the role of IP in innovation?  or the role of intangible assets, generally, in connecting and enhancing research (and instruction, and public service) in the broader community?

We are not done.  The independent clause of this sentence takes up what the University must do with these side things–inventions and works–when they arise.    In this, the policy obligates the University to a challenging task, stated again as a duty, a responsibility (rather than, say, a desire, a hope, an opportunity).  This duty is one of “insuring”.  That is, the role is that of enforcing an outcome, not being, necessarily, the primary agent to carry things forward, but to “insure” outcomes based on “use” and “control”.    The policy does not care to reveal at this point who uses and controls these inventions and works.  The verbs are in the passive.   But whoever is doing it, the University’s role is to insure the doing of it is beneficial.

For these outcomes, three classes of beneficiary are named:  “the public” (and presumably, particularly the people of the state); “the Inventor or Author” (stated in the singular, demarcating an expectation that university inventions and works are made individually and not collaboratively–when the evidence is overwhelmingly for collaboration); and  “the University” (which refers to the institution, not its members, as established in the first sentence).   Multiple things are going on here.   First, these categories are put forward as separate.  The Inventor or Author is not a member of the public served by the University, and also is not, for the purpose of the policy, a member of the University to be serving the public.  Right up front, the Inventor or Author is isolated from the fundamental responsibility that the policy has already established for the University–taking care of its educational mission and money-making interests in the state.   The point of the policy appears to be:  the University intends to take the patents and copyrights of Inventors and Authors, since these are not of primary importance to the Inventors and Authors, and use these for the University’s money-making purposes.

This main clause has two additional features that make it interesting.  Neither appears necessary to the import of the sentence.   First “in a manner”.  In typical copy-editing, one challenges stuff like this.  Why not just make it “used and controlled to benefit the public…”?  Better, why not make the verbs active:  “…the University has the responsibility of insuring that Inventors and Authors use and control their Inventions and Works to benefit the public…”?  Or, er, perhaps it is “…the University has the responsibility of insuring that Administrators use and control such Inventions and  Works to benefit the public…”?   That would be an interesting statement, that the University (perhaps in its collective wisdom) intends to hold Administrators accountable for their claims on new knowledge and creative works.  But no.  We will never know for sure.  It appears, however, that given the policy later claims ownership of simply everything “capable of legal protection” (see B.4 and B.6) the import is for the University to insure an outcome without any consideration as to who is held accountable for that outcome.  Thus, we get to “in a manner”.  The use and control admit of various forms of activity, some beneficial and some not.  The University policy is boldly to select from these forms of activity the uses and control that are beneficial.   This, alone, is utterly bland.  When co-joined with the second throwaway phrase, “to the fullest extent possible,” we catch the full import of the thought.  The aim of the policy is not merely that inventions and works of authorship provide benefits, but that these benefits must be distributed among the public, the Inventor or Author, and the University, and the “manner” that is mandated is one that does this “to the fullest extent possible.”   One could not,therefore, aim to benefit the public under this policy, if doing so might harm the interest of the University or the Inventor or Author.  The preamble requires some form of balance or sharing.

This separation of interests is remarkable.  The manner that the University has responsibility for must include all three, and not only that, to the fullest extent.  (We will deal with “possible” next).  The “manner” is not a throwaway term.  It is essential to the policy.  It may be the most critical word in the preamble.  It makes the rest of the policy necessary and reasonable.  The manner of use and control that is mandated is one preoccupied with distributing benefits, not creating them.  The fact of benefits, that driver one might accept along the lines that university folk want to do good not evil, is actually subordinate to the manner of distributing benefits.  That is, the university must insure that whatever use and control arise, it must also benefit.  Next sentence on in the policy, we see that the University intends expressly that its benefit be monetary “funds accruing to the University from commercial applications of University Research”.   The “manner” of the policy is one that makes money for the University, and as much (“the fullest extent”) as possible.  Whatever the methods used by administrators in claiming ownership of anything “capable of legal protection”, the broadest stated purpose of the policy appears to be a mandate to conduct IP administration to make money for the University.  It meets its obligation to the Inventor or Author by sharing this money, and to the public in unstated ways, perhaps by granting private opportunities for commercial exploitation through licensing of patents and copyrights.

Finally, the tail: the “possible” in “the fullest extent possible.”  What does this possible add to the gesture?  The benefit split among these categories is to be no half-hearted effort, but one of “full extent”.   Surely we are not asked to imagine full extents to be of both the possible and impossible kinds, and in some state of uncertainty the policy guides us toward the ones that are possible.  We may expect something else is at work.   Let’s ask it another way:  fullest extent possible for whom?  The ” possible” refers back, ultimately, to the capability of the agent that fills in for the passive verbs “are used” and “are controlled”.  It is this agent that uses and controls to achieve benefit, and it is this agent that the University asserts responsibility for insuring the actions of.

If the agent is an Administrator, the sentence reads:  “Though not a top priority for faculty, Administrators are mandated to take ownership of patents and copyrights where they believe they can make money from licensing, but only to the extent they are able to.”  That is, in “the fullest extent possible” the “possible” lets the Administrators off the hook.  They can take ownership of anything, but it’s not up to the public, or the Inventor or Author, to decide what the fullest extent of their mandate might be.  That would be a pretty self-serving sentence, if drafted by administrators, and quite the kind-hearted gesture, if drafted by the faculty.

What if the agent is the Inventor or Author?  Then the “possible” would apply to what they were capable of doing.  In the case of this policy, it is not much, because they can only do things with patents and copyrights when the University releases its ownership claims on these.  Then the sentence might read:  “Though not a top priority for faculty generally, Administrators are to provide Inventors and Authors with access to University resources so that they may use and control their Inventions and Works and thereby benefit the public, themselves, and the University to the fullest extent possible.”

What if the agent is “the public”?  What if the public could do things–possible things–that Administrators or Inventors or Authors can not do?  What if the sentence is to read:  “Though not a top priority for faculty, the public is invited to propose to the University uses and controls they, members of the public, may place on inventions and works of authorship to achieve benefits as fully consistent with their expectations as possible.”

At each point, because this is a University policy and not one drafted by the public or by inventors and authors, the University plays a central role.  That is understandable.  If one reads through the policy that follows, one gets the usual claim of ownership, committee to oversee, release for works of independent scholarship but not if in sponsored research, and the typical, all-encompassing bathtub of all possible things that could be included under the term “Invention”.  It has to have that capital “I” to hold everything that is listed!

We have worked through only three sentences in a preamble to a typical university patent and copyright policy.  If one reads these sentences with any particular attention, they make almost no sense whatsoever.  If one knows anything about intellectual property, they look poorly drafted, even sloppy, throwing around capitalized words that are defined later but here are made to carry general meaning.  In one place “works” is not capitalized, but when it appears next in the same sentence, it is.  While the claim is made that research results of merit are patentable, when we get to the definition of Invention in B.4, patentability has little to do with it.  When we get to E.3, we see that commercial application is not the only thing.  The University can merely decide to “protect” an Invention, and that is sufficient in “its sole discretion” to refuse any request for waiver of its policy.

If one tries to read the policy for its application to innovation, we don’t get very far either. We see a responsibility pinned on the fact of state funding rather than on the merits of pursuing innovation.  We see that inventions and creative works are only interesting for their potential to make money for the university and its licensees.  We see that faculty don’t really care about inventions and creative works, so the University has to step in and force the issue.  And we see a mandate that when the University does step in, it insists on doing things with a sharp separation between the public, its own interests, and those of Inventors and Authors, who, essentially, are treated as non-entities but for their obligations to report and assign Inventions, and to take a share of the money earned from their patents and copyrights.  It is not a pretty picture.

If one wants a pretty picture, it is necessary not to read the preamble, but to skim it lightly, listening to the flow of the words, but not expecting anything literal to be intended.  Something of a gesture, like listening to elevator music, but more firm and controlling, like a Sousa march, but not as well pointed as all that.

The upshot is that the preamble does not communicate in the sense of each sentence having a coherent meaning, building on the previous one.  It does no preambling of that sort, but rather works to establish a kind of foreshadowing that the University claims ownership, it has a responsibility to do this, it’s not anything faculty want or the University wants, but it is compelled to do, and when it takes ownership, it will try to benefit itself, creative folk, and the public if it can, but there are no promises.

In a way, that’s a plain statement of what the policy does, and what a typical university technology transfer practice is all about: make the case that faculty don’t know what they are doing with IP and can’t be trusted with it, take ownership, rationalize that based on the implicit claim that if left to themselves, faculty would exploit their IP and give nothing back to the university, and the public would be harmed in some way.  It is the University that aims to benefit the public with the inventions and works of its faculty, through the agency of administrators.   In that, it’s a fair preamble, and read as this sort of gesture, though meaning next to nothing literally, it does manage to get across the intention of the policy.

Now, what if the preamble came out and said these things directly?  Wouldn’t that be something!  At least, then, we could have a discussion whether a policy is worth having when premised on a grudging claim of responsibility, determined to treat inventors and authors as hens in a chicken coop, popping out eggs, handing the egg work over to administrators, and making a gesture to split proceeds with the hens in exchange for their coop-eration.

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2 Responses to How the Grudging Farmer Really Feels About the Hens

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