There are some assumptions of university technology administration that are worth making visible. These include:
- It is better to get an invention disclosure early than later
- It is better to use a patent monopoly than other approaches
- It is better for a university to own inventions than not
- It is better to license exclusively than non-exclusively
- It is better to license than to waive or assign
- It is better to treat software like an invention than the other way around
- It is better to have rules and principles than not
- It is better to pre-state the royalty sharing than to negotiate
- It is better to have a take-it-or-leave-it standard license than to negotiate
- It is better to rely on administrators than on inventors
These sorts of assumptions are part of the package that university technology licensing offices are seeking to install uniformly across the country. From an administrative perspective, what is there not to like? what doesn’t have a great rationale? Who could possibly want an administrative practice without rules, say? That would be nonsense, wouldn’t it? How could an inventor know as much as a skilled, trained administrative professional?
From the perspective of research, science, and innovation, however, it’s hard to like any of those “better” things. No innovation but that it moves through administrative hands, following processes and systems, working monopoly practices, to make money on a pre-set formula. Invest the resources to make and sell product. On the face of it, it doesn’t sound like much of a way to go about things. Companies have a huge problem with this sort of thinking. On the one hand, it makes everything look orderly, planned, proper, consistent with company “values” and “core strengths”. On the other, companies find all they can do with these sorts of programs is incremental “innovation” to save some costs or improve an existing product. For everything else, they have to create skunk works or spin outs or do acquisitions to get to things that are truly different.
When a university implements a rule-bound program of innovation, it is setting up “just like a company”. The more it goes this direction, the more it locks down discovery and invention to its own institutional practices. Of course, a university licensing office is a special kind of company, in that it aims to be an expert in everything, capable of managing inventions from the medical center, chemical engineering, music, and computer science without missing a beat. That’s because the common element is the patent, not the research use, the industry, the market, or the deployment model. Reason instead from the patent to the license to money, and it’s all the same, all the time.
These assumptions are also mutually reinforcing. If you take one, then it’s a lot easier to take a bunch of them. If one believes it is right and proper for a university to own faculty inventions, then it’s also easy to say that patents should be filed to secure that ownership, and if folks are going to spend money on patents, then something has to be done to monetize the rights so that expense is recovered. Once you have this cluster of assumptions, then, it’s really difficult to unseat them. They are a syndrome, a kind of psychological tangle of rationalizations. To get at them, one has to relax a whole lot of them at once, and at the same time introduce alternatives that are not their presumed antagonists.
This is an important point. The antagonist of getting to an invention early would appear to be getting to it late. But that’s just a superficial antagonist. It’s easy to pick that one, because as an alternative, it makes it look like getting there early, promptly, is the better thing. But there are other antagonists, such as getting someone else there early, or getting to something other than an invention early, or not getting to inventions at all, or having inventions get to you because they choose you rather than you them. The problem with the set of assumptions above is not merely the desire for institutional controls and making these sound fluffy and fair, but rather the nature of the alternatives. To relax the assumptions means also to identify different alternatives to the ones that are posited to justify the assumptions as “better”.
What happens, though, if one pulls the plug on these assumptions? For the university practitioner, it’s like life ends, all good things cease, and the sky falls away to darkness. It is the end of everything. If a licensing office cannot demand ownership, cannot license exclusively, cannot seek royalties, then how can it stay in existence?! And if it is an unqualified public good that there be a technology licensing office, then it has to stay in existence! Therefore, it has to have these things to survive! They are basic.
Anyone will tell you: you have to have an IP policy that makes ownership claims, you have to have employment agreements that require assignment, you have to have a patent budget so you can file applications, and you have to have business-savvy people who can nail exclusive licenses. That is, you have to have these things once you have already bought into the idea that you have to have a technology licensing office, that licensing is the way to do things, that this licensing has to be done by the university, and that if it is to be done at all, it ought to be done exclusively and to make money.
It’s a narrow path, but repeated often it appears to be the best, clearest, safest, most established, and popular way to do it. But all of these adjectives are illusions. Rather than fooled by randomness, folks are fine being fooled by consensus.
When one starts to break down the assumptions, to break apart the dichotomies between the desired thing and its putative adversarial thing, the world becomes full of uncertainties, of unknowns, of competing claims, of events that are not controlled centrally. An office with set rules makes order out of all this. How could one manage without an office with set rules? Indeed, the question might be, why does one presume to “manage” innovation? Why should anyone think that the first order of business when someone has had an epiphanic moment is to insert that moment into an office to bring administrative order to it, so it looks like a few hundred other such moments, to be treated according to rules that are so very important, such as properly filling out a paper form, completing an invention triage form, registering the invention in a database, notifying the government or other sponsor of the invention, ensuring that a committee of who knows who meets within sixty days to futz over the paper to decide if money can be made, er, whether the invention has “commercial value”, obtaining assignments of rights, and the like. These are acts of “process”. They make sense of unknowns and uncertainties.
If we get down to it, we get a rather different set of rationales for the syndrome–that these are the rules so don’t question them, or some decision had to be made, and this is what it is, so get with the program, or, for our management system to work, we have to transform the activity to meet the limitations and expectations of our management system. None of this bodes well for innovation.
I have yet to see any argument, let alone a persuasive one, that the best thing for research innovation is that at the earliest time, it fall into the hands of bureaucrats. But to get past this argument, one has to go after the syndrome of assumptions.