Institutional IP Baksheesh

Here is perhaps the worst conceived and written paragraph in University of Washington policy history.   Seven sentences without the hope of connecting their subject and verbs into a coherent expression.  Read, enjoy.  I’ll work through the finer points in a bit, but this is something to be savored.  This is best read aloud to someone, slowly, clearly, so the full import of each attempt at an idea can be fully appreciated.

Involvement with commercial enterprise also offers the potential for conflicts of interest and commitment, for inhibition of free exchange of information, and for interference with the employee’s primary allegiance to the University and its teaching, research, and public service missions. However, such involvement may also enhance both the individual employee’s and the institution’s commitment to their shared missions. This commitment on the part of an employee is an essential element of the institutional ethos of the modern research university and is complemented by a recognition on the part of the University that any rewards that may accrue to the University as a result of an employee’s research efforts should be shared with the employee. Complementary essential elements of the University’s commitment to encouraging appropriate technology transfer are the protection of the University’s integrity and primary goals of education and open inquiry, and the management of potential conflicts of interest. Careful attention to avoiding such conflicts ultimately serves the interests of both the employee and the University. Toward this end, this section prescribes a disclosure and approval process for involvements with commercial enterprise deeper than usual professional affiliations or outside consulting. The policy recognizes the need for flexibility and the difficulty of anticipating all situations that may arise by leaving discretion to an employee’s supervisor to interpret the policy and evaluate the activity proposed in the context of the unit in question.

For context, this is the second paragraph in the Introduction to a policy labeled “Involvement with Commercial Enterprise, Deeper than Consulting” tagged onto the end of Executive Order 57.  The gesture is supposed to be that there are actually four kinds of professional work.  There’s the work you do for the University.  In a company, this would be assigned, but in the University there’s (1) assigned work, such as teaching and committee work, and there’s chosen work, which is what one chooses by way of research and public service.  There is also (2) service work, which is outside professional work, but it’s “complementary” to University work and therefore, although it’s clearly professional work for other organizations, it isn’t “outside consulting”, even though it clearly is, and may be for compensation.

These involvements are most appropriately characterized as University and community service and are complementary to University responsibilities. Such activities are not considered outside consulting and prior approval is not required.

That’s from Executive Order 57, Section 5.  Then we have (3) outside consulting, which is a kind of work with for-profit companies, and with nonprofits and the government outside of service work, and (4) “deeper involvement than consulting” with for-profit companies.   There’s no actual discussion in Executive Order 57 about what constitutes “consulting” and oddly enough, in Section 6, there’s really nothing that sets out something as “deeper involvement” though there are lists that indicate when there’s to be “a more in-depth review”.

I have to chuckle, that “deeper involvement” requires a “deeper” review.   Why is that?  You serve as the CEO of a startup company (a “deeper” involvement).  What “deeper” information does one need?   Clearly, the emphasis of a review processes is not that it is “in-depth” but that it involves the question of whether any conflicts can be satisfactorily managed.  It is the management of the conflict (if there is one), not the review, that requires attention to detail.  A policy that merely states that one should pry deeper into the details can actually create more difficult conflict of interest situations by papering over the responsibilities in the supervisory chain that approves.  With approval comes the same relief from further oversight as with refusal of the request.

For a clearer treatment of activities requiring differing degrees of review, see the University of California Academic Personnel Manual 025. Here, however, we have this gem of Washington prose to sort out.   The concepts at play–“official duties,” “outside consulting,” “for remuneration”–derive from a general state law directed initially at state agency purchasing officers, and then for some reason expanded to all employees of the state, causing a general abstracting, done badly, of obligations, with a multiplying of hacks and exceptions to try to make the whole thing still make any sense.  The burden of the state law is to prohibit gifts that influence state government activities–decisions, actions, not acting–you know, baksheesh, bribes, pay to play, and to limit other forms of economic interest from others that could have the appearance of changing official duties toward those personal benefits.   The legislature, of course, exempted itself from the law altogether.  The judiciary complained and was exempted as well.  The universities were asleep at the wheel, and here we are in a strange dimly lit city that’s not on the map.

There’s nothing about a law about “Ethics” written by bureaucrats to like.  The University of California has perhaps the most egregiously unethical statement in an ethics policy, admonishing employees that the ethics policy is supreme, and it is unethical under the policy to do anything for “a ‘higher’ purpose”.  Work that one through your Kolhberg levels.

With the Washington conflict of interest policy, we find the University opting out of the state law for faculty and certain other employees, creating its own policy statement, but then importing much of the baggage of the state law that was so ill-suited to the university, and adding more hacks and exceptions rather than starting with a university-native development of policy premised on the importance of a faculty free by design to pursue their own work as a public service.  It is not their work itself that is the public service so much as the freedom by which they are allowed to pursue it with the resources of the university.  It’s this freedom that makes them a faculty and not merely a gaggle of employees assigned to teach or do research.  It’s this freedom, combined with public service, that differentiates their “own” work from that of government agency employees.

The concepts in play in importing a policy that makes a clean distinction between “official duties” and “outside work” fails the university for its faculty.  A university purchasing officer, or research contracts officer, or intellectual property licensing officer will find the state law pretty clear.  One might think, for these people, and for the people they report to, the state law, in all its tangled mess, works as well as it can, so don’t spend any time creating something new that ought to have all the same features (but, say, working adequately).    The Washington policy, however, adopts the same framework as the state did, and ends up creating an even deeper hell for faculty in the process.

Rather than recognize that “official duties” for faculty would focus on such things as teaching and curriculum, where it might be bad to take money from a company to add a course exercise that featured the company’s product, or from a publisher and therefore require the publisher’s $175 textbook–rather than this sort of thing, instead we get a general purpose worry about “outside” activity, failing to acknowledge that most of the faculty work outside of “official duties” is “what faculty do” and is neither inside nor outside, directed by or claimable by or for the benefit of the University.  The faculty do not do their work so that the University can own and dispose of their work “in the public interest” (meaning, so that the University can make money to offset shortfalls in other funding, and by making money, this is “in the public interest”).  No, the faculty do their work *for themselves* and doing so *is in the public interest* just as it is *in the public interest* that they do their work without *state controls* that would dictate what they can study, who they can work with, what they can publish, and how what they discover can be used.

This, anyway, is how I come at why a university is not like a corporation at all, and furthermore is not like a state government.  Where a state government seeks to control its workers with all the power of pent-up, repressed autocracy, a university gains nothing by doing this to its faculty.  And yet, this is just what it is doing when it implements a grasping intellectual property policy, and then stacks an “ethics policy” created for purity-in-autocracy on top of it, making it not only a problem, but also “unethical” not to have a primary “allegiance” to the Employer.   The implied relationships here are miles apart.  In the one, faculty do their thing, and are known for what they do, and being known is itself a great self-stabilizing thing, so that earning tenure meant, being known in such a way that folks have confidence that continuing to be known in such a way will be a huge motivation and guide for future work.  Now of course, tenure doesn’t mean that at all, and has other meanings, more ceremonial and practical.  In the other, faculty serve management.  They are Employed, they are the labor, and it is management, with its “higher” perspective and vision, that drives the University bus to the fields, sallies the laborers into the fields, receives the harvest, and ensures there’s enough pay for the laborers to work again the next day.  It is a world where the greatest public benefit comes by keeping wages sufficiently low that there’s money to pay administrators most handsomely.  While for faculty it may be a matter of public service, for administrators it is a matter of public status.

What does this excursion have to do with Executive Order 57?  If a university paid its faculty well, it would not have nearly the worry that they would need supplemental income from consulting.  Further, if a university built a faculty-native conflict of interest policy, starting with the idea of faculty freedom, then things would be much simpler and clearer and much more readily administrated.   Instead, a university with a policy like Executive Order 57 teaches the public that faculty work for the University, have a status no different than a DMV clerk or a purchasing agent, and that therefore any “intellectual property” they create is necessarily and properly “the University’s.”  To act to preclude the University from receiving the “intellectual property” that it is due is therefore asserted to be unethical.  Any personal benefit in holding such “intellectual property” is likewise unethical.  The work product, the IP, the value of the expertise is the University’s, to be disposed of as “the University” decides, following its delegations of administrative authority for contracting and receiving money.  Even having the chance to create “valuable” intellectual property positions and declining to do so is unethical, because this is value that the University could have licensed for money to further its public mission.   There is a deep pattern in this.  For some of you, perhaps this resonates.  (For the rest of you, don’t be alarmed, the deep pattern is in that stuff, too–and worth contemplating, regardless of the vector by which it is conveyed).

The importation of a state ethics law framework (which still applies generally to various categories of staff, via Executive Order 32, where the opt-out to Order 57 is in Section 1.B and Administrative Policy Statement 47.3, which applies to professional staff, such as technology transfer officers), its reapplication to faculty, the pushing of it around to try to make it fit, leads rather naturally to a rationalizing paradigm of management and orderly labor, entirely at odds with faculty initiative at the cutting edges and highest levels of practice coordinated by governance.  It also leads to the worst paragraph in University of Washington policy.

Let’s break it down, bit by bit, and see if after digestion there is anything useful that’s not toxic.  Here’s the first paragraph, for context:

There are times when a University employee’s involvement with commercial enterprise may exceed the usual consulting relationships developed as a part of normal duties or in professional affiliations, and thus may not be covered by the Outside Professional Work Policy or by the University’s Patent, Invention, and Copyright Policy (Executive Order No. 36). The likelihood of such involvement has increased as the potential to develop commercial enterprises to market university research-based technology has increased. The University recognizes that such involvement can be and has been of significant benefit to the University, the employee, the commercial entity, and the general public, and encourages appropriate technology transfer.

This first paragraph also has its problems, but for our purposes here, it’s enough that the gestures are noted–there can be “involvement” with companies as part of normal duties and in service settings, that the “likelihood” (a sort of sampling metaphor) of “such involvement” (meaning, not the ordinary such involvement, but rather other such involvement) has “increased” because (so the paragraph claims) the “potential” to start companies around “university research-based technology” has “increased”.    In all these likelihoods and increases of potentials, the University declares that everyone can benefit, not the least the University itself, and therefore encourages (wait for it) “appropriate technology transfer”.

Now I have no idea why the likelihoods and potentials for “deeper involvement” should be so focused on startups around “research-based technology” (whatever “research-based” means), nor why of all the possible relationships one might have with companies, it would all come down to “technology transfer” rather than, say technical guidance, development of new ideas, or the healthy circulation of practice knowledge into and out of the University.   Like Popeye, it is what it is, and the seven sentences that follow form something of an anthem to this encouragement though with a strange twist.  I will work through each sentence, putting bold items for comment.  Later I may try to set this up as a set of links to pages, but for now, it’s more Popeye.

Involvement with commercial enterprise also offers the potential for conflicts of interest and commitment, for inhibition of free exchange of information, and for interference with the employee’s primary allegiance to the University and its teaching, research, and public service missions.

Involvement. Right off, we are missing something. This policy section concerns “deeper involvement.”  The paragraph instead does not provide any indication of the difference, and so reads as a general restatement of any involvement, which could be consulting, and could even not involve “remuneration.”  Involvement could include meeting with a sales rep trying to sell lab equipment, as the previous paragraph indicated.    Maybe that’s just a drafting oversight.  Maybe that right there tells us something about the quality of review this paragraph received before being adopted.

potential.  This usage is parallel with the “potential” of the previous paragraph and continues the theme.  We are dealing with potentials, here, not actualities.  Something has “potential” as a kind of expectation of things to come.  As baseball great Dave Henderson once quipped, “Potential means you haven’t done anything yet.”  The policy imagines everything as in a state of could be, as if life were out in front of it, yet to be lived.  The policy does not acknowledge anything on-going, that it ought to be responsible for knowing about and accommodating.  That is, the policy is legislating not only how to deal with that life, when in the future it happens, but also asserts the framework for how people are to regard that life.

inhibition. This is an odd gesture.  How is exchange of information “inhibited” by one’s being “involved” with companies?  What sort of information is of concern?  Is it research data that is suppressed?  Is it company information that ought to be blurted to the world, despite the company’s wishes?  What is riding on a “free” exchange–is it “free” as in no charge, or “free” as in voluntary, or “free” as in without contractual restrictions, or is it “free” as in without intellectual property claims?  Here, “free” is a powerful word, but also ambiguously used, and therefore is an emblem word, standing more for a desirable class of exchanges, as distinct from undesirable exchanges.   We may ask as well why “exchange” and not, say, “transfer” or “publication” or “access”?  An exchange involves reciprocity, one thing for another.  Consulting for remuneration, say.  But here, it is information for information, an information exchange, and one that’s free (desirable) rather than unfree (undesirable).

Perhaps “exchange”, too, is an emblem for any involvement, and doesn’t really mean “exchange” but rather means “anything, including exchange” that goes under the heading of “involvement”, and “information” means anything, including information, that goes under the heading of anything that happens in involvement, and “free” means desirable such anythings, as opposed to undesirable things that would happen if there wasn’t this sparkling and authoritative policy to keep those things, whatever they might be, from happening through an approval process mediated by a Form.  We have shown that in the Form, “information” and “intellectual property” are sloppily the same thing, that a lot of things are the same thing.  That whatever can be anything, so long as it is stated with authority, in legal sounding language of policy.  That, in fact, is the primary gesture of this policy statement, that it has authority regardless of the competence with which it is made or the reasoning on which it is based.  It is, rather, a naive assertion of power, and, as we have set it out above, the potential for power, which is otherwise called a boast, or a threat, depending on its purpose.

primary allegiance. Allegiance has to do with loyalty—is that what is in play, or is it properly duty or responsibility?  Perhaps “allegiance” is another emblem word, standing for whatever it is an employee has that an employer can require.   Does an employee pledge loyalty to the University as a condition of employment?  It would appear so, from this policy.  Further, one may have other allegiances, secondary ones.  A conflict of interest, then, may be considered here as a conflict of loyalties, between one organization and another, rather than between one’s duties and one’s self-interest.   Does one have a primary allegiance to the University that trumps one’s self-interest?  Is this just a re-statement of the totalitarian state?  One might hope not, but this is a policy, and that’s not a matter for hoping.

The underlying framework suggests that when one is employed, one’s primary allegiance is to the Employer.  The purpose of policy is to enforce this primary loyalty.  How then can one allow deeper involvement with a company, when this might appear to create competing loyalties?  The jealous way is refusal.  The pragmatic way is to align the Employer’s benefits with the proposed activity, to take a share, become complicit.   This pragmatic way, however, also creates an institutional conflict of interest–who will manage what the Employer chooses to do, that may vary from its mission?  Or is its mission whatever it decides to do?  And whatever it decides to do is in the “public interest” because it is a University and by definition it serves the public?  If we go this way, we are back to an assertion of power without accountability, so while it is a pragmatic way, it is also fraught with a moral danger.

There is another way, of course, and that is to back off the allegiance thing and return to the interplay between self and duties, and ask what duties might be “interfered”  with by deeper involvement.  Does the CEO, in teaching for a quarter, create an unmanageable conflict between self and duties?  Between company and university?  Does the faculty member, becoming a CEO for a quarter, have any different standing?  It is this kind of examination that might lead one to identify what it is that faculty should pay attention to, and perhaps avoid doing, or do with assistance.  For that, a policy of the one we are spending time with is ill-suited.  Not only can it not point those things out, but also it distracts for activities for which it serves no real help.  Its primary effect is to screen off disclosure, laden disclosure with administrative threat of denial, delay, discipline, and make things, overall, worse.  It’s like an incompetent referee trying to break up a hockey fight by grabbing the arms of only one player, leaving the other “free” to hammer away.

and its.  Little words, but they suggest that the “University” has missions that are actually the activities of its faculty.  Teaching, research, and public service are conventional restatements of what a university faculty does.  The mission of the University, one might say, is to support these activities.  A faculty member is asked to report on their public service, for instance–how they have been involved in the community.  This is the stuff of that second kind of work, that is for others but not outside consulting, for compensation but not a problem.  Here, however, the University itself is represented as having these missions.  What is a University’s “public service” but for its support for its faculty’s teaching and research, and its faculty’s public service?

The gesture here, however, is that it is the University that does these things, and employees further these University’s missions, rather than that the University furthers the faculty’s activities, and that is its contribution to their mission.  A university is what the faculty do.  But there is change blowing in the wind, and here we can suspect that faculty do what the University tells them to do to further its mission.  Management is in control here.  This is a corporation, as far as Executive Order 57 is concerned.

It may be only a little odd that “economic development” doesn’t come in as the fourth “mission”, as it has in some universities, and as it is clearly foreshadowed in the preamble to this paragraph.   It is the fourth mission that enables a range of activities that should be permitted, but also gives rise to objections and worries, which in turn leads to a policy statement such as this one, a sweet and sour sauce of encouragement and benefits, of restrictions and perils, ending up being, at best, an assertion of a potential for power.

However, such involvement may also enhance both the individual employee’s and the institution’s commitment to their shared missions.

However.  This conjunction provides a turn that is the reverse of the first paragraph, which started with benefits and led to risks.  We have opened with risks and now turn to benefits.  The structure of the development is, deeper involvement happens, it can be good, but it can be bad, however it can also be good.   We can expect the pattern may continue.

enhance.  “such involvement” is the involvement with commercial enterprise, with the attendant risks, as immediately above, but also the “involvement” that is somehow not covered by the normal consulting policy as set out in the previous paragraph.  The word “enhance” is surprising when conjoined with “commitments”.  What is an “enhanced commitment”?  Is there more commitment than before?  The argument here is that deeper involvement with companies, beyond what normal consulting policy can deal with, makes for employees with enhanced commitments to “their shared missions”.   It’s a remarkable assertion, if true.  Everyone should look forward to the chance to run the risk of conflicts of interest, inhibiting exchange of information, and interfering with the University duties, because doing so may enhance one’s commitments to a mission.   Moreover, the University itself, that great abstraction of corporate administrative worship, also may enhance its commitment to its mission.  I do not know how this works, but the policy leads me to believe this is a positive thing.  Perhaps the idea is that administrators will work more diligently for the University if they know that employees are out there with commitments to companies that not just any supervisor can approve.  Or maybe it means that administrators, too, should have the opportunity to feel their allegiances shift to secondary concerns, to strengthen their primary allegiance to the University.  It’s counter-intuitive.  If you seriously flirt around, you’ll love your significant other all the more.  That sort of thing.  If the point that was desired was, “deeper involvement brings benefits as well as risks” I expect folks could have written that, but they didn’t, and this is policy at an elite university, so we should expect they meant something else, since they already made this point in the previous paragraph.

their shared missions. We have seen the University has its missions of “teaching, research, and public service”.  What then are the missions that the employees share with the University that are subject to the enhancement of commitment?  Is it that employees will be more committed to teaching, research, and public service if they are running a company?  Or is running a company a form of public service, or research?  Or is it simply that employees will do a better job at their jobs if they have information and know-how and other kinds of intellectual property from companies, and one gets that by being a line officer rather than a mere consultant.

We might surmise that this sentence serves a dual role.  First, it counters the impression that involvement with companies is full of risk, which countered the idea that such involvement was a good thing.  Second, it presents an emblem of University administrators and employees working together on shared things–the missions of the University, which coincide in some way with the missions of the employees.   This conflict of interest thing can really work, if everyone shares the same missions.  It may be mysterious, but making commitments to companies enhances one’s commitments to the University, but only when those commitments to companies are deep and approved.

This commitment on the part of an employee is an essential element of the institutional ethos of the modern research university and is complemented by a recognition on the part of the University that any rewards that may accrue to the University as a result of an employee’s research efforts should be shared with the employee.

So far, things have been obtuse, incoherent, and questionable.  But now the paragraph beings a true descent.

This commitment.  It is difficult to place just what “this commitment” refers to.  Apparently, the reference is to the employee’s commitment to the “shared missions,” since it is that commitment that may be enhanced by deeper involvement than normal policy can handle.   However, it may refer to the “enhanced commitment” that arises from deeper involvement.  Nothing is clear.  If one thinks it doesn’t matter, what does it say about the condition of the policy in which text like this operates?

an essential element of the institutional ethos.  The appeal to ethos is mystifying, but it uses the word “ethos” and that signals a shift from purpose to spirit, the zeitgeist, the core beliefs.  In a simplistic way, the claim is that a commitment to the missions of the University (or administrative categories of faculty activity at a university) is essential to what the institution believes, or less murkily, to what employees look to to guide their actions at work.  Hey, we are here at the University, we should be teaching, researching, doing public service, or helping those that do this stuff.  This seems obvious.  But here, it is in policy.  It is not stating the obvious, but trying to establish a point.

the modern research university. Not just any university, not the University of Washington in particular, but a modern one, doing research.  I think it is not intended to allude to  this.   The adjective “research” not only restricts, but also locates the ethos nearer to research and further from teaching and public service.  The deeper involvement policy is driven by a concern for research.  We are inching toward the twist.

complemented. One has to take this carefully.  The first clause asserts that commitments that may be enhanced by deeper involvement with companies are essential to what makes a research university what it is.  The second clause, coordinated with the “and”, makes a point about the University sharing the benefits of research with employees who have made research efforts.   The two clauses do not naturally go together.  If you work at a company as a University employee, doing things that run against the ethos of the institution and trigger a special review beyond the ordinary ability or authority of immediate supervision, you may have an even greater commitment to the purpose of the institution, and this greater commitment is key to the ethos of the institution, so institution in the same manner rewards its employees by sharing with them, according to their efforts, some of what the institution receives by its own deeper involvement with companies.

Research, however, is not identified as being research for the University, or even at the University.  If a University employee’s research efforts are for a company, then that involvement is “outside” the University’s claims–that’s the whole painful burden of Sections 1 to 5 of Executive Order 57.  If this is a stand-alone statement about the University’s largesse in sharing “rewards” that result from employee “efforts”–that’s quite remarkable, and certainly expansive over merely sharing patent licensing income with inventors.  But then it is utterly out of place, since it has nothing to do with what happens through employee deeper involvement with companies–and those work products *can’t* be the University’s, if folks follow Washington policy.  The  statement here obligates the University to share “rewards”, whatever those are, with all employees who have made a research effort that has contributed to producing those “rewards that accrue to the University.”  One might expect employees to make broader claims against licensing revenues, indirect costs in grants, donations, and other forms of “rewards”.   Then, again, this could all be illusory, as the University might argue it hardly ever is “rewarded, taken literally.

The general thrust of this sentence, however, should not be lost.  Deeper involvement serves both employees and the University, and just as introducing things antagonistic to the University ethos increases the commitment to its mission, so also the University, through its officers and administrators, also is served by its own deeper involvement, which not only increases its commitment to its own mission, but also provides largesse to its employees who do research (but not to others, certainly not to all).   Deeper involvement with companies is about research, and serves research.  The thrust of the sentence is therefore clear:  we will use research to obtain benefits from industry, employees through their own deeper involvement, and the University through its own deeper involvement, relying on the research work products of its employees.

Here’s what’s implied:  how can we make money in our university’s deeper involvement with industry, so that we can share it with you, faculty researchers, if you do not give us all your best stuff, so we have this policy to make it difficult for you to do any good work in your deeper involvement, so you will move your stuff through the University, and seeing as we stand to make good money when you do this, and so do you because we will share some back, we have this policy, and when we share this common mission to make as much money from industry as we can, then we can also allow all the deeper involvement with companies employees want to have.  The conflict of interest is not that companies will offer payments that will distort employees in their duties, other than that the companies will induce the employees to make things that the companies might get, or direct the companies to do for themselves things that the University could not then turn around and sell to industry for a lot of money.

In its inarticulate way, this sentence aims to put into the formalisms of policy the deeply held belief in technology transfer that any idea that could be developed at the University and owned by the University must be so developed and owned.  Doing anything else is a sin against the state–a kind of corruption that must be made visible, categorized, and prohibited piece by piece.   The role of IP policy is to claim everything an employee can do within the scope of employment and using University resources.  A conflict of interest policy therefore aims to make it a sin (an “ethics violation”) to create or cause to be created anything of value, for oneself or for a company, or even given free to the public, as this would cause private gain and University (therefore, public) loss.

The conflict is thus not between duties and remuneration that might distort those duties.  The conflict is between what is free under IP policy to the individual and what the University technology transfer office wants to manage for the purpose of making money.   The individual *has no conflict* in this latter case.  There is no conflict of interest in inventing on one’s own time, with one’s own resources, outside the scope of the work one does for one’s employer.  Nothing in the employment relationship creates any kind of “super allegiance” that requires an employee to present any such outside work to the employer.  State law (in a few states like Washington) requires inventions (not other things) to be disclosed to the employer for disposition of claims.  But even those statutes don’t matter, since the Patent Office began publishing patent applications.  An employer always has access to patent applications filed by its employees in their outside work and can take issue with anything it finds at odds with its understanding of the employee’s scope of employment and use of resources.

The University of Washington, however, has taken its conflict of interest policy and turned it into a two pronged attack on employee ethics.  First, it demands allegiance beyond what employment law permits.  Second, it asks employees to limit their commitments in outside involvement with industry so that the best stuff gets done at the University, where it can be licensed for better money.  The University, in effect, is offering money to its faculty (a share of “rewards”) to induce them not to produce work that results in intellectual property held by industry.  The concern is that at in a deeper involvement, a University employee will feel the secondary allegiance to the company and will inappropriately transfer or use or produce “intellectual property” that could have been the University’s to control, license, and be “rewarded” for.

Complementary essential elements of the University’s commitment to encouraging appropriate technology transfer are the protection of the University’s integrity and primary goals of education and open inquiry, and the management of potential conflicts of interest.

Complementary essential elements. At this point it appears that the policy drafters reach a state of thought too complicated for their drafting ability.   The attention shifts to technology transfer, perhaps triggered by the idea of rewards in the previous sentence.  We have moved away from a primary focus on deeper involvement–it has benefits in creating risks, and this is essential to the ethos of the place–and we now move to the engine of the benefits, “appropriate technology transfer”.   The elements of this transfer are essential and complementary.  These are:  (a) protecting the University’s integrity and certain primary goals and (b) managing potential conflicts of interest.

As we have seen, the policy’s effort is to shift a personal conflict between duties and outside reward to one between duties and inside reward.  The deal that is offered is: stress your attention to duties with deeper involvement so long as we get your IP, for which we will reward you handsomely.  Now we have this framework restated:  to encourage “appropriate technology transfer” (that is, by obtaining ownership of all faculty work fit to be licensed, and licensing it through the actions of university administrators, who keep costs plus 67%), the University must protect integrity and goals, and manage conflicts of interest.

This is remarkable in a number of ways.  Forget the silliness of why things that are essential to one another are also complementary or why this matters at all, disregard the awful sentence structure, avert your mind from the flunk-worthy diction, and focus on the import.

Many of the conflicts of interest that arise in technology transfer are institutional or personal to administrative personnel–the university as owner has to deal with the problem of making money and preventing competition (such as from other universities for research dollars and licensing income) with its public missions of teaching, research, and public service.   These conflicts extend to licensing officers and their supervisors, who stand to benefit from licensing revenue in the form of slush budgets to enhance their commitment to the institution, and in the case of licensing officers, it might even pay their salaries and fund their next salary increases or bonuses (if they have incentive pay).   Should they license a patent for free to stimulate rapid adoption, or should the try to build demand (more research, better marketing, grander claims) and try to make a bundle?  That’s a conflict.  It goes deeper–should technology transfer officers and their supervisors hold stock in companies that they may do business with, or may compete with in granting licenses?  What if those officers are buying stock ahead of a deal, or selling their shares short?  Could that be insider trading, if they have information from a public company needed to support the structure of the deal?

Finally, should licensing officers be seeking to induce faculty and staff to change their behaviors in order to benefit from lucrative licensing deals through the tech transfer offices.  This is sometimes called the “Porsche effect”–the best way to get faculty to take an interest in tech transfer is when they see the hot car their colleague is driving–then they will change their “culture” and stop giving stuff away that could be making them and the University a lot of money. The policy says this inducement is *not* a conflict of interest for the faculty.  The University can offer them as much money as they can imagine, and they can do whatever they want with University resources, so long as all IP goes through the tech transfer office.  The offer of millions from the University if fine, but the payment of $10,000 by a company for ten days of consulting has the prospect of harming the integrity of the institution, even as it contributes in an essential way to enhancing everyone’s commitment.

The conflicts of interest that technology transfer might manage have to do with their own offers to pay a share to inventors.   A typical situation:  an inventor assigns patent rights to the university, then works as a consultant to a company.  As a result, the company wants a license from the university.   The inventor has conflicting involvement, making commitments, receiving pay, and having access to information of two parties involved in a life or death struggle over the terms of a patent license.  Should the inventor be allowed to participate in the transaction?  If so, on which side of the table?  This would be the kind of situation a decent conflict of interest policy might address.  In the Washington policy, this kind of situation will never come up because the University-side offer of money isn’t subject to a request for approval from the supervisor or anyone else. No supervisor or dean or vice president can be expected to guess that some such situation even exists.  It’s not something marked for response on any approval form.

There are plenty of similar situations–where a company is founded by a faculty member and then wants to sponsor research (even in another lab), or when a graduate research assistant sees where a line of development might go, writes some code and shows it to the team, and is told by the faculty lead that the idea is rotten and they won’t use it.  The grad student goes off and builds an entire system on his own “outside” the University, on his own time, with his own resources.  Later, when the team’s approach fails, the team leader demands the graduate student’s code.  How does the technology transfer office decide between the competing claims?

Deeper involvement than consulting conflicts are about how resources, actions, and publications might be biased by commitments made to other organizations that involve substantial obligations to those organizations.   The policy at this point, however, makes the primary concern how “technology transfer” will be conducted.  In this it places “integrity” and “goals” on the same plane as conflict of interest management.  Yet integrity and goals (like mission) are not the subject of the present policy.

The policy becomes one of technology transfer. Its central argument is making a claim to the creative output of employees based on their allegiance to the University.   Integrity means the paper work is done and approvals made.  The goals of education and “open inquiry” stand for business as usual (the policy does not care about education in the slightest, though education, to many, would be the fundamental duty of faculty, even if many of them prefer research).  Public service has dropped out of view completely, as neither essential nor complementary.  Research has been replaced by “open inquiry”.  This plays off the possible inhibitions to the free exchange of information, and perhaps operates in the same way, as an emblem of a kind of Mertonian norm regarding scholarship.  Yet, the effect of the policy regarding technology transfer is that the IP will be with the University, however you make it–in University duties, in service positions, in consulting, and in deeper involvement than consulting.  If it is not, then you, my friend, have a personal conflict of interest.  And that conflict of interest is created by this policy.  It is then the purpose of Executive Order 57 to manage the conflict it has created by establishing an approval process that will not take into account the actions and inducements offered to faculty and staff by the technology transfer program.

One might think, in a coarse public view of things, that folks in industry and in the general community might distrust faculty being offered the prospect of instant wealth far beyond their pay to spend their time “commercializing” University technology.  One might think there is not much worse for a public university to put out to the public than such a program of “culture change”.  It would actually be better received, I expect, if companies and donors were making the offers!  Like in football and basketball programs, where head coaches make millions and assistant coaches their hundreds of thousands, but nearly all from private sources, and in recognition that the coaches are doing the official duties to the highest standard.  Boosters don’t ask the coaches to do something else, for more money.  Why does the University do this to its faculty and staff, and not even recognize the conflict of interest that the technology transfer program creates, and cannot manage, even as its own conflicts of interest are not disclosed, reviewed, or managed.

Careful attention to avoiding such conflicts ultimately serves the interests of both the employee and the University.

Avoiding.  We are nearly done.  This sentence is easy to parse, though it makes an assertion that runs against the drift of the policy.  The policy here moves from managing conflicts of interest, which is “essential” to “appropriate technology transfer” to simply calling for avoiding them.  The interest the University shares with its lone employee is that the employee disclose and assign all IP to the University.  Gone is serving the interest of the public.  The point is:  “you can avoid a conflict of interest if you don’t let any IP go to any other forum; send it all to us, and we will (a) let you do what you want because we can all see the review process is defective from the start by design and (b) share our rewards with you, if you are complicit with us, and change your behaviors to support our commercialization success.”

Toward this end, this section prescribes a disclosure and approval process for involvements with commercial enterprise deeper than usual professional affiliations or outside consulting.

Toward this end.  This “end” is clearly referring to “carefully avoiding” conflicts of interest.  It is not referring to “appropriate technology transfer” and it is not apparently directed toward dealing with the desirable but harmful but beneficial deeper involvements.   The policy indeed lay out a disclosure and approval process.  That process is itself a confused noise that perhaps I will take up later.  To show how clearly the “ethics” serves as a driver, however, consider paragraph 4:

Where an employee . . . desires to utilize the expertise and/or technology he or she has developed and to assist a business venture . . . in the commercialization of an idea, the employee and his or her supervisor should first seek the early assistance and counsel of UW TechTransfer to aid the employee in distinguishing those things which may be freely shared (e.g., “general expertise”) from those the sharing of which may be restricted (e.g., “technology” or other “intellectual property”). UW TechTransfer can provide important guidance and advice with respect to commercial potential, professional services, and protection of an employee’s interests.

I’ve elided a few infelicities for foreground the main thrust.  Clearly, there is nothing in an employee having expertise or an idea that gives rise to any claim of University ownership under its policies.  There is nothing in 4 that even associates the idea with the employee!  There is no obligation to disclose expertise or ideas, and there is no reason to think that a technology transfer office has any standing to give “counsel”.   Washington policy makes clear (Executive Order 57 2.C) that employees will not get University legal representation for their private involvements.  This is the kind of material one puts on an office web site or brochure, not in policy.  Yet here it is, as part of the review process to approve “deeper involvement” than consulting:  ideas also have to be disclosed to the technology transfer office before, apparently, they can be disclosed to folks who might want to start a company.  One might think, perhaps, that if a start-up were contemplated, that the fact of the start-up might be reported, but even then, if the relationship the University employees expect to have with the start-up is that of a consultant, why is this any different from normal outside professional work?  What, besides this policy saying so, makes it “deeper”?  What would anyone find in such a review to disallow this?

I can imagine that the answer to the latter question is that any idea, if it relates to technology, can be construed as the start to an inventive idea, and with a bit of “counsel” one can develop the thought to the point that it is prospectively one or more conceived inventions, not yet reduced to practice.  But conception is enough for a tech transfer office, because filing a patent application is constructive reduction to practice.  The conflict of interest policy serves to put a substantial process barrier, with plenty of opportunities for delay, and for the introduction of requirements to faculty innovative initiative.  It sets up a kind of institutional IP bakseesh–we will get on with approval for your deeper involvement if you give us your IP to manage.

The policy recognizes the need for flexibility and the difficulty of anticipating all situations that may arise by leaving discretion to an employee’s supervisor to interpret the policy and evaluate the activity proposed in the context of the unit in question.

the need for flexibility.  The policy describes a protocol for disclosure and review of deeper involvements.  What is it that requires “flexibility”, and what parts of the policy may “flex”?    The policy does not say, but in fact finishes the thought by noting the difficulty of anticipating “all situations”, and nominating the supervisor to interpret the policy.

to interpret the policy.  This is something of a surprise.  Though there is a requirement for review (and a fairly substantial build-out of advice on the conditions that should force a review and what the review should entail), the policy delegates to the “discretion of the supervisor” to interpret the policy.   One might expect that a supervision, assigned the role by policy of reviewing requests for deeper involvement, would have to “evaluate the activity”.  But what shall we make of the discretion to interpret the policy?

We may distinguish interpretation for change or waive.  Interpretation might have to do with words that aren’t defined, such as “open inquiry” or “deeper”.  It may have to do with how substantial a review is required.  It may have to do with whether an approval would enhance the University’s and employee’s commitments to shared missions.  While the review of simple consulting requires completion of a Form, a recommendation from a supervisor and an approval from someone working the Provost’s Office, it would appear that deeper involvement, requiring a more careful review, doesn’t.  Is that just an oversight?  Does in practice the University require deeper involvement requests to go through the same Form as everything else?  It’s not evident from the policy.

From a broader public policy perspective, the effect of this sentence is to dismantle the apparatus that has been created, while at the same time exposing employees to the whims of supervisors, while yet screening out from consideration the institutional conflicts of interest that easily may come into play.

This paragraph of seven sentences begins with problems, advocates benefits, trades rewards for threats, seeks to avoid rather than manage conflicts of interest, shifts the emphasis to the conflict of interest to technology transfer, and then authorizes the supervisor to interpret policy, so long as the technology transfer office has a shot at any IP.

This is what an elite research university is capable of producing by way of a policy statement regarding personnel consulting with companies “deeper than consulting”.  It happens when one already has the wrong working geography, adds an incompetent effort to spruce it up, and tops it with careless and incapable drafting.  Audaciously, it still becomes policy.  Is it because despite all its painful shortcomings, the underlying gesture must have somehow been desired?  Or is it that no one knows what it is doing, really, but folks had to have a policy statement and a placeholder is as good as anything?  Or is it that no one cares, as long as there’s this loaded gun in the drawer that can come out when someone complains and someone else has to take action or be blamed?  I don’t know.  But it does appear that the very existence of this paragraph in Washington policy points to a deep, unmanaged *institutional* conflict of interest, for which Washington has no policy, and which is the greatest threat, at least with regard to technology transfer, to its “integrity” and its “public mission” that I can think of, at least with respect to intellectual property, “involvement” with “commercial enterprise” and its own “deeper involvement” by way of holding equity, taking ownership positions, dealing and withholding licenses, and participating actively in “commercialization”.

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