The Agreement on Top of the Agreement

Karen White, a veteran of technology transfer and research development, has started a blog on innovation and technology transfer called Almost White Papers.   In a recent post, she makes a great point:

Technology transfer does work when the parties to a particular transaction or project agree that it will work.

This is at the very heart of it.  For all the patents and contracts and mandates and processes and ideology and policies and authority and ethics stomping and laws and regulations and models and punditry, when it gets down to it, good stuff happens because people choose to make it happen, to co-operate (even if they never agree, never meet, never exchange anything, never get paid for it).

People sometimes form the idea that the contract is the thing–the four corners or nothing.  One ranking University of California official told me flat out “we have no relationships with companies, only what’s in the contract.”  This, while we were trying to build a relationship with a key Bay Area company.   The problem is, the agreement on top of the contract comes first.  It is what allows any particular contract to be acceptable, to operate, to serve its purpose.  Negotiating a contract without already establishing a relationship is like going into a haunted house.  No wonder everyone is spooked by it. 

What is not so obvious, perhaps, is that all the process and ideology of linear model technology transfer, with its insistence on *licensing* (meaning, contracting; meaning, nail down what is going to happen and how the university will get paid and how the university will get paid even if the licensee screws up), is that insisting on licensing, on contracts, on the “model” can actually disrupt agreement on top of the agreement.  It can undo relationships that have formed, and it can dissuade folks from trying to form relationships.

Imagine if you valued yourself so highly that you required each prospective friend to sign a contract with you promising you benefits in recognition of the significant value they would be receiving by agreeing to be known as one of your friends.  Lovely, eh?  Oh, it’s okay, the agreement only has to go through legal review and risk review, where clauses will be added that create penalties if you fail to provide the promised benefits, or expose me, in my exaltedness to liability of any sort, for which you will take out an insurance policy and indemnify me for anything that I may have to do to plush my reputation after anything you appears to dint my glint.   That’s the present state of the linear model in university technology transfer offices.  You can see how a template “express license” is just a faster, no-negotiation way of getting on with allowing prospective friends to sign up without having to beat around the bush about how *they* might need something in the deal.

In the world of electronics, when one is connecting a circuit element, the deal is, make the mechanical connection first, then apply the solder.  The relationship is the mechanical connection.  A contract is a kind of solder.   You can do technology transfer without contracts, and one can make money at it, too, if making money is your thing.  That is, technology transfer, and even Bayh-Dole standard patent rights clause compliance, does not require contracts–other than the standard patent rights clause itself, and the (f)(2) agreement, which is something research employees make with the government to look out for the government’s interests.  Essentially, the government could extend the idea of the shop right and provide a defense from claims of infringement, with an agreement that the government could in the case of inventor abandonment acquire title upon request.   That would be even lighter on the contracting.

The point is, without this very human, very social, very ideographic agreement on top of the agreement, no amount of ideology, policy, process, training, bullying, shilling, foot-stomping, stonewalling, bungling, snookering, or throwing sticks and grass in the air will make technology transfer “work.”  People who point to the number of technology transfer offices and the number of patents and licenses and the aggregate income (multiply by 50 for the impact!) and think technology transfer is “successful” don’t really get it.

If this stuff is going to work, it is going to work because people choose to have it work.  That’s a dance.  It’s got a lot of unknowns.  People engage without full knowledge–even folks who think they know what’s going on find they don’t.  (We did a deal with a unit of a major company and a few months later the whole unit was shut down–I’m sure the folks doing the deal had no idea; I lost a deal once because the fax went out on Friday COB upside down and they never got the final text to sign, and the project lead in the company was fired on Saturday–who would have thunk it?)

Whether it is inventors and universities, investigators and inventors, investigators and sponsors, universities and sponsors, inventors and investors, universities and investors, inventors and entrepreneurs, inventors and companies, universities and entrepreneurs, or universities and companies, or governments and whomever–this is the stuff of getting on with things, doing it with a degree of integrity, making choices that are good for the dance, not merely for oneself.  Enough folks who commit to the dance and there can be a good party.  Folks get into for themselves–and this means you, you universities with your me-first it’s a conflict of interest for anyone else policies–and this also means you, you companies that think it is fine to screw the university (and we are sometimes with you on that) but not fine to screw inventors and investigators and folks trying to develop stuff you need.  And getting into it for yourself means spoiling the party, the police come, the whole thing gets shut down, and the dance reduces to contracts handled by bureaucrats and the lawyers who love them.


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