I have been presenting the issues from a variety of perspectives and lines of reasoning. I’ve argued from history, that faculty-led, voluntary, agent-based invention management has been highly successful. I’ve shown how the voluntary approach formed the basis for a number of the elements that now frame university technology transfer, including the Bayh-Dole Act.
I have argued from research law and regulation, and shown how the Bayh-Dole Act works, how the standard patent rights clause works, and how the Act does not require university ownership, but rather requires universities to give their employees standing with regard to the disposition of invention rights.
I have argued from employment and faculty appointments, that IP law does not support the broad claims made by universities, especially with regard to faculty and students. I have argued that equating faculty with corporate employees fails across any number of accounts. One cannot reason from “employee” to the properties of faculty research and scholarship.
I have argued that university research forms a distinctive and important part of the overall research ecosystem, and that for it to adopt corporate strategies is the worst possible thing for the university, undermining the role it should play for its own good, and for that of industry, which has enough of itself already and needs the neutral, independent sites for research and discussion that universities provide. I have worried that adopting corporate strategies for IP–which then grabs a huge portion of the significant output of publicly supported work–undermines the public goodwill that has attended to the rise of university research enterprise.
I have gone through IP policy after university IP policy and shown that these are poorly constructed, contradictory, and ineffectual. Arkansas, Northwestern, Washington, Colorado, California, MIT, USC. I have more of these analyses sitting around. Most university policies are a shambles of poor drafting, bad logic, scary public policy, and misinformation. Invention disclosure forms and template license agreements are no better. It’s a mess royal, a total fustercluck that few institutions have managed to avoid.
I have argued from public policy–from constitutional protections of personal property, from the problems of state control of research and innovation, from warnings by such folks as Hayek, Eisenhower, Feyerabend, and Vannevar Bush. I have asked whether there is due process and just compensation, and whether bureaucrats really are better leaders of what’s new and unexpected.
I have looked at innovation processes, and pointed out recent scholarship, including open innovation and “networked, non-market” approaches. I’ve argued that these represent viable alternatives to compulsory, process-bound, institutionalized systems. I’ve pointed out how even in companies with serious research enterprises, compulsory approaches do not have a great track record of innovation.
I have considered organizational conflicts of interest–how universities are required by federal regulation to act as trustees of IP, not self-interested parties–and how claims of ownership, especially for the purpose of patent license money-making–cause universities to abdicate their public role as stewards. I have examined their contention that they are best situated to “commercialize” and it appears to be merely an assertion that they can “out greed the inappropriately less greedy faculty”, and how this is a loss for public trust and research integrity and the governance of scholarship.
I have taken up the details of Stanford v Roche and have shown how compulsory assignments are not a meaningful response to the Supreme Court decision, get the facts of the case wrong–or in any event, take up the wrong facts–and create more title uncertainty than they address, given the context of faculty work, the nature of choices that faculty make about what will be work for the university and what not, and the authority administration has, even in review, to alter these choices.
I have shown how voluntary, agent-based approaches can and do work, with ties to economic development, open source software, open hardware, a range of invention support agents with specialties, and collaboration among universities to develop common platforms, such as the Rosetta Commons. I have written templates that show how to implement such things as frame agreements and the wonderful (f)(2) agreement.
I have worked on changes in law to limit the power of universities to claim ownership of research inventions except when offered ownership or when required by a sponsor. There are ways to do this with amendments to Bayh-Dole (drafted) and by state law (for public universities, at least) and amendments to state employment law that expressly limit university exploitation of laws drafted for for-profit employers. The Innovation Bill of Rights (SB 6542) introduced by Sen. Maralyn Chase in the state of Washington is a good start.
I have shown how the compulsory framework at universities developed as an exploit of policy that allowed universities to grant exceptions to voluntary assignment when required by sponsors, and how university administrators then used this exception when claiming that federal law required university ownership via that exception. University administrators then got the idea of writing university ownership themselves into contracts with sponsors. Since that was such a good idea, they expanded compulsory ownership uniformly to all inventions. Now that the federal law bit has been shown to be simply wrong, the edifice should come down, but instead administrators are rushing to support it.
I have translated laws into Star Trek to see if they hold up, satirized protagonists of the effort to turn universities into invention prisons “for the good of society.” I have poked at the morals and reasoning of folks wedded to compulsory systems and their minor bits of institutional power, hoping that satire would have some kind of reforming influence.
I have showed how confirmation bias and use of poorly chosen comparisons lead to faulty reasoning; how simplistic formulations of innovation and commercialization fail to direct resources where they are needed and instead are used to make programs spending a lot of money try to look good and appear “successful.” It’s like a good looking person, in good looking clothes, insisting on carrying around a huge cardboard arrow pointing it all out and ruining the effect. I’ve argued that the number of unlicensed inventions is more indicative of a program’s impact than the licensed ones, and that licenses that do not result in first commercial sales, changed practices, or use are not any better. I’ve argued that patent applications and company incorporations are administrative actions and not themselves evidence of innovation or commercialization until there actually is innovation or commercialization. Otherwise, they are just expenditures of effort attached to aspirations.
I have worried the problem of bad science, and how technology transfer organizational conflicts of interest can lead universities to hype rather than govern reports of research findings, and connect that hype with their own interests in making money, leading on investors that take university statements at face value (which they shouldn’t!), and making it out that research is doing great things (which it might, but not necessarily where the big arrow is pointed). It appears there is something of a crisis in research reporting, tending to positive accounts, to misstated and mistaken data, to problems in analysis, to claims for significance. Ownership claims for commercial reservation of rights runs against the kind of peer review from practice that would ascertain what works and what is merely claimed to work.
I have even argued in support of the little linear model–that it thrives on voluntary, highly selective, low volume engagement–and that self-selected offers are a key element in separating signal from noise. I have argued that the little linear model prospers when it is targeted, and it flails when it is burdened with a high volume of things it cannot possibly manage, turning it from an innovation resource to a financial portfolio of speculative holdings, only a very few of which need to be “successful” each decade for the thousands of the others that are held.
But none of these things appear to sway the university administrators.
Thus, I appeal to a deep, true source of power in the world–Arena Rock:
Money, so they say, is the root of all evil today
You may say to yourself, my god, what have I done?
There’s still time to change the road you’re on.
If you choose not to decide, you still have made a choice.
Just hold on loosely, but don’t let go, if you cling too tightly, you’re gonna lose control.
You can’t always get what you want, but if you try sometimes, you get what you need.
Love is all you need.
So let us not talk falsely now, the hour is getting late.