John Dvorak over at PC Magazine has an interesting comment on the patent battles shaping up in mobile. His more general observation, however, is what caught my eye:
This whole idea of actual inventions and the monopoly is over. Around a million patents are granted per year worldwide and most are unique and often obvious ideas that are not an invention at all. Rather, they are new ideas for a process or unique twists on old notions. None of them can be turned into nice little monopoly businesses.
Except if the ownership of the patent is the business in itself.
So, this is what it is all about. Patent some little idea and then license it so someone else can make or finish making the product.
Isn’t this how universities have set up shop? Hasn’t the effort been to make patent ownership the business itself? Hasn’t the effort been to go after smaller and smaller pieces of what might be “patentable,” thereby raising the invention disclosures reported and providing the illusion to senior administrators, government, and the public, that the inventive output of university research is just tremendous? Well, it may be that the output of university research, other than the “bad” science, is indeed important. But casting the Bayh-Dole Act as a mandate to scrape up every potentially patentable thing and making a business out of owning it is a long way from directing agencies to “use the patent system to promote the utilization of inventions made with federal support.”
One might think, to use the patent system in this way, universities might (i) limit what they take on to really substantively important inventions and (ii) have commercial partners lined up asking them to establish a patent position when they file, or at least when they convert their provisional application. Otherwise, technology transfer too easily slips into patent arbitrage and patent trolling. Maybe the sign of a really powerful university patent portfolio is that it consists of no more than 10 patents, at least 8 of which are licensed to multiple, collaborating companies, and all are available at no charge for research and internal uses. Holding hundreds of patents–most unlicensed–what is the point of that? When did doing that “promote the utilization” of inventions?
At least for an individual inventor, one has to weigh the likelihood of advantage against the $10K or $20K it will cost to get a patent. A university with a big hit deal can spend, literally, millions on speculative patenting, call it a “service to the faculty” and argue doing so is in the “public interest.” But wouldn’t, say, filing on one or two patents a year, and spending all that big-hit income on something else, like tuition offsets, be a more valuable use of licensing revenue?
Just when patents are showing up as a total impediment to innovation, universities are going whole hog for them as the wave of the future. Sylvia Kraemer’s discussion of the patent fragmentation in the early aerospace industry is instructive:
While warfare ravaged the European countryside, the NACA was tasked to use its “good offices” to bring an end to the patent war being fought with in the nascent U.S. aircraft industry. Otherwise the United States might not be able to play its part in World War I, should that become necessary. NACA Chairman Charles D. Walcott proposed to President Wilson that he seek an amendment to the current naval or military appropriations bill to authorize the Federal government to acquire whatever patents it needed “by purchase, condemnation, donation, or otherwise.” The legislation was enacted as proposed. Accordingly, the NACA established a subcommittee on patents, which increased the prospect for the industry that, scrapping over the whole loaf, it might soon have none. So the aircraft manufacturers settled for half a loaf. The NACA subcommittee on patents obtained in the summer of 1917 the NACA Main Committee’s blessing on a cross-licensing agreement, to be administered by the newly formed Aircraft Manufacturers Association, the general result of which was that the “American aviation industry would operate without major patents . . . the ideas and techniques of aircraft manufacturers were to be shared openly among the members.”
Perhaps, somewhere, just as a glimmer, it may have been thought that universities might, for emerging areas of research, develop such sharing capabilities, so that along side a very few deals involving a single licensee making a dramatic investment to develop a product, there might be hundreds of efforts to bring research developments together into commons, platforms, standards, with industry associations created to manage things.
I wonder whether nanotech in the US would have taken a different direction, had this sort of thing been available. I wonder, too, about synthetic biology, alternative energy, and 3d printing. Perhaps universities, rather than aiming to play in the patent wars and contribute to the fragmentation by chasing ownership interests into increasingly less substantive work “just in case” and “because industry owes us,” ought to be using the patent system to promote use, rather than simply seeking to get paid.