Invention use or patent use, which will it be?

A while back I looked at the Lambert agreements.  These are model agreements developed in the UK that aim to normalize research arrangements between universities and companies.   My review of them argued that they were a bit sloppy and inconsistent, handled IP in an odd way, and at the broadest level did not appear to have much at all to do with innovation.   Industry-university research contracting gets this way when the primary issue is who owns the IP, rather than what is to be done with the subject matter the IP attaches to.

Presumably, if the subject matter is new, then the point of having it is to use it.   That works if it makes sense to use it.   Sometimes it is not as easy as that–an invention can be an idea that would cost a lot to turn into a working prototype, or requires a number of other things to be done before it can be used, such as if the invention is a step in process that requires two or three other inventions.   Sometimes an invention is good as a research tool.  And sometimes an invention is one of a number–maybe 30, maybe 50, maybe 100–variations on ways to accomplish something, and it’s not clear whether Way 1 is going to be as good as Way 16 or Way 42.  Thus, even if use is the goal, use is not always possible, or even if it is, there may be delays in arranging financing or getting other things in place.

One older study (cited here, p. 12) of a number of successful inventions in Germany reported that the shortest time from invention to commercial exploitation was six years.  And these were ones a company had made, claimed, and wanted.  One might expect, then, at least when it comes to research inventions protected by patents, six years or so for the really top, ripe, best research inventions, and longer (or never) for most everything else.

This leads to another issue regarding “use”.  Use can mean use as a sometimes research tool, to assist in investigations–“research with”.  Use can mean investigation of the invention–how it works, how it might be varied–“research on”.  Use can mean examining the performance characteristics of the invention to ascertain whether it lives up to the claims made for it–“evaluation of”.   Apart from these research uses, an invention can be used internally in a company to perform a function.  For such work, no product form of the invention is necessary.  No commercial readiness, no market analysis, no product launch.  The invention is just cycled into service to do its thing.  Perhaps a custom device is specified under a services contract with a specialty vendor.  Use of this sort can propagate throughout an organization, and be passed to subsidiaries and contractors.  Government-purpose rights have this feel to them–use by the government for its purposes, with the provision that the government can authorize contractors to prepare instances of the invention for government service.

As one might see, “ownership” does not get at “use” at all.  There is more.  So far we are talking only about the invention, not the IP.  IP gets used as well.  Take, for instance, a patent.  The primary use of a patent is to exclude others from practicing a claimed invention.  The whole point of a modern patent application, however, is not only to exclude practice (“use”) of a particular invention, but of a whole class of inventions–any plurality or functional equivalent or combination that one can get away with claiming.  One does not claim a cotton gin, but rather any mechanical means of ginning cotton.  One does not claim a paper clip with two loops, but rather any fastener that has loops at all.  One does not exclude practice of the initial invention, but redefines the invention to be a genre of inventions, so that the practice excluded includes as much of the variation box as possible.  Anything less would allow someone to design around the patent and practice anyway.

The idea of claim bloat figures in patent attorney heads as a way of increasing the “value” of the patent.   The more things that the patent excludes, so the argument goes, the more “value” the patent has to its owner.    There is a logic to the argument, to be sure.  The bigger the battleship, the more impressive it is–to a point–and then it becomes a sitting duck target that is easily seen on radar and vulnerable to things like over the horizon missile attacks.   Something similar is at work with patents.  A patent that locks up large swaths of practice, but supports only a narrow company product that touches on only bits of the claim language may prevent competition with products that take up variations, but also it may align the rest of the industry against the patent owner, may spur efforts to by-pass the technology altogether, may prevent the patent from participating in standards formation, and may force the patent owner to find the investment money for the invention all on its own.

In the case of disease assay patents (see here, for instance, or here), where the universities that owned the patents did the battleship thing to exclude a range of variations, but the exclusive licensees developed only a PT boat product, the lab medicine profession (and others) rebelled against the product–not only was it expensive compared to one’s own local practice, which had no need of a commercial product, but also it was bad for patient outcomes because it was not a version of the test suited to all situations.  But because the licensed patent was a battleship, doctors could not always do the tests the way the tests should be done, because years before, those pesky university patent attorneys had done their level best to ensure that the patent had the most “value” to the university.

The greatest exclusion scope does not necessarily lead to the greatest “value” for a patent, or for the inventions that it aims to cover.  But this is the game at the patent office, with the attorneys.   If one doesn’t claim broadly, then another attorney with another client will try to take that space, or will find improvements or variations and claim those, and then there will be five or fifty patents all shouldered up to one another, like a thicket.  So much better, so another argument goes, that the thicket should be controlled by one owner, so that it can be more efficiently managed.

This sort of thinking is generally not that of a company trying to use new technology in any of the senses of use tied to inventions.  This is a different sort of thinking.  In the abstract, it is tied to the battleship idea–the bigger the better, even if bigger isn’t better at all.  In the abstract, no one cares.  No counter-arguments exist.  Take everything you can, when you can, while you have the chance.  Claim it all or others will claim it out from under you.  It is a game detached from all other realities, played for getting as much as possible.

In the abstract, one might argue, if the company ever decides to use the invention, this patent, this darned big gray impressive patent, will keep competitors on the sidelines, away from the primary market, unable to compete.  That, friends, is value, or so the argument goes.  Either one is the monopoly ruler of a market, or one is the self-isolated go-it-alone developer of a new product.   If one has a ton of money, a huge infrastructure devoted to developing new product, and a huge regulatory environment that makes it next to impossible for anyone else to operate, then the patent is a kind of frosting on the cake, aimed at a very few competitors who could come up with comparable funding.  A small token for the emperor.  If one doesn’t have these things–money, infrastructure, regulatory barriers, and it costs a lot to develop the product, then the patent means nothing if no investor is willing to front the costs.  If the product doesn’t cost a lot to develop or imitate, well, then the problem is worse and worse, since it is difficult to stamp out local practice.

The exclusion argument for patents is often poorly thought out.  Exclusion = value is about as far as it goes.  Yet we find in many industries that competition turns out to be good for the industry as well as for consumers.  As companies in a market have to compete, they also realize they have to cooperate.  They develop standards, they cross-license their patents, they share suppliers, they coordinate shipping, they develop research consortia, they discuss roadmaps, they lobby government.   Competition does not mean, fight to the death.  Competition means, to get ahead, one has to have help for nearly everything.

Consider competition in the bicycle race.  The peloton is the place to be–that ball of riders all bunched together, disrupting the air so there’s a mechanical advantage for following along behind.  To break way from the pack is to burn lots of extra energy.  The way to break away, generally, is to do it with a group of competitors.  Together, ahead of the peloton, but collectively sharing the duties of being in the lead, to reduce the total cost of the breakaway.  There will be a time to race for the win, later, near the finish line, but a form of cooperation is needed, often, for miles and miles before that time, just to have a chance to be in the race at its conclusion.  That sort of competition does not come up in most patenting discussions.  Get a big bike, and people will fear you.  Doesn’t matter, if it’s a bike race, then you still will have to cooperate to get ahead.

In a cross-licensing or standards environment, all those expansive claims count for little.  Once others can practice, then the competitive advantage moves from patent based exclusion to other things, like design, build quality, access to markets, efficiencies, brand recognition, and the like.   If one doesn’t let others practice, then there may well be a war of patent reprisals–competitors will exclude your practice under their patent rights, will block your participation in standards discussions, will lobby the government to look into antitrust issues, and raise objections to your attempted acquisitions.  Gosh, sometimes business is just the nicest of places, isn’t it?

Thus, companies with operations have to be heads up about patents, use of inventions, and the competitive landscape.  If they are thinking use, they may well also be thinking of allow, even encouraging emulation, as emulation is not necessarily so much a matter of competitors stealing market share as it is a break-away group defining a new market or market segment and expanding its value while sharing the costs of doing so.   The competition keeps the technology developing, forces mid-level managers to get off their duffs and learn things or get out of the way, and the complacencies of power point presentations have to give way to folks who see what is going on and can keep up.  That’s good for the organization, for the consumer, in a way that a 20 year monopoly battleship anchored in the port simply is not.

There is a practical side to this different sort of thinking, however, and that is the non-op troll.  A non-operating organization does not think about use in the same way as a company with operations.  We have seen that the company with operations may have to think in multiple ways about use, and about competition, to reach a point where income exceeds expenses, which is a core definition of “value”, regardless of what any particular patent happens to claim.

Imagine a party of hunters, out to kill wildlife.  Now imagine that one of the hunters goes, well look at this here gun I have in my hands.  Why, if I use it to threaten the other hunters rather than to shoot ducks, I can have all the ducks to myself.  And this, friends, is a better value than shooting ducks in competition with these other hunters.   At this point, we get into some weird ethics.  First, that the thought comes up at all is pretty sketchy.  At this point, we are nearing the first ring of hell in a Steven King novel or a sequel to Deliverance or something.   Second, there is the response of the other hunters, when they realize that someone is considering using the gun on them rather than ducks might lead to the invocation of certain precautionary principles, such as the standoff, or shoot first, or abandon the hunt with this crazy loon and call the cops if not the men in the white suits, if that’s what they still wear these days.

The difference for the patent troll is that a troll can exclude the practice of others, but has no practice itself to exclude.  There is nothing to fire back at.   The troll does want there to be use–infringing use–so that the troll can extract payments from practicing companies.  The responses are more difficult–seek to invalidate the patent with prior art or patent misuse, file for re-examination of the patent, design around or remove the functionality claimed by the patent, or pay up.

Now we get to university ownership of patents.  Apart from research uses, and a few internal uses (such as in lab medicine and the like), universities are non-operating entities when it comes to their inventions made in research.   The only ways that they “capture value” is through licensing or litigation against infringers.   Taking on infringers is itself fraught with ethics.  If the purpose of university research is discovery that gets used beneficially by others, then what is the purpose, for the university, in attempting to prevent that use by filing infringement claims?  Yes, it is only for the money.  The money is more important than the success of having research inventions used by industry.   The university is thinking, then, just like a patent troll.

That leaves licensing in a situation in which there is no present use.  This is the bit that looks like technology transfer–that is, teaching an audience to develop a new capability that you have and which might benefit them.   Here, we hit the dilemma for the patent manager.  In university research, the value of the transfer is in the instruction, not the patent, if the recipient intends to use the invention.   That is, the transfer relationship is not based on the existence of the patent, but on the value of the instruction.  Many patent managers miss this. Certainly those with an industry background would scoff.  It’s like saying the value of the battleship is how much space it has to hold dances and parties, not those big blistering guns strewn along its decks.   One might say, we have very different attitudes at work here.

The patent manager can weave the patent into a teaching relationship, and can expect to receive compensation based on the value of the instruction–its timeliness, helpfulness, on-goingness, its focus–or the patent manager can isolate the patent right as primary, present the offer of a license as a veiled threat, and work through the value of the patent to the licensee in such a context.  Both are viable ways of making money.  It’s just that one is anchored in the values of a university, and the other is anchored in the values of IP speculation.   Which approach should universities be adopting?

From this, one might gather that the purpose of Bayh-Dole was not to encourage universities to abandon technology transfer in favor of patent speculation, but this is largely what has happened.   Rather than using the patent system to promote the use of inventions, universities have chosen to create policies that use the patent system to promote the use of patents.  True, the rhetoric is all still about the public good and new products, but these are subordinate to practice, which is about making money from exploiting patent rights, with an implied, if not overt threat:  pay or get sued.   The stated aspiration may be to create new products or companies, but the actual practice is determined to extract payment.  This is the dream of the patent troll.  It may be a sophisticated troll-dream, involving scores of company startups all funded by investors happy for the opportunity to put money down, but the reason that these startups are created is so that the university can make money.

If it were otherwise, then companies and products would launch without the need for a university license, or if there was a university license, it would not require payment, or if there was a payment, it would come at the suggestion of the licensee, and recognized service or secured a relationship.   Yes, companies and their executives pay because they want to pay, because they understand that if they starve the organizations that support them, then they are worse off than otherwise.

Again, I imagine certain university patent managers scoffing at this.  Companies, they assert, pay only when they are forced to pay.  Otherwise, they take everything they can, when they can, and give nothing back.  Companies, in the scoffing mind of the university patent manager who scoffs, are nothing but evil incarnate, locusts that will eat the crops and not even leave a thank-you card.  Once a company has been ascribed this property, it is no wonder that the scoffing patent manager girds for a knock-down, drag-out fight, and wants big battleship patents with guns pointing everywhere.

The problem for universities is not getting companies to pay.  The problem is getting companies to use.  Use–in all the varied ways in which an invention might be used.  Certainly any form of research–evaluation of, certainly, as a condition of publishing.  Research with, to conduct research.  Research on, to ascertain the hows and whys, and expand the variation box of alternatives.   Certainly as well any form of internal use that does not require investment in creating commercial product.   For these sorts of use, university patent administrators should be granting general public licenses–make, have made, and use, without formalities, and with no requirement to pay.   That’s because use is not a function of payment.  If companies want to pay, they can pay to receive assistance, to get updates, to gain access to equipment, to get first pick of interns and graduates, to support further work, to be visibly associated with the work, or to have a confirming piece of paper documenting the license and making it a firm contractual commitment.

That leaves “commercialization”–the creation of a product to be sold, or the aspiration to create a product to be sold, or the aspiration to license to a company with the aspiration to create a product, any product, to be sold, or the aspiration to try to find companies to license to for this purpose, with excuses why this is too difficult but that a lot of other good things come about from the effort that aren’t commercialization proper but get more people on board with the aspiration thing, which is especially important if the primary goal of commercialization is to get funding to continue to aspire.   Whichever piece of “commercialization” one goes with, the core of it is development of product for sale.  The question is, to what extent does prior use interfere with such development, or encourage it?  The conventional answer from university patent managers is that any prior use diminishes the value of the patent offered for license, and a lot of prior use means one may as well throw the patent out and give up.

Give up?!  On what?  If folks are using an invention, then that would appear to be the time to be promoting commercial investment, not giving up.  Yet this is the mindset.   Look at university practice.  No university has general licenses that grant the right to use for research or for internal practice.  No university announces such a license when the university takes ownership of an invention.  No university limits its interest to just the “sell” right, leaving the make and use rights free to all.

The university technology transfer environment has developed a complicated approach to patents and licensing–the intricacies of policy, the IP demands in research agreements, the complexities of a patent license agreement, the horrors of any inter-institutional agreement dealing with joint patenting.  Yet the university technology transfer environment is about as naive as it gets with regard to “commercialization”.  If “commercialization” is a buzz word, then surely that’s naive.  If it means the development of commercial product, then apparently the only way this is done, to the university patent manager’s mind, is by the grant of an exclusive license that allows monopoly control of the entire inventive genre controlled by the patent so that investment in a product is justified on the basis of limited competition, enhanced price-setting, and therefore long-term profits greater than what one might otherwise achieve if there were competition, imitators, shared development, and a continual push to advance.  This, too, is naive.  It is especially naive for university leaders to anchor their research activities in metrics tied to this sort of “commercialization”.

If the troll is the non-op looking to make others pay, the university “commercialization” concept is to find one other willing to pay, and shut down the rest.  From a troll perspective, that’s even naive, as it limits one’s payment options to a single firm rather than an entire industry to be dusted up opportunistically.   Missing from all this is the thought that many research results have use only as tools, that many of the others can be practiced without commercial product support, and that of the remaining few, most can be commercialized non-exclusively, without a monopoly position to induce investment.  Companies with a lot of patents have a lot of monopoly positions.  They still don’t make product based on most of these positions.  The monopoly is not the basis for investment, whatever patent managers might believe.  The market is the basis for investment.  When a company understands a market, or understands what a market could be, that’s the motivation to invest.  Companies are started all the time without a monopoly patent position.  The restaurant, the plumbing supply company, the research services contractor.   The Microsoft.  The Amazon.  The Facebook.   The patents come later, to deal with possible assaults and reprisals and to gratify investors awed by battleship-like patents.

The reality is that university patent managers are as likely to license patents exclusively to a patent troll as to an operating company.   They won’t admit it, but that’s what happens in practice.  No, most of the companies they license to do not look like trolls–that is, like non-operating patent aggregators looking to litigate (or threaten to litigate) to get paid.  The companies look like “startups” that do not yet have product (but aspire to product (but mostly aspire to be bought by someone with more money and more aspirations)).  If a university startup never delivers product, then it has no ops.  If it then seeks to recover sunk costs by litigating its IP portfolio, then it is a troll like any other, just coming at it from a different direction, backing into the activity rather than facing it like a man from the get-go.   The same goes for existing companies that take a license and for whatever reason don’t quite get around to getting a product on the market covered by the claims of the licensed patent.  The licensed patent then serves as one the battleships in the company task force, to prevent competition with its products, rather than to extract payment from competitors.  It’s actually quite remarkable.  Again, any self-respecting troll would be shocked at the naivete of granting an exclusive license to a company that a) doesn’t create a paying product and b) uses the patent to keep everyone else from making such a product!

How does such a thing come about?  One can find it in the standard clauses that go into a university patent license agreement.  One standard clause prevents non-paying sublicenses.  That means, no cross-licensing, no dedication to a standard.  Another standard clause governs infringement litigation.  This one is touchy in an exclusive license.  If the licensee cannot lead the litigation, and the university might not enforce its patent rights, then what’s the point of the license being exclusive when in practice it is nothing more than a big snooker?  But if the licensee can enforce the patent rights, joining the university if required by law, then we are back to excluding practice, which is counter to technology transfer, and certainly only works if the licensee has commercial product on the market, is meeting market needs, and has had substantial investment costs that properly should be recovered.  If licensee product *is not* on the market, and the licensee wants to shut down someone else who *does* have product on the market, then there is something terribly wrong in the licensee’s development program, the license relationship, or the university patent manager’s head.

Between the restrictions on sublicensing and the management of infringement, any exclusive license granted by a university becomes a troll license when the company fails to put product on the market that practices under each claim of the patent.  Any unworked claims of the patent–all those battleship claims that establish the technology genre rather than address the properties of a specific implementation–become naive troll claims, unused by the commercial vendor, not practicable by everyone else.

If one wanted to do a serious evaluation of university patent licensing practice, one would look at all the unlicensed patents, all the patents licensed exclusively without commercial product, all litigation from infringement where the licensee (or university, if no licensee) has no product on the market, all refusals to grant research and internal use licenses.  Cut through all the metrics of the number of patents (just an accounting of hoarding) and the licensing income (which could be coming from five patents in a portfolio of hundreds or thousands), and look at what is going on with the promotion of *use* of inventions rather than the promotion of *use* of patent rights.   The results will be ugly.   Maybe 1% of inventions carry the financial load of the office.

As far as a financial deal goes, patent speculation can be a money-making proposition.  No question about it, patents can be lucrative business.   The problem for universities, however, is not how to get more and more of this lucre, but rather how to stay on focus for use of inventions and impact of innovation.  For such things, the financial model, the compulsory ownership policies, the focus on exclusive licenses, the fixation on “commercialization” as the first thing, rather than a later or subordinate thing are all part of a nightmare that has dominated the slumber of university administrators now for the better part of thirty years.

If we are to get productivity out of university research–and by that I mean that the reach of university research connects in useful ways with the community–then something has to change, and change soon, and in a big way.  The system in place is a nightmare for research, for innovation, for economic development.  The system in place offers a dream of money-making to administrators, who seek alliance with faculty by offering them a share of the money to be made, which it turns out isn’t anything for most of them.  But the dream persists.   The present system is consumed with thoughts about “title certainty” and “express licenses” that allow speculators to get exclusive commercialization licenses faster, and with creating startups that make it easier to produce more such commercialization licenses, while shifting the problem from investment in a product to investment in a company that wants to invest in a product.   The present system has polished the hood and the fenders, makes lots of noise, but is going nowhere when it comes to research, invention use, and innovation.

The present system is blocking innovation by gating it–establishing ownership positions and demanding payment rather than promoting use.  The present system is teaching faculty how to use their guns against other hunters, and calls this “culture change” that is dearly needed.  “It doesn’t hurt to have a few extra Porsches in the faculty parking lot.”  And it will be only a few extra expensive cars, at a huge expense to 99.9% of the research enterprise, to the university’s moral standing as an adjudicator of research and innovation, and to the opportunities for companies, practitioners, and entrepreneurs to work with the results of university work.

The present system is set up so that “each gets its own”.  No university technology transfer office will help another with a deal.  Leaders of leading university technology transfer offices have recently made that clear:  they would never handle anyone else’s inventions, even from another university (though they do it all the time).   In this, university technology transfer offices are even worse than for-profit companies, which understand (often, mostly) that they have to get along with others, do business in supply and distribution chains, and find ways to collaborate to advance the industry while competing in the market place on delivery of goods and services.   The issues here are bigger than Bayh-Dole, bigger than patent ownership, and in a way, the resolution is simpler than most expect.

First, universities have to get out of the compulsory IP ownership business.  They may operate licensing offices, but someone has to choose them.   This one is easy.  Snip snip.

Second, universities must reform their industry contracting, providing a broader range of flexible relationships based on technology instruction and services, taking pressure off the patent license as the primary carrier of value.  The sponsored research agreement is a dinosaur, and has to go.   The Lambert agreements, it appears, are an effort to get at this, but instead of replacing sponsored research agreements, these agreements attempt to “streamline” them.  Ugh!  We don’t need improvement and standardization; we need diversification.

Third, universities have to undo damage that has been done by the patent commercialization crowd.   Patents may be commercialized.  Money may be made.  These are not the issue.  The issue is the idea that faculty culture has to become more “entrepreneurial”, which for university patent administrators means “dutifully assigning all inventions to the university for money-making management while telling the public it is all about the public good”.   Faculty indeed may need to become more “entrepreneurial” but in a very different sense–more ready to work with others to put their ideas and research results into practice and find out what they are really worth, and to advocate again for the good of the game, not simply for themselves or for money.

In professional sport, there are athletes who are in it for themselves, and team owners who are in it for a profitable sale of the franchise.   Most sports can tolerate this behavior in a few.  But sport also needs those that commit to advancing the sport itself–playing at peak, not compromising the integrity of the game, honoring the game’s traditions and history, respecting the fans, living a decent life if not being involved in the community.   Lacking a majority of players and teams with such commitments, the sport fails.   This is true for any collective endeavor, research and technology transfer included.

Fourth, universities, when they do handle IP, must get sophisticated about use and a lot less naive about “commercialization”.   A university patent licensing office should look like an adjunct to instruction and research, more like a library or university press.   If one patent a decade can carry a patent portfolio financially, then even the greediest of universities can afford to be remarkably generous about most of the portfolio, all the time.  In fact, they may find that by being generous, they make more money, from more working relationships, than they do by becoming increasing tight-fisted and process-based.  Most commercial products comes a decade or more later, after research uses, after internal uses.  To restrict such uses, or even to make such uses uncertain or delayed or distracted, is to work against innovation and against the very thing that is desired by the patent administrator–income from commercial sales.  More so, it is to work against the operation of research enterprise, which spills most things out, runs without ownership positions in each little nit of a result, and when it is operating well, makes data, metadata, and tools for inspection and use by others.

The greatest problem right now, however, is that the system in place is perceived as the default.  Any change it is feared will lead more likely to blame and regret than to acclaim and happiness.  That’s the psychological reality of administrators.  Yet this is not the psychology of innovation, or of research exploration, or of scholarship.  These things, unlike the “system,” are not systems and don’t do well behind the bars of a system.

There is a role for IP in research activities, and it can be used to promote the use of research results.  There is also a role for exclusive licenses, from time to time, to get things done.  There certainly is a place for acknowledging the work of research teams that produce good science–including paying them for, or in recognition of, their inventions.  One way to do it is via the royalty bearing license.  But there are plenty of other ways.  Similarly, universities that do a good job hosting talent and managing the logistics for talent should be recognized–including getting the financial support they need to do a quality job not only with research but also, and perhaps even more importantly, with instruction and engagement with the big wide world.  The royalty-bearing exclusive patent license is a limited, difficult instrument by which to recognize universities for their contributions.

Thus, finally, we must have diversification in the form of experiments, local strategies, pilot projects, and cooperation among agents involved in dealing with patents.  From industry, we need approaches that advance emerging platforms, standards, interoperability (even in pharamceuticals), and that open up personal initiative rather than seek to constrain it.   This is always a tough thing, especially when one feels the power of position–in a company with resources, say, or a university where one could make even a faculty member feel pressure to conform or face career-destroying allegations.

At one time, only 40 years ago, we had a robust public domain.  Software wasn’t “patentable” and wasn’t even registerable as copyrighted work, published works entered the public domain if they didn’t carry a copyright notice and get registered, patents didn’t cover algorithms and business methods, DNA sequences, and life forms.  There was, in short, a lot less to own and fuss over.  And innovation did remarkably well.  But we’ve seen copyright expand, as is its wont, in subject matter, in term, and in the removal of the formalities of notice and registration.  We’ve seen patent expand as well in terms of subject matter, and even for term, if one can get a patent issued in less than 3 years, which does happen.    The purpose of university IP administration is not to swallow all new ownership positions and try to exploit them for “value” but rather to keep a robust commons–whether public domain or created by choice–for research and instruction.   Rather than claiming all ownership positions possible to be recruited first to the service of commercialization, university faculty and administrators alike should be challenging the use of ownership positions, limiting demands for payment for IP rights, and expanding the ways in which stuff is available for use outside of “markets” and “commercialization” and “monopoly licenses”.   We don’t need battleship patents, we need dance halls.

We have been led down a garden path in which patent rights were described as the most beautiful rose possible, but now we can see that they rarely bloom but always have a lot of thorns.   It’s time now to clear things out and refocus on what really matters.  Universities, get out of the compulsory ownership business.  Reduce emphasis on exclusive patent licensing, and on patents in general.   Add other ways to manage IP, including the use of external agents.  Expand the ways to engage others, in research, consulting, instruction.  Acknowledge those that are productive in making an impact in the lives of students and in the community.   This is basic stuff.  It is challenging, but not so very complicated.   You will be stronger for it, and the community will be stronger for it.  The current system is failing us.  The advocates for it would rather go down with a well painted ship than to make a transition that they don’t understand, aren’t prepared for, and can only imagine as chaos, foolishness, and liability.

Of all the changes, getting out of the compulsory ownership business is the simplest and most dramatic.  It triggers the motivations for the rest.  The universities that make this move will be the new leaders, will attract the top talent, and will have the most to say about what comes next, and will get the strongest public support.


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