Here is the opening sentence to Archie Palmer’s 1962 examination of university patent policies:
Research, whether conducted in the library, the laboratory or the shop, is an essential and integral element of an effective educational program.
This sentence caught my attention for the mention of the “shop.” At one time, a number of departments had robust shop activities–physics shop, chemistry shop, and the like. I worked in the physics shop as an undergraduate. It had metal working equipment, electronics equipment, and a handy collection of tools. At the University of Washington, a number of such shops are active, including Chemistry, Physics, Mechanical Engineering, and Health Sciences Scientific Instruments.
The triad of venues–library, lab, and shop–are tied by Palmer to education, rather than, as might be expected today, to research. Research is tied to education, rather than treated as a separate activity that might trickle down “new knowledge” to a curriculum at some distant date. The curriculum that mattered could very well be in a “shop” rather than a “textbook”.
In recent years there has been a resurgence in the idea of shop out in the big wide world, even as Matthew Crawford appeals for shop class not to be phased out of high schools. The “maker” community is growing, with things like 3d printing, home-scale CNC machines, and operations like Metrix Create:Space in Seattle, and TechShop in the Bay Area and lots of places else, and MakersFactory in Santa Cruz. Teaching labs like the Solheim RP/RM Lab at the University of Washington also promote shop-based innovation. 80% of undergraduate mechanical engineering students take a course at Solheim–and none of the courses are required for the major. It’s a place to be. At one time, the University of Washington School of Music had more invention disclosures per faculty member than most any other unit of the University–everything from data gloves to conduct machine music makers along with human ones to algorithms to manage audio manipulation. It was also a place to be.
While much of the attention is on research in laboratories funded by big-time sponsors, plenty goes on in shops and shop-like environments. One would think, with the resurgence in maker interest, that building shops as co-working places would find some appeal with universities. It would provide some balance to the current rush to make “on-line” instruction that replaces courses rather than textbooks.
A challenge with such “shops” at the university level is dealing with patent policies that are based on “use of resources.” Some of these policies make sweeping claims: if you use a resource of the university, then the university owns (or claims to, or requires assignment of) your invention. There is often no qualification for inventions: use the library, it’s ours, use the cafeteria, it’s ours. Some policies “outreach” to claim that if you collaborate with a university employee, it’s ours, as if employees were just another university resource.
It’s difficult enough to establish a claim to ownership of inventions simply for the use of resources. In companies, the shop right has been formed as a way of providing a middle ground between inventions owned by employees and demands for ownership by employers. It’s hard to see how there is any equity in an employer’s claim to ownership based on use of equipment provided for work that is not directly related to the employer’s own business. Worse when the employer is a university. Worser yet when the university is not even an employer, as in the case of student use of shops. Part of the problem is the damage caused by drafting patent policies to take everything, like some nasty ocean trawler, and then throw back what’s dead, worthless, or illegal. Lots of quiet damage gets done, but the trawler managers of the patent policy are not about to self-report that damage, let alone document it.
These sorts of claims would be challengeable, but students and even faculty don’t have the money or time–maybe $100K–to take on a university administration. As a result, they are careful, and keep their valuable work away from university resources. Only the foolish and desperate would put something they were working on, and cared about, at risk of the bureaucratic thumbs. The effect of the take-all-throw-back policy, written for the convenience of administrators, is that creative work drifts away from where it naturally would happen.
A good move in these policies, if they must be catch, damage, and release, is to distinguish “designated resources” from general resources. Designated resources would be facilities, equipment, supplies, and like that require a patent agreement before use. Other resources would not. The advantage of such an approach is that it would put the burden back on the university to explain just why the use of a library or a student lounge for inventive work justifies an institutional claim to take inventions that might arise. A second advantage is that it provides for informed consent. At least the institution respects the situation enough to explain why it is demanding ownership.
A much better move, of course, is to drop the claim to own all inventions made with university resources and base a claim on things that actually matter and might even hold up under challenge, such as because faculty have agreed to contract terms with a sponsor that requires university ownership, say, or that the university has agreed specially to provide funding for a project that it has an interest in, such as, dunno, developing a better parking kiosk pass scanner. For most everything else, the issue is not ownership at all, but control and money. Control can be distributed by means of permissions and licenses. Or shop rights. The university gets the benefit of use of the invention, without all the baggage and invasion of demanding ownership. University ownership–that means the inventor cannot even practice the invention outside the university without a bureaucrat deciding it’s okay. Why would anyone touch a university resource with anything they cared about, with that stipulation in place?
As for money, that’s often the root of all policy evil. The university folks don’t want someone to come in, use their stuff for free, and then go off and be successful. That just grates. Call it bureaucratic envy. Somehow, somewhere, someone thinks that it is just wrong to get an idea in a university library, scratch out some notes on a university computer or CAD program, and try something out in a student shop, and then go be successful with it. But that same thing, with payment to the university, then sounds all wonderful. A number of Canadian universities use a financial option–the inventors get to do what they want, but they owe 1/3 of their proceeds to the institution. That’s a crazy huge demand, considering that if the university were the *owner* of a patent right and licensed that right to a company exclusively, they would be looking at maybe 5% of adjusted gross. It ought to be a lot less for merely providing some largely incidental resources and not actually commissioning, directly funding, or directing the work. 1% starts to sound *way too high*.
If a university wanted to pitch inventive fun, it might ask, say, “0.5% of proceeds over $100K from any patents you get and you get to play all you want with our undesignated resources. All we ask is that you register your project so everyone knows that you have got an eye on inventions and are looking to patent stuff. Then they can play safe with you or not at all, and won’t be surprised or get all fussy when you surface on the cover of Forbes.” Maybe that would satisfy the misled moralists that think that using a public resource is as good as ceding control of anything made to bureaucrats. Think commons, not control, folks. Making some simple arrangement like that would perhaps even be attractive to creative people. Maybe it would inspire development of more maker-space like places within universities, more shop-like resources that draw in creativity rather than paywall it.
University IP policies get a lot simpler, clearer, and reasonable when the catch-all, damage-all (it’s only fair we damage everything equally!) policies are abandoned. The CADA policies have been a dreadful failure. It will be much better when folks return to policies that state clearly the things the university must own because it has contracted to do so, and provide a protocol by which the university community decides, based on the circumstances, what else, if anything, should also go that way. For everything else, consider success to be getting a generous mention in that cover story in Forbes.