Rekindling

photo-1-e1417103056720It’s Thanksgiving Day, and here I am up at 6am, taking care of the dog. She’s an early riser, so I am too. I’ve got a fire in the fireplace, and the espresso is brewing. I have been busy, so the blog entries have slowed over the past three or four weeks, but I have more to add to the discussion regarding tax treatment of research facilities.

The big challenge in all of this discussion is finding the right starting points. Some folks have decided that innovation is a system, and all that is required is for the inputs–reports of inventions–to be processed by trained technical professionals, and the factory of university benefit to society will turn those inventions into patents, the patents to licenses, the licenses to products, and the products to big fat royalty streams that will buy hot cars for the happy faculty and students who cooperate with the factory, more research funds for all the rest, and economic development for the regions lucky enough to have such university programs in them–and smart enough to subsidize those programs with extra cash.

I’m not one of those folks. I don’t see that historically innovation has operated like a factory. Even Vannevar Bush’s quest to find new technology involved pulling people from factory-like settings–from the universities, from government, from industry–and letting them focus on building, doing, making without any of the “establishment” oversight and expectations. Indeed, Bush’s big insight was that innovation would not flourish in institutions, even institutions that wanted innovation, or wanted the benefits of innovation, or at least wanted the benefits of appearing to want innovation more than the average institution.

I don’t see that the university “system” of innovation has done much good at all. That system is as defective as the federal agencies were that took ownership of patents and attempted to commercialize them. No, that’s wrong. The government was not generally trying to “commercialize” research inventions. Federal agencies took out patents in order to create platforms of common technology available to American industry. The only folks who didn’t like this were the speculators, who wanted the threat of monopoly to stimulate their own interest in betting against each other for “high risk, high return” opportunities. For that way of thinking, “low risk, hard work, high return for everyone” opportunities are not at all interesting.

Indeed, the present university “system” of technology transfer is doing worse than the government’s handling of patents. While the government was passive about commercial licensing, university administrators have made it their signature effort. Do good for the world by licensing patents for profit, if not to industry, then to venture capitalists seeking to engage industry, and if the VCs turn away (which they largely have), then induce states to put up the money to run a well-intentioned but mostly fake venture program, and create shell companies for those state-run funds to “invest” in, and call them “start-ups” that will fuel the regional economy, or at least have the “potential” for doing so, or at least show to the public how badly administrators desire innovation, or at least desire to be seen as innovative, or at least desire not to be seen as doing anything other than what everyone else is doing with innovation, except maybe spending more than their rivals on their efforts.

AUTM has never give a true account of university innovation efforts. AUTM won’t even ask for, let alone publish, the basic information that the Bayh-Dole Act anticipates that federal agencies should require of institutions that obtain rights to inventions from federally supported researchers. But from what I have seen, it appears that universities are doing no better than the federal government was in 1980 at signing up licensees for inventive technology. Worse, if one considers that universities are trying to do so, and the government really wasn’t. Much worse, if one considers that universities were once the great source of both open and private ideas about what to do and how to do it, and now, thanks to university administrators and to AUTM’s advocacy, universities have largely cut off that flow of ideas–not just ideas to industry and entrepreneurs, but even ideas that would otherwise be shared among researchers at other universities.

But this view of university activity runs against the official intention, the official spin. The official intention is to “do good in the world” by institutional control of everything valuable that a faculty member, student, or staff member might imagine, create, gather, develop, program, write, or realize. Such control is necessary, argue the administrators, to feed the factory system of innovation, which accumulates IP and then knocks on industry and investor doors seeking licensees. If the system works–and it doesn’t–then the world is a better place, and the university administrators make millions and millions of dollars, a new source of income to fuel more research, to create more IP, to create more licenses, and more good in the world. It’s like a vision of apple pie, except it’s a pie that’s never baked, never eaten, just imagined, floating in the air, out of reach, in the twilight, a pie in the sky. But is it a pie in the sky worth ruining the place of university research in the broader scheme of things? Is it worth ruining the individual interest in research findings for the sake of being seen as the key player “doing good” for the world? Surely not.

The debate over how to manage university IP is not much of a debate. There are a few blogs such as Research Enterprise that show alternatives and call out the fakery and foolishness. But not many. And there are a host of university tech transfer offices that publish only an official account of why they exist, how reasonable it is that they take everything they want, and how badly they want the best for everyone. There really isn’t much debate. The system is settled, apparently. The challenge, then, is how to rekindle new directions in IP management. And some of those new directions are actually rather old directions that have been disrupted and blocked by the revolutionaries who took control of university innovation, or at least those that followed in their trail and discovered new sources of administrative power.

What then in this November of 2014 is there to be thankful for, with university administrators, contemptuous of Stanford v Roche, refusing to implement their obligations under the Standard Patent Rights Clause authorized by Bayh-Dole, promoting to the world how wonderful comprehensive, compulsory IP systems can be, and actively working to prevent any institution from breaking with the new status quo? There are still many things to be thankful for:

We are thankful that the federal government has not made the university approach to IP management the law of the land. At least the barriers to change are politics, fear, prejudice, and bad information, not law. Politics, fear, prejudice, and bad information are plenty enough.

We are thankful for the university administrators that are skeptical of the command-and-control approach to innovation and let folks do what they choose to do. Even in totalitarian regimes, there remains a spark of imagination, independence, grace, and empathy, and that spark means hope for the future, for new things, for the collective effort to gather what can work and make it into something for future generations: it is, in its way, what we have to give.

We are thankful for the faculty, students, staff, entrepreneurs, investors, company scientists, and government officials who recognize that innovation is an odd combination of hard work off the beaten path combined with the good fortune of having the right people with you to make a difference.

We are thankful for the freedom to call out the administrative foolery and point to alternatives–some day, this new monopoly on university IP will be broken, some day faculty and students will have their freedom back, and those who have been sued, or disciplined, or threatened, or bullied for their IP by university administrators and university attorneys will be the heroes.

We are thankful, as well, for the very people who stand in the way of new possibility; they hold onto the bits and pieces they have been told, as if they were floating on a great sea with the wreckage of a ship about them, trying to make some new order from their condition–and who can fault them for doing so? Some day, too, these same people may be the leaders of freedom to innovate, if they can feel the earth beneath their feet once again.

We are thankful for colleagues and traveling companions willing to discuss, imagine, document, and create new approaches to IP management, including what may be the best approach of all–knowing when and how not to manage IP at all.

Take in the harvest. Find the good. Share it forward. Thank-you for reading Research Enterprise.

Happy Thanksgiving!

 

 

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