Col. John Boyd was, at one time, America’s best fighter pilot. He could out-maneuver any pilot flying, he could teach pilots to fly, and after earning an engineering degree from Georgia Tech, knew more about the dynamics of jet fighters than any other fighter pilot. He knew more, too, about design than the Air Force generals who approved aircraft designs for the next generation of fighter pilots.
In Boyd: The Fighter Pilot Who Changed the Art of War, Robert Coram describes the problem faced by Col. John Boyd. The Air Force generals were determined to build a fighter that could beat the Russian MIG. In Vietnam, the MIG-21 was beating the F-105. Even the older MIG-17 was taking down the F-105. The Generals wanted a plane that could fly farther, higher, and faster than the MIG. The trouble was, as Boyd, knew, farther, higher, and faster were not the properties that made a fighter successful. Farther-higher-faster were parameters one could use with non-specialists to get funding to build a fighter. All one had to do was appear to be a specialist, and so long as no one contested the claims with actual data, the rhetoric worked. The Air Force in this way induced Congress to fund dog after dog. F-100, F-105, F-111, F-15. These planes were big–they had to be to fly farther, faster, and higher. And heavy–again, weight was a consequence of all those features. But just look at those parameters–the plane, on paper, outperforms the MIG in every way that a poser specialist has at ready to persuade a non-specialist that this is just the plane to be built.
As Coram puts it, the generals “looked at technology rather than the mission. And if they did consider the mission, it was always the fashionable mission of the day” (156-57).
Boyd, however, knew from experience and study that the parameters that made a fighter jet successful had to do with how quickly the jet could maneuver–its rate of change in turning–its acceleration–with fast transients. But the generals had established their public rhetoric about farther, faster, and higher. That rhetoric could get politicians to fund their projects, and funding their projects gave them status. No matter that the politicians depended on the generals to present the best metrics for the fighter designs under consideration. What mattered is whether the generals got the money. Any metrics would do. Better to have a metrics, then, that were easy and clear rather than ones that were strange and complicated, even if the strange and complicated metrics were essential to a sound decision.
Rigging American Technology Transfer
American university technology transfer has gone the way of the Air Force generals of the 1960s. The metrics that are championed for the success of technology transfer are patents, licenses, income, and startups. These are the parameters that are used publicly to report the wondrous success of Bayh-Dole. Look at all the activity. Success! Yet these are metrics of the apparatus, not the mission. The metrics required by Bayh-Dole’s standard patent rights clause are never reported: for each claimed invention, its status with regard to practical application with benefits available to the public on reasonable terms–including at a reasonable price–, and for each invention for which commercial development is used to achieve practical application, the date of first commercial sale. Bayh-Dole strangely exempts these metrics from FOIA disclosure. To my knowledge, no university has voluntarily reported these figures.
Administrators turned the Bayh-Dole Act into a national innovation policy of a bureaucrat’s thumb in every innovation pie. On the face of it, there’s nothing that recommends such a policy–unless, of course, one is an administrator and the purpose of those billions of dollars of public research support for universities is to ensure that American university administrators have more well-paying technology transfer jobs than their foreign competition. Of course, if the intent of Congress was to put a bureaucrat’s thumb in every innovation pie–there’s a bureaucrat’s thumb gap here!–then Bayh-Dole appears to have been every bit successful. But yeah.
Instead, the public (and politicians) are told that if we have more patents than other countries, we must be doing better research and that research is stimulating our economy, giving us a competitive advantage and leading to a better quality of life. But more patents at the critical early stage of university research findings do not mean economic stimulation at all. Rather, more patents mean that the flow of key research findings is cut off from broad use, from collaboration and verification, from the very forms of development that new research most needs. For companies, more university patents mean more things to avoid, to design around, to exclude, to undermine.
When those patents are owned by the host institutions, the metric means that administrators have taken control of inventions from those that might know best the context and requirements of research findings–the research investigators themselves. Rather than help those investigators make connections to take the next steps toward development or application, administrators take ownership instead, demanding that the investigators help the administrators, so the administrators’ program of licensing can be considered successful.
The claim of ownership runs more broadly than patentable inventions made with federal support. University administrators exploited Bayh-Dole to expand their IP policies to claim patentable inventions regardless of funding, copyrights other than in some “traditional” works of scholarship, software, know-how, and that amazing unicorn of institutional IP claims, “non-patentable inventions.” If Bayh-Dole required university ownership of federally supported inventions, and if that was a good thing, then ownership of everything else must be an even better thing. The logic is a mess unless the purpose is to build the apparatus–and then it makes sense. It does not matter that Bayh-Dole does not require university ownership. It does not matter that claiming institutional ownership of personal research findings may run against faculty desire to release those findings to the public domain, or to permit the federal government to hold inventions on behalf of American science and industry, or to develop broad collaborations and ad hoc standards, or to pursue private development through personal connections better than those the university will ever have. The thing that matters is that there is a metric that the public comes to believe represents the success of the apparatus.
Licenses likewise do not mean a successful mission. A patent license in a university licensing program generally is a measure of the speculative isolation of research findings. Most university “technologies” are licensed exclusively. And if they are not licensed, the default expectation is that they will be licensed exclusively someday. Thus, it is only with regret or desperation that a university licensing office typically accepts a non-exclusive licensing offer.
Universities hold intellectual property on behalf of a future monopolist who will come someday with money and a sharing personality. That’s the administrative dream, and licensing program defaults are set up to make it come true. All else is suppressed in favor of that dream. Licenses to startups–almost always exclusive–represent the hope that a monopolist would rather buy a company. So universities create paper startups and offer the metrics to state and federal officials as evidence of economic development. Yet in actual practice, those startup companies with monopoly positions represent action that runs against economic development–the technology trapped in those companies is not available for competitive development, scholarly verification, or public use. Even when one of these paper start ups gets investment funding, more often than not the licensed technology is not the stuff that gets developed.
Licensing income represents the payoffs from holding out for speculative monopolists. Some few inventions make it through the university licensing apparatus and become useful. The actual rate of such success may be less than 1/2 of one percent. No one knows, as the data are not published. Certainly the “success rate” is much less than the 30% licensing rate claimed for university programs under the equity-agent model before Bayh-Dole killed that model off in favor of bureaucratic domination.
Advocates of the Bayh-Dole Act point to the growth of the university technology licensing “industry” as an indication of the law’s “success.” This growth is evidence of apparatus, not mission. Bigger, stricter, and costlier appear to be the requirements for apparatus success. If the mission is failing, that must be because administrators do not have enough people, or power, or money. But before administrators even get that far, first they accuse anyone of questioning the success of the mission of being clueless or mean-spirited or talking nonsense. Either way, Bayh-Dole has produced an apparatus that provides nests for administrators rather than the resources to accomplish the mission.
A Willingness to Introduce Change
What is missing is a willingness to change the situation. Coram argues that in the Pentagon of the 1960s, innovation was not a desired trait:
There are officers of great patriotism, however, who are appalled by what they see in the Pentagon. They say to themselves, “I’ll go along for now. But when I get to be colonel, I’m going to change things.” What they don’t realize is that they will be promoted to colonel only if their superiors think they won’t make changes. Study after study shows that the higher in rank a military officer ascends, the less likely he is to make change. It is sad indeed to look upon a patriot whose ideals have been destroyed by the Pentagon. But even sadder are those who simply stand aside and do or say nothing, allowing those who sold their souls to have their way. (189-90)
University leaders–presidents and provosts, deans and licensing office directors–are less likely to make changes in their IP policies, and certainly not changes that reverse directions and focus on the parameters that matter for mission success. What will it take to get American universities from building yet more apparatus to back their rhetoric that an ever-expanding federal budget for research justifies more construction, more hiring of research staff, stricter policies governing institutional control of research findings? Is this not a bubble like Enron, where the entire operation hinged on ever-increasing share price, or like subprime mortgages, depending on nation-wide ever-increasing property prices?
At some point, change requires personal decisions to break from looking out after reputation and career, willing only to repeat the public rhetoric that has been used to build the apparatus. Col. Boyd puts the point this way (in Coram’s account) in a discussion with a colleague at the Pentagon:
“Tiger, one day you will come to a fork in the road,” he said. “And you’re going to have to make a decision about which direction you want to go.” He raised his hand and pointed. “If you go that way you can be somebody. You will have to make compromises and you will have to turn your back on your friends. But you will be a member of the club and you will get promoted and you will get good assignments.” Then Boyd raised his other hand and pointed another direction. “Or you can go that way and you can do something–something for your country, for your Air Force and for yourself. If you decide you want to do something, you may not get promoted and you may not get the good assignments and you certainly will not be a favorite of your superiors. But you won’t have to compromise yourself. You will be true to your friends and to yourself. And your work might make a difference.” He paused and stared into Leopold’s eyes and heart. “To be somebody or to do something. In life there is often a roll call. That’s when you will have to make a decision. To be or to do? Which way will you go? (285-86)
The mission of university technology transfer is as clear as it is worthy–to help place research findings so they are used by others. This mission, however, has been co-opted by service to a rhetoric that champions the apparatus, the program, the idea of the program. More patents, more licenses, income, and startups. There are reasons for this rhetoric. The most important is to support the continued growth of extramural research–more money, more labs, more staff, and especially more administrators to deal with the scale, the complexity, and the public justification. There is not a university in the country rigging for less research funding as a strategic decision. There is no talk of exceeding one’s carrying capacity, of being spread too thin, of doing much stuff but not expertly. Growing the apparatus is the administrative mission.
Each day, somewhere, there is a roll call and a university leader must make a choice whether to do more of the same or have the courage to make changes. To be someone who gets promotions and keeps building an apparatus that destroys technology transfer even as it succeeds in snookering politicians into providing ever more money. Or to do something, perhaps riling up the folks who like the good pay of the clever scheme sold under the name of Bayh-Dole–and perhaps make a difference in the world. And be true to the mission, not to the apparatus.