We have been working through how a university might come to acquire patent rights from its faculty. I’ve discussed the problems in the dual monopoly system–comprehensive, compulsory assignment of a broad set of things labeled “inventions” combined with a strong preference for exclusive licensing of those inventions, and a virtual refusal to consider non-exclusive licensing as an early, primary objective (except when a research sponsor demands it) or to waive ownership claims or to assign back claimed inventions that the university has done nothing with. Still, this system persists, and is described as a really good thing. I resist the various similarities to plantation economics.
One thing that’s apparent in the various claims made for why a faculty inventor must assign inventions to his or her host university is that the folks making the claims think such assignments are a very good thing. There is no worrying that such assignments–
- are an improper use of university authority
- conflict with academic freedom
- put the university in an unacceptable institutional conflict of interest
- undermine public support for universities (they have patents worth millions and millions!)
- put universities in an adversarial relationship with industry
- work against innovation, entrepreneurship, and economic vitality
- adopt much of the model the federal government was criticized for in the run-up to Bayh-Dole.
- condition faculty to leave “commercialization” to others
- mix really good stuff with many things unsuited to the approach
- prevent faculty inventors from showing by their own choice their commitment to benefit their university with their inventive work
- degrade the surrounding infrastructure for invention management in the private sector
- add needless administrative delays and complications to efforts by others to obtain, learn how to use, and deploy research findings
- reduce the diversity of approaches available to be used to encourage transfer of technology.
None of this gets worried by senior administrators, at least not aloud, not in any writings that I can find.When someone pops up with the bright idea to expand “invention” to include even non-inventions, or “employee” to include non-employees, or “intellectual property” to include stuff that can’t even be owned, the idea makes it into policy just like that. There does not appear, even, to be a debate about whether it is proper to draft a policy that uses key terms with special meanings designed to create illusions. Crappy policy is fine, so long as it gives the administration the final word on what it means. The threshold for the game is whether anyone has the couple of hundred grand and the year or two or more necessary to take the university to court and fight through the issues.
The arguments to support dual monopoly policies include:
- It is perfectly natural and fair for employers to own employees’ work
- Taking ownership protects the public’s investment in university research
- Patenting and licensing are too complex for anyone other than university professionals
- We have to take ownership under Bayh-Dole (or some state law)
- Without ownership of everything, the university is exposed to breach of contract claims
- We have to own to prevent faculty from being charged with ethics crimes
- We have to own because we are prevented from doing business with employees
- This is the best way to make money for the university
- Negotiating each assignment is inefficient and uncertain
- Faculty inventors are greedy idiots if left on their own
These arguments don’t hold up under scrutiny–but from the start they have a $200K advantage in legal budget to keep them in place, sort of like overlords with better weapons than the local farmers. (Choose your media: here, or here, or here).
Consider these rebuttals:
- Faculty simply aren’t employees for their research
- Ownership for exclusive licensing denies the public access other than through commercial products, which rarely get made
- Any number of professionals have better patenting and licensing skills than most university licensing professionals
- Bayh-Dole does not require or assume or imply ownership (Ohio law apparently does but it is (arguably) unconstitutionally broad)
- Universities create the contracting problems by demanding ownership, offering exclusive licenses, and their own incompetence
- Ethics laws are readily modified for compelling exceptions; and why could you negotiate before? and still can, over copyrights?
- Historically, the best way to make money was not to waste it in the first place and be offered or granted an equitable interest in inventions following common law principles–so what changed? A bureaucrat’s thumb in every pie is a lousy innovation policy
- Negotiating assignments is simple when the assignment is voluntary. A university or faculty inventor can end any problematic negotiation by saying no thanks
- University administrators are exposed to the same charge–greedy idiots. Faculty, if they knew from the outset that they were responsible for managing the impact of their research findings, would develop the expertise and ethos to make quality decisions
The present patent policy structure at most universities is broken. The policies are garble, contradictory, inconsistent, hacked wording built on hacked wording, but expressing, generally, that university ownership of faculty work is a good thing, and that making money from that work is also a good thing, and that maximum administrative power to enforce this program of university ownership and money-making is also a good thing.
Even if one argues–as I do–that universities should have well-supported technology transfer programs, it does not follow that compulsory, comprehensive policies are even an adequate way of implementing such a program, or that licensing to favor monopoly speculation on research findings is even an adequate way for a university to fulfill its public mission (or to make money, or to support public research, or to engage in economic development, or to win public approval, or to build industry “alliances”).
Even if some technology transfer programs built on the dual monopoly model “make money,” is this a satisfactory basis for deciding what universities should be doing? Slave-owning plantations “made money.” Was that good enough? Factories with under-paid labor “make money.” Is that good enough?
In The (Honest) Truth About Dishonesty, Dan Ariely suggests that people have what he calls a “fudge factor”–the difference between wanting to think of themselves as honest and how much they can get away with in their cheating. In driving, you might find that you can go 62 in a 60 zone and still feel that you are a law-abiding citizen. Someone else thinks that speed is 67. If the highway patrol won’t make a stop, then that’s the defacto speed limit. Someone else thinks it is 74. It’s not a illegal until a judge says it is illegal–so, it’s certainly not illegal until one gets caught. A fudge factor.
Now consider university technology transfer. How far can someone go to impose on other areas of university life in order to make technology transfer “successful” as an organization–profitable, say? My sense is that folks running dual monopoly licensing programs think they are being excellent, even when they are doing all sorts of things that are, in practice day in and day out really not so good. I’ve been on the ground in these programs for 15 years. It is not so good there. But many of the folks in these programs have ginormous fudge factors. They can rationalize their actions because, well, they have not been caught, so it must be fine the way they do it. They resent it when someone calls them out, suggests that perhaps they have been foremen on someone’s plantation, that they have got their successes by violating others’ rights, opportunities, and expectations of good faith. It’s just that they have this big fudge factor, that keeps them feeling good about themselves as they do their jobs.
One role for ethics–examination of how we should live–is to examine fudge factors. One might even say that people unwilling or unable to consider their fudge factors operate without ethics, that they are unethical. Of course, even folks who will do anything have an ethic–it’s just not one that others find good to be around. Perhaps that is the point of debate here, whether a university as a “person” should be made by administrators to take the work of those it has attracted with a promise of support. I say no. I say that was never part of academic freedom. Never in Bayh-Dole. Never in the interest of faculty or the public or industry. I’m still looking for a cogent argument to the contrary that doesn’t end up being an explanation of how the university is no longer a university but rather is a plantation or factory or casino configured to produce a steady stream of inventions to support a betting pool for wealthy investors–and that this is somehow a really, really good thing. If the university is just a big casino designed for intellectual property betting, then the dual monopoly approach would appear to be well within the fudge factors of many university administrators. So long as the house wins, it must all be good.
Ariely suggests that one can shrink the size of a fudge factor by reminding people of their moral obligations, by resetting one’s moral compass, and by being observed. For technology transfer professionals, these might translate into refreshing their understanding of freedom in general, and academic freedom in particular; starting over with patent policy rather than rationalizing from it to whatever one happens to be engaged in doing; and finally, opening up the program to inspection–especially, making public the status of each “invention” claimed, not just spinning the “success” stories in an effort to look good. When we see the expense at which the good has been got, then perhaps we are also in a position to decide on the merits of the program. As it is, university technology transfer programs are committed to making themselves appear successful, diligent, honest. And yet they appear to have huge fudge factors that prevent them from looking at what they are actually doing in the university and the world. Blinded by our motivations, to use Ariely’s phrase.
So patent licensing comes to the university to support technology innovation and ends up turning the university into a casino to support itself. Matthew Stewart has a better description for how consultants achieve this kind of transformation: “eat the brain of the organization.” In which case, it is not a matter of ethics and non-ethics, but of an ethics of a university replaced by the ethics of a casino. It’s not that a casino is bad–it’s that universities play a different role in society, and don’t do a better job with that role if they become casinos.