Abstraction as an Obfuscating Drafting Technique in University Patent Policies

The Arizona Board of Regents intellectual property policy fails to state, simply, that the Board expects to own patentable inventions made by employees who have agreed to assign their inventions to the Board. Instead, the Board policy fusses around with definitions that don’t define (such as using the term to be defined in the definition; some definitions in the Board’s policy even state obligations rather than sticking to defining) and abstractions that obfuscate rather than clarify.

Consider abstractions. If someone says, “I intend to acquire your car,” you might not have much concern, unless you realize that “acquisition”–an abstraction–includes both “purchase” and “robbery.” This is a problem with abstraction, but university administrators often think it is a feature and call it “wordsmithing.” If one abstracts sufficiently, one can hide the true intent of the policy; readers will interpret the policy’s “acquisition” to mean “purchase” when the administrator intends “robbery.”

A similar thing gets done using lists along with abstraction. If a policy states that its objectives are to encourage innovation, benefit the public, and generate revenue, then one can expect that one of these things–making money–operates and the other two objectives are there for fluff, to get the policy approved in the first place. Of course, “making money” is too crass, and even “generate revenue” is there only for the sake of illustrating the technique. Administrators prefer abstraction:

It is the policy of the University to maximize the benefits to the individual who makes such patentable inventions, to the University and to the general public, and thus, to stimulate initiative in the faculty, staff and employees of the University. (BU)

“Maximizing the benefits” means, especially, “to make as much money as possible.” The point of the statement is to claim the university should get a cut of whatever money is to be made by inventors or the general public. 

New York University IP Policy

Here’s another. We will spend more time with it.

This policy expresses NYU’s commitment to promote the use of Inventions for the public good, including: promoting research and scholarship, and facilitating the development, dissemination and, where appropriate, commercialization of Inventions. (NYU)

Of course, other things might also be inferred, but “promote” here does not create anywhere in policy efforts to teach people to use inventions, nor even to identify what inventions are to be promoted. “Promoting the use of Inventions for the public good” includes “obtaining and marketing patents for money” and “commercialization of inventions” means “licensing patents for money.” But don’t take my word for it.

Here is what the policy says about “commercialization”:

when NYU owns the rights to an Invention, NYU has the sole right, either directly or through others, to commercialize such Invention or otherwise make it available for public use. Such efforts may include, but are not limited to, licensing to an existing company or the establishment of a new company or venture, in each case as determined by NYU. In all cases, decisions regarding Inventions owned by NYU are made at the sole discretion of NYU, and NYU has no liability to any Inventor, other person with rights under this policy or third party for such decisions.

First, notice that the discussion of “commercialization” means “commercialization and not commercialization”–“to commercialize such Invention or otherwise make it available for public use.” So “commercialization” is another abstraction that doesn’t mean what the word means–it means commercialization and not-commercialization. The policy then lists some efforts to illustrate commercialization–licensing to an existing company, licensing to a startup. So, licensing and non-licensing (“may include, but are not limited to”). We then hit a fascinating claim:

In all cases, decisions regarding Inventions owned by NYU are made at the sole discretion of NYU, and NYU has no liability to any Inventor, other person with rights under this policy or third party for such decisions.

This claim is nonsense. For instance, the federal government has rights under the standard patent rights clause in inventions made with federal support. NYU clearly cannot simply by policy disclaim liability to such a “third party” for whatever decisions NYU makes. NYU with regard to subject inventions does not have “sole discretion” in its licensing. This is just bombast, or cluelessness, or both. But the real intent of this claim is about money, since the rest of the section on “Commercialization of Inventions” is about the sharing of “Net Proceeds”–that is, money.

Net Proceeds is defined as Gross Proceeds less [deductions]. “Gross Proceeds” are “proceeds received by NYU (on a cash, as opposed to an accrual basis) from licensing or otherwise grant rights in an Invention.” The definition rambles on and gets to “license fees, royalties on sales or other usage, and milestone payments, but excluding research funding and other internally generated monies, including but not limited to tuition.” Got that? It’s amazing that the list even uses “monies.” The effort–here, a great, bombastic effort–is to avoid using the word “money” and in its place create an administrative abstraction.

The policy’s actual purpose is to avoid stating the simple idea of securing patent rights in order to grant licenses for which companies pay money. Patents, licenses, money. In place of this simple set of concepts, we get Invention (including non-inventions, non-intellectual property, and non-intangibles), license (including non-licenses), and proceeds (including nothing, since proceeds is already sufficiently abstract, and would be less useful as “consideration” (what one gets in a contract in return for an offer) or “money” (which is what “proceeds” means, but “money” is 233 in frequency in written English, and “proceeds” is not in the first 5,000 most frequent words.

The general strategy is one we might call “fantasy administrative metonymy.” Metonymy as a figure of thought involves replacing a thing with a part or attribute of a thing, or the reverse. So here, administrators imagine a category that includes as a member, “licenses patents for money” and then draft the policy for this abstract category. Yet there’s no indication that such a category exists, is at all useful, or is within the bounds of authority that the policy depends upon. The category is an administrative fantasy, but the policy statement then is caught up in an effort to abstract from each simple, direct thing to the imagined category to which it must belong.

NYU’s definition of “Invention” is buried later in a statement of “Scope and Acceptability”:

“Invention” refers to any novel idea, discovery, invention, know-how, show-how, or process, whether or not patentable, together with any associated or supporting technology necessary or useful for the protection, development or application of the idea, discovery, invention, know-how, show-how, or process, and also includes all patents and patent rights derived from that Invention, and all non-patentable Copyrightable Works, Tangible Research Property and Research Data that are closely associated with the Invention. “Closely associated with” includes useful in practicing the patent, in effectively prosecuting the patent application or in maximizing the licensing potential or other commercialization of the Invention.

“Invention” is defined to include “invention” but not be limited to “invention.” An invention is more than itself. An invention is all sorts of things–“novel idea, discovery, know-how, show-how, or process.” What a bizarre list. If one were considering “invention” for the purposes of patent law, one might expect something along the lines of  the definition given at the USPTO’s glossary of terms: “any art or process (way of doing or making things), machine, manufacture, design, or composition of matter and useful improvement thereof, or any variety of plant, which is or may be patentable under the laws of the United States.” An invention is patentable when it is new, useful, and non-obvious, among other considerations (such as within the ambit of public policy, not illegal, and the like).

Not only is this definition of “Invention” screwball with regard to what’s an invention, but it also distracts from the point of dealing with inventions for the purpose of patenting. “Invention” becomes an abstraction that means “a bunch of things, including what you might think of commonly as an invention, but so much more.” Which is as much to say that “Invention” means what administrators say it means. Most anything that one thinks is “know-how”; “show-how” is lazy slang for demonstrations of commercial practices.

The definition goes further, however, and becomes a kind of black hole for anything that might get close to this newly created abstraction called “Invention”–any “associated or supporting technology” is included in the definition if such “technology” is “necessary or useful” for the “protection, development, or application” of the “Invention.” (The policy repeats the list, with lazy variation, to give the appearance of formal precision, but the effect of the policy is just the opposite, one of pretentious cluelessness, a sign of incompetence come into possession of authority well beyond its capacity to write.) Now “necessary to protection” might be useful, as “necessary” suggests that whatever technology is indicated must be a part of the Invention anyway. But “useful” is a term of convenience–many “technologies” may be “useful” to, say, a “novel idea” and have nothing to do with anything inventive (or even with the inventors or with the university).

Not done yet with the black hole. Also caught up in its even horizon are “all patents and patent rights derived from that Invention, and all non-patentable Copyrightable Works, Tangible Research Property and Research Data that are closely associated with the Invention.” OMG, as they say. Or WTF, as they also say. Merely parsing this “and also” clause is nigh unto impossible. There appear to be two parts. The first involves “all patents and patent rights derived from the Invention.” The second involves a list of things that “are closely associated with the Invention”–namely “all non-patentable Copyrightable Works,” [bizarre, as there aren’t patentable copyrightable works. Patent and copyright are directed at different subjects–“discoveries” and “writings,” respectively. And works aren’t copyrightable–either they are subject to federal copyright or they aren’t–it’s not a matter of potential or application for copyright; copyright is by statute a natural right, a droit d’autor; there is no such thing as “copyrightable”–except in the fantasies of clueless folks who weasel up university IP policy statements] “Tangible Research Property,” and “Research Data.” (The capitalization here means we’d have to deal with these terms as defined ones, rather than thinking the terms had common meanings–expect them not to have common meanings, for the purpose of this policy.) So anything that’s “closely associated with” the Invention is defined to be included in the definition of “Invention.” Presumably, the process then may repeat and anything that’s “closely associated with” whatever is “closely associated” is also part of the definition of “Invention.” Or the logic breaks down (it did, really, long ago) and the definition can’t possibly mean what the words say it means, and must mean something else, that reasonable people would come to as if the definition wasn’t there at all.

In this case, the abstraction constructed to be “Invention” actually creates the need to fall back and rely on common ideas of what an invention is, because the definition itself is such a mess of things that it cannot possibly work with any clarity. All it evidences is an administrative claim to be able to take from faculty and others whatever administrators want to take–whether or not there is any intellectual property right in the invention or not (“whether or not patentable”). This policy is labeled “Intellectual Property Policy” but the first order of business in the definition is to extend the policy to include non-intellectual property, stuff that has no ownership theory in patent or copyright law, appropriating a term used in intellectual property as a totem to carry the non-intellectual property along with the intellectual property.

Finally, because we are still not done with the definition, we get a further definition of what “closely associated with” means, because it cannot just mean “closely associated with”:

“Closely associated with” includes useful in practicing the patent, in effectively prosecuting the patent application or in maximizing the licensing potential or other commercialization of the Invention.

Here we get an “includes”–whatever “closely associated with” means, that meaning also includes the three listed things. “Useful in practicing the patent” is likely nonsense. What one would expect here is “useful in practicing the Invention”–to practice a patent is a strange concept–perhaps one practices a patent to sue for infringement, or perhaps just to license the patent. In any event, the idea here is fantasy-bombast. Worse, there’s no connection between “closely associated” and “useful in practicing.” How is it that “useful” makes something closely associated with something else. The effect of this added definition is to loosen the association, so that “closely associated with” includes “not so closely associated with.” The definition breaks itself.

The second item in the list, “effectively prosecuting the patent application,” adds the needless adverb “effectively”–what would be ineffective in this context? Further, prosecuting a patent application has to do with dealing with the patent examiner. It’s not about preparing a patent application, but in fussing over that application with the examiner. Sure, there might be stuff “closely associated with” an “Invention” that would help the university with its side of the fuss, but there’s no reason whatsoever that the university has to include such stuff in the definition of “Invention” (and thus, claim to own such stuff, just because it might be used in responding to a patent examiner). One would think that the better focus on clarifying “closely associated with” here would be on stuff to be relied upon to draft a patent application, and even there, only to stuff that is part of the claimed invention or provides evidence for the operation of the invention as claimed.

The third item in this list is deeply abstract–“maximizing the licensing potential or other commercialization of the Invention.” “Maximizing” is not “improving” or “bettering”–it’s the total possible, the top of the pops. But what’s being maximized is not value or royalties but “potential.” What is “licensing potential”? That’s little more than IP manager fetish language about whether or not some patent appears desirable, along the lines of drunks at a bar leering at whomever happens to be within eye shot. In my experience, stuff labeled by university professional IP drunks (not all are drunks–but ones that use “licensing potential,” and especially those that talk about “maximizing licensing potential” are drunken loons) as having “licensing potential” usually doesn’t, and stuff they can’t figure out or recognize, does–but thankfully, they don’t know it.

Non-intellectual property, according to the definition, includes tangibles (“Tangible Research Property”–“tangible (or corporeal) items” (with a long tail of stuff that is included that is not tangible (or corporeal)). Now tangibles (or corporeals) are not intellectual property. (Got to love whoever thought we needed the clarification that tangible stuff was also corporeal.) Intellectual property is a species of intangible property. IP is intangible. An invention is an intangible. It is a concept about the disposition of things. A work of authorship is an intangible. It is a concept about a material thing, a composition, a copy. The work is in the mind, is intangible. The manuscript, as it were, is the tangible thing, fixed in a “tangible” medium of expression. Not only is does the intellectual property policy claim non-intellectual property intangibles (NIPIA–non-IP intangible assets) but also non-intangible assets–corporeal things. All of this wrapped up in a bespoke definition of “Invention.” The idea is, read the policy’s use of “Invention” as if whatever was included in the policy’s usage had the properties of an invention, when actually, most of the things the policy includes do not have the properties of an invention. Only by abstraction can the policy create such a mess.

Washington University IP Policy

At Washington University, they bury the abstraction in a list of abstractions combined with happy verbs. See if you can find it:

Washington University has established this intellectual property policy (“policy”) for the management of intellectual property to:

A. Promote, preserve, encourage and aid scientific investigation and research;

 

B. Provide an organizational structure and procedures through which inventions and discoveries made in the course of university research may be made readily available to the public through channels of commerce;

 

C. Establish standards for determining the rights and obligations of the university, creators of intellectual property (e.g., inventors, developers, authors) and their sponsors with respect to inventions, discoveries and works created at the university;

 

D. In its broad discretion and consistent with its overall mission, encourage, assist and reasonably attempt to provide mutually beneficial rewards to the university and members of the university community who transfer university intellectual property to the public through commercial channels under this policy;

 

E. Ensure compliance with applicable laws and regulations and enable the university to secure sponsored research funding at all levels of research; and

 

F. Enhance the reputation of the university as an academic research institution and a member of society by pursuing the highest ideals of scholarship and teaching and by conferring the benefits of that scholarship and teaching on the university community and society.

Yes, the answer is “D”: “mutually beneficial rewards.” What are these “rewards” but money from licensing patents? Well, there could be other rewards, too–fame from licensing patents, the lovey-dovey of industry executives who become fixated with the hope of licensing patents, dunno. Money seems to leap up as the primary “reward” for the activity of “transferring university intellectual property to the public through commercial channels”–er, licensing patents to companies for a royalty. Notice how the effort to obtain these “rewards” is backed out: “reasonably attempt to provide” (who defines what is reasonable–and notice that reasonably modifies attempt, so it is only the attempt that must be “reasonable”); “in its broad discretion” (that “its” must refer to the University–but universities don’t have discretion, since they don’t have brains; administrators have (sometimes) discretion, so the “its” here is really code for administrators deciding what they “reasonably” should attempt. “Broad” makes clear that “discretion” is not to be challenged).

Note, further, that “reasonably attempt” is buried in a list: “encourage, assist, and reasonably attempt.” The “its”–the University (i.e., its administrators) may then pick from the list, in their “discretion,” to encourage or assist or attempt. While the text uses “and” for the list, the “broad discretion” turns the “and” into an “or.” If administrators have “broad discretion” for how they do things, then they can turn “encourage” to a 9, roll “assist” back to a 3, and can put “attempt” at a 2, and they are still well within the mandate of the policy. Or, of course, they could turn down “encourage” to a 1, assist  no-one, and make a big show of “attempt”–the neat thing is that they don’t have to actually “transfer” anything. The policy statement is built entirely around “encourage, assist, and attempt”–not around “transfer.” There is no mandate to “transfer.”

Note, further, that “transfer” is another abstraction. No doubt it derives in some way from “technology transfer,” which in turn derives from Research Corporation’s advocacy in the 1970s that universities add staff in a “technology transfer” unit to help inventors identify inventions and “transfer” the invention and marketing rights to Research Corporation for management. The academic meaning of “technology transfer” refers to any of the movement of technology from a developed country to a less developed one, from an industry with a developed technology to an industry that has not used that technology, or from a laboratory to practical application. It is this last sense that has tended to stick around as a rationale for university “technology transfer” offices, which now do their own licensing.

But a university “technology transfer” office doesn’t transfer “technology”–it deals in patent rights. A patent allows the owner to exclude others from practicing an invention. A license promises others that the university won’t exclude them. A license enables a company to practice an invention without the threat (so much) of being sued by the university for doing so. Think about it. The need to license exists because the university has taken out a patent position. If there were no patent position, there would be no need for a license. The patent creates an artificial barrier. The license allows some (usually just one) company the opportunity to practice the invention. A “technology transfer” office that deals in patents (barriers) and licenses (exceptions to the barriers) does not transfer technology–it deals in creating exceptions, for money, to the barriers to access that it has created.

People who transfer technology demonstrate the technology, teach the technology, and deliver the technology. But we are far afield because the Washington University policy does not expect to transfer “technology”: the stated activity is the transfer of “intellectual property.” Well, now, “intellectual property” in its good practice sense means “patents, copyrights, and trademarks” with “trade secrets” often tossed in. In its folk meanings “intellectual property” means whatever it is that one feels an ownership sense about but that isn’t chattels or real property–so, ideas, inventions, songs, pictures, reputation, and the whatnot. But at Washington University, they use a laundry list for their definition, packaged under the general heading of “Useful Definitions in Discussions of Technology Management”:

Intellectual Property: Ownership and associated rights relating to scientific discoveries, technological advances, compilations, and original works of art, literature or music. Intellectual property includes patents, trademarks, copyrights, trade secrets and other species such as computer software, mask work, printed material or tangible property. The formal protections provided by patents, copyrights or trademarks may be used to preserve some intellectual property from unauthorized use or misappropriation or seek remedies therefor. Secrecy and confidentiality may be used to sustain other properties. Intellectual property is created when something new and valuable has been conceived or developed, or when unusual, unexpected, or nonobvious results have been discovered with existing technology and which can be applied to some useful purpose. Intellectual property can be created by one person or co-created by several.

If one wants a legal dictionary definition of “intellectual property,” it would be something along the lines of “a form of property lacking tangible existence, such as patent, copyright, and trademark.” “Property” is a “determinate thing” to which one has the right “to possess, use, and enjoy” (according to Black’s Law Dictionary). The definition of “intellectual property” is not “ownership” relating to something. The need of the definition is to distinguish intellectual property from property generally. The definition of “property” also is not “ownership and associated rights” in something. Property is that which one has a right to possess, use, and enjoy. One can be said to own the property, or to have these rights to it. Either way. One does not have to both “own” the property and “have associated rights” to have the property. Ownership is the set of rights that attach to the property, including the right to use it or convey it. If one has a property, it is a determinate thing, with a boundary, such as a piece of land or a vacuum cleaner. If one owns that thing, then one has the right to possess it, use it, enjoy it, and convey it to someone else.

In the case of intellectual property, because it deals with intangible things, establishing the boundary of the property takes work. For an invention, that boundary is defined by patent claims; for a work of authorship, the boundary is determined by the original work that’s fixed in a tangible medium of expression (and recorded as a deposit with a registered copyright). When one acquires a patent (by application, not robbery), one owns the patent; that is, one has the rights that come with a patent–the certain rights to exclude others. One does not by owning the patent “own” the “technology” on which the patent is based. One owns the invention in the sense that one has the right to seek a patent on the invention. If one wants to “own” the “invention” or any technology otherwise, one has to use trade secret–that is, one has the right to possess (and no others), and use (and no others), and enjoy (whoopee!) because others with access to the “invention” or “technology” have promised not to disclose it or use it otherwise, and the “invention” or “technology” meets the whatever statutory definition of trade secret controls–typically, something with independent economic value not generally known to the public for which reasonable efforts are made to keep it secret.

If the “technology” is not a patentable invention and also fails the definition of trade secret–it is generally known, or doesn’t have independent economic value, or has not been the focus of reasonable efforts to keep it from disclosure, then it’s not subject to trade secret ownership. One cannot claim to “own” the “technology.” One can, however, still possess, use, and enjoy the technology, but not to the exclusion of others. That is, the “technology” is not an intangible property. There is, of course, ways to exclude others anyway–by using threats, extortion, physical force. In the broader community, such stuff is the work of organized crime, racketeering, and unfair business practices. Within an organization, one can use contract or threat of discipline or offer of reward to prevent those within the organization from publishing the technology or teaching others or publicly using the technology–even if there’s no theory of ownership, one can still work to keep one’s own personnel from contributing to public awareness of the “technology.” In such a case, however, the “technology” that’s subject to these organizational claims is not intellectual property, is not owned in any sense, is merely restricted by the exercise of organizational power.

An organization can demand that everyone in the organization agree to say that the organization “owns” the “technology”–but this is fantasy land stuff, making up games for the organization to play, similar to requiring all personnel to refer to the organization’s president as “Darth.” It can be done, but it doesn’t create any legal title to the “technology” and does not turn the “technology” into “property” other than that within the rules of the organization–that is, delegated authority of the organization to use its resources to entice or threaten and so control behavior of its own personnel, the organization can limit how its personnel announce, disclose, teach, or use the “technology.” If one wants, one could imagine that the organization creates its own idea of “ownership” of the “technology”–a definition that exists entirely within the organization. If that special definition of “ownership” has any effect beyond the organization, it is purely as the result of threats (“if you use or publish this “technology” we will beat you up or refuse to do business with you or raise our prices on you) and enticements (if you don’t use or publish this “technology” we will give you a great deal or will protect your similar “technology” or give you a great endorsement), not title to property.

Perhaps you can see, then, how a university’s abstract even nonsensical definition of “intellectual property” can become an organizational fantasy regarding how university faculty must behave. If “intellectual property” must, by policy, mean “ownership and associated rights” and these “associated rights” include (in the absence of patent or copyright) demands made by administrators to control the behavior of faculty with regard to what the faculty have created, discovered, invented, composed, gathered, written, and realized, then the policy is not about intellectual property at all, but about “intellectual property and associated rights including a fantasy associated right in which administrators can at will exclude faculty from possessing, using, or enjoying whatever it is they do.”

Consider the intellectual property policy’s definition of academic freedom:

Academic Freedom: A privilege of scholars to choose their own research field, to enter into collaborations with others, and to communicate with others regarding their scholarly efforts. A core university principle.

Notice how this restatement of academic freedom makes it out to be a “privilege” (not a “right,” say) and limits “scholars” merely to “collaborate” and to “communicate” regarding their “efforts”–not to teach or use what they have discovered or invented. Here’s the opening of the University’s statement on academic freedom (there’s more, especially worry about politics and social causes, but this gets at the key stuff):

I. Academic Freedom.

The right of faculty members to academic freedom is of fundamental importance to an academic institution. That right shall be protected at Washington University in St. Louis.

Academic freedom is the particular freedom of scholars, teachers and students within the university to pursue knowledge, speak, write and follow the life of the mind without unreasonable restriction.

Here, academic freedom is a right, not a privilege. That is, faculty hold the right, not by the beneficence of administrators, but as a basic condition of the university. The breadth of this right given here is greater than simply choosing what to study, whom to collaborate with, and when to communicate “efforts”: “to pursue knowledge, speak, write and follow the life of mind without unreasonable restriction.” If one speaks and writes,  one may teach what one knows, disclose what one has discovered or invented or composed or collected and whatnot, and may be expected in doing so to intend to teach others to use such stuff. What’s left in the policy is what is meant by “without unreasonable restriction” and who gets to decide what’s reasonable and what’s not. Clearly, by the time administrators drafting the intellectual property policy get around to it, it appears reasonable to restrict faculty speaking and writing whenever university administrators see they can make money by such a restriction. Making money from faculty work is thus made reasonable, by policy. It’s just that administrators find it better to make the claim using abstractions, so it’s not overt, where it might be contested and forced out of the policy statement before the statement is approved.

Where there is no patent or copyright, the bit of policy that actually operates is the bit that claims that it supersedes the commitment of the university to academic freedom. It’s buried in the abstractions because administrators are loath to come out and say they intend to ignore academic freedom if they can make a buck selling off “rights” to what faculty do. The covert aim of the policy–drafted to ensure this bit is there–is to create a special, organizational meaning for “ownership” so that administrators can control faculty (and student, and staff, and visiting scholar, and volunteer, and collaborator) behavior, not by legal title to property but by fantasy title created by a policy game that has real consequences for people who refuse to play along.

To own an invention one has to establish it as property. One owns a patent by application to the patent office. One owns a trade secret by preventing disclosure. One then may “own” a “technology” by either patent or trade secret (it’s rather more difficult to own a technology by both patent (a publication) and trade secret (a prevention of publication)). Further, one may own the tangible, determinate stuff a “technology” is made of–sticks and stones and quantum dots. But such ownership of determinate stuff only excludes others from taking that very same stuff, say by removing the stuff from a lab, not in getting their own similar stuff and doing what they please with it. To define “intellectual property” as “ownership and associated rights” then adds nothing and confuses much.

But here, in the policy definition, we have “ownership and associated rights.” Ownership is understandable–one has to have a theory of ownership for intellectual property. That’s where patent, copyright, and trademark laws come into play, to establish how title to intellectual property is determined, how such property comes to be owned. Trade secrets, too, may be owned, but the ownership theory is established by promises not to disclose the secret, not by a law.

But the policy’s inclusion of “associated rights” is totally abstract as part of a definition of “intellectual property.” The definition here includes the properties of the thing being defined, not just its nature distinct from that of other things with which it may be conflated. The “right to exclude others from selling” an invention covered by a patent is not “intellectual property”–it is a consequence of patent law, not something that is owned in some way independent of a patent or patent law. The definition here makes logical hash of what it is trying to define–but worse, it is this custom definition that controls the policy, not what a reasonable reader would think “intellectual property” means, if there were no special definition provided. Even if the policy provided an account of intellectual property without making it a defined term, we would be able to discuss the policy’s meaning using the meaning of words we have available in common, such as how those words are used by people with some clue about standard usage. But not here, in this policy, with this definition.

The policy’s definition then immediately adds a restriction to “ownership”: “relating to scientific discoveries, technological advances, compilations, and original works of art, literature or music.” One might think that a definition would first indicate that what is owned is a statutory intangible property that grants the right to exclude others. That would make clear how intellectual property operates. But doing so would be no doubt disturbing and reveal the actual business model in play–create barriers to open publication and instruction so that companies will have to pay to practice what has been published or would be otherwise taught.

Instead, the definition resorts to a list of things to which ownership “relates”: “relating to scientific discoveries, technological advances, compilations, and original works of art, literature or music.” Now this list stuffs together bits that might involve patent and trade secret (“scientific discoveries, technological advances”) and might involve copyright (“compilations, and original works of art, literature or music”). Trademarks don’t show up, though they are also a form of intellectual property. Both parts of the list are woefully incomplete. Copyrights involve more than compilations and original works of art, literature or music. Software, for instance, though it is classed as a “literary work” by copyright law, is not a work of “literature.” And we haven’t got to any of the other categories of works, nor the general concept of any original work of authorship when fixed in a tangible medium of expression. Similarly, inventions might not be scientific discoveries, and scientific discoveries may not be inventions at all. The claim that ownership claims may “relate” to discoveries therefore overstates the case. Ownership claims “relate” to inventions that are or may be patentable, and to anything of economic value not generally known and kept from becoming generally known.

In olden times–say, fifty years ago–university research was called “basic” if it was unlikely to result in inventions. To invent, and invent often, meant that the university wasn’t doing research that was “basic.” One might then understand reports of increased reports of inventions on university campuses, not as a proud moment in the history of the sordid Bayh-Dole Act, but rather of the shift in attention from basic research to something other than that–not “applied” because that’s a different thing altogether. Perhaps more like “creating variations on popular technology themes.”

But the definition does not indicate that these things are given as illustrations of the stuff that might be owned. This is the list that defines apparently what intellectual property is, so far as interpretation of the policy goes. Otherwise, why even include something this strange in the formal statement of policy?

Patents concern certain inventions (ones that are new, useful, and non-obvious); copyrights concern certain works of authorship (ones that are original and fixed in a tangible medium of expression). But the policy writers can’t simply write “Intellectual property: patents and copyrights.” Or better, draft the policy using “patent” and “copyright” where that’s what is being treated.

Like a Lynyrd Skynyrd song, the policy can’t end its definition there:

Intellectual Property (Artistic): Aesthetic, decorative, illustrative elements protected primarily by copyright.

Ignores design patents, and makes no sense of copyright.

Intellectual Property (Literary): Literary works of authorship protected by copyright.

Uses the term being defined in the definition. Tautologies are not helpful. Ignores the requirement of originality and so overstates the category. Literary works can also be “protected” by trade secret, again ignored by this definition.

Intellectual Property Technology: Practical scientific knowledge embodied in a patent, patent application, copyright, mask work or trade secret.

One would think that “technology” would refer to both practical application of knowledge and the material things that enable such application–machines, devices, compounds, and the like. But no, here we have a definition that bites its tail, making “intellectual property technology” out to be the “knowledge” in a patent or copyright or a trade secret (a patent application is a document, not a property, and a mask work is a special category of work subject to copyright).  The definition claims then that technology is whatever knowledge is in a patent, copyright, or trade secret. How this definition is “helpful” to anyone is hard to fathom–other than to give some evidence for how sloppy and clueless the folks were who drafted and approved this policy statement. Sadly, no matter how sloppy and clueless those folks may have been, their work product–this intellectual property policy–exists and has an effect, like a minefield in a playground. It does not much matter how sloppy the mine-layers were. Stuff will blow off a foot or leg whether sloppy or not. It’s just that careful folks might have chosen not to lay mines at all, and not in a playground in any case, and if there, well marked, to protect the kids rather than to cause them fear.

I wish it were over. But Washington University’s policy has another definition of intellectual property:

General Statement of Ownership. Except as noted below, all intellectual property (including lab notebooks, cell lines, software, human samples and other tangible research property) shall be owned by the university if significant university resources were used or if it is created pursuant to a research project funded through corporate, federal or other external sponsors administered by the university.

Here the definition is implicit, buried in a parenthetical. What’s listed is a set of tangible items (notebooks, cell lines, human samples [ugh!], and “other” tangible research property) and software, which is apparently considered to be a tangible research property but if so, then, so would scholarly manuscripts, recorded data, and calculations on dry-erase boards. The effect of this definition is to extend “intellectual property” to include “non-intellectual property”–tangibles–but without any connection to some particular instance that might give rise to a claim on intellectual property proper, such as an invention that is or may be patentable. That is, the notebooks and cell lines are claimed without regard to whether they are associated with any invention in which the university otherwise has an ownership claim.

As a drafting limitation, the policy uses “including” but does not indicate whether this “including” is illustrative or definitional. Clearly, one would expect that intellectual property includes patents, copyrights, and trademarks, and perhaps trade secrets (to the extent such can exist in a university)–but instead we find a reference only to certain tangible items (and software) as if these items constituted the intellectual property that matters to the university. There is a principle in copyright licensing interpretation that when someone gives a list of the uses and formats subject to a licensing claim or restriction, that’s all one gets, even if there’s an “but not limited to” as magical “saving language” added to the list. If one has the mental wherewithall to create a list of what matters, then that’s what matters, not other things, things not mentioned when there was opportunity to do so. As the Shaw court held, “the true intent of a contracting party is irrelevant if it remains unexpressed.” Here, of course, we have a policy statement, and university administrators now generally aim to have policy become contract only when they want to “enforce it” against someone. If anyone challenges the policy, of course, it is not a contract, but personnel policy or administrative fiat. Thus, policy itself is contract and not-contract. Enforceable against anyone, but changeable and interpretable by administrators at a whim.

The effect of the list of tangibles in describing intellectual property has the effect of placing them as available for university appropriation. If one records information in one’s personally acquired notebook while in a lab, the university claims by policy the right to own that notebook if “significant university resources” “were used”–the policy does not say who does the using, or what the resources were used for. For the creation of the “intellectual property”? To conduct research in the same general area as the “intellectual property”? If the notebook is a laptop computer, then what? Perhaps the university then only claims the right to own the computer file. But who knows? The policy statement is broad, but the list is narrow. Intellectual property is only half-defined–but a “useful definitions” section in policy and by this implicit definition that extends the idea of intellectual property to include at least some tangible property.

Now We Know How Many Holes It Takes

Working through these policy statements is a pain. They cannot come out and say what they mean, or stay within the bounds of conventional language. They cannot say, the university intends to own inventions that are or may be patentable, and to license any patents on such inventions for profit, which the university will share with inventors as an inducement to get them to participate in this scheme. This same language does not work for copyrights, because copyright covers millions of things per year at a university where patent covers a few hundred at best. A university cannot intend to own all works that are or may be copyrightable (that’s nonsense fantasy language), or to expect to license such copyrights for profit. Some copyrights might be licensed for profit, but the selection procedure is way different from that for invention. Unless, of course, one abstracts “invention” to mean “all those things that we want to own and license for a profit, even if we don’t know what those things are right now or how we might own them, but they are most definitely in the category of what we have a right to–see our policy statement on the matter.”

The upshot is that university administrators draft to create the illusion of categories in place of the things that actually matter. They use “intellectual property” when they mean “whatever we want to claim.” So intellectual property becomes a fantasy category that includes non-intellectual property, tangible property, stuff that can’t be property and can’t be owned, and then the administrators make a policy claim that the university owns all this stuff, including what can’t be owned, just to put the burden on someone else to prove it really can’t be owned. Throughout university patent policies (IP policies, technology transfer policies, innovation policies–whatever one calls them), this is a standard move to create novel, often sloppy and clueless abstractions in place of the actual terms of art. If it weren’t in a formal policy, it would be risible. But here, it’s playing with live ammo, it’s laying a minefield, one that administrators can walk through magically without hurt, but which can by administrative action inflict hurt on anyone who dares cross it without the permission of the administrators. If one is an administrator, what is there not to like in this fantasy world of patent policy? One gets “sole discretion” and abjures liability, uses concocted definitions that include their opposites, so inventions include non-inventions, and licensing includes non-licensing, and whatever it is that one might discuss, one claims it also includes what one hasn’t discussed, using talisman such as “including.”

These patent policies, the vast majority of them, are hopeless messes. And yet faculty get threatened by administrators citing these policies, and disciplined or sued by administrators when they don’t back down. So it’s no laughing matter when clowns show up in court. Working through these policies is like counting holes in Blackburn, Lancashire.

 

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