Without patents, we would ask whether invention means all that much in the menagerie of university research insights.

What sort of epiphanies did you have today? Ah, I found an error in a published paper, had an inkling that there was a different cause at work than the one I had been assuming, thought of a new place to go to collect fossil pollen, and designed an interface between my microscope and my iPhone. Oh, nice!

What you do next is up to you. You could chase down any one of these, or you could have more epiphanies tomorrow that are even better. The basic expectation is that of what you do chase down, you will publish what is worth publishing and teach what is worth teaching and continue to epiff early and often.

If there were a business in collecting fossil pollen (there is, actually), you would have to decide whether it was worth it relative to doing your faculty thing, which you have spent a decade or so working toward, what with the doctoral studies and years as an assistant professor. Value would be relative. What of your work today has value, and who decides that value and what is that value is worth? Someone might appreciate that you found a flaw in a published paper. And someone might really want to see your new pollen samples, when you get them–and if they are there. Working on a new causative agent might open up a different pattern of attack to a long-standing problem. And that interface between the microscope and smartphone–well, now, that could mean a bunch of fun making plastic large-scale replicas of fossilized pollen grains. There could be good money in any of these things–but is pursuit of money the thing? And if someone else wanted to interface their microscope to smartphone, would you fuss about it and wish you could make them stop or pay you because you think you thought of it first? Or would you be glad of the company and compare notes on how to make things work?

And of the things you have done today–discovered an error, thought about a new angle, decided where to do some collecting, and glee that you can 3d print directly from your microscope–how do those rate with what you might find tomorrow or the next day? After all, if today was like this, why shouldn’t tomorrow also be like this, bringing more? What gets followed up, and what gets left behind? Is it what might be published in the most illustrious journal? Is it what would gratify you with a fine pound down of a research competitor who had criticized you but had made a horrible error? Is it your curiosity about how a problem you had been working on for months might be solved an entirely different way? Or is it that you could turn that microscope-phone interface into a business? Calling micro ETs?

When we make a commitment (to ourselves, to others) to find things out, to figure out the best things to teach to others, to check our work, to imagine how things could be different, to explore, then what sort of motivation do we need to keep at it, to keep at it with discipline, to make something of it? Sure, we can drift through life playing at things and not doing much of anything. But the folks I’ve been around don’t do that–they are after it day up and day over. They don’t particularly need any external “incentives” to do their work, and they don’t need to be threatened with “sanctions” since they aren’t lazy or sloppy. They don’t start companies for the money, even. They start them thinking “what a bunch of extra work–but I need the company as a tool to do things I want to get done.” They have, one might say, intrinsic motivation, they develop “flow.” Their motivation arises from within. They don’t attribute what they choose or do to an offered extrinsic reward; they don’t fear punishment. They don’t do it for pay. They don’t do it because there are rules that make them do it. That is–they work above Kohlberg’s base levels of moral development (to the extent those mean anything).

They might enjoy status or fame or appreciative words from their co-workers and students, but even the status or fame part might make some blench. They like to be acknowledged, but they don’t need self-promotion and becoming “somebody” or a celebrity is a distraction that wears them down. Sure, one can grub somewhere and claim to find a secret “will to power” lurking–but that can as easily be a construct created by the grubber than something that “really exists” in another’s heart. Just because you say I have a “soul” doesn’t mean I have one. It’s an expression about behavior and expectations, not a biophysical reality parked next to my liver.

Into this world, then, of mostly intrinsic motivations, let’s introduce the patent. The patent introduces an idea of ownership, around certain kinds of discoveries called inventions. The ownership itself is rather odd–it is a right to prevent others from making and using the invention, even if they figure things out for themselves, on their own, entirely without knowing you and your patent exist. With a patent, you can keep people from messing with your work. You can keep other researchers from working on what you are working on–at least when you are using your patented invention and they want to, but hah! can’t without your permission. So you can let your friends help you and keep your competitors and enemies and strangers and free-loading mediocre parasites away. Well, that’s interesting. It’s sort of like a ring of power. The question is, what happens to you when you put it on? (Oh, okay, this clip too.)

It’s not even like owning a gun. A patent is like having a gun loaded and pointed at everyone walking the edges of your property, all the time. You can shoot any time someone trespasses. It will cost you an expensive bullet, of course, but it’s entirely legal to make the threat and to follow through on it. No one dies, of course, with a patent–it’s all about money and power, not life and death (for those who can separate these pairs, of course). But the idea is the same, and I thought I’d make it vivid.

Now, of course, we might ask what happens when our academic friend with happy ideas about fossil pollen thinks that perhaps there’s something patentable in his work. That error he found in a publication–that means someone is teaching away from what might really be the case. A little research down a different path, one with the correction, might lead to something important–and patentable because it’s not at all obvious, given the published error. Or that inkling about a different cause. Find a cause that no-one has anticipated–that, too, borders on patentable stuff. Looking for fossil pollen in an unexpected location might lead to new methods of identifying paleoenvironments, and again, put those methods in software and hmmm, sounds inventive. Of course an interface device between a microscope and smartphone has already been done.  And patented. At a university.

Any of this stuff is on the borders of patenting–and some of it has already crossed the line. A patent introduces the ability to exclude–not just by asking folks to back off, not by threatening academic retaliation (you better watch your tenure review, there, buddy), but by the legal remedy of asking the power of government to step in and do the work for you. At a cost, of course–but at a cost to anyone crossing you, too. Unregulated, we might get a stability of enlightened exchanges–you don’t slash my cars tires and I won’t bust your car’s windshield. Or we might get a chronic civil war, revenge following revenge until everyone reads Locke or watches Lawrence of Arabia and decides that a government that takes intercedes is to be preferred to never-ending tribal battles. Aeneas, in his wanderings after Troy and before Rome comes to a country with no laws. It’s lawless! But does that mean people have such character that they need no external constraints on their behavior? Or that it’s utter anarchy?

Who can say? Move to the wilds of Alaska. You might think that civil laws float there in the air, covering the land. But in the bush, that’s a pretty remote mysticism. There are rules–more like guidelines–that keep you alive and help you deal with the creatures around you that might find you more delectable dead. And there are interactions with others–no state or federal law really needs to tell you want to do or can actually forbid your actions, except as a strange ineffectual murmur from a great distance, fainter by far than your memory of your mommy’s voice.

A patent, then, is like a ring of power. Put it on, and it changes the situation. It brings the power of the state into the wilds of Alaska. It loads up a gun that points at the edges of your property. It provides the academic inventor the potential to exert material control over her colleagues. Are you mean? Are you nice? Just what are you going to do with this power, this weapon, this little channeling of government?

That’s the first part of the public covenant–it’s just this, are you in academics attracted to this sort of control offered by a patent–to exclude others so you can take advantage of what you have discovered (paid for, often, with public funds)? Do you need it to do your work? Does the extra money attract you? Do you think that money is rightfully yours and you owe it to yourself and your family to let up on what you are doing to go after it, or hire someone else to go after it with even more energy and cleverness than you would? Do you need patents on your resume? Is this patent a meaningful tool to get you where you want to go? Is this something you want your colleagues to have, too, to use against you and your curiosity? The answers here run toward a common theme–there’s no need in academics for patents. Not to keep your colleagues or competitors from using your findings, not to keep companies or the public from doing so, not to try to get you rich or getting you a better position to get grants.

There’s no rule necessary. It’s a matter of whether you can be bought off from your personal goals. If the money or control matters, it’s likely you will leave academics for a situation better suited to your commitments. There’s nothing wrong with that. It’s just that the values of the academic community don’t involve using patents to prevent people from using what you have discovered, invented, built, imagined. There are other means of preventing use–not publishing, not teaching, not sharing data, that’s a nice publication ya got there, pity if something were to happen to it…

But take it a step further. Given we live in a world with patents, and some people are willing to use them, then what? For the academic, this is something of the prisoners’ dilemma. You might not want to defect on academic norms, but there are others out there who would–and plenty of non-academics that don’t give a rat’s ass about your snowflake thinking. Some academics, even, too. They see your research, they see where your research is going, and they get patents on everything you are heading for, out ahead of you. When you get there, you find no trespassing signs and a bunch of loaded guns (as it were) defending property you had imagined would be simply the land you had climbed the mountain for. So was this what all your sharing and publishing was for? To give some clever speculator a chance to stake out your path and troll it on you and those you thought you were working to benefit? If others are going to defect on your norms, doesn’t it make sense to defect on the trolls first, and at least match up against them? If you have a patent, then their patent on an improvement or application isn’t much good without you. At least you get a standoff, which is better than being beat down and whimpering away.

What are the odds, actually, of this beat down? Perhaps better if you are working in an area that industry is also working in, where corporations may have an interest in your work. And these days, way better if you are working in an area that other university researchers are working in, especially if they are getting federal funding for their work. Then nearly every university is a potential patent troll. Even if they won’t beat you down with patents (some will, most won’t), then there are clever folks who aim to get ahead of an industry and troll them for payment, and you are just a snowflake of collateral damage in their schemes.

And then there’s the idea that perhaps no one cares about your work at all. Even if fossil pollen is a fine thing, maybe there’s just no particular reason to file patent applications on methods of finding the stuff, or classifying it, or building accurate paleo environments based on the classifications. There’s no market. Would a patent help to create a market? Would someone step up, if there was a monopoly, to put up the money to build a product, clearing space for the product by preventing anyone from building a similar product or just using your methods themselves? It’s sort of interesting–you could make money by first threatening to prevent people from using your method in favor of allowing a company to make a product and sell it to anyone who might want it. Then your method is not only getting used, but you are making money, too.

Perhaps you can see that a patent introduces all sorts of complications. One can ignore it, and if the beat down comes, just change research directions and explore something else, or design around it and continue. Or one can obtain patents as a kind of half-way defense against the clever exploiters, gaining at least a standoff rather than a beatdown. Or one can use the patent to attract company funding for an idea, turning it (perhaps) into a product that gets used, that would not otherwise exist. But we are not done. A patent can be used for beat downs, too–keeping academics from encroaching on your research, but also keeping other academics from encroaching on your own patent business. What if some other academic invents an improvement and doesn’t want to license that improvement to your company but start his own. Well then. You need to have your patent ready to teach him a life lesson.

Once we have all of these possibilities in play, we attract the interest of the professional infrastructure–patent attorneys and contract attorneys, business advisors and invention management organizations, even university administrators. Is the university any place for patents, they might ask? What would the answer be–to keep the clever trolls at bay and to attract legitimate investment in developing the research you are doing? But not to prevent other researchers from working with your findings and preventing anyone from using their findings because your patent blocks that too, or to block the efforts of other licensing offices to get their inventions developed into products? Sounds like a decent set of choices.

Some university administrators think that financial advantage is for the bold and that only the weak-minded and soppy-idealists worry about collaboration. I’ve had to deal with some “bold” university administrators who thought that way, who were more than willing to screw over anyone they had to in order to make money for their institution. I’ve even had faculty at those same universities–such was their disgust–working to undermine those “bold” administrators.

If we work through it, then, we can imagine first a world without patents in which the only thing that matters is that one’s findings get one further into the truth of things and that others have the opportunities to use them and build on them. We then must re-imagine this world with patents. First, patents that would be used against research directions and the use of research–to create monopoly positions, to suppress use, to jack prices, to turn all that research into a happy present for exploiters. And so we imagine patents being deployed to defend against such exploitation–to create at least a standoff and better to get the exploiters to go elsewhere and leave the research and use commons alone. But here we find that even businesses need some help against the exploiters–if an invention needs investment to get used, and the government or foundations are not going to provide the funds, then a patent might be the bell that “calls forth private capital” to get the work done, and that’s a fair use of a patent. Reward the risk-takers willing to develop a research invention. Give them an advantage over the free-riders who wait for someone else to do the work and bear the cost and then rush in to take profit where they can.

This imagining makes a lot of sense. If we are going to have patents as social tools and some uses of patents are suited to the development of university research for the public good and some uses of patents are not, then we are well served by a public covenant that acknowledges the good uses and sanctions the bad uses. That public covenant ought to arise from multiple sources: faculty inventors and faculty as a group ought to expect it of their university work, and they should take some care to distinguish what they do at the university from what they do on their own, on the side as it were. The public covenant ought to then be articulated by the university itself, as policy statements authorizing some forms of patent use and forbidding university involvement or interest in others. Certainly the public covenant should be required by the federal government when it sponsors research at universities, and also from foundations that aim to work in the public interest. Industry consortia should also expect a version of the public covenant. Individual companies might think differently about their situations, based on what research they are supporting and whether they are purchasing research services (as with a clinical trial) or are offering to support work that would benefit the industry more broadly (as perhaps with the donation of equipment).

What should entrepreneurs think about a public covenant? One thought that would be worth thinking is that universities, being open and well funded, provide tremendous opportunities to gather in new technology and ideas and run with them. There’s competition, to be sure, with a public covenant, but the overhead for access is way low, and developing new inventions that ride on top of the research inventions creates commercial positions that will stand up to investor scrutiny. It is the rare unicorn that depends on an intellectual property position to succeed–even if Peter Thiel thinks building a monopoly is a great thing. The variation for research inventions is–sure, do that, but don’t cut off continued development of research inventions or you will encourage folks to work around those inventions, and around your line of development, and your commercial position, and you’ll have a monopoly all right–just an obsolete one. So even entrepreneurs would do well not to go a-biting the hands that feed them.

We are left then with the bold university administrators and their willing speculator friends. You know, the administrators willing to defect on the public covenant if it can make them a buck, or if it will step them up a notch in the eyes of their speculative business partners. It would seem that this alliance would be relatively easy to quell within the university. But it is not. It is, in fact, one of the original alliances–the alliance that created the IPA end-run around the Kennedy Statement of government patent policy and HEW’s implementation of the public covenant; the alliance that then developed the IPA approach into Bayh-Dole to make it tough for the national invention management agents who also were committed to a version of the public covenant. This alliance started off focused on pharma, where it is often the case that developing something inventive is full of risk and expense but copying the stuff that proves out is relatively easy. But the alliance wasn’t content with dealing with pharma. It covered its tracks by pushing the same model into all industries. Even recently, a pharma industry association continues to make these same claims.

But the bold university administrators have taken something else from this alliance, and that is that any use of a patent is fair game, is in the public interest, because, why, the patent system is in the public interest and universities work in the public system; ergo, anything legal that a patent can do, a university should do if there’s money in it. No university has a patent policy that disclaims the bold administrators’ patent dealings. No university announces a public covenant that expressly limits what a university is prepared to do with its patents. Everything is in play. The threat of universities suing for infringement, so the quiet reasoning goes, adds to the value of patents, and added value translates into higher royalties, and higher royalties are a testament to the excellence of the research and a proxy for the degree to which the public is benefiting.

What’s lost in all of this, however, is that it is not the number of patents, nor the number of licenses, nor the money made that counts for university research. If we are to go all consequentialist about it, success in the use of patents by universities (by faculty inventors, by administrators, by brokers, by industry consortia) is the number of times that a patent has helped the development of a product that otherwise would not have been produced; the number of times that a patent has preserved a research or commercial commons that otherwise may have been disrupted by blocking claims; the number of times a university has built incentives into its licensing to encourage competition and lower costs to the public–and those licenses have resulted in new products and competition throughout an industry. Count up these instances, look at the costs, look at who has benefited, and then we are in a good position to imagine the importance of a well developed, widely respected public covenant covering research inventions made at universities.



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