I have been writing for Research Enterprise now for a little over eight years. In that time, I have posted 850 articles on technology transfer, intellectual property, and research policy.
Here is a map of the main lines of development of this blog.
1. Examined Bayh-Dole in all its forms
Provided summaries of Bayh-Dole, examined its implementing regulations and standard patent rights clauses and compared Bayh-Dole with prior federal approaches, such as Institutional Patent Agreements and presidential executive orders. And considered the fake version of Bayh-Dole, which has become the standard version. We have noted how David Mowery and Rebecca Eisenberg, among others, have shown that Bayh-Dole didn’t start university licensing and that all those federal patents that Bayh-Dole advocates complained weren’t getting licensed were mostly weapons systems that the contractors had passed up any interest in exploiting through patenting.
2. Built out a history of university patent policies
Looked at the development of university patent practices, from Cottrell and Research Corporation to Archie Palmer’s efforts to promote the development of university patent policies in all their variety to the revisions motivated by Bayh-Dole to the revisions motivated by Stanford v Roche.
3. Reviewed current university patent policies
Worked through in detail a wide range of university patent policies (in no particular order and not attempting to be complete): Washington (oh, and this, too), Washington State, California, USC, Santa Clara, Caltech, Utah, UNLV, Colorado, Texas (and more), Rice (and), Catholic University, Iowa, Michigan, Illinois, Wisconsin (and this, too), Penn State (and this), Yale, Brown, Delaware, Arkansas, Georgia, Wake Forest, Auburn, Florida, Florida State, Florida Atlantic, NYU, Arizona, Washington University, MIT, Cornell, along with lots of brief citations to other policies.
Most of these policies are garbled messes that lack basic ideas about law, distort Bayh-Dole, assert unworkable or nonsensical claims, and do wonders with definitions never before thought possible. Of course, even with rotten policy hearts, university technology licensing programs continue on, mostly unchanged. Scams will be scams.
4. Called out fake and unreliable metrics and claims of technology transfer “success.”
Especially at the University of Utah and University of Washington. At Utah, a legislative review called out a culture of “lies and deception.” At Washington, the technology transfer program resorted to faking metrics about startups, winning international awards and inducing senior administration to divert millions more to a program that turned out to be 1/2 as effective and 2x as expensive as the program it replaced and disparaged–and that program was only so-so compared with the program that *it* replaced. But AUTM is complicit, too, with its misleading metrics. And COGR with misleading reports. Broadly, Bayh-Dole has been a disaster. It’s just that university spin prevents most people from seeing it.
5. Worked through Stanford v. Roche again and again.
Research Enterprise mapped out the situation, traced through the various court decisions, pointed out how Bayh-Dole was being misconstrued and what the law (and implementing regulations, and standard patent rights clause) required. We pointed out that “of a contractor” must mean something in the definition of “subject invention.” Later, we helped draft amicus briefs to the Supreme Court. Bits of the Court’s rulings seemed to follow our drafting and arguments here at Research Enterprise. And of course, the Court agreed with our arguments. Bayh-Dole was no vesting statute. But though the ring of power was destroyed, there was–and is–still badness in the shire to deal with.
6. Developed the concept of the bozonet
The bozonet is a challenge for innovation anywhere. It is not as simple as some group wanting to change and adopting something new. Where a bozonet forms, it introduces itself between a larger group and possible change and becomes a gatekeeper, as it were. Unlike other gatekeepers, however, a bozonet’s primary interest is in building its status as gatekeeper, not in considering what ought to be allowed in as new practice and what should be excluded. It looks and operates like a body of experts, but actually the expertise is off in technical areas that don’t address innovation. Bonkers.
7. Advocated for inventors’ rights
Institutional control of inventions is a strange idea. A bureaucrat’s thumb in every innovation pie. Yes, that must be it! Why should either the federal government or a university that happens to host research in the public interest own patents that result from that work, unless it is to dedicate the patents to the public? And even then, why should that dedication alienate inventions from inventors? Even if there’s a reason for university-based inventors to move the management of their inventions to others, why should the best place possible be university administrators at the university that hosted the research? Why them? There are reasons, but not ones compulsory ownership policies comprehend. We proposed “free agency,”Freedom to Innovate legislation, and inventors’ bills of rights. We helped AAUP develop guidelines for university research policy. AUTM, inventor-loathing organization that it is, opposed. Someday, someday.
8. Considered the problem of bad science
Beneath university technology transfer there is the problem of unreliable results. If a university claims patent rights and then attempts to spin those rights up for maximum “value” in patent licensing, then it is easy enough for university administrators to be complicit in the misrepresentation of science. That’s a far cry from serving to take care that research is reliable, that others have a chance to check the work (evaluation of, research on, research with). If the science that’s reported is often unreliable, then technology transfer as usual is an amplifier of that unreliability. All this works against institutional management of IP in research findings. Not that any university licensing office appears to care.
9. Offered alternatives to the awful linear model of commercialization
There are all sorts of alternatives to the now-conventional claim of institutional patent ownership for exclusive licensing for revenue generation. We’ve looked at various forms of sponsored research agreement, at frame agreements, at open innovation, at shanzhai methods, at “crossing the commons,” “socially responsible licensing,” and public covenants. Anything but the “dumbest possible model.” But then perhaps universities have to work with the only model they think they have the capacity to hire for. Sigh.
10. Considered the nature of innovation
Behind all the fuss about patents, there is a deeper (?) question regarding how research results in discovery that leads to new practices, “introduced change in an established order,” as Benoît Godin has it. We have looked at various developments of innovation, including Bush (Vannever), Rogers, Teece, Taleb, Ridley, and Johnson, shanzhai and open. What is the role of commons? Of standards? Of ownership? Of greed? What is the role of institutions, or corporations? Can we think our way to innovation policies? Or should policies work to keep institutions and corporations alike out of the way until inventors and investigators decide who they want to work with?
Why do this? In part, to document the experience I have had with university licensing. It’s not in the standard accounts–at least not yet. I figured, if I don’t write out what I’ve experienced, then to some degree I am complicit with the folks claiming that the best possible university patent policy is one that strips inventors of their ownership, creates private monopolies, and rakes in the licensing money at the rate of once every thirty years, and that’s success, my friends. Gosh darn if only. In part, too, I have aimed to get at what–if anything–anyone can do to help those aiming to discover and those trying to do new things. In particular, what can institutions do?–universities, government, nonprofit foundations. Is it simply a matter of sitting by and being predatory and opportunistic? I would hope there is more to it.
I’ve found that most university policies early on made some sense, and most university policies now are rather awful messes. I attribute the messes, for the most part, to the rush into the area of people who had little interest in thinking things through and a great deal of interest in asserting power, often driven happily and unquestioningly by the idea that federal law required such an assertion of power, or that federal law suggested doing so was a really good idea. If not federal law, then envy of licensing programs that reported lucrative deals and the assurance from experts that when a university asserted ownership over “its” intellectual property, then money and recognition would be sure to follow.
The reasoning behind these possible motivations doesn’t hold up. At best, it’s uninformed and mistaken. At worst, it’s a scam aimed to deceive, to create an industry of “licensing professionals” who have unlimited access to billions of dollars of federal research, with virtually no accountability for what they do. The standard of success is a huge deal every thirty years. The mean time in any licensing position is more on the order of five years. So this is a scam that can go a long time on the argument that the big deal takes time, is just around the corner, if only another $5m a year can be dedicated to the effort. Sure.
The odd thing in all this is, even when the reasoning is shown to be wrong–fallacious, ignorant of law, facts, history, metrics–people don’t care. They shrug. They go back to what they are doing. It is as if “habit makes right.” It doesn’t so much matter how research is affected (academics studying academics appear to have little interest in disrupting the research system in place), or how innovation actually comes about (in any number of ways, so that a single policy fixated on commercialization using risk capital cannot possibly support more than a few of these ways). University administrators behave as if it is no big deal that they operate a policy of IP ownership lacking in reasons, insight, outcomes. It just is, and it is good as it is, and with a bit more money, it can be made to work, and when it does, why, the future will be glorious. Just, it’s not happening, folks.
Sure, stuff happens, but it does so, mostly, despite university IP policies and despite federal laws and regulations. That said, spending a few million a year per university on what amounts to ceremonial administrative takings would appear to be nice marketing, whatever else it is. The implications for what is possible are swamped out by the assertion that what really, really is possible is the creation of massive wealth from patent licensing–for the universities (with a share to inventors–but not to anyone else), for investors (who will take 95% or more of the wealth, when there is any), for the economy (in the form of jobs, but usually not in the region where an invention has been made), and for the public (in the form of new products, especially in healthcare, and sold at monopoly prices all the better to take money from insurance companies and the government). Once this seductive vision of invention to patent to license to wealth has burned in, all other possible goals pale by comparison. Yet this seductive vision is worthless, damaging, corrupting.
The seductive vision is held in place by what I call the bozonet, a self-confirming and self-congratulating cluster of practitioners who lack the expertise or will to develop their work beyond the most obvious self-advancing rationalizations and who are willing to disparage any idea that would challenge their claims. As one practitioner put it to me (I paraphrase)–“Even if something could be done that’s better than conventional licensing practices, the conventional approach is always going to be “best practice” and I will be liable if I do anything else.” The bozonet does innovate, but it is innovation that works to preserve the bozonet, to make the bozonet stronger, to work against innovation that would render the bozonet less powerful. It’s a variant of the “Strictly Ballroom” problem–where the dance rules are set by the dance competition committee to prevent new dance steps, since the dance competition committee members make their money teaching the dance steps they already know how to teach. Why would they allow innovation that they can’t control?
Take how to comply with Bayh-Dole, for instance. In the bozonet, Bayh-Dole compliance is all about meeting the time deadlines for reporting and electing to retain title to subject inventions, putting a federal funding statement in patent applications, and requiring U.S. manufacture for licenses exclusive in the U.S. There’s nothing in such compliance about practical application, novel use of the patent system to promote use rather than to exclude use, and nothing about how overly broad exclusive licenses are really assignments that work against the purposes of Bayh-Dole (work against free competition and enterprise, unduly encumber future research and discovery, and the like). The bozonet sees what it wants to see–and it wants to see only what makes it feel stronger.