What’s uniform and what should never be, Part 5

If there’s no need for the federal government to make money from patent positions, and the federal government transfers the administration of these patents to universities, then universities also have no need to make money from these patent positions. They may have a need to recover their costs, but beyond that–where is the mandate to make money? where, even, is the authorization to make money-making a primary purpose?

You can see then the deep divide between an option to acquire the government’s administrative interest in patent property–an interest without a money motive–and an acquiescence by the government in a university’s interest in exploiting patent rights however the university may–an interest that, with a sufficiently corrupt or incompetent patent policy, can easily have primarily a money motive.

The issue for those advocating for a uniform federal policy on inventions, then, is whether it is a policy of administration or a policy of acquiescence. The Kennedy patent policy was uniform with regard to contractor equities–if the contractor had the capability and commercial position and was building on existing work, then allow the contractor to own patents. Otherwise, take it case by case but assume the government’s administration of patents is in the public interest unless there’s a good argument otherwise. For the case by case stuff, if the situation changes with regard to the public welfare, then adjust the permissions on the monopoly.

The IPA work-around was also uniform. For universities, if they have a licensing capability and a decent practice position, then if the university chooses to administrate the patent rights, allow the university to do so, subject to some standard terms and procedures. In practice, all that was fluff and universities licensed whatever they could exclusively, to the point where even the HEW didn’t like what was going on. Not that the universities were all that good at any of it.

Bayh-Dole was uniform in a different way altogether. It established arbitrary policy, so that universities could acquire invention rights and exploit patents without oversight or worry about federal agency intervention to protect the public interest from indifferent or abuse or nonuse monopolies. Where the Kennedy policy was one of transfer of federal patent administration, Bayh-Dole set out to be one of transfer of patent property rights, without federal oversight. But Bayh-Dole also limits the scope of patent property rights as it substitutes Congressional patent policy for Presidential patent policy. This part of Bayh-Dole, however, has never operated. No one reads this part as statute. No one challenges rogue university practice as outside the scope. No one gives a rat’s ass.

Historically, the debate over federal patent policy has been framed as one of “title” policy vs “license” policy. Either the government takes title to inventions made with its support (and dedicates them or licenses them non-exclusively and only rarely, in special circumstances, permits a limited monopoly), or the government takes a non-exclusive license and lets contractors (and inventors) mess around with patents as they please. But title vs license is mostly a political dichotomy, not a useful one. There’s no way to resolve the debate in an arbitrary way, even though Bayh-Dole has attempted to do so. Vannevar Bush argued that for basic research, a license policy is sufficient. But Bush argued that point in an environment in which universities were disinterested in patenting and individual inventors had to go out of their way to secure the services of an invention management agent that would work to make inventions broadly available to industry.

In 1970, a committee of the National Academy of Engineering (the subcommittee of on interaction with industry of the Committee on the Interplay of Engineering with Biology and Medicine) looked at the issue of federal patent policy. Murray Eden, from MIT, summarized the results of a workshop on the issues:

workshop1969littlegained

“There is little to be gained from a uniform patent policy.” That was the view in 1970 by a committee focused on biology, engineering, and federal patent policy. Yet the repeated theme by advocates of Bayh-Dole then and now is that somehow a uniform policy is the not only important, it is genius.

There are good arguments for a title policy for mission-critical inventions that should become part of the public commons. And there are good reasons to prevent universities from becoming predatory on the interests of inventors and of principal investigators. There are good reasons for federal agencies to leave contractors well enough alone with their private monopolies when those contractors do useful things with their monopolies. The patent system has different uses for different purposes. The participants in the patent system bring different practices, and accomplish different results.

The advocates for Bayh-Dole–mostly patent brokers–wanted federal policy to route all federally supported inventions made at nonprofits–surprise!–to patent brokers. That was the “uniform” policy they wanted, and amazingly, that’s pretty much the result they got, if not in the law then at least in the faux version of the law they spread around. Certainty of ownership (by patent brokers and by universities as proxies for patent brokers) is one form of uniformity. But general uniformity, for most other purposes, is an almost but not quite totally useless issue for federal patent policy.

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