In 2015, Ann Hammersla, once a senior university licensing officer and now working for the NIH, gave a talk at an NIH Regional Seminar on Program Funding and Grants Administration–“Inventions, Data Sharing, Reports to NIH, and other Intellectual Property Considerations.” Much of the talk concerns the complexities of university technology transfer and compliance with federal regulations. Given that Hammersla now represents the NIH on the matter, it is interesting to see how she imports the faux-Bayh-Dole approach prevalent in universities into her government position.
Hammarsla defines “Intellectual property” as “creations of the mind”–so, basically anything that a mind might create. That’s rather expansive, when compared with, say, statutory intellectual property (patent, copyright, trademark), even extended to include trade secrets. That’s a worrisome direction.
According to Hammersla, here’s the purpose of an “IP system”:
This is a very strange depiction of things. At the outset, we must deal with the oddity of an “IP system” that is as broad as Hammarsla’s definition. What “IP system” is this? It’s not a statutory framework for “IP,” since that framework is specific to forms of rights–patents, copyrights, trademarks. Perhaps it’s “Bayh-Dole.” Or perhaps it is “university technology transfer practices, ascribed to Bayh-Dole.” Or perhaps it is something else entirely.
We must also deal with the added oddity that this IP system has “social aims,” as if it were a personage, something that could think and act on its own. Yes, we know that Hammersla does not mean such a thing, but that leaves entirely open just what it is Hammersla does mean: who is it who aims the IP system to do one thing or another?
In the context of federal laws, the intention must be with Congress. That’s the standard that the Supreme Court used in Stanford v Roche. Behind any such intentions are the framing instruments and principles of interpretation that establish authority for law. Thus, federal patents and copyrights are authorized by the U.S. Constitution, and state-issued patents and copyrights are pre-empted by federal patent and copyright laws. Often, too, a given legal instrument might state its premises. Thus, according to the U.S. Constitution, the purpose of securing for limited times to authors and inventors the exclusive right to their writings and discoveries is “to promote the progress of science and useful arts.” And by “progress” there is a good historical argument that the drafters of the Constitution meant “diffusion” of those arts–the expansion of practice of the useful arts through the publication of new art.
But instead of this purpose–to promote the progress of useful arts–Hammersla creates a new purpose involving creativity and innovation, as if “the creations of the mind” rely on laws to motivate their creation. This is a truly strange proposition. We might think, rather, that the mind creates with an impulse of its own, “can never be satisfied, the mind, never” (as Wallace Stevens has it). But here we have it that a system of “Intellectual Property” (a system of creations of the mind) exists to “create, support, develop, and protect” creations of the mind. That doesn’t appear to make much sense. One might think that laws regarding certain “creations of the mind” might do such a thing, but even here it’s difficult to reach. But Hammersla’s point is more subtle–the “IP system” doesn’t aim to create, support, develop, or protect “creativity and innovation”; rather, it aims to create an “environment” in which these things are done to creativity and innovation.
Those intending and those doing are entirely effaced from Hammarsla’s account of the purpose of an “IP system.” This, too, is strange, but perhaps purposeful. An IP system that aims to “foster” an “environment” in which things happen to “creativity and innovation”–that creativity and innovation are “created, supported, developed, protected” in this environment. To show just how full of ambiguity this bit of wording is, parse it:
IP system [a creations of the mind system, perhaps along with the laws that “protect” these creations of the mind; what makes these things a “system”?]
aims to foster [aims, but does not necessarily actually foster–aspiration is sufficient; foster = feed, encourage, promote]
an environment [surroundings, conditions for something]
in which creativity and innovation [why these? why not science and useful arts? why abstractions? why not authors and inventors, say? or creative folk and folk who like to adopt new things? or even uncreative folk and luddites (in the hope of stimulating them to creativity or adopting new things)?]
is [passive voice, omitting the agent]
created [that is, the abstractions creativity and innovation are created]
supported [by whom? not by the environment or IP system, apparently]
developed [what does it mean to develop creativity? innovation?]
protected [from just what, exactly?]
There’s a bit more. All this aiming and fostering of an environment takes place so that the creating, supporting, developing, and protecting also includes “all with benefits to the public.”
all with benefits to the public [a strange distinction–as if the entire system-environment-passive voice actions might operate for a benefit other than “the public.”]
On the face of it, this statement of the aims of the “IP system” is fluffy nonsense. But we might find an explanation for it. Rather than think of it as a statement of fact, think instead that it is a statement of aspiration, not about an IP system but about the role of IP administrators–university technology transfer professionals and government officials who (like Dr. Hammersla) find their purpose in making the resources of the federal government available to assist these professionals. From this perspective, things come clear: the IP system exists to create the conditions under which IP professionals can do their job of supporting “creativity and innovation” that “benefits the public.” Hammarsla’s statement of the IP system is rather a statement of aspiration for IP middle managers. As an IP middle manager, it might be difficult to resist the happiness of hearing such grand thoughts. Who would think to object?
Harmmersla projects an aspiration into the world, and makes it appear that the aspiration is fact, is the world. This is the work of a kind of poetry, to be sure. But it is important to be aware of what the poem is about. In this case, it is not about IP systems but rather about the hopes and dreams of institutional managers of IP, to work in an environment that has been fostered for them by law, so that they can create creativity and innovation that benefits the public. That much almost makes sense, at least as poetry. It’s rather an open question the extent to which institutional managers of IP create creativity and innovation, and if and when they do, how important their work is in the bigger picture.
In a later slide, Hammersla quotes the Association of American Universities on technology transfer–no doubt quotes supplied to AAU by university patent officials. Here’s one: “The system of public-private technology transfer that was established under the Bayh-Dole Act has been extraordinarily successful in moving university discoveries from research laboratories to the marketplace.” The quote is attributed to an authoritative source, as if that makes it true or more likely to be true. But there’s no support for the claim. First, the “system” of technology transfer that operates now wasn’t established by Bayh-Dole. Bayh-Dole was designed to take advantage of the system already in place, led by WARF, MIT, and the University of California. Second, that system was not endorsed by Bayh-Dole–a university did not have to participate at all. Third, there’s nothing about Bayh-Dole that has to do with “public-private” technology transfer–Bayh-Dole concerns patent rights held by a contractor in preference to a federal agency’s interests. There’s nothing in Bayh-Dole that requires a contractor to transfer anything that the contractor is able to retain. And, of course, fourth, the “system” the AAU refers to has not been “remarkably” successful, has not been successful–not as a system, certainly. It’s been awful. At best, about 1 invention in 200 claimed makes it to the “marketplace” as a product. That’s about 80x worse performance than prior to Bayh-Dole.
What’s stark about the AAU statement is the same use of abstractions to cover the actual system behaviors. “University discoveries” rather than “discoveries made by researchers”; “from research laboratories” rather than from the personal ownership of inventions by their inventors to institutional ownership under the control of administrators and from there only by means of a paying licensing arrangement to companies–and often never anything beyond that licensing arrangement. If we abstracted from reality rather than aspirations, we might say “The system of stripping inventors of their Constitutional rights in patents to give institutions a monopoly on efforts to extract payments from industry has been remarkably effective.” That at least would speak to reality, not rainbows and pixie dust.
There’s a bit more to add. Perhaps this helps:
It’s not clear exactly what the subject is–perhaps it is “IP system” or perhaps it is the whole previous sentence. If the former, then we have the implied claim that the purpose of an IP system, so far as “creators” go, is so they can gain recognition or make money. If the latter, then we have the implied claim that the action of institutional IP managers in supporting creativity and innovation to benefit the public enables “creators” to gain recognition and make money. Either way, these are strange implications, other than in a fantasy IP system.
If we look at the U.S. “patent system,” we find that the purpose is to promote the progress of the useful arts. Nothing about inventors making money or being recognized. If we look at how the patent system is implemented, it is about publishing inventions (that section 112 stuff about enabling the invention), for which an inventor in return receives an exclusive right for a limited time–about enough time to train two cohorts of apprentices, initially, plus three extra years for the backwardness of the United States. Publication to promote progress–that’s a different sort of poetry, to be sure, from what we find in Hammersla’s text about recognition and money making.
What is further odd is the disconnect between the IP system and the “creators” in Hammersla’s account. It’s true that a patent at least might provide an inventor with recognition for priority. But then, for academics, the publication has often served this same role. It’s not clear that academics actually need the patent literature to gain recognition for their work. As for making money, that’s nowhere in the “patent system,” though with the relatively recent addition of maintenance fees rather than a working requirement, one might think that an inventor ought to try to make money so at least to break even on the patent fees. But it’s the verb “enables” that carries the strangeness. “Enables” is not true to the world. Inventors can be recognized any number of ways. Patent laws do not “enable” recognition, other than recognition through the patent system, which, obviously, would not be possible if there were no patent system. There would be no football championship if there were no football championship game. Okay.
The same thing holds for money making. Inventors can make money from their inventions in many ways–by practicing to their advantage what they have invented, by selling products based on their invention, by teaching others how to practice their invention, by giving paid talks on how wonderful it is to be an inventor, by selling popular books that combine an account of the invention with how wonderful it is to invent. A patent does not “enable” an inventor to make money. A patent “enables” an inventor (or patent owner) to make money by excluding others from practicing the invention. That’s a particular sort of “enables.” People then might pay not to be excluded (a “license,” a “settlement”). Or they might pay more because the patent owner can charge a monopoly price. Or the patent owner might make money by selling some other product that would not be relevant if the invention were to become available. Sure–these sorts of money-making are enabled by the patent’s exclusive rights. But the IP system does not enable creators to make money–it enables them to make money by excluding others from practicing their invention.
But in all this, Hammersla again is nuanced. Her poetry is of a different sort. If the IP system exists to create an environment in which creativity and innovation is supported by institutional IP managers for public benefit, then the recognition and money “earned” by “creators” (not authors, not inventors) is provided through the work of institutional IP managers. These things are side-effects of the good work of creating creativity and innovation for the public benefit.
We might then observe that in Hammersla’s account, inventors and authors do not work for the public benefit, and aren’t even inventors and authors. Instead, their inventions and creations serve “creativity and innovation,” to be dealt with by institutional IP managers, who use laws to “protect” the creations of mind and turn them into public benefit. Inventors and authors, so the nuance go, would not do this on their own. Again, this is a poem to the importance of the institutional IP manager, whether at a university or in government. In a very positive sense, then, this is Hammersla’s song to herself, to her own career and aspirations as a role model for others:
Out of my mind the golden ointment rained,
And my ears made the blowing hymns they heard.
I was myself the compass of that sea:
One might want to be still at the sound of such song. But if we want to work out how institutions might best support inventors and authors, we will have to turn away from such siren calls and ask just what it is that inventors and authors might ask of institutions.