Penn State’s IP Protection Racket, 6: Problems with the RIP Loop

We are comparing Penn State’s 1991 and current IP policies to see what has been changed. When we are done, we will then do the same thing with the 1992 and current IP Agreements. Current Penn State IP policy refers to “research activities” and introduces a new definition, “Research Intellectual Property.” The 1991 policy had no references to research–instead mentioning “subject to a sponsor’s agreement.” For all the problems with the 1991 policy, it was relatively direct and unmuddied by ambiguous distinctions about the purpose of an activity. When is an activity “research” and when is it “scholarship” and when is it “instruction” and when is it “professional development” and when is it “messing around with stuff”?

The IP policy appears to recognize the problem, but rather than address it with better drafting, it instead adds an apparatus:

Intellectual property that spans one of the boundaries between research, scholarly, and instructional as defined in this policy should be considered on a case-by-case basis by the cognizant University administrator.  Faculty members who dispute the cognizant University administrator’s decision may seek a review by the Faculty Rights and Responsibilities Committee of the University Faculty Senate in cooperation with the Vice Provost for Academic Affairs.  In cases that involve research intellectual property, final authority rests with the Vice President for Research.

University administrators will have to sort it out, faculty can object (others, apparently, cannot), and things can escalate to a university committee but in the end an administrator decides. And this apparatus is specific to what category some invention falls into, not to anything else about the policy. How strange? Why not just keep the drafting of the earlier policy, which did not require categories at all?

It’s clear that the definition here insists on “research activities” and not just anything. The idea of “activities” suggests something that can be distinguished from other things, even from research generally, such as “formalized projects involving research.” We cannot argue–one would hope–that “if it has been invented, discovered, or created, then it must have been done in research” or “research activity is any activity that invents, discovers, or creates.” This sort of argument would make nonsense of the policy’s words. There would be no purpose to the qualifiers. The policy could just state that “the university requires assignment of anything that administrators want the university to own.” Perhaps that is want administrators want the policy to mean–but don’t have the guts to lay it out this way. Or perhaps they cannot think clearly enough to see it.

In past Penn State IP policy, the emphasis was on projects, on commissioned work, on work specially “retained” by the university, on things “charged to a budget.” These, we might see, are specific instances for which “activity” is the bureaucratic abstraction, made so general that bureaucrats might then happily make the leap from “a general term for specially demarcated projects, distinct from the professional work that is otherwise encouraged and also distinct from that work for which the university has the right to control and direct (that is, employs faculty, staff, and students)” to “anything that someone does, all such actions collectively.” Such bozo-leaping (as it might be called) is one outcome of bureaucratic abstracting. And bureaucratic abstracting comes about by conflating terms of art and lumping things together that should not be lumped. Thus, bureaucrats conflate patent and copyright, conflate employment and scholarship, conflate commercial and community, and turn special special cases into general ones, introducing categories that have no objective demarcation.

The act of clueless drafting leads to later bozo-leaping in interpretation, and once an interpretation has been bozo-leaped, a new effort begins to revise policy to “clarify” this new interpretation.

Such a thing has happened with Bayh-Dole. The law passed, and bureaucrats immediately began misreading the law and misrepresenting it–that it gave universities ownership of federally supported inventions, that universities had a mandate to “commercialize” inventions, that it was virtuous to trade in patent monopolies that exploited acute human suffering even when there were alternatives to doing so and opportunities to decline to participate in the financial returns even where no alternatives were present. Then these same bureaucrats argued that universities had to revise their policies to comply with the law (they didn’t), and thus the revised policies imposed obligations on faculty, staff, and students that simply aren’t in Bayh-Dole or in the standard patent rights clause required by Bayh-Dole. That is, when policies were revised to comply with Bayh-Dole, in general they did just the opposite and required (or permitted) the breach of the standard patent rights clause and Bayh-Dole’s changes in federal patent law pertaining to subject inventions. Now these same bureaucrats are working to revise Bayh-Dole to conform to university patent policies (with the claim–lacking evidence–that these policies are wildly successful). And thus march the bozo-leapers toward their honey pot–control of the inventions of others, supported by public money, presented as virtuous and successful and full of hope but in reality theft, bunglingness, and fraud.

This same process appears to have happened with “activities” replacing “projects” and “commissioned” and “retained” and then “activities” appearing not as a generalization for designated special work but as a generalization for any actions at all. Clever, if you lack integrity or competence.

We reach, then, this rather amazing policy assertion:

Rights to research intellectual property

conceived, reduced-to-practice or created

by University employees

with the use of University facilities or resources, or

in the field of expertise and/or within the scope of responsibilities covered by employees’ employment/appointment/association with the University

are governed by the Penn State Intellectual Property Agreement

that assigns such rights to the University.

I’ve broken things up for easier gasping. First, some matters of interpretation. “Rights” in RIP are restricted by all sorts of things: the RIP has to be conceived or reduced to practice (terms pertaining to patentable inventions) or created (a nonsense general term); the RIP has to be made by “employees”–that would mean, people acting under the control of the university, not merely those “employed” by the university (to do things in the public interest, at their individual discretion, such as commit scholarly acts); and this RIP must be made using university “facilities or resources” (as if facilities are not already a form of resource) OR [a discussion follows]. We might wonder, why not define RIP to be, narrowly, just what the university has an interest in–put all the limitations there, in the definition of RIP, rather than out here, in a statement of an obligation? Ah, ah, oh, never mind.

[a discussion that follows–I’ve discussed Penn State’s RIP Loop previously, but it’s worth further treatment, so here goes.]

Here is how this bit was presented in the 1991 Penn State IP policy, with regard to the scope of required disclosure of inventive work:

inventions developed,

a) with University resources (facilities, funds, or equipment), or

b) within the fields of expertise and/or within the scope of employment for which they are retained by the University.

Compare again with the current statement:

in the field of expertise and/or within the scope of responsibilities covered by employees’ employment/appointment/association with the University

“scope of employment” becomes “scope of responsibilities” — suggesting a claim broader than employment but perhaps is actually narrower than employment (and thus, ambiguous).

“for which they are retained” becomes “covered by employees’ employment/appointment/association.”

What does it mean to “cover” a “scope of responsibility” with an “association”? What does “cover” mean here, at all, other than as a token verb to make the construction appear grammatical? Ah, garble. What, furthermore, does “employment/appointment/association” mean when these terms are used in the context of employees? How does a policy statement reach to non-employees (appointees, associates)? How does a field of expertise cover an appointment? No, really, this is deeply garbled bombast.

But it turns out that nothing here by way of restrictions on RIP actually matters, since the whole point of the sentence ends up being that IP policy stipulates that the university’s ownership claim is not in policy at all, but in the IP Agreement:

Rights to research intellectual property

[meaningless garble]

are governed by the Penn State Intellectual Property Agreement

that assigns such rights to the University.

And here we get to the offensive “bureaucratic that.” The IP Agreement is an adhesion contract under which, apparently, individuals sign over their personal rights in IP to the university. But, to put a point on it, the IP Agreement does not assign rights. The individuals who sign the agreement assign rights. The IP Agreement is the instrument that memorializes that assignment.

To think clearly about this statement is to hurt, and no one wants to hurt. We can simplify:

The Penn State Intellectual Property Agreement assigns certain research intellectual property to the University.

We have replaced the garbled restrictions on RIP with “certain” (reflecting the lack of specificity inherent in the garble). The question is what RIP is subject to a requirement to assign. Contemplate the policy claim. The IP policy asserts that the IP Agreement assigns RIP with a set of restrictions to the university, but can’t bring itself to be clear about exactly what RIP–not all RIP, clearly, because the effort of the garble is to somehow restrict the scope within RIP.

But that’s the core of the policy statement. People who invent or create have been eliminated, but for signing the document, which they must do. No matter that the definition of RIP is bungled. No matter that the restrictions on scope are bungled. No matter that employment is bungled. We might say that the Penn State IP policy has ceased to exist, or rather, serves as an administrative rationalization for the IP Agreement. The policy is written as if no one cares about the words–or at least no one with any competence is there.

When we get to the IP Agreement, we will see that it adds a huge additional restriction to what is assigned–the assignment is only as broad as “to the extent specified in University policy.” Well, shit. The IP policy says that the IP Agreement requires assignment, but the IP Agreement limits that requirement to what the IP policy “specifies.” Someone can’t pour the soup into the bowl here.

 

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