Penn State’s IP Protection Racket, 8: Disclosure

We are working through Penn State’s current IP policy. We have noted that the IP policy asserts that the IP Agreement, which many categories of people must sign, requires assignment of IP to the university, but the IP Agreement itself qualifies any such assignment by whatever it is that the IP policy “specifies,” and of course, look as we might, we don’t see that the IP policy specifies anything. An RIP loop, as it were.

After listing various offices that have various responsibilities for research and IP, we get this:

University personnel have an obligation to disclose promptly to the Office of Technology Management, through the cognizant University administrators, research intellectual property developed either with University Resources or within the fields of expertise and/or within the scope of employment for which the University retains them.

Now we deal with “University personnel”–why again was that big long hairy random list with all the categories included and then not used? What makes personnel “university” personnel? Gosh, who cares! It’s bombast style. The policy asserts that people have an obligation, but how does that obligation arise? No matter here. People must “disclose research intellectual property” to the Office of Technology Management–but not just any RIP, but only RIP “developed with University Resources” [for which there’s another definition, here marked by capitalization, unlike RIP, which is not capitalized in the policy] or “within fields of expertise” or “scope of employment” “for which the University retains them.”

We might note that the claim to reporting here expressly reaches beyond the scope of employment. The use of resources may have nothing to do with employment. (In which case, Penn State has a conflict of interest policy ready–for another time.) And “field of expertise” is hopelessly broader than one’s scope of employment–and hopelessly ambiguous. And what does it mean to “retain” someone but not “employ” them? What does “retain” mean here? Bombast. In any event, all this bombast is directed at an obligation to “disclose” stuff. There is no claim in the policy to ownership of anything.

And here’s “University Resources”

University Resources

is the term used to define any support administered by or through the University, including but not limited to funds, facilities, equipment or personnel.  The term also includes funds, facilities, equipment, or personnel that are provided through funding from governmental, commercial, industrial, or other public or private sources and administered by the University.

So university resources is “any support administered by or through the University.” So support is both University support and non-University support. All the university has to do is “administer through” the support–the university does not have to “own” the support or even “administrate” the support. What does it mean for support to be “administrated through” a university? Then we have a statement of an incomplete list (including but not limited to) that illustrates some forms of support. How might  personnel be “administrated through” the university? So strange. Then there’s a second list that repeats the first list–

funds, facilities, equipment, or personnel administered by or through the university

funds, facilities, equipment, or personnel provided through funding from other sources and administered by the university

So whatever “through the university” means, it doesn’t have to do with “funding from other sources.” And what does it mean to use “support”–it’s not just that resources are used, but rather that the resources are “support” and for what? for research? for inventing and creating? for holding up office furniture? This is all marvelously bombastic. It must be how administrators think when they have no clue about thinking–phrases just swirl in their heads.

By contrast, here’s the treatment of “university resources” in the 1991 IP policy:

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

That’s it. resources are “facilities, funds, or equipment.” This list is limitative, not illustrative. It’s not, “for example facilities, funds, or equipment” or “including but necessarily restricted to” or “by way of illustration” or any such thing. And even there we are still concerned with whether those resources have been expressly provided as part of a project or commissioned work or retained element of employment. But in the current IP policy, university resources has been given its own definition, and like other definitions is expanded to the point of such abstraction that most anything is a university resource.

Here is the policy revision scheme:

  • Generalize a cluster of specific elements using a term that can be applied more broadly than those elements (so, “university resources” for (specially allocated “facilities, funds, or equipment”).
  • Remove the specific elements (“University Resources”).
  • Invoke the broader meaning of the generalized term in a new definition.
  • Introduce new elements to represent the expanded category.
  • Do these steps over a period of years, and with each revision make changes that expand the authority of administrators and diminish the role of faculty and student investigators and inventors in the management of the results of their work.

The revision history for IP01 has this to say about this passage, which was added in 2002:

Under the Intellectual Property Agreement section, added provision # 2 requiring other individuals who may be in a position to make, conceive or reduce to practice inventions or otherwise develop technology under sponsored research or University-funded projects to complete and sign an Agreement.

Except, of course, as you can see, the requirement in policy is not restricted to sponsored research or University-funded projects. And even the gestures in policy are not so restricted–so, not merely sponsored research but anything with a “memorandum of agreement”; not merely “University-funded” projects but anything using “University Resources.” Even the revision history note, then, is bombast!

This, in fact, is the entirety of Penn State’s intellectual property policy with regard to anything but “instructional and scholarly intellectual property” (for which there is another pot of bombast):

People who could develop technology must complete and sign the IP Agreement.

And

People have an obligation to disclose some discoveries, inventions, and creations.

That’s it. Sign an IP agreement and disclose stuff. No authorization to make a claim of institutional ownership.

 

 

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