It’s a nice thought that faculty and students make their discoveries “in the lab” as a recent APLU infographic depicts.
There certainly are discoveries made in laboratory work. But discoveries are also made out collecting samples, and in work shops, and at computer workstations, and–this really eats at university administrators–not anywhere near university-controlled facilities. Discovery can arise in, say, conversation, or listening to a talk at a conference:
Here, for instance, is an account of Boyer and Cohen meeting up (from Sally Smith Hughes, Genentech: The Beginnings of Biotech):
In November Cohen and Boyer arrived in Honolulu for the conference, neither knowing the details of the other’s research. As it came time for Boyer to present, Cohen listened raptly to his description of EcoRI’s properties. His mid lit up when he heard that the enzyme cut DNA molecules predictably and reproducibly into unique fragments with sticky ends. IN a flash of insight, he wondered: could one use Boyer’s enzyme to sever a plasmid precisely and use the sticky ends to attach a second DNA fragment?
In other words, the groundbreaking discovery came at a conference. The lab work set up the discovery, but the discovery that was groundbreaking wasn’t in a lab, and wasn’t even the subject of the research that was going on in the labs.
Imagine if university administrators had gotten to Cohen and Boyer first, before they had met–they may well have filed patents on the stuff in the labs, and it may have been impossible to coordinate the licensing of those patents.
In a way, it is a fairy tale that research discoveries take place “in the lab.” The lab is a place someone goes to test something. The discovery is often the reason someone goes to a lab, not the thing that someone comes back out of the lab with.
The institutional tick-grip on patentable inventions depends on being able compel assignment of inventions. One way to do this is to make it appear that inventions necessarily arise in facilities and using equipment that administrators have made a claim on. “In the lab” is an assertion about inventions. Most university administrators cannot tolerate the thought that discoveries and inventions come about in all sorts of situations–and few of those situations are “in the lab.”
Another instance. My father, as a graduate student in physics at Washington State University back in the early 1950s, joined a research project that was building instruments to improve the detection
of physiological changes in humans. Their immediate aim was to detect changes in pulse. Since my father had been a radar instructor in the Army Air Force, he knew the electronics and so was designing circuits that could do the job. While working on that problem, Claude realized that there might be another possible indicator of physiological change. When adrenaline hits the heart, it causes the heart to beat harder and that creates a pulse that moves through the blood. That pulse is independent of the beats and isn’t the same as the blood pressure. So Claude spent some weeks working out how one might detect the velocity of this pulse wave–looking for it in two places and then calculating velocity from the time difference between the two detection points. When he came in with his work, the lab director was in a fit
. Where was the work on detecting changes in pulse? Claude thought he was going to be kicked off the project. Then they started looking at what he had done. This was totally unexpected. It wasn’t on their radar, so to speak. So they ended up reporting the invention to Research Corporation and Research Corporation filed a patent application, which issued as a U.S. patent in 1960, after Claude had earned his Ph.D. and found an academic job:
The first campus snowflake detector, sensitive enough to register even mild “campus emotions.”
While the implementation of my father’s invention did take place in a lab, the discovery didn’t. The discovery took place away from the lab, away from the direction and focus of the lab. My father had no obligation to present his ideas to the lab–and for a few days at least the lab director even rejected my father’s idea and the time he spent working on it. The discovery came into a WSU lab by choice, not by compulsion, not by job description, not out of fiduciary duty–none of that administrative B.S.
One may argue that two instances does not make a general case. One can also argue that one fairy tale does not make a general case, either. However, I am not aiming to make a general case–I am seeking to establish that there is no general case to be made about discoveries or inventions being made “in the lab.” The lab–or shop–work often (not always)–happens later. Call that part “development.” In both cases, of Cohen and Boyer and of my father, the invention was not made in a lab. The invention was implemented in the lab, was demonstrated in the lab, was developed further in the lab. But the invention was not made in the lab, and no one had an obligation to bring those inventions into the lab.
From this, perhaps you can now see how deeply invested APLU is in the idea of institutional control of inventions. Inventions must be made “in the lab” so university administrators can demand ownership of them. Inventions must be made “in the scope of employment” so it appears only natural that the university as employer ought to own those inventions. And yet it is all fairy tales. Inventions often aren’t made in the lab, have nothing to do with scope of employment, and gain no benefit whatsoever by ending up owned by universities to be handled by administrators, so that no one can use the invention without bureaucratic approval.
Again, it is difficult to comprehend, short of a premise of insanity, how anyone could think that innovation from research discoveries would be best advanced by forcing ownership of all discoveries and inventions into the hands of bureaucrats as the first step. Yet this is exactly what APLU recites as “the process.”
It is insane, unless one is soothed by pretty graphics. And the APLU isn’t alone. Go to any university technology transfer office web site. Look for the process:
Graphical administrative insanity. A vice provost of research once asked me for a white paper on how to manage university IP. She wanted, I think, a process to replace the process she had. Actually, I think she wanted a process diagram to replace the process diagram she had. I don’t think she had a clue what processes were actually taking place, and I did not get the impression she was ready to have those processes documented as they were–something along the lines of:
Receive invention disclosures for mediocre stuff made by faculty required to report inventions. File patent applications on as much of this stuff as possible to run up the patent numbers. Prepare summaries of each invention and post these on a web site. Wait until someone contacts the inventor with an interest in the invention. Insist on an exclusive licensing deal. License 1 in 10 inventions. Of these, expect 1 in 1,000 to matter. That is, one invention every four or five years, for which the rest sacrifice their utility as the carnage of the administrative machine.
The problem is–there is no process, at least not a uniform process, a single or best process. It is not “fair” to all inventors that the university offers only a single process. It is not equitable to argue “since university bureaucrats have to bungle these inventions, to have a consistent policy, they must also bungle yours–no, really, we insist.” No, it is insane, as in the insanity of waiting for a UFO from Planet Clarion to save the true believers in the “process” from a flood of evidence that there is no process.
I couldn’t write the white paper because the fundamental premise is wrong. There are processes to obtain a patent or register a copyright. There are processes by which forms are completed and sent to bureaucratic offices to make work for bureaucrats and their hirelings. There are processes for starting companies and even for getting draft license agreements reviewed. But there is no process for innovation. Discovery often does not take place in “the lab.” Discoverers and inventors have no obligation to bring their “ideas” into a university lab. And if they do, unless there is a special deal, university bureaucrats should feel no compulsion to demand ownership of those discoveries and inventions.
The best thing a university could do with regard to a patent policy is to have no policy whatsoever. The second best thing would be to have a policy that states that the university has no policy and any administrator that proposes one is immediately fired. Innovation seeks its own pathways. There’s no point in trying to force innovation into an institutional invention carnage machine with a uniform process or even just a diagram depicting a uniform process. It’s not even that such a diagram is a worthy aspiration–something administrators should dedicate themselves to make into reality. The horror, the horror.