University of Misery’s IP Policy Scam, 11

The introduction of a goofball definition of “invention” into the University of Missouri’s patent policy has a real effect: it transforms the scope of the policy text–especially at D.1 (inventions claimed by the university) and at D.2 (inventions that must be reported to the university)–without changing the text of those sections. There is nothing new in the policy text at these spots to indicate that a definition elsewhere has changed the meaning of the text. In software programming, this is just the sort of practice that gets people into trouble–changing variables globally without local accountability. Where “invention” used by the 1956 policy to mean, clearly, patentable invention, it now means whatever gets called an “invention” by administrators. As long as there is “conception” of an “idea,” there’s an invention. According to the goofball definition of invention, any idea fully conceived in all its elements is, for purposes of the policy, an invention, regardless of whether that invention is directed at patentable subject matter, is novel, is useful, or anything else that creates a basis for patenting.

The idea behind this move is to get at inventions before they become patentable; that is, before they are something to be owned by patent. This is the same driver that leads university administrators to create bespoke definitions of invention to include most anything they can think of in ever-increasing lists of possible assets, many of which can never be reduced to the scope of a patent. The effect, then, of these expanded definitions of invention is to claim for the university an ownership position in ideas before they have been developed to the point of patentability. Any idea, if it is held back from public disclosure, the argument goes, might provide the basis for someone to pay to use the idea. The patent policy gets used to establish an institutional claim to ideas that might become inventions. The university, as it were, is made to claim ownership of ideas so that it might control and direct the development of those ideas toward patentable assets.

Thus, according to the bizarre discourse on the interrelationship between conception and reduction to practice, things don’t have to be “purely” done or “perfect.” Just the start of an idea is enough. In fact, the University of Missouri used to have a disclosure form for just such concepts that hadn’t become inventions yet, Form 16b. The covering information says:

UM-UW Form 16B has been designed to allow quick and precise documentation of the conception of inventions only.

Here’s part of it:

This form was for use with “preliminary” inventions, apparently ones that have only been “conceived.” But the definition of invention provided by the patent policy makes no such distinction. An invention is either conceived or conceived and reduced to practice. So there’s no such thing in the patent policy as a “preliminary” invention. All such an invention could be is a non-invention–an idea that could some day become an invention–or an invention but not reduced to practice (either actually or constructively). Either way, this is not how the patent policy definition describes inventions.

Notice as well item 3–“Submitter(s).” The form does not refer to those reporting their preliminary invention as “inventors” or “preliminary inventors.” No, they are “submitters.” I suppose the intent was that they “submit” preliminary invention forms rather than that they “submit” to an utterly goofball patent policy run by administrators who don’t have a freakin’ clue what they are doing.

Although the University of Missouri patent policy uses the term “inventor” 34 times, university administrators cannot bring themselves to use “inventor” in the full invention disclosure form, Form 16c. Instead, the use “Contributor,” now in the sense of “Contributing to an invention” rather than something along the lines of “contributing a form to the waste heap in the university’s patent management office.” But actually, the meaning is apparently “potentially contributing to an invention.”

Contributors are “potential inventors.” The disclosure form ignores the university’s patent policy and fails to understand that the policy expects inventors to disclose inventions, and that the patent policy’s definition of invention is not restricted to patentable inventions. The remainder of the explanatory text here is gibberish. The reality is that the owner of the invention decides what to claim in a patent application. If there are multiple inventors of a reported invention, the university as owner of the invention can choose to eliminate the contributions of one or more (but not all, obviously) inventors from its patent application. That’s a matter of changing the claim language in the patent application.

The bigger problem here is that the university’s own patent policy does not “meet the legal definition of inventor.” An inventor is one who has contributed to the conception of an invention. But the university’s definition of invention features conception and conception plus reduction to practice. So a “contributor” could, in the university’s goofball policy treatment, contribute to the reduction to practice and be an inventor as far as the patent policy is concerned–because the patent policy is off in fantasy land making up its own meanings and usage. There’s more–an explanation:

Despite a patent policy with 34 uses of “inventor,” the form inventors must use disclaims the idea that anyone can be determined to be an inventor until claims are allowed and a patent attorney decides who actually contributed to the claimed invention as allowed. This is deep goofiness. If the university spent its effort clarifying who is an inventor, perhaps people would have better guidance. As it is, under policy, employees who invent are required to report their inventions, but on a form that refuses to acknowledge they are inventors. Contributors must assign their invention rights, but the university disavows whether they have any such rights.

What a tangled up mess. There are three things going on. One has to do with common usage to describe inventions. An invention is whatever someone says something new is. The second has to do with usage in the patent literature to describe patentable inventions. A patentable invention is one that’s new, useful, and non-obvious, directed to process, machine, manufacture, composition of matter, or plant, or improvement thereof. University administrators could not figure out what they were doing–using invention in a common way or technical way, and so created yet a third layer–inventions are defined in a goofball administrative way by policy and that definition is then made a formal part of employment agreements. Employees are required to agree to the goofball definition, as a condition of employment. Thus, the university ends up with invention disclosure forms that cannot use the term “inventor” because the administrators are so confused about what they have done to policy that language ceases to have any meaning. One is reminded of the University of Florida, reduced to appeals to the “Creator” (with the capitalization, presumably out of respect) in its patent policy.

If a university requested the report of inventions at the time a patent application had been prepared, then the primary issues regarding inventors would have been sorted out. If inventors wanted the university to pay for the patent work, then they could report the invention sooner and request assistance. If inventors wanted to be sure that the university had no claim to an invention, again they could report earlier than the patent application. Consider the university’s administrative logic. If no one can tell who an inventor is until a patent issues, then surely university administrators cannot tell whether an invention has been made within the scope of their patent policy claims until at least that same point–what allowed claims of a given patent recite subject matter within the scope of the university’s patent policy claims–those condition (1) and (2) matters. You see the absurdity: the university demands ownership of all reported inventions and claims it is a violation of policy to attempt to report an invention to which the university clearly has no ownership claim to and therefore not assign away the rights to such inventions, but the university also cannot bring itself to allow anyone to represent that they are inventors until a patent actually issues and the contributions of those involved can be considered relative to the claims of the issued patent. Thus, my assessment is that the patent policy and disclosure practice are gibberish, bombast. All that’s certain is that if anyone tries to challenge the gibberish and bombast, the university will waste money on litigation rather than fixing its incompetent policy work.

The idea then is that the university claims inventions before they are patentable… before they are inventions for patent purposes… and regardless of whether they are inventions for patent purposes…. And thus before they could possibly know whether an invention meets the stated conditions (1) and (2) under which the university can assert a claim of ownership. This means that the university claims ownership of inventions in a patent policy using an ownership theory that does not involve patents. We might then conclude that the patent policy has been turned into a patent and non-patent policy, in which non-inventions are called inventions and non-employees are called employees. In such an environment of usage discussion is all but impossible.

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