University of Misery’s IP Policy Scam, 17

We are pretty much through with the University of Missouri’s policy scam. Let’s clean up a few last gobbets of policy ugliness. To review. The University of Missouri’s patent policy provides only two conditions under which the university may claim ownership of inventions: (1) when the invention is in an assigned inquiry and relevant to the general field of that inquiry and (2) when made or developed in a substantial degree with university facilities, financing, time, or non-public university information. These two conditions are defined by policy as “the general scope of duties to the University.” But university administrators claim the university owns “all intellectual property”:

MU owns all intellectual property created utilizing University facilities by an employee or student of the University of Missouri.

We have seen this is nonsense. The university’s policies don’t claim all intellectual property created using university facilities. The university’s claim is not based solely on use of facilities, either. They botch even their botches. No matter, clever university administrators require all inventions to be reported on a special form, and to complete that form, inventors have to assign the invention to the university, even if by policy the university has no claim on it.

There’s more. The University of Missouri uses the same stock document that Penn State uses to describe research intellectual property. That document begins with:

The University of Missouri-Columbia (MU) position regarding intellectual property is determined by the source of funding.

This, too, is simply not true. Neither the university’s patent policy nor copyright policy make claims to ownership based on source of funding. For the patent policy, what matters is that “financing” is used “in a substantial degree” to make or develop an invention. For copyright policy, the policy claims all sponsored works regardless of funding source and for internal funds claims only works created with “the use of substantial University resources which are specifically provided to support the production of copyrightable materials.”

Missouri repeats the same inaccurate citations to Bayh-Dole’s standard patent rights clause:

Almost all federal grants and contracts are subject to the terms and conditions of the Bayh-Dole Act (37 CFR 401). Under these terms, the University may elect to retain title to all inventions conceived or reduced to practice in the performance of the project (37 CFR 401.14(B)).

Bayh-Dole is at 35 USC 200-212. The implementing regulations are at 37 CFR 401. The standard patent rights clause is at 37 CFR 401.14(a)–not (B). And Bayh-Dole stipulates that a university can “elect to retain title” to subject inventions–that is, inventions for which the university has already obtained title through some other method–that assignment has nothing to do with Bayh-Dole or with the source of funding being the federal government.

Here’s a bit from the University of Missouri’s “Inventor’s Guide”:

What’s left out is that a university is “allowed to own” only those inventions that the university acquires through some legitimate arrangement not having anything to do with the fact of federal funding. An inventor at the University of Missouri would be “guided” into thinking that the university has a federal mandate to own inventions resulting from federally funded research. The Supreme Court said that such guidance is not true. Given that the Guide indicates that it has been copied over with modifications from a University of Michigan document, we can expect that the Missouri folks take a rather uncritical approach to depictions of Bayh-Dole.

Here’s pictographic from the University of Missouri’s Office of Research, Graduate Studies and Economic Development:

One would never know there was even an assignment step as a required condition of disclosing an invention to the university. Of similar concern, there’s nothing to indicate that inventors might get any invention back by way of “waiver.” Nor is it depicted that “waiver” isn’t “waiver” at all–it is an assignment with a grant back clause, a right of approval for certain licenses or assignments, and a demand for a royalty from any license. This, despite the university’s formal policy asserting that inventors are “entitled to all rights” in inventions not within the scope of the university’s policy claim. According to the diagram, either an invention is judged to have “market potential” or it is placed on “Inactive Status.” Try to deduce a waiver from that.

Note also the implied promise made by the diagram: there’s an arrow from “seek licensing partner” to “successful licensing partner” as if this happens for each invention selected for “active status” when in practice the likelihood of a license, even at Stanford, is 1 in 5. At the University of Missouri, one would expect an even lower licensing rate, but who knows.

Finally, there’s another fiction in the next arrow, that patents that are licensed result in “royalties providing REVENUE for MU.” This does happen, of course. It’s just that the arrow makes it appear to happen each time, when the actual numbers are closer to 1 in 200. But then Missouri doesn’t publish those numbers–just pictofantasies that make it appear that the university has a process that mostly works. A proper depiction would make it clear that only a very few inventions make it from licensing to royalties arising from “commercialization.”

Here is the Inventor’s Guide account of disclosure:

Employees must complete an Invention Disclosure Form (IDF) approved by the University’s Patent Committee under CRR 100.020. This form is essentially the written notice of invention to OTMIR that begins the formal tech transfer process.

Left out is that an inventor, to comply with the disclosure requirement, must assign each invention to the university upfront, before any review for circumstances.

An invention disclosure is a confidential MU document and should fully describe an invention so the options for commercialization can be evaluated and pursued.

This makes it appear that the university asserts a trade secret over invention reports, when the actual concern is preventing a public disclosure by the university that would damage the inventor’s right to seek a patent. Of course, “actual” here is silly, since there’s nothing about the university’s patent policy, in practice, that is actually actual. It’s all made up administrative whim. Administrators have no business evaluating options for “commercialization” until it has been determined that the university has a right of ownership. That step is entirely left out of the description. What a crappy guide for inventors.

In this step, OTMIR will review the development history to determine, among other things, the ownership of the invention,

Ownership of the invention is just a ho-hum thing “among other things.” The silly part is that the disclosure “process” requires inventors to assign their inventions to the university. That’s not policy, of course, but we are talking administrative fantasy, not policy here. There’s not anything to review–the university disclosure form does not even ask for the “development history” for an invention for information that would indicate whether the invention was developed in an assigned inquiry and was relevant to the general field of that inquiry or whether the invention was made or developed in a substantial degree with university facilities, financing, funds, or non-public university information. They don’t even try to get this information. What a crappy way to treat inventors.

More of the ho-hum things:

the existence of any contractual rights and obligations (such as from a sponsored research agreement) that may impact MU’s ability to patent/commercialize the invention

It’s not clear how a “contractual right” would “impact MU’s ability to patent/commercialize” an invention. Presumably, this “contractual right” is a right that the university has under contract, with an “obligation” being a right that a research sponsor has. Otherwise, why distinguish “rights” and “obligations”? Oh, perhaps because it simply doesn’t matter in administrative fantasy land. It’s just words, you see, meaning nothing really other than to make things sound difficult and make administrators look smart when they are doofuses.

The slash between patent and commercialize also is wearing. Why should the primary issue be at disclosure be whether the university can “patent/commercialize” an invention? Why not be simply to determine the best way to assist the inventors in developing the invention? If that involves collaborating with a research sponsor, why not do that regardless?

and any potential deadlines/bar dates that could prevent/impede patenting.

How does a deadline “impede” patenting? This is just bullshit fluff writing. Administrative nonsense for inventors because, well, no one at the university really cares about inventors, apparently, so they can write nonsense.

One more line from the “Inventor’s Guide,” this one from the section on “intellectual property protection”:

OTMIR must justify an investment in a particular invention protection method by the potential revenue that might result from commercializing that invention.

Here, at last, is something straightforward. The university does not give a rat’s ass about commercialization for its own good, or even developing an invention for public access and use for its own good. The goal, stated baldly here, is making money for the university. At least we see now what the university means when it states that a purpose of the patent policy is

Secure for the people of the State of Missouri and the United States the full benefits of research and investigation made by the University of Missouri . . .

The “full benefits” are patent royalties. That’s the reason to claim all inventions, not just the ones indicated as claimable by policy. That’s the reason not to waive rights to inventions the university has no right to–why waive rights when one can extract a royalty from inventors? Funny, back in 1956 when the university put its first patent policy in place, it did not find the need to fuss over “full benefits” as if discovery and invention weren’t enough–someone had to be made to pay for access to discovery and invention.

Again, we see the effects of the Bayh-Dole Act. The university must have a profit motive related to the key outcomes of research–inventions and discoveries. And this profit motive must be met by patenting inventions and putting them behind a paywall. The paywall is necessary for all inventions, so that no one will come to see that patents just aren’t necessary for the development and use of most inventions, and for those inventions where a patent might be helpful, most of these do not require a patent monopoly. But if one has fixated on a cruddy approach to research findings–and Bayh-Dole adopts the cruddiest approach on the planet to ensure that university patent brokers can feed patent monopolies to pharmaceutical companies–then it is necessary to prevent any other form of invention management that might show up this cruddy approach.

The University of Missouri used to have a decent patent policy, but not any more. Over the years, under the influence of people who could not comprehend the Bayh-Dole Act if their lives depended on it, the patent policy has been modified to be unreadable, unworkable, even silly–but a sick, inventor-loathing sort of silly. The core of the patent policy–the university’s ownership claims in conditions (1) and (2)–is still there, but university administrators ignore the policy as written and make up their own fantasy policy, using their positions of authority to enforce their will. Perhaps you think this is all for the greater good, that university administrators who cannot write a lick of coherent prose about inventions really know best what the world needs by way of invention management. Maybe. And maybe pigs will have wings some day and learn to fly.

 

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