People talk about creating patent rights from inventions. That’s a way of creating an IP position from a NIPIA position. An invention is not IP–it’s NIPIA. But in this talk, people are generally oblivious to the importance of creating projects from ideas about what to study or what to make. An invention, taken large, may be the basis for creating a project. A person may already have in their mind’s eye what might be possible. But it will take a project–persistent effort, often with help–to document, build, collect, demonstrate the object of the effort or (all the more likely) anything found or created in the process.
The project is the crucial research enterprise asset. An invention can make a project all the more valuable. Or a university can make both an invention and the project that might otherwise host that invention less valuable by putting the invention behind a patent paywall and disrupting the power of the project in which the invention was made or to which the invention might be contributed.
Conventional technology transfer has imagined for decades that patentable inventions can be extracted from projects and managed independently from research activity. That conventional imagination is, in general, not effective. But despite the reality, administrators continue to circulate the proposition that projects are expendable and patents are the critical asset by which the public benefits from university research. It is not so.
You have heard of “sponsored projects”–and that’s certainly an administrative use of the word, but the administrative usage has almost been fossilized into a ritual abstraction rather than referring to something out there in a university.
A project, taken as a general term, is any undertaking with a purpose, a goal that involves more than a simple willing to make it so. “This is what I am aiming to do.” Building a fence involves a project–some planning and design, maybe a permit, acquiring materials, buying some more power tools (yeah!), executing the plan, cleaning up. Walking out the front door of your house is not generally a project. Having lunch is not a project. Making a quilt is a project. Fixing dinner isn’t a project if it involves stuff that’s easy to do. “We are having pasta and salad.” Fixing a Thanksgiving dinner is usually a project–planning, acquisition, tasks, presentation, consumption, clean up.
Research enterprise exists as a welter of projects, informal and formal, defined by written documents at times, bounded by contracts at times, but also often undefined, undocumented, self-committed.
In a university setting, a project comes into being when someone engages in some work and recognizes that the work has formed into a plan that has a sense of purpose that requires some persistence, maybe multiple tasks–run an experiment, build a prototype, messing around with stuff that starts to get interesting, needs some careful observation, so systematic treatment, so extended writing or coding or sketching or collecting.
Thus, a project is something of a “charter” activity. A project comes into being when someone gets the idea to work on something longer than taking a simple action. In a similar way, a city becomes a “city” when it is chartered. It doesn’t have to have a population–just a declared intent that it will someday have a population, a charter. Projects, too, come into existence when they are chartered, when they are recognized, however informally, as something to be done that will take some planning and work to accomplish.
The administrative attempt to formalize projects and manage them can be thought of as a necessary action to bring the rule of administrative process to the projects of research enterprise. Or it can be seen as an activity of the Moloch state to impose administrative order in place of personal initiative. Or it can be seen as one more set of resources to shape projects in a research setting. For our purposes, let’s think of a project as a social construct, a narrative frame that places a given bit of work in a broader context of a plan, activities, outcomes. Importantly, this narrative frame also establishes the expectations of those who might wish to participate in the project. “How do we work together?” That’s a matter of division of labor. “What do we bring to the project?” That’s a matter of funding, materials, expertise, data, software, ideas, and the like. “What might we do?” There are the goals, the possibilities, the shaping of what will give closure to the narrative–“we will have completed the project when we do this, or demonstrate this, or find something more interesting to work on!” “How will we share what we do, discover, invent, and/or develop”? That’s a question about benefit, but also about disclosure and publication, about attribution and risk, about control over the work products and assets created in the project.
Often intellectual property policy is fixated on ownership and money. Who owns an invention? Who gets to try to benefit financially from a patent right? But there are five key concerns:
Often ownership and money are the least of the concerns for those involved in a research project. Control, attribution, and risk may be way more important. Who decides what is publishable and where that what should be published? Who gets credit for the work? Who will take responsibility if something goes wrong? Where are the deep pockets if something gets damaged or someone gets injured or a contract goes all sour?
When a project emerges in a university setting, there is not just the agreements that may exist among those who collaborate in a project. There is also the responsibilities and claims that the university may make (or which may be forced on the university). To what extent should the university be held liable for the activities taken in any given project? To what extent should the university claim a benefit from the activities of a project? When? What, then, is the relationship of any given project to its university host? This is a question that university administrators now tend to answer as one of ownership–the university owns everything but administrators gracefully defer making explicit the university’s ownership unless they are forced to (by the prospect of money or a fear of liability or a determination that something has gone far enough and everyone must be treated equally now).
Again, projects arise in a university setting when those involved in them realize that they are engaged in something that has a narrative shape of a project–planning, tasks, purpose, outcomes. University administrators impose formal demands on projects when they are “sponsored” or “organized.” Typically the sponsorship or organization that matters involves a financial account with an associated budget that specifies how money in the account can be spent. As a project lacks a monetary basis, administrators have less interest in them. “What’s the point?” they reason. However, administrators have expanded the idea of “sponsored” to include “university auspices”–which means something roughly like “anything that is associated with the university, or uses any university resources, or is undertaken by anyone with a relationship with the university such as employment, appointment, or status as a student or visitor or volunteer.” Even with this expanded view of project, however, administrators tend not to take an interest in such projects unless there’s the prospect of money–such as from placing an invention behind a patent paywall or selling software or a biomaterial.
The basic administrative equation is to focus on money, and ownership is used as a means to get at the money. Administrators then aim to transfer liability that might come with hosting a research project in research and licensing contracts. Indeed, a contract distributes not only money but also liabilities–and the liabilities may be a greater concern in a research contract than the money (and therefore a source of problems for companies that are used to carrying their own risks but not the risks of their contractors, even when the contractor is a university).