When experts cheat at Bayh-Dole, bonus

It is almost impossible to detect when experts cheat. In the Tale of the Ring of Gyges, in Plato’s Republic, a shepherd finds a magic ring that makes him invisible. He then launches himself on a crime spree and ends up becoming the king. Glaucon, who tells the story in the Republic, argues that the just man and the unjust man will end up acting just like the shepherd if they knew they could get away with doing anything they wanted.

And this we may truly affirm to be a great proof that a man is just, not willingly or because he thinks that justice is any good to him individually, but of necessity, for wherever any one thinks that he can safely be unjust, there he is unjust. For all men believe in their hearts that injustice is far more profitable to the individual than justice, and he who argues as I have been supposing, will say that they are right. If you could imagine any one obtaining this power of becoming invisible, and never doing any wrong or touching what was another’s, he would be thought by the lookers-on to be a most wretched idiot, although they would praise him to one another’s faces, and keep up appearances with one another from a fear that they too might suffer injustice.

It’s up to Socrates to find a way to show this is not the case–go check it out in Book II. For our purposes, it’s enough to recognize that once university licensing folks find ways to cheat on faculty inventors, and to cheat on policy requirements, and to cheat on Bayh-Dole–and they can get away with it–then we can expect that they will, indeed, cheat. And they do, and they don’t care because their rationalizations of policy and contract and law are good enough. Besides, they have a nearly unlimited legal budget to beat down anyone who might argue with them.

We might then expect to find that the arguments for cheating in Bayh-Dole are exactly those of Glaucon–that the Bayh-Dole expert cheaters believe that injustice is far more profitable than justice, that Bayh-Dole, applied unjustly, is all the more successful, and therefore worthy not only of public praise (and by extension, praise of administrators) but also of public preservation. The argument to protect Bayh-Dole is an argument to preserve unjust administrators and their practices

We looked previously at how experts have attempted to make “subject invention” in Bayh-Dole appear to be any invention made with federal support, when the definition of subject invention instead depends on a contractor first acquiring an invention–it is contractor ownership that triggers Bayh-Dole’s apparatus, not federal funding. But the cheat means that universities can claim ownership rather than keep ownership if they otherwise have a basis for obtaining ownership. Sleight of hand–“retain” means “keep” not “take over.”

Let’s look then at some other bits of cheating with Bayh-Dole. Here’s AUTM:

The Bayh-Dole Act fundamentally changed the nation’s system of technology transfer by enabling universities to retain title to inventions and take the lead in patenting and licensing groundbreaking discoveries.

We see the “retain title” cheat. But here it’s joined by another cheat–“to inventions.” What’s left out–Bayh-Dole applies only to inventions made in work with federal support. But the claim made by AUTM is general, to “inventions.” And universities have used that generality to argue that if the federal government mandates university lead in patenting for federally supported inventions, it is necessary and appropriate for universities to claim all other inventions on the same basis. Some university administrators go so far as to argue that it would be unfair to other inventors if the university did not also take their inventions, too. Behind it all is the argument that the “uniform” policy represented by Bayh-Dole for federal agencies all but requires university administrators to adopt a “uniform” policy for all inventions made at a university. One basis for this argument is that to comply with Bayh-Dole, a university must own all inventions, just in case in some unexpected way an invention comes within the scope of “federal law.” It’s all a cheat to gain control of faculty inventions to which the university would otherwise have no claim.

But “to inventions” isn’t the end of the cheating in AUTM’s statement. Let’s look at the “fundamentally changed” part. Bayh-Dole takes precedence over other law when a contractor–a party to a federal funding agreement for research or development–gains ownership of an invention made in that research or development. Before Bayh-Dole, the NIH and NSF had the Institutional Patent Agreement program that permitted nonprofits to take ownership of inventions made with federal support. In fact, under the IPA, each nonprofit agreed to require inventors to assign any invention that the nonprofit decided to seek to patent. The DoD didn’t bother with the IPA–its contracts were mostly with companies and the Kennedy/Nixon patent policy permitted them to let contractors patent whatever they wanted to patent–which was, for the defense industry, not all that much. In other words, Bayh-Dole did not fundamentally change the “nation’s system of technology transfer”–it was another instance of what already was taking place.

Agencies for which Bayh-Dole represented a significant change were the DOE and NASA–where previously, the agency had to act on a nonprofit contractor request for a determination of rights rather than use the IPA approach and grant the request upfront, before any invention had been made, and even before any research contract had been awarded. Indeed, the putative starting point for agitation that led to Bayh-Dole started with Purdue Research Foundation bitching about delays in a DOE review of a request by the foundation to keep ownership of a DOE-funded invention. While DOE and NASA both have important federal research roles, their contribution to university research and technology transfer is minor.

More importantly, there was no fundamental change to the university “system” of technology transfer. That system was already well in place by the early 1970s, with the IPA program covering most universities that received federal funding–with the NSF and the NIH as the primary federal agencies involved in university research funding. The argument for Bayh-Dole included a claim that universities were doing a much better job of “commercialization” than was the federal government. That claim, also, was not true–but the argument was political and not expected to be anything but bluff. It’s one thing to bluff and know it’s bluff. It’s another thing to treat your bluff as fact. At that point, you cross the line to delusion and/or fraud. The whole point of adopting Bayh-Dole was so that the federal government gained the benefit of what was depicted as a more successful university-based system of technology transfer. If there was a change in that system presented by Bayh-Dole, it was to add the minor contributions of inventions funded by  federal agencies that previously  had not funded much university research.

The growth in university-managed inventions after Bayh-Dole was about the same as before. Here’s a graph:

Series 5 is all university, foundation, and institute utility patents. Series 6 is the share of those patents citing federal funding. Year 1 is 1976. Do you see a fundamental change? The only thing obvious in the graph is that universities over time are patenting non-federal inventions at a higher rate than those with federal support. Perhaps that is a fundamental change in the university technology transfer system, but it’s certainly not one that a general reader would pick up from the expert’s statements. Cheats.



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