We are working through advice offered to NIST by various higher education associations on how to improve federal technology transfer by funding without oversight the “technology transfer” programs of non-federal institutions. If the gist is all you need, then don’t bother reading further. Perhaps giving more and more money to university administrators for consistently failed programs is better than spending that money on research or something. Perhaps there’s a public policy debate there.
In the meantime, we are working through the list of priorities from the HEAs (AAU, APLU, AAMC, COGR, ACE), and we are in the middle of the potpourri priority (4) in which everything that’s wrong with the failed model of university administrations dealing patent monopolies stems from failings of the patent system, which is not sufficiently “robust.” If software cannot be “patented,” so the HEA argument goes, then how can it possibly be excluded from use so that speculators on monopoly positions will be attracted to spend money to try to profit from that patent monopoly by making commercial products? The HEAs continue:
and inconsistency in the government’s approach to rights in software,
We can’t have open source, apparently. The HEAs evidence no clue with regard to software. Perhaps that is because the university folks behind the HEA’s position here also don’t have a clue. I ought to know. I’ve done a heck of a lot of software deals for research universities, from open source to venture-backed startups, with all sorts of things in between.
Software is one area in which patents are pretty much useless for university-based research enterprise other than to disrupt collective development and to make people find ways to design around you. Pretty much the only thing one uses software patents for is to attract investment capital to a startup, and the investment capital willing to accept that a startup has an invention under license from a university is a pretty low-IQ investment firm. It is no wonder that most university licensing offices have no success patenting software. Oh, well, my licensing group did have success–we were always relieved when there wasn’t any federal money involved and didn’t have to deal with the Bayh-Dole advocates and their fixation on patent monopolies. As one software developer has advised with regard to patents in software, “Don’t be an asshole.” But AAU and the other HEAs want to be that asshole and want the federal government to help them to be better, more bolstered, robust assholes. HEAsses! Neat.
among other issues, have a destabilizing effect on university and medical school technology transfer efforts and planning.
It’s not possible that any federal agency’s approach to software could possibly destablize either technology transfer efforts or planning. The HEAs spout dreck. I will help. Here’s what they mean, but cannot bring themselves to write: “federal agency approaches to open source software interfere with our worthless fixation on patent monopolies, and for the life of us we are too stupid to sort out the difference between code and its methods on the one hand and patentable subject matter on the other.”
As for software, think about it this way–even with open source licenses, modifications and redistribution are licensed only for the code base that’s distributed. No independent implementation of any patented algorithm embedded in that original source is licensed. But university administrators, according to the HEAs, think that their technology transfer and even *planning* technology transfer is destabilized because they are asked to allow people to use code that may also involve patentable inventions they own. Let’s see, Bayh-Dole says to use the patent system to promote the utilization of these inventions, and university administrators claim that they cannot even plan how to help people use these inventions if they are told to allow people to use these inventions as part of a code distribution to people who are ready and able to use these inventions. You can see how screwed up the university administrators are. The HEAs’ point is that screwed up university administrators fixated on trying to find speculators for monopoly patent rights cannot even plan for how to do this if they are required to offer access to non-speculators because they developed the inventive method in the context of an open code base on a share-and-share-alike basis. In other words, university administrators are destabilized when they are asked not to be assholes, and there is a legislative fix for their problem.
Or think of it this way. Open source requirements are in effect a form of “extraordinary circumstance” in Bayh-Dole. The HEAs complain that extraordinary circumstances, although an integral part of Bayh-Dole’s guidance on patent rights clauses, destabilize poor university administrators’ technology transfer and technology transfer planning. It must be that the law is working as intended only if large parts of the law never work at all. It may be that the HEA’s complaint is that federal agencies are not properly following the procedures at 35 USC 202(b). But that’s a process issue–the HEA’s complaint is that if the process were used to require open source distribution of federally supported software development, that would be destabilizing. In other words, the HEA’s complain to NIST that federal agencies should not be allowed to use the law to promote the public interest. Perhaps that’s what they mean by “bolstering.”
Of course, by “exceptional circumstance,” Bayh-Dole does not mean “rare” or “unusual” circumstance–it means any circumstance that does not match the default requirements for a standard patent rights clause. The DOE’s nuclear propulsion and weapons programs were such an exceptional circumstance built directly into the implementing regulations as a separate standard patent rights clause–but now the distinction has been effaced by NIST’s May 2018 revisions to the implementing regulations. Bayh-Dole creates a default carve out for institutionally acquired inventions made in projects receiving federal support. Bayh-Dole at the same time creates a process for federal agencies to build away from that default. And Bayh-Dole makes it difficult for federal agencies to do so by creating administrative requirements and contractor appeals–which result in extraordinary circumstances determinations to be treated under the same procedures as march-in, and those procedures were, according to at least one person who claims to have “assisted” in their drafting, designed not to operate. Again, Bayh-Dole must be operating as intended by not operating. Sigh.
The NSF has for its cooperative research centers program developed a clever end-run around the extraordinary circumstances requirement. Instead of declaring exceptional circumstances–with all the bother–for requiring non-exclusive licensing of inventions made in a CRC to each of its industry members, the NSF requires each university applicant for a CRC to include a plan for managing inventions, and if that plan isn’t the model NSF plan–the extraordinary circumstance plan–then the NSF will review the proposal poorly and it won’t, sadly, get funded. Thus, proposers adopt a model “extraordinary circumstances” IP plan, and the NSF doesn’t have to go through the tiresome procedure specified in 35 USC 202(b) that was designed to fail.
One could see (other than perhaps if one works for an HEA) that a federal agency could use this same approach for open source software–“Include in your proposal, O university, an IP plan with regard to software to be produced, and if that IP plan is not the model IP plan (“release any software produced under an OSI-compliant open source license”), then expect your proposal to rank very poorly.”
But any of this, apparently, is destabilizing for university technology transfer and even for planning for technology transfer. How can one rightly plan for technology transfer that involves preventing most everyone from having access if there’s a federal program out there that requires the university to give access to those very people? How can a university make money from the private value of excluding others if the university is required to propose not to exclude them? You can see why such a thought is destabilizing to university administrators who cannot comprehend technology transfer might mean actually transferring technology to people who will use it rather than to speculators who may or may not create a commercial product to sell some years later to the people who were ready to use the technology all those years ago but since have moved on, having been denied access when they were ready for it.
Here, technically, the HEAs are talking bullshit. They cannot follow even the logic of their own rhetoric into practice. They aren’t complaining about the NSF CRC program, even though it works around Bayh-Dole. They are complaining that unless everything is the same, technology transfer itself is destabilized: “If we had to use judgment and be responsive to varying needs, then we would not be the proper people to get involved in the transfer of technology.” And in that, they would be so very correct.
(5) The tax code presents several potential opportunities for stimulating and supporting technology transfer. We discuss these opportunities below.
Yeah, change the tax code so a system that has been ineffective since at least 1968 with the revival of the NIH’s IPA program can continue to make a show at being effective even when it isn’t. If it isn’t that the HEA members don’t have enough money for their worthless approach to technology transfer, or that Bayh-Dole is the problem, or that the patent system is the problem, then it must be tax law that stands in the way of federal technology transfer. If the law is working as intended, why the heck does technology transfer still need stimulating? Is stimulating like “bolstering”? Is it another way of saying, “It’s dead, Jim”?
(6) Beyond the above, there are numerous mechanisms by which NIST and other federal agencies could improve technology (and knowledge) transfer via universities and medical schools,
Here we start to change the focus even away from technology transfer. “Knowledge transfer”–you mean, like teaching, publishing, and making the backing data and experts generally available? The distinction between “knowledge transfer” and “technology transfer” is, here, pretty ghastly. If “technology transfer” means anything like “showing people how something works that’s new to them, and providing them with the means to make and use what they’ve learned,” then technology transfer includes knowledge transfer. If “technology transfer” means, rather, “fixation on finding speculative intermediaries to exploit a monopoly patent position for the purpose of attempting to make a commercial product or not,” then knowledge transfer is almost useless. Knowledge transfer would then mean “making people aware of how a given technology operates without confirming their right to use what they have learned.” In such knowledge transfer, the appropriate response is *not to practice* what is learned but rather to avoid it, design around it, undermine its adoption by others, exclude it from standards–do everything one has to do because one is denied rights in the practice of that “knowledge.”
And if “knowledge” here means “stuff that’s not patentable”–then it falls outside Bayh-Dole altogether. And without patents, what “mechanisms” do we need? Perhaps we need *fewer mechanisms* staffed by bozo organizations like the HEAs offering mealy mouthed, off-topic advice. Fewer fussy IP people grabbing IP because a boorish university IP policy says they can.
including: expanding the I-Corps program at the National Science Foundation (NSF) and other federal agencies;
More money. NSF can’t figure out why so few SBIR grants end up with successful products, but a program for allocating huge amounts of money and with a tangy title should “stimulate and support” technology transfer. Too funny. In other words, the big research universities advocate through the front groups they control more huge grants that only the largest university players can afford to apply for. That will surely stimulate university technology (and knowledge) transfer. What is the point of expanding the entrepreneurial skills of academic scientists and engineers (i) who aren’t inventors of inventions made in federally supported projects and (ii) are denied direct responsibility for or even access to their own inventions unless (iii) they license back what should not have been taken from them in the first place and on terms that often are antithetical to “innovation” practice (such as a poison pill for dedication of a patent to a standard or cross licensing)? Ah, none. There’s no point at all. Scientists and engineers receiving entrepreneurial training would then avoid institutionally controlled patent monopolies–unless they were trained to be novice speculators, the future market for university bureaucrats fixated on profiting from dealings in patent monopolies.
creating more flexibility in how SBIR/STTR funds can be used by federal agencies;
Route them to voracious university bureaucrats for their shell companies rather than to legitimate small companies with interesting technology to develop. Yes, that’s the ticket! Really, that’s what is meant by “use 3% of their SBIR/STTR funds for administration of SBIR and STTR programs including providing administrative support for services that helped to advance technology transfer and to better leverage the SBIR/STTR programs
to advance commercialization.” Yes–“more flexibility” means “divert money to be spent on supporting small businesses to administrative overhead for a failing program of starting university shell companies in competition with those small businesses.” It’s like “bolstering” a law that is working “as intended.” Here, “more flexibility” means dipping into funds to keep administrators well paid. It’s understandable, really.
and developing a targeted federal program focused on funding very early stage POC/translational research funding.
Because we can’t license our sucky patents exclusively except to our own shell companies and then we can’t get any investors to put their money into our sucky shell companies except for the speculators who use the university’s reputation to give the appearance of success to sell their interest to the next set of gullible investors, so it would really help if we could put public money into these companies as well, so we could get a better deal when we sell out to the speculators. Here’s the basic formula for success:
When speculators spend money, the university makes money, and if nothing else happens, it’s still all good.
That must be the success that Bayh-Dole intended. The reality, here, folks: more federal funding for “proof of concept” work won’t solve the problem of taking out monopoly patent positions too early in the formation of new technology and using those patent positions to isolate development, prevent access, and invite people to avoid or undermine the inventions covered by the patent positions. Monopoly patent positions require a pile of development funding while everyone else looks for alternatives. Monopoly patent positions drive people away from federal funding, requiring ever more federal “funding” which will lead to yet more university monopoly positions. It all fragments in a negative feedback loop of technology non-transfer while feeding more and more money to administrators to reward their ineffectual programs. And don’t even look at multi-institutional grants or a federal agency distributing similar work to multiple universities. Those fragment technology into patent positions all the way down. The whole effort is designed to fail by folks who either don’t get it or don’t care, so long as they continue to repeat pleasant words like “bolster” and federal officials keep responding with more money.
(7) Finally, and most broadly, we urge NIST and other federal agencies to be cautious about construing “return on investment” too narrowly, such as by using success metrics that focus only on the number of patents, start-ups, or licenses produced and/or overall revenue generated by particular institutions.
You mean what AUTM and all HEAs have been talking about for the past forty years? None of the “return on investment” metrics have to do with Bayh-Dole. Bayh-Dole’s metrics are laid out in its statement of policy and objective at 35 USC 200. Most important of these is utilization–practical application–use with benefits available to the public on reasonable (not patent monopoly) terms. Why not report utilization? Then Bayh-Dole would be shown not to be working as intended (unless, of course, the intension was for Bayh-Dole not to work, that inventions might come to be used despite Bayh-Dole).
Defocusing “return on investment” runs against everything that university patent brokers and Bayh-Dole Advocates have been claiming–that the public reaps such untold splendors from university exploitation of patent monopolies (we will come to this claim in the next installment). If the public has to be repeatedly informed of these splendors, that’s a pretty good sign the splendors ain’t happening. The HEAs here at best an aspirational rhetoric. It’s good and must be true because we say we aspire to it. More likely it’s bullshit to cover a scam that unbelievably got made into law. Here we have the HEAs repudiating the AUTM licensing survey because we need to have a “return on investment” that is just so nebulous that no one will bother to ask us anymore about it. Just “feel good” and provide more money.
As we explain more fully below, such measures do not offer
a complete picture of the socio-economic contributions of university and medical school technology transfer.1\
‘Because we have economic models for impact that are based on spending federal dollars, and the multipliers on that spending that result in economic activity. Hey, the federal government could get that same impact by just giving their $35b away. And there may be more impact at that, because in a give-away, federal agencies would not have to bother with expensive university bureaucrats who save piles of their salary. Why not hand out the $35b to folks who would spend it right away? That would be goose the economy way more than stuffing the pockets of university bureaucrats for the sake of running “research as an industry.”
That’s the priorities for AAU and the other participating HEAs. They represent a monoculture of bureaucratic happiness tapped into seeking profit on publicly funded research by dealing in patent monopolies. It’s a good life if you can get it. I suppose we should expect these folk to defend the scam with their usual vigor.
We will examine the vigor in happy detail next.