Pensé and Perspectivability-1

Some of you may have noticed that over the years I have grown more critical of the Bayh-Dole Act and especially of the people who prop it up with various forms of bluffery. The law is based on failed policy and practice that sounds good out of context but just doesn’t work. The advocates for Bayh-Dole form a kind of sect, a bozonet, and when faced with evidence that disconfirms the prophecy that Bayh-Dole will provide, they double down on their proselytizing rather than admitting that thing just don’t work as predicted.

The proselytizers have filled the published literature with claims of Bayh-Dole’s success. Front groups such as AUTM, AAU, APLU, and COGR prepare talking points and infographics that repeat political bluffery as fact and spin metrics for deceptive effect. University administrators parrot whatever sounds good and ignore articles that present substantive evidence–work by Rebecca Eisenberg and David Mowery and others is ignored. The history is fake. The metrics are intended to deceive. The law is grossly misrepresented. And for all that, universities don’t comply with the standard patent rights clause and federal agencies don’t enforce it in any of its substantive provisions.

The result is that a bureaucratic shadow of control follows university research. What once was the special domain of free inquiry has become caught up and enclosed to be cultivated as a monopoly-producing crop. Even if you think along with Peter Thiel that monopolies can be really good things, you ought to be stunned by how poorly university administrator created monopolies perform. These are not the monopolies you are looking for. 

For the casual observer, any web search, any start to a congressional report, any infographic by AUTM or BIO, any summary by a law firm or a university technology transfer office, any article by an AUTM executive, or by any of those closely associated with Bayh-Dole, and even most articles by academics, will assert that Bayh-Dole has been a remarkable success. With such an overwhelming positive published spin, it takes some resolve to call the whole thing out. But it is crap, and always has been crap–but crap wrapped in sincerity and good intentions to make it go down easier, even if it is ultimately not so digestible.

Bayh-Dole is founded on political bluffery–not on effective practices, not on public benefit, not on any keen insight into how technology change comes about. We ought not be surprised by the bluffery–nor, if we expect bluffery, should we expect the bluffing to be reliable, true, or candid. Politics: bluff v. bluff. You might wonder, then, whether I am just an opposing bluffer. That’s not my way. I find my anchor in experience, in reason, in evidence, and in an expectation that law, if it is any good, ought to operate as a public document, not with private justice and secret meanings.

Even if I were an opposing bluffer, I would be doing it to free university research from the bureaucratic control that has taken over. It’s just that there’s no political faction to join that would have me. I am not opposed to intellectual property–patent, copyright, and trademark are social ideas that have their valuable role.

I am not opposed to universities providing administrative resources in support of research findings. Those resources are important. There are good people involved in the effort to help academic inventors and authors. I’ve called technology transfer the conscience of a research university. A university’s administration can get caught up in trying to secure more and more research funding and give up any concern for whether the outcomes of that research matter. Technology transfer asks whether any of those outcomes ought to be taught outside the academic literature–provided with resources that won’t make it into publication, such as data sets, prototypes, access to special instrumentation or materials, consulting with those involved, updates, and ideas for applications. That, to my mind, makes technology transfer, as a general thing, a good thing. The narrow little bit about securing patent monopolies and dealing them to biotech and startups is something of an aberration, but there’s even room for such stuff, as long as it doesn’t take over–which it largely has.

Perhaps I should find allies in AAUP–and for a while they were interested, but not so much now for a few years. It seems that university control of inventions takes precedence over academic freedom. Perhaps I would find allies in the Kauffman Foundation–and for a while they, too, were interested, and even provided a generous grant so I could go on leave from university IP management and try to work out how an engineering-based university IP management policy would operate. Research Enterprise was created during that work, though its articles have always been my own work and never representing or even taking input from Kauffman. But Kauffman drifted away, too. Disenchanted with university-style entrepreneurship, perhaps.

For I while I worked with IP Advocate, a web site started by Renee Kaswan, a successful university inventor (meaning, she won her lawsuit against the university that appropriated her invention and did a dirty deal). IP Advocate led the effort to prepare an amicus brief in Stanford v Roche. We brought AAUP and IEEE onto the team and BIO, in a refreshing lapse of practice, broke with AUTM and prepared a brief based on our research as well. We argued that Bayh-Dole did not vest ownership with universities, and the Supreme Court–however the court came to its opinion–found the same thing. But IP Advocate broke up and disappeared from the web for a while. The site is back up now, but frozen in time from 2011. Too bad. It was a powerful advocate for university inventor rights. There’s nothing else like it.

I don’t go out of my way with politics. I am an independent. I have worked with both Republicans and Democrats here in the State of Washington on issues in technology transfer and economic development. At one point, I stumbled into a leading role in a campaign against a legislative referendum to permit the University of Washington to invest in company stocks, something forbidden by the state constitution. We had no budget. The campaign for university stock speculation included a prominent attorney, who was father of a prominent billionaire, and they had a few hundred thousand dollars to spend, some of it from the WSU Research Foundation. I wrote a statement for the voters pamphlet, spun up a website–“publicmission.org” (remnants available via the Wayback Machine), got on stage at some voter group assembles, and pleaded our case. Even the pro-marijuana folks came over and said–“wow, your position really makes sense.”

And we won. The referendum we opposed didn’t pass–the only referendum that didn’t pass that year. Even the pro-marijuana folks won. Apparently their position made sense, too. No matter, the University of Washington had gone ahead and invested $2m of its money in company stocks anyway (in a front company created by a front company created by nonprofit with ties to UW). I obtained the documents that prove it, but what’s a state constitution and a vote of the people to stand in the way of big important administrators who want to speculate on company stocks and play favorites with investors? In the end, though, we caught up the UW president and his vice provost for commercialization creating fake metrics of their success, and they both left with soiled tails not quite between their legs to make more money elsewhere, having eating much of what was green in Seattle–to the tune of some $100m thrown away on their idea that they could flip startup company stocks to supply UW with such financial returns that it would adopt a new economic model.

For nearly twenty years I was active in university technology management at the University of Washington and then at the University of California, with the Santa Cruz campus with an assignment to represent UC’s interests in Silicon Valley. For much of the time, I had signing authority for IP, directed the Software and Digital Media Ventures group at UW and started and directed the Office for Management of IP at UCSC. I was on the negotiating team for UC’s bid to run the University Affiliated Research Center at NASA Ames, and was point for IP management there after we won the ten-year contract. I was active in AUTM, helping to develop a copyright education track for the national meeting and developing a stand-alone software licensing course. I also developed a year-long certificate program in IP management for University of Washington Extension, and for five years at the University of California ran a week-long summer workshop on technology transfer for business executives, scientists, and government officials from Taiwan.

Oh, yeah, I was asked to consult for various universities and government labs, mostly on how to manage software and related digital assets. I was all over the place doing that–in the US, Canada, Mexico, Singapore, France, and the UK, and not in Denmark or Norway or Japan but helping them figure things out when asked. In return, I learned a bunch about how things work outside the US, and got a sense of perspective as well about what matters in the US.

We built out strategies that you won’t find in the status quo best practices–we focused on projects as the key intangible resource, not patents. We worked as much with NIPIA–non-IP intangible assets–as we did IP. And hey universities don’t have NIPIA policies, so we didn’t have to bow to bureaucratic committees long dissolved that had handed down such gawd-awful IP policies. We aimed to use IP to build relationships–and the relationships were the NIPIA that mattered. We studied social network theory to understand the NIPIA of weak ties, centrality, and congestion. We asked questions about how commons worked–the first document in my new technology transfer file system in 1991 was the GNU Manifesto. We looked at lots of public licenses for software–the WTFPL is great, though I never got the chance to use it.

I thought–around every invention is a halo of other assets–what if those other assets are more important for building relationships than any patent? What about that articulate graduate student?–there’s NIPIA incarnate. What about the librarian in the Engineering Library who lives next door to the CEO of Big Co? What about that data set or the lab manual for calibration or the analysis code? What if we could get the relationships we wanted without patents at all–what if people wanted to learn to do what we did without having to be threatened by being excluded with a patent? Without having to work for someone speculating on a monopoly? I know, craziness, as far as the technology transfer status quo is concerned.

There was the computer science faculty member that held a workshop from time to time. After we had talked a while, she pointed out that any time she needed money for research, she could hold her workshop. She would get 50 attendees paying $2,000–$100,000 gross. Explain, she asked–rhetorically–how by patenting anything she could get anywhere that amount in the same time. And she was absolutely right. A patent–takes three years–get it licensed–if ever–another year of negotiations–and then pay off the patent costs and get a bit of an upfront fee–but any royalties are another three to five years away. We are talking seven to ten years. By that time, a computer science invention is as good as obsolete or good only for trolling industry and making enemies–not the relationships we sought. Even with royalties, the university gave only something like 24% to inventors. So one would have to see something like a $400,000 dollars in royalties for her to get her $100,000. And that’s if she was the only inventor. Or, another way, $20 million in sales–in an industry where many things end up as open source tools or methods or standards and aren’t sold. It could happen, but only one computer science invention at the university had ever made that kind of money. It could happen, but the odds against were huge. Meanwhile, in the same amount of time, by creating the NIPIA of a workshop and using the NIPIA of her knowledge and her reputation in the field–the NIPIA of her relationships–she could bring in her $100,000 whenever she wanted, no bureaucrats and no patents needed.

I remember giving a talk in Canada on software management. A man comes up afterwards, “You just changed my life.” “What?” “You gave me a whole different way to think about what I am doing.” That must count for something. I got a call from a business faculty member at a university in Florida. She had heard a talk on technology transfer and couldn’t understand a word of it. “Am I going crazy?” I explained what the technology transferites believed, and she thanked me–“They didn’t make any sense, but now I see why.”

The CEO of a small company told me–“I really appreciate that you made stuff available on a non-exclusive license–we would never be able to compete to get an exclusive license.” We had designed a site license where a site ended up being about the size of any small company–one geographical location or distributed division. A large company then consisted of multiple “sites,” as if a large company was a bunch of small companies, which in many ways is often what a large company is. So we could do deals that took up Bayh-Dole’s mandate that nonprofits in their licensing prefer small companies.

We developed the idea of source available for PINE, for instance (much to the horror of the Free Software Foundation–not quite free as in liberty, but almost, sorry Richard and Eben), and the commons model for the Rosetta Commons. We worked the open bar tab model with Conduit, the “we just licensed South Africa so now are you ready to come back to the table?” model for some tape robotics software popular with banks at the time, the social network model with Phrap, the “are we worth a display ad?” model with the Drug Interaction Database, the “we will help you get it out of the university” model with the New Teacher Center, the “your biggest competitor just turned us down so it’s your chance” model with some computer technology, and the “if you build a blog and report everything you do, they will come” model for Open 3d Printing. They made the first large scale 3d printed boat. There’s a much longer list than this, but later.

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