Consider an alternative to the present university administrator mania for patenting. Let’s start with inventor freedom and then look once more at what I call Vannevar Bush’s unexpected model of innovation.
There are difficulties in the effort. First, the social sciences have a long history of proposing “models” of innovation. Anything anyone might say then can be fitted into a “model,” reduced to social scientific debate, and secured by experts in the field as a species of their own making. Just as one engaging in politics is expected to bluff and deceive, one engaging in what looks like policy discussion will be expected to propose a policy–or if not, a policy will be constructed from the discussion and then critiqued. What if, however, one proposes a policy that has as its aim to beat back policy? A bill of rights for freedom from policy. A sort of “policy-left,” a recursion on policy, a use of policy to limit policy. Not so much anti-policy policy as exploiting policy to prevent policy from exploiting anything else. The one thing policy chokes on is policy that argues that policy is not the best honesty.
And that’s what we will do here. Engage in a policy-like discussion with the premise that the last thing that innovation needs is policy. Even while we then appear to formulate a policy about innovation, it is a policy aimed at restricting the opportunities for interloping policy. According to Plato, Callicles argued that laws were made by the weak to deny the powerful what was their natural right to achieve. According to Thucydides, the Athenians argued to the Melians (before putting them to the sword for not agreeing with Athenian reason) that the advantage of the powerful is that they may do as they wish and the lot of the weak is to endure what they must. Justice, according to the Athenians, only matters between those of equal standing. In all this, then, we might sense that “policy” is a matter of people who don’t have special knowledge or skills or influence aiming to constrain others who do. Social scientists, then, should advise politicians and so produce policy to constrain and organize and “shape” science to be more productive.
One might see, then, the point of Vannevar Bush’s worry about the control of science:
There is nothing more deadly than control of the activities of scientists and engineers by men who do not really understand, but think they do or must at least give others that impression, and the worst control of all is by individuals who have long been immersed in a particular subject and have made it static.
Bush, too, thought about control of scientific activities–but apparently that control was acceptable if those in control did really understand and were willing to keep a particular subject dynamic rather than stale and static. What sort of control would that be? Certainly not a policy-based control, but something more like leading by example or initiative or willingness to break with convention, with consensus, with established “best practices.”
Thus, we hit the central conundrum–if people who don’t really understand shouldn’t control scientists (politicians and their social science advisors) and if (according to social scientists, among others) that in a democracy, an unelected scientific elite should not control the science needed by government, then who should control or shape or organize science needed by the government, by “the people”? The question implies there must be a policy. But policy–other than policy-left–appears to run counter to getting things done in science, that is, runs counter to discovery, to invention, to innovation. As Paul Feyerabend, a contrarian social scientist, put it, “anything goes” in science. Just as one cannot have a policy to dictate how science is conducted, one cannot have a policy that aims to organize science. It is not that government should have no interest in science–not laissez faire–but that in having an interest in science, government has nothing to offer but resources, and yet even the offering of resources is fraught with politics, with favoritisms, with policy to try to control (or at least obscure) the politics, the favoritisms.
There’s an argument that much of the federal policy toward inventions made with federal funding is the result of a contest between various factions of social science vying to influence federal policy makers, and all of them vying to displace the idea that non-social scientists might have any insight whatsoever into how the federal government might “mobilize” or “unleash” innovation. In broad, coarse terms the debate might be characterized as one between “doing things in the public interest” and “getting things done.”
In turn, “the public interest” becomes a malleable concept that includes spreading the work around so that no geographic region gets left behind, giving work to small businesses to limit the concentration of economic power in large corporations, placing restrictions on the use of the patent system to thwart perceived abuses regarding inventions made with federal support, and preserving the established positions of federal agencies that might become involved in research funding. By contrast, “getting things done” might include favoring large corporations with the demonstrated capability of delivering a prototype, working with top scientists mainly at the top universities rather than futzing around, and getting prototypes built and into the field as soon as possible rather than worrying about whether a small company or fumble-fingered administrators at some inexperienced university got a chance to make money.
But both approaches–public interest and get things done–appear to have agreed that the federal government must do something about scientific research–that “laissez faire” science was not an option. The federal government must organize or “shape” science. Germany, it was claimed, had done so. The Soviet Union was doing so. Governments that controlled science would control technology would control wars and global economy. In this shared premise we see the outline of a “linear” model–that science comes first, then applied research, then development, then commercial products that can rule the world. If you are not persuaded that science comes first–or must come first because that’s the social science theory about firstness–then the whole debate seems rather premature. In the “get things done” mindset, science does not necessarily come first. It may straggle along later, as it did, say, with warfarin, showing up with an explanation about warfarin works a good three decades after warfarin came into general use.
We might then consider a general problem: if the federal government is going to fund research, then it cannot help but alter the course of research. Should it try to keep things “as they were”? Or should it blow past all that an let whoever it funds become stronger–in essence playing favorites and creating wealth for those that it favors?
In the U.S. patent system, there is no requirement that inventors must use the patent system, and no requirement that an inventor, having received a patent, must use the patented invention or license the invention to others for use.
Inventors get to decide whether to keep their work secret, publish it broadly, indifferently move on, or patent it. As for patenting, an inventor may choose to use the patent as a means to publish the work and so make it available to all (the patent system publishes everything of patentable merit, when academic publications may refuse). An inventor may use a patent to exclude all others and so favor his or her own practice of the invention, or may license some or many, or may assign the invention (and its patent rights) to another, as if the patent were personal property. The U.S. patent system allows an inventor this broad range of opportunities.
We might say, then, that if we value the U.S. patent system, it is this freedom of the inventor that we value, this personal right, this individual who takes precedence over employment, over use of resources, over ideology.
University administrators, however, have for decades worked to overturn these defaults of the patent system, all the while praising the patent system as essential for the transformation of faculty research into societal benefits. Bayh-Dole is just the latest of efforts to turn a personal right into an institutional right, rationalized that a better patent system would reward the organizations that hosted inventive research, so long as the institutions in turn rewarded their inventors as they saw fit.
As university administrators portray the situation, without the incentive of a patent monopoly, no one will use or develop inventions made in university research or create commercial products based on those inventions. Thus, put simply, public research money is wasted if patents are not obtained and inventions licensed exclusively. This is an expression of the “monopoly meme.”
From the perspective of university administrators, faculty are incapable of using the patent system properly, and therefore in the name of the public good universities must take inventions from inventors, patent those inventions, and seek to license the inventions exclusively to an investor or company willing to attempt to create a commercial product.
From the university administrator perspective, patenting inventions is complicated and expensive. Invention management organizations marketing their services to inventors can be incompetent and frauds. Faculty won’t know who to trust. Entrepreneurs and investors can swindle inventors out of their birthright. Faculty wouldn’t know what to watch out for. And patent licensing deals can be complex to negotiate, draft, and manage. Faculty don’t have the expertise to do any of this, and it is best left to experts. A patent deal can have profound adverse consequences for a faculty member’s career–wrongly drafted, it may prevent publication or even continued work with the licensed invention, or it may encumber all future inventions in the same deal, without any choice or even compensation, and it may affect research conducted by others in the university. Faculty are ill prepared to consider all these issues, and therefore it is reasonable, if not vital, that universities take control of patentable inventions.
This sounds all true and wonderful to a university administrator, to any university attorney, to law professors, and to a sizeable number of faculty. Perhaps to you, too. And there’s a reason for it–it’s all got a grain of truth. It’s just not the full truth. Patenting is often complicated and expensive–but one doesn’t have to do it, and there are ways to reduce the complication and expense. Like ill-prepared faculty inventors, university administrators can also be ill-prepared; even if they know more about patents, they may know less about the invention or the context in which the invention has been made, including what might be done next.
And though a faculty inventor might be unprepared to do all the patent and licensing work alone, faculty routinely engage the assistance of experts in their research and their work depends on their being a good judge of the services they receive. We might expect, then, that when faculty inventors need assistance, many of them can with a few phone calls have found a competent law firm or invention management agent or strategic company partner to assist them. Their only option is not to hand over their invention to the licensing office of the university at which they have an appointment–unless, of course, university administrators punch through a policy that requires faculty to give over their inventions to the university.
Despite all this, the university administrator contention is that the patent system is not well suited to serve the public interest when it comes to inventions made at universities, and a better system–one that administrators think ought to be the law of the land–is one in which inventors are stripped of their personal right, required to seek patents even if they do not want to, divorced from any say in how their inventions are managed by means of patents, but required to take a portion of any licensing income the university receives (rare, mostly small amounts) even if the inventor does not want to receive any such share.
That’s the system university administrators have claimed Bayh-Dole created, or at least mandated, or at least encouraged, or–would you believe?–was intended but for technical oversights that can be patched by the collective actions of university administrators working together (or, as it were, ahem, conspiring to deny inventors their constitutional rights under the color of law).