People play innovation policy with stick drawings. Inventions are depicted as proto-products rather than as broad swaths of potential. According to the stick drawings, patents “protect” inventions from competing uses that would simultaneously discourage private investment in “developing” the inventions and allow “free riders” to use the invention without having to make a similar investment. In this stick world, a patent is depicted as merely excluding these competing “free-rider” products rather than as excluding potentially hundreds to thousands of compounds or methods or functional equivalents, each an instance of a given invention.
Patenting is thought of as a single event in time, not as a series of filings and continuations and continuations in part and divisionals and foreign counterparts taking place over five, ten years, plus multiple additional patent applications on variations and applications. And the activity of patenting to protect inventions and discoveries is put forward as if only a single organization with a single discovery at the start of time is involved. Nothing has come before. Nothing is happening elsewhere in the present. Nothing but unfair competitors to be excluded in the future. It’s a fantasy world drawn for policy-makers who have no conception of practice or who are willing to have their thinking purchased by vested interests.
Look at the depictions of the “technology transfer process” at most any university licensing office web site. They show just this stick drawing fantasy. They imagine that by a uniform administrative process they can create an engine of innovation that through owning, patenting, and exclusive licensing will create beneficial new products that otherwise would never be developed.
Here. Look. Boise State:
An idea ends up as a royalty, not as, say, multiple products beneficial to the public, available on reasonable terms, or as standards, or as research tools, or as methods that enhance professional practice or help a farmer improve the soil. According to BSU:
The technology transfer process moves innovations from the lab to the commercial marketplace for the benefit of faculty, Boise State University, industry and society.
“Ideas” are not “innovations.” Ideas are things in people’s minds–they could be new and they could be repeats. Innovations are things that others have adopted, not ones that someone imagines might be adopted–even someone with an idea. “Commercial marketplace” is bureaucratic hand-waving–it could mean “products being sold”–you know, commerce, something sold at market. But “commercial marketplace” also means (in practice) transferring patent rights in inventions for speculative investment–a “marketplace” of for-profit speculators. Some may have a legitimate interest in developing products. But others may have an interest in exploiting an exclusive patent position relative to the rest of a given industry. And BSU is upfront about benefit–faculty and university first, then industry, then society. The end point is the generation of a royalty–any consideration for a patent license. What’s good financially for BSU is good for society.
Notice too that there is absolutely no interest in transferring “ideas” or “innovations” from one lab to another–that is, for research uses. Nor is there any interest in transferring these assets from the lab directly to the general public–for DIY use, or for use by professionals, without making any demand that someone has to first try to make commercial products of them, before there is any demonstrated interest in them.
Notice that in the BSU depiction, a circle 4 there’s “lab testing and validation” and then at circle 7 there’s “prototype”–all before any licensing. Well, how can the lab test and validate without a prototype? And what is this prototype that comes later, apparently also developed by the lab? If the lab has built something that can be tested and validated, then so can most any other lab, whether at a university or a company. Anything that needs to be done beyond this point involves configuring for mass production or integration into other products or adding features–not stuff necessary to make and use (or even sell) stuff based on the invention or incorporating it. But BSU ignores all this. Such stuff is not on the pathway, is not depicted, and is, clearly, suppressed. No wonder university technology transfer fantasies always talk about how “risky” their “early stage” inventions are. Their fantasy all but requires it. It’s just that “early stage” then generally means “wrong stage.”
Here the process begins at “disclosure” and ends at “revenue generation.” Faculty must report “patentable and non-patentable IP.” What the heck is non-patentable IP? Is that copyrights, trade secrets, know-how, technical information, recipes, collections, software, data, experimental setups, research notes, ideas for cities on the moon? It’s one thing if a technology transfer office says, “Bring us anything you want, whether or not patentable, that you think we can work together on for the public good.” It’s quite another to demand that faculty report everything. To divide the requirement into patentable and non-patentable is meaningless. Equivalently, one could divide the requirement into greasy and not greasy, or living and not living, or poodle and non-poodle.” Basically, UNCW asserts the process involves anything for which “commercialization” can be attempted. “Commercialization” in turn is depicted as a license to an existing firm or to a startup–an exclusive license, an exhaustion of the university’s rights in the patentable or non-patentable IP. The end point? “Revenue Generation.” Funny that. “Anything we fool ourselves into thinking we can make money on.”
How about Wayne State?
Wayne State uses flow chart symbols to add an engineering feel, without any indication of how flow chart symbols are used. The start is “formal invention disclosure.” Then patent application and market strategy. Then variations on exclusive license. No benefit to society, no product, not even a royalty as end point. The process takes a report of discovery and reduces it to an exclusive license. The fiction in the diagram is that this process happens repeatedly and often. There’s no evidence put forward that this is true, and in the general case it appears that the process operates about 1 time in 1,000 to the point of a beneficial product available generally to the public for a reasonable length of time–not just a Chuck Yeager glimpse of space but making at least a few full orbits.
Here’s the Centers for Disease Control:
Even the government depicts the technology transfer process as one starting with invention, moving through “protection” and ending up with “financial return.” Sweet–no product necessary–move from patent to license to money.
We cannot leave out Canada. Here’s the University of Guelph:
Guelph takes a broad view–we have a “pre-disclosure” step. Lots of work then to assess, protect, market, and negotiate, leading to “post-license diligence” and “Revenue,” marked with a big dollar sign so we cannot forget just what revenue means. “Post-Licence Diligence” then means, apparently, making sure the university gets paid, and not so much that the public obtains a benefit.
Here’s LSU (choice of purple and gold, no doubt to build team spirit):
Same sort of deal–lots of structure to the machine that takes discoveries and produces a license. Development and Commercialization are later, just happen. The process ends with the license. Note there’s not even a step in which the ownership of the discovery moves from its discoverers to the university. This version of the process must be in the public interest because there’s no mention of revenue. The implied fiction here is that this process works, and that each invention follows this process. There are no alternatives. What happens if a step fails–the invention cannot be “protected”? or “marketing” does not produce an eager candidate licensee? or produces ten eager candidate licensees? No, such things apparently don’t exist, don’t happen. One of my colleagues in the University of Washington technology transfer office did a thorough audit of the inventions under management at the time and found of the hundreds of cases he reviewed only a handful that followed the OTT’s published depiction of “the process.” Almost nothing followed the depicted path.
Here’s a Bay Area law firm that counts the State of California among its clients:
Invention to “IP Protection” to “Monetizing Invention.” A patent is used to monetize an invention–generate money from an exclusive position. A clear, blunt depiction. No actual beneficial product available to the public on reasonable terms needed. Exclude, make money, repeat. A financial perpetual motion machine, with money from monetizing fueling more inventions. For a law firm, this is what a fantasy, perpetually fruiting money tree looks like.
In all of these depictions, despite the defects I have pointed out, there’s a single idea or invention or discovery. It gets “protected” by a patent or something behaving like a patent. Then there is “marketing” and “licensing”–an exclusive license implied. Then money. These diagrams make general claims then. That the process takes place without a context of research or sponsor purposes, without activity in industry, without a consideration of standards or interoperability or collaboration, without multiple pieces of invention taking place across multiple organizations. Discoveries and whatnot are depicted as singular things, and patents are made to appear to protect these singular things. It is fantasy.
In practice patents claim multiple–sometimes many multiple–things, and there are multiple patents, with multiple holders, and the patenting activity is spread over time–if there is ever a license, the patenting activity may continue for years following the license. The university seeks to act as the nonprofit patenting agent, then, for an exclusive licensee–often on a cash reimbursement basis, meaning that the university charges nothing for its own administration of the patenting process, only passing through the charges of the attorneys contracted to do the patent work. In effect, the university subsidizes patent administration–donates its administrative resources to a commercial concern–in the hope of future patent monetization–equity speculation, patent trolling, pyramid investment scheme, or even sale of product (but without any concern for whether that product is made available to the public on reasonable terms).
More than all this, these diagrams make the claim that this process operates repeatedly, that this is the process and there is no other processes that might be at work, that would work were they not suppressed. Of course, other processes might have different end points than “license” or “revenue.” For instance, if a university declined to patent an invention and it was made broadly available, resulting in products available to the public (think: internet, polio vaccine, reprap 3d printers), then the university would not count a patent as meaningful, nor a license as necessary (since no ownership position with which to entice or threaten anyone), nor money from a license. None of these “metrics” of the “process” would be meaningful because the discovery moved from lab to use without any assertion of “protection” or “exclusivity” as necessary.
These diagrams are self-flattery at best. At worst, they represent a damaging, corrupting lie. But, oddly, no one bothers to contest them. It is as if technology transfer artists are fishermen, policy-makers and faculty are bass, and anything that looks shiny is to them food. Too easy.
The practice reality is different. It is not necessarily more complicated. It just does not form such an easy political bluff in which inventions are turned into money for the good of society. Research conducted in projects represented to be in the public interest, compelled to be passed through institutions asserting ownership and filing patent applications, dedicated to finding a single favorite company for each patent, with a goal of monetizing the invention, without regard to context or any actual public beneficial use of any invention, and without acknowledging that the “process” depicted operates perhaps 1 in 5 times to the point of “licensing” and 1 in 200 times to any product at all, and 1 in 1,000 times to sufficient revenue to feed back into more research–and even then, universities often don’t necessarily feed the revenue back into more research but rather allocate much of it to administrative expenses and construction projects.
Reasoning about university research enterprise policy starts with abandoning fantasy depictions of a technology transfer process as one’s cognitive anchor. It is not even about comparing the relative merits of different such diagrams. They all have to go. Simple as that. Be free. The world is a big place full of mystery beyond the ken of university administrators involved in discovery management. That mystery can be reduced to fantasy processes–people can be forced to make the process appear to be productive–and policy-makers can be duped into making what they believe are improvements to fantasy processes that fail in practice but are depicted as successful so that those processes will be even more “successful” and finally “unleash American innovation,” as NIST would have it.
People tell me–“we agree, the present model isn’t really working, but until there’s something better to replace it with, we have to keep using it.” That’s nonsense, of course, and even impossible, but one can see how someone lacking any actual sense of practice might retreat to such a position. Plantation system slavery is horrible, but until someone comes up with something we recognize as better, we have to use it and will do what we can to improve it so that to replace it with something better will be all the more difficult. And university research enterprise policy is much more attuned to plantation system methods than one might think. The analogy is apt.
The big problem is that people who insist on waiting for something better generally cannot recognize anything that’s better unless it is an improvement on the existing system. Rename the organization so it includes “venture” or “partnerships” or “commercialization” or “entrepreneur.” Reorganize. Put the licensing operation outside the university. Put it back into the university. Add more money for patenting. Add people with “industry experience”–meaning, apparently, people who aren’t making it any more in industry. Tighten up university ownership demands. Loosen up university accountability. Add novel programs for “express licensing” that doesn’t allow negotiation because, well, negotiation takes time. Add a startup program because, well, no one is licensing inventions otherwise, so self-dealing can be made to appear to be economic development and fool a different set of policy makers into providing more funding for, um, entrepreneurship. All such stuff aims to improve on the plantation system already in place. Makes the same fantasy assumptions about inventions, patents, licensing, and “commercialization” leading to money.
University administrators often include in their policies a gesture to public benefit that don’t so often show up in their diagrams of the process. But on the back side, I am repeatedly told that the only metric that matters is the money. I worked that life for 18 years. My first job in technology transfer was expressly premised on my ability to earn 8x my salary or I could kiss my position goodbye in three years. That’s the situation faced by many university licensing professionals–it doesn’t help them do their jobs, suppresses public spiritedness (other than when one can do well by doing good), and in the end also suppresses the opportunities for people to benefit from research findings.
The alternatives? Let’s choose just one to start: nothing, nothing, nothing at all. Nothing at all is a way better institutional approach than the current plantation system. And there’s no one in the country (as far as I know) that is willing to do away with a university’s compulsory ownership policies and authorization to grant exclusive licenses. The addiction is deep set, withdrawal so fearsome. No one has the will or the courage or the insight to do away with the plantation system–but for the blessed University of Waterloo. Even Wisconsin, that bastion of research freedom, finally succumbed to the fantasy rhetoric.
Nothing, however, means a great deal. No policy on ownership means that a university does not own unless it agrees to receive ownership and whoever does own desires the university to accept ownership. One might have a policy that prevents university officials from abusing their authority, but those policies are already in place–they just have to be enforced. No policy means that individuals are open to opportunity and are responsible for what they do. No policy means much greater diversity of response to opportunity. No policy means that people act from their own character rather than from a pre-conceived idea of process administered by administrators. No policy is tremendously liberating. But who these days wants liberty? Certainly not AUTM, not a majority of university licensing professionals, and perhaps not even a significant slice of university faculty. Instead, they want some form of “monstrous hybrid” between an institutional socialism (own everything for the greater good) and capitalism (to sell each owned thing off to a favorite capital speculator). Nothing, historically, was much better than that. Nothing is still much better. But it is clear we don’t live in an era in which those who could alter university policy have any desire for nothing, for the unknown of unanticipated discovery, for those involved working out for themselves, among themselves, what they will do.
There are other approaches. We will get to those. But nothing–that’s a kind of law-lessness that is suited only to a society that has confidence in the character of those that would discover new things for the benefit of society. That was Vannever Bush’s vision for patent policy at his proposed National Research Foundation. He did not get that foundation, and perhaps one reason why is that those forming federal policy did not share his confidence in the character of those who would undertake research to advance the frontiers of science. Perhaps that’s our fundamental dilemma: policy-makers believe that the people involved in scientific and medical research lack the character and judgment to make sound decisions with regard to the most important aspects of their work. That, then, is the starting point from which we have to work, if we are to propose anything that’s better than nothing. The current dominant system is, by contrast, worse than nothing, being a matter of organizational fantasy.