“If life is going to exist in a universe this size, the one thing it cannot afford to have is a sense of proportion.”
—Douglas Adams, Hitchhikers Guide to the Galaxy
In the Bayh-Dole era–1981 to the present–the US Patent Office has issued somewhere around 6.1 million utility patents. During this time, American universities and their affiliated nonprofits have obtained around 120,000 patents, of which a bit over 50,000 cite federal funding. We can illustrate this situation:
The circle area represents all US utility patents in the Bayh-Dole era. The university contribution is 2%, the federally funded university contribution is 0.8%. That is, the university contribution is within the area taken up by the black border of the circle, and the federal contribution–for maybe a trillion dollars of research–is less than half of that black border.
Counting patents is pretty much goofball. A lot of patents does not mean a lot of innovation. A lot of patents might not mean anything at all. A lot of patents is like describing a baseball season as a lot of hits. There’s not much one can tell from counting hits. What did the hits do? Who won what games? Were the games fun to watch? One hit in a 1-0 nine inning game no hitter may be worth way more than 22 hits in a 17-2 blowout. Counting patents, like counting hits without context, is meaningless.
In this meaningless activity of counting patents, however, we can make some general statements. More patents means–in a meaningless sort of way–more claimed inventions that are not available for use without a patent holder’s permission, which may not be given. Thus–we are being meaningless here–more patents in an area means, ahem, less room to work for those working in that area. If that area requires multiple inventions for anyone to do most anything but mess around, then unless the patent holders choose to work together, or one patent holder acquires the rest, then the area shuts down until the patents expire. This has been the case with many of the technological innovations of the past hundred years. Either the government has stepped in and required cross-licensing–as in the early airplane industry–or a monopolist has gathered up patents–as with United Shoe Machinery–or an industry has developed standards by which it opens up patent portfolios for both collaborative and competive uses–as has been the case in a wide range of industries–or individual contributors carve out commons using open innovation licensing, such as those designed by the Apache Foundation and Free Software Foundation for software.
If patents are spread around, with multiple patent holders all directed at a common area of activity–use, make-it-yourself, have it made for you, incorporated into commercial product–then without some resolution of competing claims by mutual licensing, acquisition by a dominant player, or finding a way forward that by-passes uncooperative patent holders, the patents delay technological progress for some two decades or so. In areas with patents spread around, then–and we are still being quite meaningless–we might expect that the actual competition is between the ability of patent holders to reach some agreement about how to share exclusive rights in their bits of technology needed for some new activity and efforts to find a way around all those exclusive rights in those bits of technology. If folks cannot share/open/cross-license/standardize their holdings, then the effort is to find a way to obsolesce/ignore/undermine/invalidate those holdings–or wait for the patents to expire, or shift work to countries in which there is not such patent gridlock.
Historically, governments used patents to import new technology developed elsewhere and held as a trade secret. Now if one cannot get patent holders in a given country to agree to cooperate by licensing/sharing/standardizing/opening, then one might consider moving operations to a country that doesn’t have such patent problems.
And here we get to another meaningless statement. If a country’s inventors (and the employers who work diligently to prevent inventors from holding their rights to inventions) obtain patents only in that country, then they have in effect broken up patent rights domestically while creating a public domain commons for the rest of the world. By not patenting in other countries, those inventors and employers tacitly agree to cooperate in the rest of the world, but have a big patent block fest at home, delaying technology for up to two decades while they posture with their patents.
American universities generally lack the hundreds of thousands of dollars it takes to conduct a global patenting campaign (though I’ve seen legal bills topping $500,000 for such university efforts, without a licensee in sight). They end up filing a US patent application, and filing a PCT application, and hope for an exclusive licensee, which mostly never shows up, but the patenting decisions–and expenses–have to happen within about three years from the initial invention report. Even then, the university has run up a bill of $20,000 and in the usual exclusive licensing approach expects any company taking a license to reimburse that expense on top of whatever other license fees and royalty the university might charge. As the university’s patent bill goes up, the barrier to acquisition goes up as well–with fewer companies in a position to pay the patenting costs without having already a thorough working knowledge of the invention. A university doesn’t have to require reimursement of its patenting costs–it could treat those costs as being in the public interest, like library expenses–but in practice it doesn’t happen that way. The costs of patenting are excused as being in the public interest, ironically, only if no company ever takes that exclusive license. Pretty much all that’s left to deal with are big companies in industries based on patent exclusivity and patent speculators.
If one wanted to expand one’s opportunities for transfer rather than restrict them and avoid undermining interest in an invention, one would have to form the relationships that conveyed inventions before the inventions were made. Companies–if companies were one’s objective–would have to be involved in work before any inventions were made, as in research consortia–and any rights in inventions would have to be deployed non-exclusively, and perhaps even royalty-free.
The value of the transfer relationship would not be in the patent licenses, but in other things, such as research services or consulting or technology reviews ortesting or providing a neutral site for working out interoperability. But such practices are largely out of reach at most university licensing offices. One would not market patents on inventions–one would market the opportunity to participate in research and development. One would not look for value in patents on inventions, but rather look for value in placing personnel in opportunities to make, develop, lead initiatives. One would not even look necessarily to export inventions but rather might find more public benefit in importing inventions–patented or not–for use within the university and participating companies.