Patents in Space-4

Famiya Masood, a columnist for a Pakistani newspaper, argues in a recent article that government-funded research at universities in Pakistan is not “translating into inventions that can be eventually patented.” Masood seems to believe that this is not a good thing and the government should do something about it. It is one thing to argue that a national patent system provides inventors with an incentive to invent–perhaps–but it is quite another to set about to force, as it were, researchers to invent, and to patent their inventions. That’s an incentive more of the form of an offer one cannot refuse.

If a public purpose of research is to create patentable inventions, then one might do well to focus on areas of engineering and chemistry where it is relatively easy to produce inventions. Any decent engineering or chemistry research team can produce twenty or thirty inventions a year. It’s just that there may be hundreds of similar teams all over the world doing the same thing in roughly the same area. What’s the effect? Cumulative technology is fragmented into tiny bits of ownership claim. Every variation and application and method to produce gets claimed up in competing ways by different organizations, all committed to finding exclusive licensees to mass produce something based on their little bit. If only one patent is needed, then perhaps things go well. But if twenty or fifty or two hundred patents are needed, and those patent owners all insist on exclusive licenses, and the twenty universities involved all start their own companies so they can brag about their exclusive licenses as innovation and economic development, then it is impossible to use, let alone, mass produce anything without infringing some right somewhere. Instead of creating better conditions for innovation–or for mass production–this idea of the patent monopoly in research creates much worse conditions.

It sounds plausible, even seductive, to think of research in the isolated (and fantasy) instance of a single investigator working in entirely new territory, with no history, no existing technology, no need for any further technology, and then patenting an invention in the hope of finding an exclusive licensee to mass manufacture product and make billions. But add in the history, the technology context, and multiply by a thousand researchers at hundreds of organizations worldwide working in roughly the same area and there is next to no chance for anyone to monopolize the emerging technology. If someone were able to do so, it would show up as a defection on collective effort to block others, not as a breakthrough that rendered all other work obsolete.

An alternative to the fantasy of the special case of an investigator working alone in an empty field of new possible things, then, is to accept both collaboration and competition among others without anyone threatening to set up a monopoly position to exclude all others. Don’t patent, work together, share alike, or don’t–but don’t block others. That makes good research sense and good commercial sense, too.

If university research in Pakistan is not doing what Pakistani officials want, then it is a good idea for those officials to assess what they are doing. It may be that university research will never do what they want. Or that research may do it only by chance, not by central control or by demanding patent monopolies, or by creating the delusion that the only/best/necessary way to use patent monopolies is to license them exclusively for mass manufacturing before there is ever use, cumulative technology platforms, standards, or anything. If there’s some specific manufacturing goal these officials have in mind, it may be that they would do well to fund organizations that manufacture and leave off trying to work through university research, which is not generally set up for manufacturing.

Or, if university research really, really is important for public policy reasons, then why focus solely on Pakistani university research? I know–there’s a national interest. But consider: there are hundreds of universities around the world doing research and tens of thousands of researchers and inventors. Most of that research is available. Even US universities have managed to sequester only 120,000 or so inventions with patent monopolies over the past forty years. Many more research findings have entered the public domain. Fund the work you want at the universities that have the talent and equipment already in place. Send your Pakistani researchers to work there. Get access to the results and deliver those results to your industry for use. Better, make sure your companies also work with the universities you have chosen to do the work, so that what’s developed is already conditioned to work with the machinery and protocols and workers you have available. Now do the same thing in Pakistan–but in reverse–bring in researchers who know what you need, with the equipment they need, to work in Pakistani labs in universities and companies. Like Saudi Arabia has done. Like China. You don’t need Bayh-Dole so much as you need talent and focus, wherever you may find it.

Now, if the problem is that national officials just want innovation and don’t know anything more than the next person what that innovation might be, then all the mission-directed research at universities won’t help them. Innovation of the unanticipated sort is alien to management controls, to bureaucratic thinking, even among bureaucrats who imagine they are elites. Innovation thinking takes a different turn. It is opportunistic, covert, running outside the status quo, ignoring best practices, refusing the consensus. That’s something one can’t offer money for–one gets poseurs. All the more so, if one wants to advance the frontiers of science rather more than finding new things to mass produce with domestic industry. Rather than building a bureaucratic process of funding announcements and grants to universities, government officials might ask what it takes to recognize and respond to new opportunities, assembling chains of designers, suppliers, developers, testers, early adopters, later adopters, manufacturers, sales reps, distributors, post-sale support and the like. How do such chains of trade within a new product develop? By government order? Perhaps, but that’s really, really hard. By patent monopoly? No, are you kidding? How do people move to work together rapidly and with good will to accomplish something as grand as adopting something new and making beneficial use of it, plus setting the stage for mass production?

There–that’s the problem if government folks want to work on it. In the US, that was what Vannevar Bush was up against. He tried, and got as far as trying to separate government from science but for funding science with federal money better than science was being funded without federal money, but even that effort got co-opted as another extension of government influence in research. Bayh-Dole in turn is just an extension of that government influence, but with the twist that the government must give up its influence once it has fragmented new technology into tiny institutional bits, so that patent speculators can trade on the uncertainty created by exclusive licensing–and this is what is sold to the public and policy makers as a really good thing.

Anyone in government in any country that wants to see new things arise from university research has to learn how to let go of top-down management. If one already has new things, then one needs skunk works–more like Vannevar Bush’s combination of industry engineers, university scientists, and gadgeteers–than academic research or industry activity alone. University research will rarely be enough, especially if burdened by patents controlled by administrators seeking exclusive licenses.

What should a government sponsor? Or, how does a government use laws and money to create new things to benefit its citizens and its industries? One might start with procurement rather than research. That is, start with procurement rather than start with research. Buy stuff and use it. And there, one has to recognize an opportunity–a problem, a need, a new thing. And then what to procure. Then one can start to gather the existing science, the new science, the technology to prototype, and the technology to configure for immediate use, and the capability to manufacture. Then one can deal in practice and mess around with IP rights all one wants to create standards, to encourage extensions and applications, to allow for right to repair, to manage interoperability, to protect domestic production. Then one can spin off stuff made for the government project for use in other work. At some point, once the infrastructure is in place, then one can let go, and the tables turn, and the role of government is to find ways to limit the role of government.

That’s where the US is now, though it doesn’t appear to know it. The US doesn’t need Bayh-Dole fragmenting invention rights across hundreds of inventions at scores of universities, all seeking to commercialize their bits. The US needs funding that prevents institution-controlled patent monopolies, needs talent that puts things together for the pleasure of doing new things rather than talent that uses patent monopolies to defect on collaboration for the money.

If the outputs from US university research are fragmented by university patent positions in the US, and are largely not fragmented in Pakistan because few US universities bother to get patents in Pakistan, then Pakistan’s huge advantage is in assembling new US-sourced technology for use in Pakistan (and for use in every other country not subject to US patent fragmentation). Same for university inventions from everywhere else in the world where there’s no long-arm patent monopoly aiming to prevent Pakistanis from making and using and selling those claimed inventions. For that, the last thing Pakistan needs is to implement a Bayh-Dole strategy of patent monopolization that fragments new technology in Pakistan. Just because the US has done that and sold everyone on how wonderful it is does not mean that Pakistan’s advantage is to follow along, just 40 years too late and without seeing the situation as it is rather than through the propaganda glasses supplied by patent speculators.

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