On Technology Transfer Metrics, 2: Management

There are uses for metrics in business. One is to make management decisions. There’s a repeated bit of nonsense–you can’t manage what you don’t measure. There’s a veneer in truth in that, along the lines of “if you measure it, then you can respond to the measurements.” But even in sports, afloat in statistics, the goal is not to get more first downs in a football game or more hits in the defensive zone in hockey–the goal is to win games and in the process make the game exciting to watch, to be part of. As Deming put it:

Nothing becomes more important just because you can measure it. It becomes more measurable, that’s all.

And as Don Peppers puts it, in an article that I pulled this quote from,

Quantifying things has now become an easy way to escape responsibility for using ordinary human judgment, or for taking a considered, intelligent point of view.

And there’s the rub for efforts to measure, or quantify, “technology transfer.” Is a university doing a “worser” job of technology transfer if it encourages faculty to release their inventions and discoveries open access or by means of make-use commons and files five patents a year, releasing all of them for free make-use and licensing the sale rights non-exclusively. Maybe that university then has a tiny “patent portfolio” and hardly any “licensing income.” And maybe that’s the most effective university technology transfer program one could imagine. Some other big hurking university technology transfer program could have 200 inventions a year, get 50 patents, do lots of licenses, and make tons of money, and have a crap of an actual technology transfer program–patents tying up access to research inventions, licenses going to speculators and disrupting industry adoption, money coming from speculative transactions betting that products will be sold at outrageous, monopoly-supported prices. Lots of measurable activity, but not technology transfer–unless, of course, one defines “technology transfer” to be the measurable activity rather than the introduction of technology change into an established order, or some such thing where the words actually mean what they would appear to mean, that technology gets transferred and used by those receiving it.

In this, a license is nothing. A patent license is a promise not to sue someone for use. That promise presumes that use happens. But the use does not happen because of the license. Use happens because someone figures out how to do something that happens to be claimed by a patent. That figuring out does not have to involve any transfer at all. Similarly, a license document–that text of the promise–does not teach the invention, does not help someone learn how to use the invention, does not point out how to apply the invention in any given local circumstance. No, the technology transfer takes place outside any give license agreement. A license does not transfer technology. A license provides some assurance that a patent holder won’t interfere in the practice of a technology–whether it has been taught or developed. independently (and therefore *not* transferred).

If a university’s aim is to transfer a technology, then two things need to go true–first, there has to be a technology, not merely an idea about a technology. Second, the university must get there first and teach the technology, as well as demonstrate or provide or direct whatever resources are necessary for its practice. There are all sorts of ways to do such transfer–classroom instruction, public demonstrations of practice, invited workshops, consulting services, publication and conference presentation, dedication to commons and standards, placement of trained students and even faculty in industry jobs. In this, there may be licenses–wherever there are ownership positions, there’s a concurrent need for promising not to assert those ownership positions. Technology transfer, however, is most definitely not creating ownership positions so that one creates the necessity to release those ownership positions if anyone else is to practice a given invention, while everyone who responds poorly to the threat of litigation for use avoids the patented invention, works to obsolesce it, design around it, exclude it from practice and standards, and block its development and application with their own patents. Unless, of course, one defines “technology transfer” as just this sort of bureaucratic nonsense.

But there’s also a weird Taylorism about this adage of managing by measurement, suggesting the limits of management as a means to get things done (one surely can manage without measuring) and at the same time suggesting that managers are so distant from the work that their only/best/primary means of comprehending what is going on is that something is measured and the measurement is delivered to them for their opinion. “Get more patents!” “Increase your license count!” “Make more money!” Well, these are powerful mandates, but they have nothing to do with technology transfer, innovation, or economic vitality. Or, if they do have something to do with all that, it ends up being a parasitic something–wherever there is activity, use patents to suck from blood from the opportunity and in this way serve the public interest. Fascinating, but neurotic.

Left out of the adage entirely is guidance about what exactly one is to measure. And left hanging is the idea that management is about volume activities–repeated activities for which there is something to count, to total up, to compare with something else repeated enough times to be worth counting, totaling up, and considering whether there are ways to repeat that something faster, with less work effort.

None of that makes any sense for technology transfer–not for operation of a licensing office, not for knowledge transfer, not for technology transfer. But technology transfer folks committed to management end up counting things anyway–inventions reported, patent applications, patents issued, licenses granted, money spent and money made. But none of that has to do with technology transfer, any more than counting the fans in the stands (in the olden days) had much to do with whether a team was winning the game.

There are, then, reasons not to attempt to track such transfer with metrics, even if one intends to manage transfer, as distinct from encouraging transfer, providing resources to assist transfer, showing one group how another group has approached transfer, and the like–all of which can be done without metrics and even without management. Management does not improve barbecues and tracking metrics at a barbecue does not improve the next one–though it helps to bring enough hot dogs and buns and condiments so that everyone gets enough. But that isn’t either management or metrics. It’s having sense and coming prepared and seeing that everyone is having a good time.

There’s another reason for not dealing with metrics to evaluate university technology transfer. Much of what counts as transfer is not easy to track. How does one know that Z read Y’s article or W heard about Z’s conference presentation or A hung out with X’s post doc? Perhaps we could have “transfer tracing” but that goes toward the police state, and at some point we might say, it is best treating transfer metrics as a kind of forbidden knowledge–at least, forbidden to bureaucrats. Anyone on the street, looking, might know just where some new thing came from, but there’s no point in publicizing the source. Of course, if technology transfer happens best when forced to be covert, underground, on the sly, the bureaucrats creating a system of technology, pounding out policies that require all inventions to go through bureaucrat hands, and thus driving the really good technology into hidden transfer would be just the thing. All those patents would mark out the dark cloud that must hide the actual transfers taking place as people design around the bureaucrat’s holdings.

Two examples. In one major licensing deal at a university I worked for, once the startup company had licensed the university’s patents, it hired the inventor who helped it design around those patents. Thus, you have a sonic toothbrush rather than an ultrasonic one. The transfer that created the commercial value was covert.

In another licensing deal, a faculty inventor-entrepreneur came up with twenty inventions in network communications. The university demanded ownership, obtained patents, and then made the faculty member take licenses to those patents in order to start a company to develop hardware. Well, the terms of the licenses required the company to pay for all those patents that the bureaucrats had obtained at exorbitant costs (a university patent rep told me outright that they didn’t try to control patenting costs because the company licensee, if there ever was one, would have to pay). In an effort to make sure the faculty member’s company paid up, in a fit of bureaucratico-legal silliness, the license stipulated that if the company did not pay, then the company lost all rights to the patents. Well now, the faculty member hired himself at his company, and designed around all his university inventions, filed patent applications on the design-arounds, and when it came time to pay the university, didn’t. And didn’t have a legal obligation to do so. The university’s remedy was to pull the license, but at that point it didn’t matter because the licensed technology was obsolete. And still the university could credit itself with twenty patents, a license, and a startup! Fine stuff, if one is at the Milkin Institute, I suppose. Otherwise, it’s not technology transfer, but just the opposite–bureaucracy forcing actual transfer to go covert and be untrackable.

Tracking technology transfer also is not a matter of saying–look at them! they use something that X published about in 2012! Well, so did Y, Z, K, and D, along with most of the other letters of the alphabet. And X may have got it wrong–many academic publications do get it wrong. There’s little consequence for being wrong, so long as one has good friends and one doesn’t get called out for overtly cooking the data. The same is true of patents. Just because someone cites a patent in another patent does not mean the second claimed invention derives from the first. More often, the second claimed invention cites the first patent to demonstrate that the second invention is not anticipated by the first. So toss patent citations as indicative of transfer. Patent citations might show centrality–lots of other inventions have to work to separate themselves from what has been claimed. But centrality is not transfer.

Since a license does not indicate transfer–it indicates freedom from getting sued for practicing what one has got–in a very real sense, a university suing for infringement runs against technology transfer. If a company not only possesses a new–patented–technology and is using it, then one would think (in a rational world, not this one) that the university’s transfer task was largely complete. Use equals success. A company is using what the university claimed by patent in order to get one or more companies to use! So a company didn’t need any patent, and even used despite there being a patent. That just shows that the university did not need to bother with a patent in the first place.

Sure–if you feel you have to, there are still reasons to sue a company for using your pet invention, such as if they take out patent positions to block public access to key improvements, or just because you want money. But really, once there’s use, a university or federal agency ought to be prevented from suing for infringement alone. There would have to be some other thing that mattered to the public–poor quality, false advertising, failure to adhere to a claimed standard, dangerous consequences, breach of contract. But not merely infringement. Infringement, in technology transfer, is practice, and practice is success. One does not sue to spoil success, unless perhaps one is a university bureaucrat.

 

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