Reflections on Shill Reflections on Bayh-Dole, 5: Incentives and basic research

We have been working through a set of reflections on Bayh-Dole by a set of patents-in-healthcare shills. We are at this claim:

prior to the Act, the government often funded research to spark innovation, but then put the research in the public domain for non-exclusive licensing,…

We know the premise is fake. But the claim now goes bizarre:

which left inventors without an incentive to research.

The claim is that university researchers had no incentive to do research if their universities could not take ownership of inventions and keep the inventions from open access, including access by the researchers themselves outside the university that hosted their work. University researchers had not stopped doing research for the thirty years of federal policy on open access. University researchers were not the ones boycotting federal funding or asking federal agencies to make it a default that university administrators could take inventions from their work whenever they wanted, and the researcher would have no further right of access to those inventions, but for the approval of the administrators.

Researchers had incentives to conduct research that did not involve hoping to profit from patent monopoly positions held by university administrators. If a given researcher thought that any particular idea was suitable for patenting, that was a researcher’s choice, not a university patent administrator’s choice. That researcher selectivity was crucial to effective use of patents in research settings. For federal funding, the researcher had to make a case for pulling back rights from open access. But default open access appears to have had nothing to do with researcher incentives.

If anything, researchers were suspicious of federal agencies setting their research directions. In the early 1960s, for instance, the chemistry department at the University of Washington voted unanimously not to accept federal research dollars. The vote was not because researchers demanded that federal policy should authorize university administrators to strip the researchers of their inventions or they just didn’t have a desire to study anything anymore. No. It was because the researchers were concerned that federal money would alter what they chose to study. As it has. Makes one wonder if those chemists in the 1960s were on to something that folks worried about innovation stagnation or whatever might consider. Maybe federal research funding is not so good at “sparking innovation” no matter the layers of bureaucracy applied to it.

It’s hard to know how to rebut claims that get this far from reality. If researchers had no incentive to do research, why the heck did they continue to take federal money? Oh, wait–maybe they already had incentives! Or funding was incentive enough! And even if university researchers somehow lacked incentives to do research, how would giving the universities that hosted their research but didn’t fund it take their inventions from their work serve as an incentive? Apparently, the hope that the university would suppress access and take a financial interest in monopoly pricing for a product that might result from one invention in a thousand, or two thousand, once every thirty years or so–that would be incentive enough to do more research. “If we all invent, and administrators take our inventions, then one or two of us, every thirty years or so, might hit it big time financially, and then the university will have for twenty years a supply of slush funds to spread around to administrators and to fund bridge projects when we fail to win big grants and to build flashy new buildings with donors’ names on them and especially to have lots of money to expand the number of inventions they take from us, patent, and try to profit from.”

Yeah, sure. And now the logic-free conclusion:

Thus, the results of government-funded research were rarely ever commercialized.

1) Much government-funded research at nonprofits was not mission directed. The effort was to expand the “frontiers of science.” Talk was of “basic” research not directed at commercial or even federal agency “missions.” If a basic research result was patentable, so the argument went, the research was not basic enough. Laws of nature–not patentable. New instruments to study new laws of nature–not appropriate for patenting, not appropriate for “commercialization.” Folks did not need “commercialization.” And open access allowed results to be used however and whenever, without formalities, if any company did want to use anything. That stuff could be used was important. That the stuff should be removed from use unless or until there was a commercial product version priced so that a university administration got a share of the financial action (“creating value”) of the monopoly patent position on inventions was silly nonsense.

The results of any research are “rarely ever commercialized.” The estimate for even patented inventions is that less than 5% are ever commercialized. We are talking super low numbers anyway. Somewhere in the long tail of a distribution of possible things to do differently, there are inventions made in work with federal funding. The argument is that private patent positions on these inventions will make them more often commercialized.

In forty years of this absurd experiment called Bayh-Dole, no one has proven it. No one has even bothered to collect data. It’s nonsense. And if anyone did collect data, I am confident the data would show that Bayh-Dole patent monopolies have made a low rate of commercialization even lower. I expect the data would show that Bayh-Dole operates as a parasite on work that does not require patents for commercial exploitation (where that is a goal) and operates as a predator on work suited to other forms of use, diffusion, and development, and kills those opportunities.

2) There is plenty of evidence that companies made use of government-funded research via open access. Just look at all those citation to government-supported studies in the patent literature. It’s that those citations are not a record of commercialization but rather of the things that do not anticipate the claimed invention. The government funded research is important, but it does not necessarily–or often–anticipate the inventive jumps that companies consider important for their commercialization efforts. The aim is not to commercialize the federally supported results–it is to use those results to think better about what to commercialize. Only university patent administrators, who have nothing better to think about, might fixate on commercialization of the results they have acquired, rather than position those results for open access, as in a standard, or in a commons, or in a shared technology platform, or as a contribution to a cumulative technology. A patent in such a position might highlight a contribution, but the purpose of such a patent is to define the contribution and teach it, not to suppress access or tax access. See, for instance, semiconductor research.

3) Do nonprofit researchers really have an “incentive” to do research if they imagine they might some day share a tiny bit of the financial upside if their invention happens to be the 1 invention in 1,000 that becomes lucrative as a result of their university’s unilateral exploitation of patent exclusivity? Perhaps someone should ask them. I have worked with many nonprofit researchers–many hundreds, and perhaps it is thousands by now. Of the few who do want a personal financial interest from patent exploitation, *most* of these don’t want the university involved. Most researchers don’t want the money, or don’t believe the university can or should make money. Or if there is to be money, it ought to fund research and development and outreach by the lab that grants won’t fund and the university won’t fund. No incentive there to do the research, though.

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