The university IP administrators are arguing that faculty should have no voice in the inventions they make in their research work. They want federal policy to make universities into corporate-style contract research operations, creating IP for the benefit of the institution, rather than for the public or government. That’s what they signed on to with this amicus brief in Stanford v. Roche. This isn’t random stuff. This is a document to the Supreme Court in an attempt to influence federal policy.
The administrators argue that the Bayh-Dole law was a clever ploy to strip university researchers of patent rights so university administrators could make money licensing patents to industry. To do this, they have to be very selective in their reading of the law, and construct an elaborate argument that warps things to their desired outcome.
The interpretation is ludicrous as law. Only in a desperate way could Bayh-Dole be twisted to be an endorsement of invent-for-hire. And it doesn’t even address the case at hand. It’s not as sloppy as it is foolish. I can only surmise these folks either have an in with colluding officials or they honestly do not know how to read the law that gave their profession its launch. Can it be that bad, that they don’t know and don’t care about the fundamentals, but instead want the law to conform to their half-readings?
Things are even worse as university IP practice. If we go there, then there’s no difference between corporate practice and university practice–other than universities lack products tied to their patent positions. There’s no reason for Bayh-Dole if the law is interpreted to destroy the primary reason for the government to sponsor research at universities.
And it’s naughty bad as administrative practice. These administrators didn’t ask the faculty investigators what they thought would be the practices to promote. They didn’t even have the discussion with the IP practice community. They don’t represent their institutions, nor innovation management. It’s an abuse of their positions. It’s like the trustee raiding the trust account, or changing the rules so the trust account exists for the trustee not the beneficiaries. There is no one, apparently, to check them or to censure them. Where are the vice chancellors of research? The industry liaison officers? The provosts and deans?
It’s not the university administrators that the government wants; it is specific faculty investigators, whose credentials are part of the review, and who are responsible for the conduct of the research. These folks are valuable for their commitment to public research, their independence from profit-making issues, and their willingness, generally, to be intellectually honest about their work–at least sufficiently so to challenge the status quo if need be. If these folks can publish but no one can practice until university administrators have quenched their desire for money, then there’s a whole lot of university research that is totally screwed over.
So *even if* Bayh-Dole could be reasonably read to endorse “invent for hire,” isn’t it incredible to find university administrators flocking toward this reading? They should rather be arguing that they don’t want to adopt corporate-style culture, and that US universities’ distinctive contribution–perhaps in the world–is the special collaboration between the faculty operating as independent agents for research within an infrastructure developed by their institutions to cover the logistics to keep them free to focus on the investigation and reporting. Administrators should want the flexibility built into Bayh-Dole, if only to keep their options open.
But no. Bureaucracies reach a point where the administrators take over from the primary talent. The aging is exposed when the talent no longer serves in leadership roles, which are occupied by professional administrators, by business people, by lawyers, by anyone but, say, those adept at identifying lines of inquiry and carrying these out.
We see that bureaucratic aging now, that university technology transfer is on the verge, at a turning point, and it is clear that much of its leadership is ready to fully bureaucratize the effort to connect research with community. Things that arose as personal commitments are now unethical because they are unresponsive to bureaucratic controls. People who would take actions to advance use of research findings are told they are not authorized and will be disciplined if they take any such action.
Alarmed? Well, keep in mind this is like a pack of flying clowns, ready to suck lime flavoring and all the sno-cones out of every county fair they find. How can something so absurd as tech transfer administration put $40b/year of federal support for university research at so much risk? How does a space shuttle blow up? Or an oil rig? Yeah, flying clowns playing with something they want to adapt for their convenience. Plausible risk-benefit analysis made to look plausible only by making sure no one with any direct experience is authorized to comment. To the flying clown, all the world looks like scared brats with sno-cones. It is a simple world. A world in which one finds one’s place in the bozonet.
One would think that university patent administrators, especially, would be visible and vocal in support of the independence of their faculty investigators and inventors to be able to permit people to practice what they develop. The role for processes, and scale, and accumulation and sophisticated licensing is still there, but it starts with an investigator’s decision to use it, not in an assertion that all other choices are the unethical spawn of the stupid, the gullible, and the greedy. But that’s where the university patent administrators have got to.
We must therefore modify our previous image. These are old flying clowns. Their offices are running out of imaginative interest. Their problems are chronic. They have no will to change or explore. They are increasingly desperate for money. They denounce criticism and suggestions for change indiscriminately. They increasingly want to blame anyone but themselves for their outcomes. They don’t even want to report their numbers, their budgets, or those outcomes, which they hide in mostly useless aggregates from which no conclusions can be drawn–and which even they do not use for planning or internal assessment.
Time to reset the whole deal. Fruit basket upset. It would be good for everyone. Time to get young again. Start the discussion over. Do something new and refreshing. Flying clowns are scary.