Patent law is all social convention anyway. It is something we make up. We then task courts with enforcing our made up stuff as laws. Practices and habits build up. People and people in companies get used to the habits, including cheating, being nasty, trying to do the right thing, getting confused, holding out, exploiting loopholes, and trying to change things so they are better suited to one’s advantage, or are more orderly, or sound better. Okay. Complicated. The point is, there’s no natural history of patents. It’s not something that has to be any one way. It’s not that an inventor has to own his or her invention. No one has to own an invention. An invention doesn’t have to be defined as anything to own. So it’s entirely possible to set things up so universities own what faculty researchers come up with. And it’s entirely possible that universities can set things up so that when they own something, bureaucrats rather than researchers decide what to do with those inventions. This all is possible. I say, it’s bad policy for research and innovation to do so. It’s bad policy to be making. It may look good and orderly: “I know, we will have administrators manage all the faculty inventions for them”. “Specialists in IP and licensing will work diligently to commercialize all inventions they take under management.” If one likes order on paper, then one will love this sort of thing. But the history of stuff doesn’t support the idea that host university management does a better job with research innovation than anyone else. And where there is management at all involved, I say it’s better to let the researchers choose what management they want to work with.
That is, it’s good university policy to say, if you want to do commercial things with your invention, take leave and go do that, otherwise, choose management to do that for you and stick to teaching and research. It’s bad policy to say, that management will always be university administrators (or affiliated foundation administrators). It’s even worse policy to say, don’t bother, we already own everything you might invent. Just tell us what you have done and we will take it from there. And, oh, don’t bother showing anyone else what you know until we license the patent rights, because they will just be infringers. It is possible to construct a law providing for invent-for-hire. One could even insert that in Bayh-Dole. It is not there now. Even if it is possible, it’s really bad for university administrators to be pushing for it. Patent Lupus. The mad attack of management on the creative class. The corporatization of university research. Rather than making university research excel, become stronger, be a force, the administrative urge is to make it orderly, bland, and profitable. We already have that with industry research. University research has other roles to play in an innovation economy. The last thing we need is an inventor-loathing monoculture of inventive practice run by bureaucrats. Ugh.
I belabor this because I had an attorney visiting Seattle schedule time for coffee so I could be reamed out on exactly this point. Yes, Bayh-Dole is OMG automagical. WTF?! No, the law doesn’t have to say anything about it elsewhere. No, the 30 years of doing it via assignments was extra. But now we see that the law really did create automagical vesting of inventions with bureaucrats, simply by providing notice of election to retain title to the feds. When I started to present counter arguments, the attorney huffed off. Mercenary instance. There are real folks who *want the bureaucrats to run university innovation practice.*
Now, I’ve been doing this work for 20 years. I have been in these sorts of roles. I like to think I’ve been a valuable adjunct to people getting their work into circulation. I am also confident that if the university had no IP requirements, people would still come to me with their opportunities. I’m not making an argument against management, or even university management, of IP. I’m making an argument that compelling creative folks to use only their employer’s management, and when that compulsion gets harder to do, and in response trying to make title automagical and trying to cut off opportunities to consult and collaborate to get there–that’s bad doodoo. That’s bad innovation policy. In terms of Teece, that’s the triumph of infrastructure over innovators. It’s inventor loathing. It’s a will to monoculture. It’s the work of a bozonet–a majority consensus dedicated to making their work easier for themselves without getting into what makes their work worth doing or how to do it really well.
It is as if Bayh-Dole creates a force-field that prevents title from attaching to anything until the university chooses to “retain” it. The law does not say this, of course. It does not point out that by electing to retain title, something else substantive happens at that moment–that title is transferred from individuals–their private property–to the university. It does not say, title does not attach to subject inventions until the university decides what to do. Even though this would be a remarkable action in patent law, though not without precedent, it need not be noted. Not being noted–now, that has no precedent. No, it is not obvious that there is a magical force-field.