I was presenting at a conference of independent research organizations. Many of these are non-profits with mission purposes to cure diseases and support social change through research. The question came up from the patent attorneys in the audience: how do we deal with infringers?
Here’s what stumps me about the question: Isn’t use what one is striving for? Why call it infringement, when it otherwise is success? Why not declare success, confirm that you won’t sue anyone using the technology you’ve created, and offer to help?
Embedded deep in the idea that users of patented non-profit research technology are infringers is that the management of research inventions is about making money or at least making people comply with licensing restrictions. But if imitation is as good as anything for innovation, why would anyone in a non-profit research organization license a patent right in a way that prevented imitation? Only if there was a substantial investment up front to get things to happen at all. And even then, why set things up so the substantial investment has to be made by a single company, who is required to play the monopolist?
Just to push it. In the typical university patent license, the university will place restrictions on sublicensing. It will guard against the licensee granting free sublicenses or cross-licenses. That would spoil the royalty position the university typically negotiates for. In other words, university licensing practice makes it a condition of the license contract that the licensee stays a monopolist rather than the leader of a new platform.
That is, the business strategy in non-profits stands in the way of what industry otherwise frequently does–share results to establish new, complementary capabilities.