In semiconductor theory, adding a few impurities into the system may actually improve performance. It’s called doping. Yeah, there are overtones. With regard to research inventions, what happens when the impurity is the university administration seeking title, rather than the government? Does this impurity improve the system? That’s the premise of Bayh-Dole, no?
Based on the thought experience, it is clear that patent rights in research would be personal, but for, potentially, the impurity of university administrative claims on title in place of the government’s.
The university has, apparently, a different purpose in obtaining title to patent rights than the government may have in seeking personal title as a deliverable. The Little Linear Model says, exclusive patent rights in research inventions are the best, highest value, if not the necessary rationale to induce investment to create new products to benefit the public, and prove Bayh-Dole successful. Anything else, in this formulation, is “just a tax”. Exclusive licenses are the reason for being. Monopoly is the ground truth of the patent system.
Thus, non-exclusive licensing cannot be considered, and certainly is not best practice (so: forget, or at least suppress or badmouth standards, platforms, libraries, testbeds, consortia, commons, internal practices, open source, crowd sourcing, user-based innovation, and research exchange–makes one wonder why Bayh-Dole proposed collaboration with industry when that apparently only means “collaborate with industry by licensing patent rights exclusively to a single company that will monopolize the market, exclude everyone else who would otherwise want to work with our lab, and sell to consumers at premium price points so as to maximize the return on investment made possible by the patent position.” This is what is meant by “commercialization” in the Little Linear Model.)
Pretty compelling focus for an impurity in the research system. It’s at best the echoes of a sell job. More likely, it’s something repeated so often it is necessary to continue to repeat it, regardless of what one might believe.
So one can expect that there is a lot of pressure to come up with “data” that supports the proposition that Bayh-Dole is successful at producing the outputs of the Little Linear Model. Everyone knows the answer, politically, always has to end up that Bayh-Dole is a success, even there’s only one pull quote from one weekly news magazine from years ago to hang one’s hat on. Any other answer is not with the program. Truth is not on the table. Or, if you wish, the truth on the table is the sincere aspiration to make Bayh-Dole = success = Little Linear Model true. The effort then is to define what success is, because that will make “true” a lot easier to get to, politically. If it’s not licensing to industry, then it is making companies to sell to industry. Worthy stuff. The thing, though, is not what is happening, but what one says about why and how.
This situation leads to the absurdity that university technology transfer is never sub-optimal, because it cannot be, politically. At each point, it is always optimal. The absurdity then is that if university technology transfer is not sub-optimal, then it must be optimal, and thus really doesn’t have any place to go with improvement. All it can do is expand its “best practice” everywhere so more and more universities can participate in the never sub-optimal practices already developed.
One might see in this assumption a desire to make everything related to patent title to feed into an exclusive university position on which to trade to set up monopoly positions with commercial partners. That’s the essence of it. Making the feeding more efficient will improve the metrics. Nothing else in the Little Linear Model is even close to being as sweet as royalties from a monopolist. So, more disclosures, more patents, more faculty training, and better agreements to knock up the monopolists. If one is going to have monopolists, and that’s the assumption of this kind of patent commercialization, then best if they are sufficiently cornered that they pay for the party.
One might also see in this how difficult it might be to find tamable monopolists, and how “negotiation” fails to get at the discourse necessary to accomplish this. It’s like a bunch of cowboys sitting on the wood rails trying to talk a bronco into being ridden. “C’mon horse, stop buckin’ and accept it!” And then some more folks come along–management advisers, say–listen to the cowboys for a while, and come up with the idea, hey, we can make that chatter *more efficient*. Say something once, why say it again? And this is an advance in negotiation practice.
This is what this particular version of commercialization requires. It is the sweet spot, it is held up as the most important thing, all the success stories that matter make the monopoly position so important, even if it wasn’t really for, say, Cohen-Boyer or the MPEG patents. It is not that Bayh-Dole doesn’t permit this–it does–but that this is what Bayh-Dole intends, the best thing, the only thing, the necessary thing. Which isn’t true.
When things are presented this way, some folks will object, saying, but that’s not what we mean, you are twisting things. My response, from having had to deal with this kind of thing for years and years, is: you are right, it is not what you mean, because in reality you don’t mean anything. It is spout. That’s all it needs to be. There are bits of true in it. That’s enough. Those who are in–they know why you do it, and those who don’t know, generally don’t have a clue, so it’s all good.
What you mean is that you want to be seen as knowledgeable, successful, in control. What you say is dedicated to that purpose. You don’t want someone to take what you say literally, or to ask what it pre-supposes or implies. There are no underpinnings. Just a set of success stories that are to end discussion of the point. All understandings of what you say have to be corrected if they slip toward “this is goofball” or “that is unsettling” or “I don’t see the point”. Only the non-clueless can see how the system is doped.
That’s a problem, folks in the university technology transfer business who don’t mean anything and just spout buzz words and attack whatever doesn’t conform. Folks doing this don’t have any understanding what underlies their discourse. They don’t have to. It’s the discourse everyone uses, about technology transfer, commercialization, innovation, economic development, success. These folks don’t like anyone pointing it out. I understand. It’s not the funnest thing in the world to do, believe me. There are few conversion experiences.
No matter what it is that gets pointed out, it’s twisted, it’s lacking in experience, it’s just meanness. One sees this in the recent AUTM publicity campaigns in Stanford v. Roche and use of innovation agents to deploy research findings. Why? Because the point of the discourse about this sort of commercialization is to confirm that things are successful as they are, with the folks who want to control the public discourse on innovation. Nothing more.
As far as they are concerned, they *already understand* what technology transfer is, how it is done, and who should do it. No mysteries left there. All that is needed is to do it. And it would be done, but for lack of resources, ever present funding gaps, lack of cooperation by industry, the lack of innovation capacity, need to change university culture and train faculty to accept the system, and of course the wasted effort where things could be standardized. It couldn’t possibly that the whole idea of the Little Linear Model is so poorly adapted to the innovation potential of community, including its research activities, that it operates maybe a handful of times in a decade, over billions of dollars of research funding. That may be enough to spill lucre of royalties over a given university for 20 years, but it sure as heck isn’t what I say the purpose of Bayh-Dole is all about. And it sure as heck isn’t to make the effort to improve outcomes from one handful a decade to two, if the world would just change in its entirety and prove the model out.
This is the sort of rhetorical environment in which folks invoke Bayh-Dole. If one believes that the purpose of Bayh-Dole is to provide universities with exclusive title to patent rights so they can fuel the next generation of monopolists, and that’s the vision of public policy that binds research support to innovation, then one can see what’s at stake in suggesting Bayh-Dole doesn’t do that. One is not only challenging a public claim made on Bayh-Dole but also the substance of the claim made to the public with regard to the worthiness, if not intellectual honesty, of university technology transfer.
If this situation can be untangled at all, it goes something like this: the transfer of technology, with or without IP, is a worthy thing. Teaching and enabling new things in the world arising from research or benefiting from research are worth activities. Those that commit time and effort and resources to this are worthy folks. I have been part of that effort, continue to be, and am proud to be part of it.
All that has nothing to do with being complicit in making one model (the Little Linear Model) stand for all the ways that technology transfer comes about, nor with whether any one organization or university or coterie of universities speaks for all the varied circumstances and efforts to engage research and community and enterprise. Nor with the idea that Bayh-Dole exists for the primary if not only purpose of delivering patent rights to monopolisits to create products sold at a premium to be shared with universities, as if monopolies based on research findings are the primary agent of innovation in the public interest.
Yes, Bayh-Dole asks that the patent system be used to promote the practical application of federally supported inventions. Yes, Bayh-Dole includes one objective among others that anticipates commercialization in the form of products sold in a market place. Yes, Bayh-Dole includes a provision that royalties be shared with inventors (interestingly, as a *cost*). But it does not mean that Bayh-Dole’s secret and best agenda was to have universities grab up title to all inventions, require any licensee to sell product, or try to make money from every such situation.
Okay, had to get that out. Next, how university doping of research deliverables comes into play in the discussions around Bayh-Dole and present assignments.