I want to return to a paragraph from a previous post and go another direction with it:
While the standard patents rights clause is indeed standard, the only two things about it that are standard are that it applies in a standard way to most agencies, and those agencies can’t change it without cause. So universities receive it without change, and there you have it, a uniform approach to federal contracting for procurement of invention deliverables for universities. But the genius of the approach is that the standard protocol allows for a wide diversity of university practice–anything from inventor-owned to university-controlled to university-affiliated research foundation to national research foundation to any organization that has a primary function of managing inventions to any organization at all even if it does not have a primary function of managing inventions so long as the agency approves. The national innovation policy for universities is *try everything, do anything that works for you, ask only if you are staying out past 2, tell us what you are doing once a year.*
The power available in Bayh-Dole to do so many different things, involving opportunity for such a wide swath of American society, is remarkable. Small companies and large, foundations and universities, agents and inventors–it’s all available under the remarkable uniform interface called the standard patent rights clause. What a powerful tool! What respect for the diversity and mystery and local opportunities that might fuel American innovation! If there is any single piece of writing that enables such an interface between government and community in the form of research innovation, this is it. And yet after thirty years–over one and a half full patent term cycles–what has it got us?
Somehow, all the remarkableness of the standard patent rights clause has been reduced to Bayh-Dole requires university ownership of inventions and our technology transfer office has been set up as the necessary step to comply with the law. This is “best practice”. This practice is so much better than any other that people running programs with alternatives are pressured to conform. If big state university A is running a patent accumulation program with aspirations to commercialization to save the state’s whole durn economy, then why isn’t state university B doing the same thing? What is *wrong* with B not to use *best practices* like A?
My response: how dare A represent that whatever it is doing is “best practices”. Research catalyzed innovation is a candle in the dark from which great mysteries and opportunities shine up unexpectedly. At best one can have practices responsive to a particular organization’s capabilities and those of its communities, in the context of what others including other organizations are doing. But it is so much easier to say “best practices” and then try to get everyone to normalize on them. Hey, look–here’s the grail. Now *every* deal should look like a grail. Well, then, the possibility of adventure is over. Only thing left is for squires to mop up.
Well, a compulsory central tech transfer office is one way to do it, among many. Of course, once the central tech transfer office gets the compulsory bit through, it necessarily *opposes* any other way to do it that doesn’t involve it. It may oppose based on following policy (ignoring its ability to grant exceptions). It may oppose based on efficiency (one process will cost the university less–and when it comes to innovation, it’s good to be as lean as possible). It may oppose based on ethics (it guards the public from greed and loss of research integrity). It may oppose on clarity (having more than one process would confuse faculty, who do not have any experience apparently with multiple processes, such as, say, how to obtain grants or how to teach different sorts of course). It may oppose on lost opportunity (if we don’t compulse things, then the really valuable stuff will go out privately and the university will get nothing, or worse, the really valuable stuff won’t be recognized and won’t make anyone any money).
I lay out the excuses because I’ve heard them all, working to build alternative programs. Why aren’t you doing what Stanford is doing? Well I *am*. Stanford started with software, too. But Stanford runs a program that’s mature, has tremendous success with certain licensing deals, and can afford to spend millions to build its patent portfolio whether it has commercialization partners in hand soon after disclosure or not. Alternative programs do not usually have such resources from licensing, and other sources may carry other requirements. Further, alternative programs may build research assets for community in ways that do not involve patent accumulation, do not place primary value on the patent, and do not rely on contracting to participate in technology deployment.
Just now, however, we have a whole lot of how to make licensing more efficient once one has bought into a compulsory patent accumulation model and not a lot of any other way. Attempting to make the patent accumulation approach *more efficient* merely *entrenches it*. Folks spending money on an effort have a hard time pulling out, and feel compelled to throw more money at something than accept things aren’t working. We don’t need to improve the little linear model, especially not where the key words are compulsory, efficiency, oversight committee, appeal, and no-negotiation licenses. Instead, we need to take more things out of its hopper, give it yes some competition, explore changing conditions with new initiatives, and deliberately add some uncertainty to the administrative confidence that such a seductive model as the little linear model implemented as patent accumulation can handle the changing and mysterious conditions of the big wide world.
This mass dedication to a single approach is what leads folks to argue, essentially, to foreclose the other options in Bayh-Dole, to reduce its alternatives to the one that’s been chosen by a majority of universities, and make it now over-simple and clear, so they won’t have to consider any other alternatives, and won’t have to compete with any other models by any outlier universities who are not with the administrative consensus program. Yes, it all sounds good. Especially if we think simplicity and clarity are hallmarks that we are surely in the sweet spot for innovation.
This is a significant shift in university technology transfer over the past two decades. Its signalling as a group has slipped from exploration and innovation in approaches to confident consensus and efficiency, all the while talking about new programs and challenges. It hires for that. Even when folks try to be innovative, such as with a big experiment (in words, nothing on paper it appears) in doing technology transfer in a new way, as at one major university I know, the program is even more bought into the compulsory patent accumulation model than others, and worse and worse, it won’t admit this, and I fear doesn’t have the capacity to recognize it. All the innovation is in how to make a naturally self-limiting, historically selective and opportunistic program degraded by compulsory participation and administrative process somehow do something it never has. It is like a fundamental misunderstanding, giving rise to a misplaced expectation for success, leading to a disastrous critique of practice, causing the loss of opportunities through the research community now made dependent or subordinate to the cause. All one is left with is aspirational marketing, rebranding to show everyone the idea, and a plausible set of excuses for why it doesn’t actually work, once one can cover for it in annual reports any more. This cycle takes somewhere around 4 to 8 years, and then folks reorganize, still unaware of how there could be multiple models rather than reorganization of the one that one has got entrenched.
The same then goes for going out to find best practices, because all one gets then if one is not selective and actively looking for alternatives and outliers is what everyone else is doing and saying they aspire to (commercialization! industry alliance! licensing income! social media marketing! rebranding! start ups! economic development! fourth mission!–oh, it’s all good, really), and they are all doing what they are doing because they’ve seen what’s most plausible, what the leaders are doing, what makes simple sense. Again, it’s all good, the linear model, the little linear model, patent accumulation, commercialization. Yes, it need not go away. But it is not nearly the only thing in town, it is not best practice by any means, it is not proven by the evidence (it won’t even make public the evidence!), and it is not where a lot of folks want to operate. This is not criticism: it is life.
The aspirations to commercialize for the public good do not mark the direction of movement of the group, but rather are just a common vocabulary the group uses to maintain its status. Bayh-Dole anticipated and provided for a tremendous diversity of national effort from universities, and it has resulted in something so narrow that a single survey assuming a single model with two variations (university license to existing monopolist, university license to start up monopolist) comprehends nearly all the activity. Whew.
The most remarkable thing about the implementation under the standard patent rights clause of Bayh-Dole is that there’s only one survey possible. There’s no inventor licensing survey, no general public licensing survey, no non-licensing practical application survey, no open innovation survey. When a recent president of AUTM says, “there is no evidence, Gerry, that any of these alternatives are successful” I think he honestly believes that but what he signifies is “we have worked almost entirely successfully for decades as an organization on behalf of our members to prevent any such alternatives from competing with our public messaging, and this has well positioned all the technology transfer offices who have gotten on the program in their discussions with administration, the faculty, entrepreneurs and investors and industry to fend off any criticism or efforts to change or add or extend our programs.”
I know, it’s a mouthful so I wouldn’t expect it to come tripping out, but there it is.
Who would have thought–all that inspired legislation and in thirty years it results in a de facto administrative monoculture for research innovation, working without recognizing it to entrench its practices as “best” by ensuring there’s nothing to compete with it. That, too, is a role for innovation, if you see what I mean. Innovation does not necessarily bring change, but may also make change all that much harder to realize. Even change in how innovation is cultivated using the patent system.
It is a pivotal time. Universities once argued for uniform dealing by agencies, and in time decided to also propose among themselves for uniform dealing by universities, and even now are engaging industry with the idea that inventions are such a commodity that industry should take uniform deals (grail like deals) as well.
The idea of it misses. The variations in local practice descend from the nearly identical, self-imposed premises. The success of the uniformity of Bayh-Dole should be the robust diversity of private practice, not a creeping uniformity that finds the whole affair so dull that invention commodity thinking appears to be *innovative* and *progressive*, *efficient* and *compliant*.
Vitality in innovation does not come from imposing or even from self-organizing uniformity any more than school kids wearing uniforms brings order, ethics, and education. It just just signals service to a social rule. Bayh-Dole deserves much, much better from universities. Who will stand up for this, and support a broadening and exploration of practice that includes much, much more of the community made available under the standard patent rights clause? Innovation that brings change rather than entrenches it requires a nation of outliers, not just in research ideas but also in IP management practices. How we get there is what remains to be seen.