I want to look at a transition point in the framing of IP management. This discussion is about how management has structure. I argue that IP management is complex, and just like complex numbers, it has a real component, in which people come to the aid of other people, and an imaginary component, in which managers do things to facilitate management itself. For university IP management, most of the management turns out to be of this imaginary sort.
Consider a situation in which there is only one invention made in research at a university. Here it comes, a single invention, arising in a research team, patentable and all that. In having a look at this invention, what need is there for a pre-set process? Do we need a disclosure form? A triage sheet? Database entry? Assignment of a “licensing associate”? Does there need to be a team of IP professionals on staff at the university, with a director and offices and phone numbers and computer accounts and vacation time and incentive pay and a monthly newsletter? No, it all seems pretty one-off, since that’s the premise I started with.
Just get in there and assist. Yes, get a clear description of the invention, because that’s needed for the patent application and any sponsor reporting, but one doesn’t need a pre-made form for that. If only one invention is coming forward, it is a huge waste of effort to build out a systematic practice. Yes, one may still have an ownership policy in anticipation of that one invention, and even a committee to meet to decide what to do with it, and a pre-declared royalty sharing policy (because committees apparently can decide in advance what is “fair” without having any idea of the nature of the invention–“fair” is what they decide, Thrasymachus-style).
It is the systematic practice, the idea that there are administrative processes to be followed, that for the single case does not appear necessary. It is the imaginary part, the part that involves management for its own sake, to solve its own troubles. If there is only one invention, doing all this stuff in advance does not save work, it ensures lots of extra work that won’t have any relevance. I have a lawn mower I’d like to sell, but wait, first I have to build a Home Depot store, stock it with staff and a huge parking lot, put in multiple cash registers and a customer service desk, and oh, a computer system, and then I can stock my lawn mower and sell it
No, that’s all imaginary management.
If there were only going to be one invention, then it would make some sense to wait for it, and then match the inventors and their invention with personnel having feck at whatever it is that the inventors might do next. That is, one would choose the management approach once one saw the nature of the invention and the capabilities of the inventors and those already available to them. Put another way, one would contribute to a breakthrough network with the inventors, deciding what is needed as things progressed. There would be nothing pre-set in advance with regard to how things “must be”. The management of the invention would be mostly real.
We might say, if there is going to be only one invention, it is unique as far as the institution is concerned, and the qualities that matter will depend to a large degree on who the inventors are, the characteristics of the invention, and the conditions that pertain at the time the invention surfaces. That is, the activity will be highly individualistic (even if the institution insists on ownership and pre-set licensing income sharing schedules and the like).
If there were only one invention, what would the point be for an imaginary management system? Instead of maintaining a staff waiting for that one event, an organization would match up that one invention with the people who could further its development–who might already be the people doing the inventing, or collaborators, or research sponsors, or specialists in the field of the invention.
Now let’s change it up a bit, and say it’s an invention every five years. Still too long to have a standing army of staff, and not enough activity to argue for full time employment, and not enough volume to require policy. This is how things were, back before Bayh-Dole, by the way, at most American universities. What inventions that did get made were not recognized, or went to the sponsors, or were outside the institution’s scope of interest. The few that showed up could be handled one at a time, each taken on its own merits, and matched up with a resource that could advance development.
We can up the tempo. Let’s expand the conditions for patentability (as the USPTO has done–with forms of life and with gene sequences (for a while), software, business patents), and let’s lower the bar while we are at it, and then let’s apply something like Bayh-Dole, which triggers a demand (not entirely warranted) from institutions that they see every invention (whether or not patentable–even though Bayh-Dole’s standard patent rights clause reads is or may be patentable). Now we are talking volume invention disclosures–hundreds a year instead of tens. Wow! Talk about an increase in innovation! Er, no. It’s just the imaginary part of management working its magic.
One can see there’s a big uptick in the reporting of inventions to university administrators over the thirty years of the Bayh-Dole era. It’s interesting to ask whether university researchers have gotten more clever and innovative over the years, or whether universities have gotten more diligent in seeking reports of invention, or whether greater research funding has resulting in more opportunities to invent, or whether universities have over time lowered their standards with regard to what is worth being reported, throwing in non-patentable “inventions” along with the rest. We might expect it to be a combination of all of these elements (and perhaps others, too, like multiplying one technology into many separate disclosures–I’ve seen up to 15 come in at the same time. So very much more innovative when you can do that, no?
What happens with transaction volume, when the number of inventions in a year goes from 0.2 to 20, or 200 or more? The one-off approach breaks. Now the institution faces a choice about how to deal with the volume. One approach is to expand the one-off, real management approach by increasing the number of agents to whom IP might be referred, changing who is responsible for making referrals, and reducing the scope of institutional interest to get the volume having institutional interest back down toward, say, 2 a year, or even 20.
Another approach, the road more traveled, the imaginary management road, is to replace the individualistic approach with a systematic or collectivist approach. Policies and practices are retooled for volume activity, for dealing with things in batches rather than one at a time. Issues of efficiency, fairness, and triage show up. These are not issues of innovation or breakthrough networks or development of inventions–instead, these are issues of management. More so, these are issues of collectivist, autocratic management.
Is it too simple to point out that there are multiple forms of management? When one is “managing” an invention, there’s not just one way to do that. In this regard, mis-managing is another form of managing. Thus, collectivist management differs from individualist management. While in both approaches there may be things in common–a patent application is filed, one or more development partners identified–the management is decidedly, deeply different. If folks are going to talk about management,
metrics tied to volume, triage, and efficiency already assumes a form of management. The metrics and the management are tied up together.
One might say, a different approach to management will produce an incommensurate metrics. The activities will differ. The events will differ. The metrics will differ. You won’t be able to readily compare the activities, and the metrics for one will not provide much insight into the work of the other.
The imaginary part of management exists to support the challenges of management. When university IP management is mostly real, inventors are colleagues and one is collaborating with them. One’s aim is to advance the interests of the inventors. When university IP management is mostly imaginary, inventors become “customers” or “clients” and management represents the interests of management.
A year and a half ago, I was in Victoria, BC for a conference, and three of us got to talking. One was an IP specialist from the University of Waterloo, in Canada, and the other was an IP specialist from a university in the US (and head of a collectivist style technology transfer organization). The Waterloo guy was talking about how Waterloo had an inventor-owns policy and how that was very good for the institution. Very management real. I wondered aloud why it was that in Canada there were different approaches but in the US everything was dominated by increasing institutional claims on ownership. The US guy wouldn’t let the conversation go there.
No, he cut in, there is no evidence that the inventor-owned approach is any good, and the US metrics show that the US is way better than Canada on its approach to innovation. Not only was it a rude thing to say, being that we were in Canada after all, being hosted at an event to discuss Canadian approaches, and we might as well take the opportunity to learn something, but also it was simply ignorant. The metrics that the US guy so valued simply didn’t matter. They were imaginary management metrics. The Waterloo guy picked up on this. He said, we have received over $100m from our inventors in the past decade by way of donations and research support, and over half of our graduate students in engineering either start a company or join one of our startups.
The US folks, of course, do not look at donations or sponsored research from technology transfer, nor do they look at placement of graduate students. Not in their annual licensing survey, which tracks the licenses the institution has done. In an inventor-owned approach, the institution will not be doing so many licenses, so that metric may not be of any particular importance. The approaches are not comparable according to most metrics of management. If one wants to compare the approaches based on outcomes, then one has to look at practical application, on job growth, and availability of new stuff in the marketplace. But even these metrics are not tracked and reported by the US technology transfer establishment.
The metrics that get tracked in the US have to do with volume activity run by a central organization. The metrics track the road more often taken, the one in which the response to increasing reports of inventions is to move from matching each invention with the best available resource to claiming each invention and assigning it to the portfolio of an overworked, under resourced “associate” who for the great majority of inventions cannot possibly be expert. It is not possible. It has nothing to do with the individual in the role. It has everything to do with a premise of management that is unrealistic, even ignorant, of innovation activity. That’s because the kind of management that shows up is about being orderly and controlled, not about being distributed and, heaven help us, productively bewildered.
If one wanted to choose the road less traveled, one would return to the approach with only a few inventions per year, and make a different transition. Rather than rigging for volume by means of a standing army of associates laying claim to every pie that comes off the conveyor belt, one would rig for volume by allowing more things to be managed without moving through institutional thumbs. “Thumb pie” I call it–where every bureaucrat gets to dip the finger for a piece of the action before the pie is served.
In this road less traveled, the university identifies multiple agents that might take referral of new technology. Some of those agents could be independent brokers, as in the days of yore, such as Research Corporation or Battelle, and recent organizations like Intellectual Ventures, and some could be for-profit organizations with research and development specialties, perhaps SAIC or IDEO. Some agents could be research sponsors, whether large and established or small and working at it.
The university could also designate a different set of personnel to manage inventions. These could be the inventors themselves, or if the invention was made in the course of sponsored research, the principal investigators. If these folks don’t want to be involved, then they can shift control to an agent. The university would be one agent among others. It might take on only those inventions well matched to the expertise of the folks it has on staff, and matched as well to the resources available. It would not have to assess anything more than what was presented to it, and it could refuse to manage anything for any reason–it would not have asses the “commercial potential” at all–it would only have to assess whether it had something to offer any particular proposal.
If one thinks of innovation robustness as a kind of memory (of the future), then distributing work out in a kind of binary tree gets to a lot more potential interactions than hoarding everything in a central control hub. A central hub is sometimes called a “one-stop shop” and the idea is that an interested party can come there to do business across all the various matters that might arise. What is left out is that a principal investigator or inventor could also have those qualities, if the institution would but allow this to happen–that is, get out of the way. The central hub, while aggregating a large number of inventions, has no advantage over distributed management–and appears rather to have much greater problems.
It may be that one can invest the resources to make a big list of inventions appear orderly, may provide a database engine to allow the look up of technology using key words or categories, may have standard licenses ready to send out at a moment’s notice. But there is nothing that says that such order and expenditure of resource is at all attractive to the next person who needs to become aware of the technology to move it towards practical application. It does presume that this next individual has to be “trained” to use the database to find a technology. I just have not seen this to be a productive, or very reasonable, or very common way that new technology comes to be developed.
What this thought exercise comes to is that much of what passes for university IP management these days is part of imaginary management. It exists to make it easier for managers to manage volume. In this, a transition is made from becoming part of an innovative effort led by inventors, investigators, and entrepreneurs to providing services to customers on behalf of an institutional claim. While the claims for outputs may be much the same, the actual attitudes, methods, and expectations are very different.
So how much of your institution’s IP policy is there to really support inventors and invention, and how much is there imaginarily to support administrators processing their claims?