I argue that while new products on the market is a primary measure of commercialization, the critical metric for a university commercialization program is the number of unlicensed inventions that the university has claimed. Every unlicensed invention acts to suppress innovation everywhere the invention could be practiced in research, used internal to companies, or used in the broader DIY community.
The effort to create new commercial products is honorable. Tasking university administrators with doing so under a compulsory ownership policy is not.
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Commercialization is one of the two main branches of innovation econometrics (the other is adoption or practical application). These two branches represent differing attitudes toward innovation, and suggest quite different approaches for those who are given the task of facilitating innovation. Commercialization suggests products for sale, while practical application suggests do-it-yourself uses, standards, libraries of resources, commons, platforms, and testbeds.
The two approaches are not necessarily mutually exclusive, though one can work it so they are. A university intent on “commercialization” may see do-it-yourself adoption as adverse to its goals. Many university licensing officers refuse outright to grant a broad, public research license to inventions the university claims. The university therefore must necessarily suppress adoption except via purchase of commercial product. Similarly, those taking an open approach may attack those with a proprietary bent and try to prevent anyone from making a version of their work that could be sold as a commercial product.
Either way, becoming polar about it does not mean one has got a system and consistency and a simple story so much as it means that one has lost context, capability, and judgment. Which set of values do you think more closely tracks innovation? Bureaucracy? Yar.
When university officials adopt a “commercialization” approach to IP and technology transfer, they run the risk of suppressing the adoption of new technology in research, in industry, and in the DIY community generally. There are ways to get to commercial sale of product through DIY adoption, but it isn’t how most universities practice commercialization. What they mean by “commercialization” is making money from monopoly licensing, whether to established companies or to startups specially created for the purpose.
University officials tend to hold tightly to patent rights and insist these be used first, or primarily, to support an exclusive license committing to commercial product. No university I know of grants a public license for research uses of all patents it holds. (Some do work with open source licenses for software–but that’s mostly copyright). No university grants a public license for all internal uses in industry. Even in biotech, where there may be no general use without something resembling a government-approved commercial product, there still may be important research uses available. In the case of natural products, there may also be well established community uses that can be disrupted by a patent holder and/or an exclusive commercial licensee.
University officials run a greater risk regarding suppression of innovation than they usually recognize. We are not talking here only about overt efforts to repress, such as asserting infringement and the like. Nor are we talking only about license-based exclusion of practice, as in the disease assay patents licensed by universities to companies that then proceeded to shake down university medical centers for licenses. These are obvious anti-practice moves. They merely show that the desire for innovation as a source of money-making is confused with innovation so thoroughly that the desire comes to dominate forms of innovation that do not immediately make money. This is blatant stuff, though it’s a “fine line” for some in the business.
The less obvious move is not a move at all. It is simply the delay in licensing while not clearly stating the conditions available to all who will not have the benefit of the license. Put another way: not stating the reservation of rights for the research and DIY communities unless and until there is a signed exclusive license.
In company management of patents, stating the reservation of rights has not mattered much. But times are changing. It does matter in standards licensing. It matters in Apache 2.0 licensing for software carrying patent rights. And it increasingly matters for open innovation generally. Universities would do well not to imitate legacy IP business practices as if these were suitable to university purposes. As Jim Collins has it “business thinking is not the answer.”
In most technology transfer situations, a university licensing office will take ownership of inventions, file patents, and then seek commercialization partners by posting description of the invention on line, perhaps sending letters to selected companies, following up connections they or the inventors have, and perhaps writing a story about the invention to get wider circulation in blogs and publications that trade in announcements of new stuff. It all sounds fine and good. But licensing officers generally do not to announce the aim of the licensing program for the technology or what scope of rights is on offer, and what rights are reserved for the university, for nonprofit research use, for any research use, and for internal (non-sale) practice in the DIY or commercial sectors. The offer, and generally it is assumed to be so obvious as to not require explanation, is for an exclusive, royalty-bearing license in exchange for monopoly commercial development of product to be sold.
The failure to reserve and articulate these reserved rights upon claim of ownership creates immediate and significant uncertainty, starting with the research team and its collaborators, and propagating out to anyone else who learns of the invention. If someone has no interest in obtaining a license to produce a commercial product, but does have an interest in practicing the invention, it is highly unlikely he or she will be able to obtain a license until the university has exhausted its efforts to find a commercialization partner, preferably under an exclusive license. The hunt for exclusivity comes first. Practical application rights are strictly secondary.
The uncertainty of practical application rights works to suppress adoption everywhere the capability exists to make and use but with no desire to sell. The determination to turn each research invention into a commercial product is itself a tremendous antagonist to a great deal of innovation. This singular focus on making products to sell disrupts research, interferes with collaboration, and antagonizes companies that otherwise would be neutral or potentially interested. Where most of the “portfolio” of inventions claimed by a university is not licensed, all this disruption, interference, and antagonism happens for no good reason other than that the intention to find commercial partners dominates all other modes of deploying these inventions.
If folks set aside the rhetoric of good intentions and look at the actual impact of university IP behaviors, it becomes clear that a university commercialization program that dominates IP practices generally suppresses innovation and diminishes rather than enhances the role of the university in community. Using “commercialization” in the title of a general university IP office all but says: “we suppress innovation”. Skip the claims to public benefit, the “success” stories, and the process diagrams with arrows from research to money. The general effect of bureaucrats seeking money through IP is suppression of innovation.
A “commercialization” emphasis places the university in the service of a narrow mindset about its own worth, makes the migration of inventions into product (rather than, say, adoption or variation or improvement or standard) next to impossible, and creates multiple illusions–that there is a funding gap; that companies and investors are uncooperative; that faculty lack the proper “culture” or “training” to do the job the way it is set out by the commercialization office. These claims are primarily artifacts of the management model, chosen because it sounds attractive, and are not properties of the society in which research takes place. They are a kind of orderly group hallucination that management is so susceptible to when it is not thoroughly engaged in practice and reasoning from words like “commercialization” to a seeming rational way of getting there.
One may as well aim to have an orderly process for buying winning lottery tickets–no amount of emphasis on process of buying tickets will improve the outcomes, and the expenditure on trying simply compounds the losses.
If there is a funding gap between company ideas and the creation of successful commercial products, it is that most investors are not fools and many business ideas are not particularly well formed, and a lot of folks wanting to make money are not particularly well formed either. This stuff is not at all the same thing that university officials talk about when then assert their job is to take research IP and put it on the road to commercial product.
Innovation is not merely a creature of consumer marketplaces in the form of product for sale. There are times when this happens. One might say, product for sale is an externality of the process, an emergent property, one that comes about but is not one that pre-states. The product for sale is the whisker on the walrus of innovation. You have to have the rest of the walrus before the whiskers matter.
Life imitates life, and life will imitate art, but life does not willingly imitate bureaucracy. Life does not become more willing to do so when the bureaucracy adopts the lipstick of business, entrepreneurship, and “commercialization”.
Innovation is a creature of community and expertise and initiative. Innovation of the kinds universities are good at is wild, dangerous, threatening, disruptive, independent, and non-aligned. If an IP program at a university were any good, it would say, often: “This invention is not yet dangerous enough, since we are still attracted to it and think we can help” or “We can make this invention yet more dangerous, so much so that we are sure we will lose control of it, or most of it, in a matter of weeks.” Instead, university IP programs assert control outright, and assume that they can provide the management necessary to keep university inventions under wraps until a commercialization partner comes forward.
In the social media world, we find networked innovation developing prior to products, and products being adopted before they are “sold”–and in some cases (such as Google or Facebook or Twitter or Vimeo) the service the technology supports is not sold, but rather something else sold (such as advertising) that reaches the adopters.
An unlicensed, university-claimed invention that is basic to science or practical to research or suitable to internal use works against adoption, research, and further innovation. Such an unlicensed invention encourages folks to ignore, wait out, and design around the university invention. If folks don’t wait, the university decision not to license invention publicly turns these folks–the early adopters–into infringers. The act of infringement is created by the commercialization program. It is an act of university officials. They could as easily grant a license to early adopters, because it is clear they have adopted, and declare success. Why do they not do this?
One might say that the most important metric one can have to assess a university commercialization effort is how many unlicensed inventions it has under management. This is the most general indicator of its suppression of innovation by the commercialization program. The more unlicensed inventions, the greater the suppression of innovation represented by the university commercialization program.
Whatever the claimed intentions, and whatever the number of products actually on the market (something that is never reported, as far as I can tell), the metric of the program is what is claimed as to ownership but not licensed for use.
Along with this metric of unlicensed inventions one can add a wasting asset metric: how long have inventions gone unlicensed? This is a measure of the uncertainty created in the early adoption community. These research inventions claimed by the university were presumed to have commercial potential, so the time that they go unlicensed is an indicator of potential loss of direct value, and loss of goodwill to the university. The delay does not create a linear path to zero value, since it is always possible that adoption will happen anyway, and the university will find itself in a position to troll industry for licenses at a later date. Trolling, however, is not commercialization, nor should any income from trolling (or assert licensing) be counted toward technology transfer “success”. Trolling, and litigation for infringement, is a sign of a failed university commercialization program. It fails because it can no longer recognize adoption as a success and requires instead not just commercial product, but also payment for that product. It is the money that motivates the practice, not innovation.
The final gesture of such a program is, then, to claim it is not about the money. If it is not about research, or innovation, or commercial product, or money, then what is all the fuss about? Why have a university commercialization program at all?