Bozocratic Dumbthink Alert

DLA Piper sent me an “alert” email with the heading “A Victory for Roche in a Case over Inventors’ Rights.” It includes this advice:

The decision re-emphasizes the importance of university employers to require all employees and consultants to execute comprehensive and enforceable invention assignment agreements in favor of the university employer, and to monitor and analyze for potential conflicts each agreement required to be signed by a university employee in connection with a third-party consulting or collaboration engagement.

This gets things entirely wrong about the case and about what universities should be doing.   Stanford knew about the consulting agreement. It waived its own claims. Stanford’s policy and paper was and is just fine, even exemplary. Even its waiver of interest was proper.

DLA Piper is *totally wrong* about the lesson to be had. It is not that universities must have “comprehensive and enforceable invention assignment agreements in favor of the university employer.”  That is not the role of the university in innovation, and that is not the premise of research work, and that is not why a university is for logistical purposes an “employer.”  It is this kind of dumbthink that administrators then use to do their own dumbthink and try to become corporate, cutting off the open labs, the collaboration, the informal handling of potentially new things that often has to take place before there is anything formal for anyone to own.

The lesson from Stanford v Roche is that once a university waives an interest in future inventions, regardless of the particular form by which it would otherwise seek ownership, it has waived that interest and cannot readily get it back. If a researcher then returns to the university and invents within the scope of this commitment to anyone else, then that commitment still holds, and that is a good thing. Technology transfer is about making commitments to others to develop and use research generated inventions. If individuals can make those commitments, and everyone is good with that (as they were in Stanford v Roche, until later, when they saw there was money to be had), then individuals should make those commitments. It serves no purpose to block those commitments so that later, university administrators can try to make them again, somehow, for money.

Dumbthink alert: Stop thinking universities are supposed to block private arrangements in favor of bureaucratic ones.

It is a really good thing for a university to waive an ownership interest in what its employees do when they choose that route. It is an even better thing if a university does not have a standing claim to everything except when it waives, and it is the best thing of all when a university takes ownership only when requested to do so by its investigators (in the case of future work, such as under a sponsored research agreement) or its inventors (in the case of inventions that are not already committed to the university by investigators).

Inventors have rights. Constitutional rights. Fundamental rights. Rights that have a sound basis in the philosophy that created the country. Yes, there are other ways to do things. Yes, there were debates about whether there should be patent laws at all. No way the idea was that the federal government should have the power to hand individual ideas to the exclusive control of corporations. That was not the foundation for the invention clause and not the purpose of patent law.

Inventors also have responsibilities with those rights. There are consequences for their decisions. That’s a good thing! In the case of Stanford, they chose to help a start up company, collaborated with that company to learn and apply the company’s technology, won federal grants for their efforts, invented good stuff, and that stuff is out in commercial use. This is success by any standard. This was a tremendous set of decisions. Such decisions get made at universities every single day, across the country, just like this, with companies benefiting with talent and insight, and university research personnel benefiting with federal grants.  This is an objective of Bayh-Dole. The Supreme Court decision reminds university folks that the objective of Bayh-Dole is not to confiscate inventor rights.  The objective is not to entitle administrators. Nothing in federal policy is advanced by creating “comprehensive” invention assignment agreements or instituting massive administrative review of private consulting deals for “potential conflicts.” That is bureaucratic thinking at its dumbthink worst.

Think of it: universities operate open labs. People can pick up the phone and have a chat with anyone, without a bureaucrat reviewing the conversation first. Folks can drop by and visit the lab. Even without a formal consulting agreement to review, even without formal sponsored research contracts, open labs can readily move ideas around, data around, invention around, co-invention. There is no bureaucratic stopping it without making open labs closed, without requiring investigators and inventors to report to dumbthink managers whose job is not to discover but to propound “risks”  and “potentials for conflict,” Oh great, just jolly great.

An open lab means: investigators and inventors control their rights. Bozocrats can just get out of the way.

Why is it so difficult for folks to accept open labs and investigators and inventors as the agents of public interest? When did bureaucrats become better thinkers of the public interest? What qualifies them for this task? Especially when they seem intent on making the argument that university investigators and inventors are not to be trusted–because, why, *inventors* don’t hand over everything to the bozocrats? Bah! Dolts!

If we are going to look at where the public interest runs in our society, it runs in individuals, not in abstractions, and it runs in the people doing the work, at the edges of things, not in some drab multi-purpose bureaucratic conference room where people write mission statements and trade ego-boosts about how much smarter and more committed to the public well-being they are than the research folks out there working every day to discover, invent, figure things out, and make an impact.

Yeah: mega dumbthink alert. America loathes its inventors and loves its bureaucrats. That’s what the bureaucrats are saying Stanford v Roche teaches us. What do you think? Are bureaucrats with comprehensive patent agreements and monitoring of every agreement for potential conflicts (with their self interest) going to lead America into a new phase of innovation? Oh, yeah. I think not. Let’s get the lessons right, and get university research rethought, so we aren’t dealing every day with such bozocratic dumbthink.