4. AUTM is an inventor-loathing organization.
This lesson is not one that carries any pleasure to write about. It’s good that Bayh-Dole is not a vesting statute and that inventors own title to their inventions. That’s just patent law. It is perhaps understandable though a bit shocking that administrators don’t know the law, and it is certainly no dishonor not to understand innovation (though it is worse to claim to understand it without giving any thought to it).
I was a member of AUTM for about 15 years. I have not been since 2008. I have good friends who are still members, and there are folks in AUTM whose expertise and character I very much respect. My disagreement is with the organization, and that is where there is a lesson in Stanford v. Roche, and it is not a pretty one.
AUTM started as a volunteer organization to build up invention practice capability among technology transfer personnel. At the start it was SUPA, the Society of University Patent Administrators. And in keeping with its original name, patents have been its focus, despite the name change in the late 1980s. In the last few years, however, AUTM has undergone a phase change. It has replaced volunteers with paid “executives”, consolidated executive power in certain board committees, and worked to eliminate elections for positions that are now largely figurehead. All this can be expected as an organization grows larger, has to find bigger conference facilities, deal with logistics of membership and event planning, and thereby outgrows its roots. AUTM has reasoned itself away from its past by what must seem to be necessity. At some point growth forces something to give. The old AUTM was not scalable. The new AUTM, however, is not the old AUTM.
Then, AUTM was inventor-supporting, and open to diverse ways of doing things, a forum for practice and an advocate for developing innovation resources for universities without picking any one approach. But there has been a phase change. Folks have decided on what “works” and have promoted it as “success”, taught it, packaged it, sold it to university leadership and government officials, and defended it while beating back alternatives and minority perspectives and emerging areas of new work.
To propose something different would be, post-phase change, to challenge all that “progress”, to make it appear that what have been presented as “best practices” are just provisional practices, anecdotes, luck, and not necessarily operating as claimed. Eighty startups in four years could be wild economic development or a company puppy mill diverting state resources from entrepreneurs. Millions of dollars from licensing patents could mean successful products on the market improving our lives, or shaking down companies with patent trolling to cut into their profits and teach them to avoid universities. Thousands of invention disclosures could mean amazing creative output by university inventors or could mean increasing administrative emphasis on banal least patentable stuff and/or accumulation of massive amounts of claimed but unlicensable stuff. The choice is not one of being nice or mean, but whether what we are doing is as productive as we wish it to be. Are the stories being told helping us understand what is going on, or blinding us?
In the last few years, AUTM has phase-changed to inventor-loathing. Stanford v. Roche makes this most evident. I could have said that AUTM consistently takes the perspective of university administrative claims over inventor interests, is funded largely by payments made by universities on behalf of individual members, is largely composed of administrative personnel without many faculty or inventor representatives, and spends much more time in meetings and “training” discussing how to deal with uncooperative inventors than it does considering how better to support inventors. But this register of language does not get adequately at what is going on. “Loathing” does.
In a set of situations over the past two years AUTM has shown that it really does harbors a dislike of inventors, a loathing of the idea that an inventor is anyone due respect. First, there was the proposal (proposed by the Kauffman Foundation, which also supports my work for the Research Technology Enterprise Initiative, but which has nothing to do with this blog or the views I express here) in Harvard Business Review that universities consider using multiple agents to improve the channels by which research IP becomes available to industry, that the implementing rules for Bayh-Dole could be clarified to make it more evident how this would work, and that there should be public discussion of the matter. AUTM went all out in its opposition to this proposal, including an editorial in Business Week and a letter to the Department of Commerce arguing that university technology transfer was fine and successful the way it was, and certainly there should be no public discussion of the matter since AUTM already knew what there was to know about innovation and technology transfer. Consistent with its position, AUTM apparently did not seek input from faculty inventors, who one might think would prefer to have choices in who manages their inventions, even if a university is going to take a compulsory position with regard to ownership. For all that, a university administration also may well find that a choice of agents is to its advantage, permitting specialization, relieving it of costs and management overhead, and finding partners better matched to inventor expectations and practice. But no.
A second situation developed at the annual AUTM meeting in 2010. Coming up to that meeting, some of us had proposed an inventor’s “bill of rights”. The idea had been by a faculty investigator/inventor/entrepreneur at the University of Washington, and we thought it was worth developing. A bill of rights would set out the freedoms of inventors that universities would agree not to limit, with basic expectations on how inventors and administrators would reach agreement on management of IP. We raised this idea on the Techno-L listserv, where many AUTM members come to lick the salt, and after a positive reception by AUTM, got a workshop at the annual meeting on the idea. But as we discussed the workshop plan with AUTM, it became clear that they had a very different idea about a “bill of rights”. It was more like a Geneva Convention; that is, on how to treat prisoners of war rather than what freedoms were not to be infringed.
These are very different perspectives on the role of the inventor. In our view, inventors play a crucial role, and the first order of business for them, whether supported by the university or not, is to establish or enhance their breakthrough network. For the Geneva Convention approach, the first order of business is to limit the ugly behavior by administrators having captured ownership of an invention. For BOR, freedoms set up the prospect of mutual agreement. For GC, limits set up control and seek to shape bureaucracy into something kind and but firm. There was no way to reach a single statement. We would send a draft about freedom and it would come back revised into a draft about prisoners. It was decided that we would present both drafts and have a discussion about it all, which seemed like a nice resolution.
At the workshop, which at its heart concerned the relationship university-hosted inventors should have with administrators, our group, led by Renee Kaswan, founder of IP Advocate, an organization focused on university inventor rights, brought in a handout that documented a rather longish list of cases in which university administrators had sued university inventors, with a brief summary of each case. Members of the AUTM board objected and confiscated the handouts.
The response revealed how closely aligned AUTM is with administrative decisions to “go after” inventors, and how incapable as an organization it had become in reflecting on the appropriateness of such activity. This is not the kind of response one would expect from an organization that had the interests of inventors at the forefront of their work.
This brings us to Stanford v. Roche, which was developing in the background as these other events unfolded. When the CAFC looked at the assignments in play in the case and found that there was only one valid assignment at the time the patent applications were filed, and that was to Cetus by means of a present assignment, AUTM lost its lunch and determined to overturn the decision. Led by WARF and MIT, AUTM rallied other university-administrator organizations where its members also had substantial influence, such as APLU and AAU, and created multiple amicus briefs to the Supreme Court arguing that Bayh-Dole is a secret vesting statute stripping university inventors of their rights in federally funded inventions, and that this is a good thing because those inventors are inept, selfish, and gullible and will create a mess of things but for the valiant work of university patent administrators, and that without vesting the whole edifice of federal innovation policy directed through university research will crumble, bringing with it economic depression the likes have never been seen before. Or something like that, but put in fine legal weasel.
AUTM argued that vesting was critical to national innovation, inventors had to be properly controlled, and current law could be conveniently distorted to make this result happen. Many universities signed up for this argument—that is, university administrators and legal counsel, not faculty and inventors. There was no great acclamation from faculty investigators—”Please, save us from these inventors in our midst”–nor from inventors —”We know that we are but nits in the innovation system, while valiant administrators are the vanguard of future economic well-being.” Nothing like this.
The Supreme Court would have none of AUTM’s argument. Bayh-Dole is not a vesting statute, there is no great danger to innovation, this is something organizations have worked out how to deal with, so universities can do that too.
In the big scheme of things, AUTM was not merely on the losing side of an iffy case. It established clearly that as an organization it was committed to the elimination of inventor from the management of federally supported inventions. For that, we learn that AUTM is properly now regarded as an inventor-loathing organization.
Confession, apologies, reform, and good works might rescue it. Whether it even desires such rescue remains to be seen.