You may ask yourself, where does that highway lead to?
You may ask yourself, am I right, am I wrong?
You may say to yourself, my god, what I have done?
“Once in a Lifetime” — Talking Heads
Sometimes, the thing that is happening takes years to happen, and we weedle and ease and backpedal into it. That’s the case at present with intellectual property and universities. Helped by the Bayh-Dole Act, and especially by rampant misinterpretation and abuse of the Bayh-Dole Act by university administrators, we have gone from a relatively open approach to intellectual property to one of management autocracy. Previously, inventors owned their rights as provided by law, and university administrations had the task of making sure that exploitation of those rights by individuals advanced and did not interfere with or compromise the activities of the university, especially those of instruction and public service. Now we see the finishing touches of a conversion to a compulsory, process-bound approach in which the university claims ownership and primary financial interest in all inventions, precluding individual initiative, undermining collaboration with industry, creating uncertainty for investors and community adopters alike, and raising the overhead by which research results can come to be used by others.
The dramatic increase in federal spending on university research, a consequence of Vannevar Bush’s push for a national research foundation–which became the National Science Foundation–and the spread of this funding beyond the favored few universities to become a country-wide bidding competition for the favors of funding has transformed administrators’ interests from teaching and public service to sponsored research. In connection with research, administrators have taken a highway for intellectual property that leads from liberty to autocracy. They travel this highway in the name of duty, public service, fairness, and innovation. The effect, however, is anything but these virtues of administration. There will be a time when folks ask, “what have I done?” We are near to that time. Perhaps in ten years. Again, it is a slow process to truly destroy the spark of imagination under a burden of bureaucratic controls.
Early faculty inventions such as the electrostatic precipitator were owned and managed privately, and through the imagination and dedication of the inventors, these inventions gave rise to the idea of using the patent system to fuel further research, and from that, the development of foundations as a resource for inventors choosing to participate in this great experiment. Research Corporation received patent rights from inventors and worked out arrangements with industry, and stocked with representatives of industry on its own board, and passed the money it received on to the Smithsonian to support more research. What a great idea, with national scope, from a faculty inventor out west in Berkeley.
The Wisconsin Alumni Research Foundation followed a decade or so later, with the variation that money for research would go back to the University of Wisconsin and not be spread around the country. This idea that money is better placed in a foundation rather than directly contracted played a part in the formation of the National Science Foundation, receiving its funds in a new variation on the theme not from patent licensing, but from the government. (Perhaps if the NSF were told that its funding in the future would depend on donations of patents and willing payments by industry, all assessed for impact on the national well-being through invention and discovery, we’d see a remarkably altered and energized NSF!)
Open inventions, donation of patent rights, foundation management in collaboration with the inventors and with industry, distribution of licensing income to support further research. That was the idea. Now it is nearly gone.
The variations that we see now involve trying to make this “system” operate as a bureaucratic process, by compulsion, under the control of university administrators–really, bureaucrats, not inventors. There is a ton of rationalization for this, found in university policy statements. Faculty inventors don’t have experience with patents (and bureaucrats do), it’s not fair that faculty inventors own their inventions and possibly make money from that ownership (and it is fair that university bureaucrats own and control these same inventions, trying to make money, and even if they can’t, holding onto the rights so that no one else can make money, and, oh, it would be a conflict of interest for faculty inventors to give rights away because that would deny the university its right to try to make money, which is a service to the public, and therefore giving invention rights away is a disservice to the public, even an attack on the public by indifferent, incompetent, wasteful faculty inventors, and therefore it is even worse if faculty inventors, given their shortcomings, should try to profit from their inventions without the intervention of university bureaucrats).
You have to see the implied argument, because no university bureaucrat is willing to spell it out for you.
The move in university administration is to take a pattern of dealing built on barter, exchange, and mutual respect and replace it with “principles,” “policies,” and “laws.” The most important thing about the Bayh-Dole Act, to its credit, is that aims to *restrain* university administrators in their exploitation of rights under the standard patent clause incorporated into each university funding agreement. Bayh-Dole does not enable university ownership; rather, the Act removes certain agency inconsistencies, claims, and review obligations, and in doing so it recognizes the problems that might result if university administrators run amok. Thus, 37 CFR 401.14(a)(k) is all about protecting the public, and inventors, and the government from university administrators having control of federally supported inventions.
In place of an attitude to innovation that supports the liberty of inventors, and provides them with resources that they may choose to use or not, university administrators now aim for an abstracted system. This has resulted in the invocation of “principles” (as in the University of California system), and requires that these principles themselves are not open to debate. Thus, it is a “principle” that inventors have to share proceeds with the university, and therefore the university has an interest in how an invention is managed so there are proceeds, and thus it matters that the university take control of the invention to ensure it get as much as it can, and in doing so, it protects the poor inventor from the charge that he or she has defrauded the university of its proper share by failing to make a lot of money, and from the charge by the public that the inventor has been indifferent to its needs by not making money or in the alternative by making a lot of money and not sharing that money with the university.
No university in America invokes the “principle” that inventors must be free to pursue their inventions as a fundamental expectation of university-based work. No university in America invokes the “principle” that systems of control run by bureaucrats are antithetical to transformative innovation. No university in America invokes the “principle” that universities should not assert a financial interest in the innovation affairs of faculty and students. None of those principles for us. Just those other ones, like we said.
It takes more to make something a principle than an assertion. The rhetorical gesture by invoking a principle is that of saying: “This is off-limits, you can’t contest this, because it is a principle.” The gesture is to cut off the discussion and establish a base from which other things follow–compulsory ownership, preestablished royalty-sharing schedules, creating a system that inventions are to follow. The unstated principle is that innovation follows systems conceived and run by bureaucrats. The unstated principle is that the inventor’s primary role is to make the bureaucrats be effective, efficient, and look good by cooperating with the system. In what strange world do people live in, when everything around us points to the finding that innovation is almost but not quite entirely the result of things that bureaucrats have been unable to control, suppress, ignore, subvert, and fix (as in neuter). Innovation is a consequence of liberty–whether the liberty of the despot or of the crowd. There is no liberty of the bureaucracy. The innovation there is in changing the mandate to the committee overseeing the operation of the technology transfer office, so that there will be five representatives from industry, not three. Or that a tech transfer office on the verge of losing its primary license and most of its income decides to spend its reserves, too. It is an exciting prospect, no, this sort of innovation?
All government — indeed, every human benefit and enjoyment, every virtue and every prudent act — is founded on compromise and barter.
Edmund Burke
In the effort to create a system of innovation, based on rationalized principles that foreclose discussion and alternatives, university administrators and their attorney friends have laid the foundation for a compulsory system of accumulation of patents. I have called this bureauklepticism. While it has similarities with corporate models of asset management, it goes far beyond, and afield from such systems. In a corporate approach, a company has a line of business, and foreseeable business, and it is in the area of its business that it claims ownership of employee work, when that work is within the scope of employment and uses company time, information, or facilities. A number of states have laws that limit what an employer can claim by way of inventions, to protect employee inventions.
But for universities, the scope of employment is to teach and do research. There’s no particular focus on what research is done. It can be anything. The work is not assigned, just expected for advancement. The research is not done for the university. There is no supervisor to inspect the work and decide on its quality. There is no employer review process to determine what should be published. And yet, in this new system university administrators are creating, the university’s line of business is anything that anyone at the university happens to invent. The idea is, that whatever the scope of work happens to be, if you invent, then the scope of work is expanded at the university’s whim to include it. If you happen to invent, then the university may claim the invention as if it were made for university management, even if made in the course of work fully funded by others, without any supervision by university management whatsoever.
If companies did this, then they would have made a mockery of the state laws aiming to protect inventors from just this sort of claim. Yet university administrators use this mental subterfuge on a daily basis to rationalize making compulsory the assignment of inventions to the university. “We are in the business of making money on anything that our personnel invent, and therefore we can claim ownership of it, whatever it happens to be.”
In a principled world, one might expect rather that university administrators would have an ownership interest by claim only in work that was expressly commissioned by the university and paid for with its own funds, with the expectation of using for its own purposes the results of the work. Building a web site for the Music Department, or figuring out a way to filter runoff from a university parking structure. Doing work in university labs to discover stuff is entirely different.
Even in contract research companies, there is a different approach. In many of these, when they take a contract to do research for a company, they agree that the sponsor of the research will own all inventions made in the contract. The commissioning company specifies the work, and the contract research organization has at it. If anything, the contract research organization requires its inventors to assign to it so that it can assign those inventions to the commissioning company. But it may just as readily task its employee inventors to assign directly to the commissioning company on request, and otherwise the rights stay with the inventors. One of the huge assets of a contract research organization is not getting hung up trying to trick rights away from the line of business of a commissioning company.
When the government funding was new, the funding could come in as a grant (and look a lot like Smithsonian or Research Corporation funding) or a contract (and look like payment for deliverables rather than a contribution to support an effort). In the latter case, universities behaved like those good contract research organizations, ensuring that employees delivered up invention rights to the government per the contract.
Perhaps you can see the wondrous transformation brought about by Bayh-Dole. The Act imposed a uniform starting point on all government agencies funding research at universities, nonprofits, and small businesses. The Act required the Department of Commerce to create a default clause for all funding agreements for research, whether grant or contract, that limited the federal agencies’ ability to claim ownership of inventions made with federal support. The Act did not, as many university administrators have argued, give universities ownership of inventions made with federal support, nor did it even put universities “first in line” to claim title. The Supreme Court decision in Stanford v. Roche makes this crystal clear. If universities want to be first in line, Bayh-Dole gives them that opportunity by restricting any superior federal agency claim. But Bayh-Dole does not say that it is a good thing to do, that it is government policy for universities to do it, or that anything is in the relationship between a university and its research personnel is disrupted or enacted by federal law. The law applies to agencies. Agencies must start with the default patent rights clause. They may vary from this clause when they can show exceptional circumstances, and that variation is appealable, and if the variation is allowed is restricted to only those matters that are shown to be required to vary from the default.
Something else has motivated the move by university administrators to demand ownership of university inventions. It happened very early in the life of Bayh-Dole. Here’s the University of Wisconsin statement on the matter, from 1984, only a few years after the law went into effect:
The last sentence of the first paragraph provides the fundamental misreading. Under the law, universities have a conditional right within a funding agreement to take title prior to any claim by the funding agency. The law does not bestow a right for the university to take title from research personnel, nor does the use of the standard patent rights clause in any given funding agreement. It simply is not so. If the university chooses to take title, it is entirely for its own reasons, on its own impulses. The law does not interfere in the relationship between the university and its research personnel.
What the standard patent rights clause in funding agreements does do is this: it requires universities to agree to certain behaviors when they do obtain ownership of inventions, however this comes about–by compulsion or by barter or by donation–and those obligations follow any assignment of interest or title to other organizations (such as a research foundation). As for inventors, Bayh-Dole requires universities to require of their employees an agreement to protect the government’s interest in inventions. This agreement is set out in 37 CFR 401.14(a)(f)(2). I call it the (f)(2) agreement. It is one of the few things introduced by the Department of Commerce in preparing the standard patent rights clause that is not copied directly over from the Bayh-Dole Act. In making the (f)(2) agreement, research personnel agree to disclose inventions to the personnel the university designates, sign documents to permit patent applications to be filed (not saying by whom), and sign documents to establish the government’s rights in inventions.
University administrators routinely ignore the (f)(2) agreement. I would be surprised to find a file cabinet in any major research university with these agreements. Instead, what university administrators have done is try to implement some portion of the (f)(2) agreement by establishing an IP policy to replace the need for the (f)(2) agreement rather than to implement it. That is, if inventors have no rights, then they would have no need to sign anything to establish the government’s rights. And if the university always takes title and files patent applications, then the only organization the inventor has to sign patent paperwork for is the university. All this breaks down if the university does not take ownership of the invention or waives election to retain title having taken ownership of the invention. Then the problem is, the federal agency has no agreement on which to rely when it wants the inventors to assign title to the government or to grant the government a license or to sign paperwork so the government can file a patent application.
The (f)(2) agreement requirement does not say that universities must have an IP policy that claims title to inventions so that universities may comply with the funding agreement or, more grandly (but misplaced) with federal law. The (f)(2) requirement says that the government should have the benefit of a written agreement made by the university’s research personnel to protect the government’s interest. The only way the universities can get away with not requiring the (f)(2) agreement is by taking everything and releasing only the unpatentable stuff, and stuff after it becomes worthless to everyone. It is only in this way that they can prevent the operation of a relationship between the inventors and the federal agencies.
The universities have painted themselves into a corner and are making a virtue of it. The Supreme Court decision in Stanford v Roche should have caused university administrators and attorneys alike to realize that inventors have rights, and that the federal government respects those rights, and it is indeed part of federal policy that inventors enjoy those rights. One might think, it is by inventors acting on their work that anything interesting happens with research. Instead, university administrators, led on by attorneys giving out misinformation (with respect), are moving to tighten up their policies, make invention assignment outright, so the university takes everything to start, and gives back only that which is worthless. The corner they are in now is one of constant accumulation. By their own policies, because they have failed to implement (f)(2), and instead seek to preclude it, they have to take title, and elect to retain title, to pretty much everything. The rest of policy is a matter of rationalizing this behavior as somehow being in the public interest, in support of innovation, economic development, and everything good with the world. Certainly the stated intent is to do good. No doubt it is sincere, most places, as well. But a stated intent, even a sincere one, is not the same as outcomes that correspond to the desire.
Accumulation of patent rights may make for a nice heap of assets. In “funnel” thinking, this means that the chances to make money off any few of the patents increases. But making money is not an objective of Bayh-Dole. Furthermore, Bayh-Dole expects that efforts will be made to promote the use of each invention, not just a handful to pay off the rest.
Bayh-Dole contemplates discussions between inventors and their universities and research foundations, and between inventors and their funding agencies. Imagine. A university has no IP policy, no claim to ownership. A faculty member proposes and receives a federal grant to do research. The university accepts the grant, accepts the funding agreement, accepts the standard patent rights clause, and implements the minimum requirements: it identifies personnel responsible for patent matters (could be an officer of an affiliated research foundation, an outside law firm, or the chair of the department, no matter); it creates an educational program to emphasize the importance of timely and full disclosure of inventions made with federal support; and it requires all those involved in the research to sign a written agreement complying with (f)(2) to protect the government’s interest.
Now the research goes on, and an invention is made. It is a subject invention if it is owned by a party to the federal funding agreement. If the university has made its inventors parties to the funding agreement (such as by complying with 37 CFR 401.14(a)(f)(2)’s written agreement requirement), then, since the inventors own their invention and they are parties to the funding agreement, then the invention is a subject invention owned by the inventors-as-contractors.
Since the inventors have made a commitment (37 CFR 401.14(a)(f)(2) again) to disclose the subject invention to university-designated personnel, they do so. The university in turn discloses the subject invention to the government.
Since the invention at this point is not the university’s, the university has no status to elect to retain title. It is up to the inventors, then, to do so. If the inventors want to retain the title to the invention (and they have it, by virtue of US patent law), then they give the federal agency notice, following 35 USC 202(a) and 37 CFR 401.9. The invention stays with the inventors, subject to the inventor patent rights clause at 37 CFR 401.9. The inventors then have options: they can take the invention to their university or to anyone else–under 37 CFR 401.9, inventors are to be treated as small business contractors, and so are not restricted in how they may assign their subject inventions. If the inventors choose to assign to their university, then the discussion has to do with whether the university has the resources and desire to manage the invention in the manner the inventors want. If so, then a deal is struck, and the inventors assign to the university, the university notifies the agency of its election to retain the title it has just go, and folks are off working together to develop the invention. If to another agent, then the role of the university is to assign its Bayh-Dole obligations under the funding agreement to that agent, and then the inventors work out the deal directly with the agent.
Now, you might be one of those folks who don’t believe that the (f)(2) written agreement requirement makes inventors parties to the funding agreement or that contractors even must comply with it. Well, then, when inventors invent, even in federally supported work, their inventions are not subject inventions. Bayh-Dole does not preempt other law, and the inventors have no obligation under the standard patent rights clause to disclose their inventions except with regard to subject inventions. If the (f)(2) written agreement does not make inventors parties to the funding agreement, then, since the written agreement is specific to subject inventions, that written agreement doesn’t apply either. It’s a rather empty written agreement because it only applies (if we accept the premise here) after inventors have assigned their invention to the university-contractor. While inventors who are not parties to the funding agreement may have obligations to the federal government through the operation of special statutes that govern ownership of inventions in certain areas of federally supported research, they don’t have obligations via Bayh-Dole, which preempts those other statutes only when a contractor–a party to the funding agreement-–owns an invention made in federally supported work. Thus, if one insists that it is okay not to comply with the written agreement requirement, or that the written agreement requirement, despite how the requirement is constructed, is merely a private patent agreement and does not make inventors parties to the funding agreement, then one necessarily has to take the position that there’s some oversight or gap or foolish assumption in Bayh-Dole that has to be made right by private initiative. To make the law work, so this strange position goes, universities have to be diligent in taking ownership of everything that might be inventive, so that a defective law (so they must argue) can be fixed without Congress having to do a thing.
We then reach this odd outcome. If inventors own inventions made with federal support and Bayh-Dole does not apply, then under the Nixon executive patent policy (which apparently then applies), the federal agency funding the work has the right to require assignment of the invention to the federal government, pending any request from the contractor or the inventor to retain rights. That’s the gesture that Bayh-Dole makes at 35 USC 202(d)–but there it is for subject inventions. The Supreme Court in Stanford v Roche read “retain”in 202(d) to indicate that the inventor had rights–but there’s something skew about it if the inventor is not also the “contractor” in 202(d). The university as contractor has no standing under 35 USC 202(a) to elect to retain title in inventions that are not subject inventions–that is, inventions that the contractor does not own–and so 35 USC 202(d) must apply only when an inventor is also a party to the funding agreement or if the university contractor assigns a subject invention back to the inventors. If Bayh-Dole doesn’t apply, then inventors may be required to assign their invention to the federal government, per non-Bayh-Dole federal funding law or regulations. If the inventors don’t want to do so, they have the option to assign their invention to a contractor or getting the contractor to add them as parties to the funding agreement–thereby enabling Bayh-Dole’s preemption. That arrangement would make for an interesting negotiation, were the circumstances ever to come about.
All of this will sound complicated to administrators that want simple processes. But really, for the university, it is very simple. No IP policy, no need for a tech transfer office, no review of inventions for commercial potential, no accumulation of a lot of patents to avoid (f)(2) non-compliance. For the inventors, it may be very simple as well. If they are working with an agency that releases rights, then they will expect to own what they invent, and have some motivation to act on it. If the agency won’t release, then they find an agent they can work with. That’s the bar. If they can’t find an agent and strike a deal, then it’s the agency’s call. Bayh-Dole contemplates all this, allows any of this. Call it diversity or liberty or respect. It was a really well conceived approach to inventions made in federal funding arrangements.
At the heart of it, as Burke foresaw, is negotiation not process, compromise not principles to be defended at all cost. Innovation is that way, as well. To support innovation means, at the outset, to embrace Burke’s point, and have a policy that rewards discussion and resolution, not one that preempts and suppresses negotiation and disallows compromise.
The prevailing university implementation of Bayh-Dole is fundamentally at odds with Bayh-Dole. It is not so much non-compliant as it is disappointing. Instead of using the Act to stimulate greater activity among inventors, universities have used the law to stifle that activity, replace it with bureaucratic activity, and then call it a virtue when the bureaucrats come up with an “express license” or something to streamline possible contracts with the bureaucrats.
But what is liberty without wisdom, and without virtue? It is the greatest of all possible evils; for it is folly, vice, and madness, without tuition or restraint.
Edmund Burke
Bayh-Dole has so much potential, and everywhere we find universities placing their inventors in chains. Since it is not Bayh-Dole that vests or mandates or encourages this university behavior, what then could it be? What would lead university administrators to withdraw the use of facilities built so that faculty could conduct research unless the university owns the results? What would lead university administrators to argue, to the Supreme Court, no less, that university inventors are incapable of managing their own affairs.
Here’s my hypothesis: university administrators do not believe that research faculty have wisdom or virtue when it comes to inventions. This argument was made unapologetically in the briefs to the Supreme Court in Stanford v Roche. Many universities represented by their senior administrators signed on to these briefs. Inventors cannot be trusted to take care of their inventions, and cannot be expected to share any money they make with anyone else, and especially not with the university. I think such a position is an attack on faculty, on inventors, and on innovation culture. It is a sniveling, weaseling attack at that, because it doesn’t come out and proclaim it, but rather couches everything as “principles” and “fairness” and “public interest”. But making rules “with the force of law” (according to one court dealing with the University of California’s IP policy) to protect the university from inventors smacks of a deep distrust, or disregard, of faculty inventors.
How odd, that an approach to inventions pioneered by university faculty a hundred years ago, and developed over 70 years into a powerful argument for freedom, research, and initiative, with the whole experiment premised on voluntary–and amazingly generous–donation of rights and money to worthy causes, including universities other than the ones one works at–despite all this–the outcome of Bayh-Dole has been to implement rules to end the practice, to pre-empt it with duties and processes and perfunctory rulings and absolute control over the work of some of the most creative and capable folks on the face of the planet.
If the administrators are right, then it is a compelling indictment of the corruption, incompetence, and indifference in the research community. It must be a great sham, that researchers aren’t nearly as capable as they are made out to be. Clueless, helpless, addicted to funding and status over all, researchers cannot be trusted to have even a voice in the management of their inventions. How sad. Everyone should be on high alert, because there’s billions of research dollars in play, along with a large chunk of our future as a country.
If the administrators are wrong, however, then ths high alert should be focused on them. Why are they putting out this delusion about their own faculty? What does it gain the university for such an aspersion to be made? At best, it would seem, that it advances a minor power play in administration at the expense of the place of the research university in society, and to cover it over, we get tech transfer offices with tidy compulsory processes and neat marketing pitches for “commercialization,” even if most of their accumulated patents don’t go anywhere.
Things are in the balance. The last bricks are going into the wall. The administrators who distrust faculty inventors and want to break the system that flourished for 70 years have worked for 30 years to replace it with an autocracy with all the control of a corporation and none of the selectivity and good sense, accumulating patents for the money while espousing public benefit, even while the facts on the ground show they are working against innovation, against collaboration with industry, against providing access for the community to research discoveries, and most especially against the interests and capabilities of faculty inventors.
Stanford v Roche brought things to a head. The Supreme Court told the universities that they had it fundamentally wrong about Bayh-Dole, that it was no vesting statute, and gave them no invention rights. For that, the universities had get them the old fashioned way, the respectful way, by assignment. Rather than taking the opportunity to recognize faculty inventors as potential leaders, the administrators now are working to take all inventions outright, much as some federal agencies were doing, pre-Bayh-Dole.
We are about to come full circle. The universities were Vannevar Bush’s great hope for innovation that would stimulate our imaginations and economy, creating new jobs and providing security for our nation. Now they are slamming that hope by turning innovation into a money-grubbing bureaucratic process that if it pays off once a decade per institution people are good to call that “success.” All the while, inventions do not just sit on the shelf, they are chained there by administrative “principles” handed down as rules, embedded in employment agreements, inserted in to research contracts that faculty are forbidden from seeking to influence (in public universities, at least–conflict of interest you know).
Since Charity has been chapman [merchant] and chief [primarily focused] to shrive [absolve from wrongdoing] lords
Many ferlis [wonders] have fallen in a few years
But Holy Church and they [the Friars] hold better together
The most mischief on mold [earth] is mounting up fast.
Piers Plowman A-Text
Same as it ever was
“Once in a Lifetime”– Talking Heads
Universities tightening up IP policies to take more inventions under management must seem like the most obscure thing anyone could possibly care about in the big policy picture. Just a little tidying up of procedure to rein in the rowdy, exuberant, and distracted inventors so real professionals can make money licensing their inventions–and share some portion of the income with the inventors if they do, but keeping most of it for the university. To many, apparently, this seems only right. The university hires these folks, it should get the benefit of their work. Yet it is entirely wrong. The university, the great endeavor in the service of the public, is Charity. And it has turned to being chapman, dealing in commerce when its business is training and debate and the future. Instead, it is off working with the lords of industry and investment, and having a rough go at it, by most accounts. The deal between the government and faculty to stimulate change and bring about an unpredictable, unplannable future of new ideas and new technology is nearing its end. The university administrators are prepared to take over the function and stand in for faculty leadership. If faculty and the federal government do not revitalize the direct connections to develop research and research outcomes, then the very foundation of university research supported by federal funding is vulnerable.
The distinctive thing about university-based research is that talented individuals working independently of institutional controls, but with access to institutional scale resources, can make a difference in the world. If it’s just contract research, where the research organization holds all inventions until someone pays, then it’s not the same thing anymore, is it? Perhaps this is the way things go, good things come to an end when the folks in charge lose interest in the hard work and uncertainties and vulnerabilities and possibilities that made the effort worth it in the first place. Maybe this is to be expected. Maybe this repeats again and again, that some people build up an idea, and two generations later, if the idea is not refreshed, another group of people ride it to exhaustion for their convenience, and it expires.
There is still time to revive the great insights that motivated the original development of university technology transfer. Bayh-Dole is a powerful agent that permits diversity and freedom–key ingredients for innovation. What is lacking is a comparable investment by universities in the wisdom and virtue of faculty investigators and inventors. Rather than walling up the university, folks need to be opening up access, multiplying the experiments, learning and changing and adapting. Innovation is on the edge of chaos. To succeed it needs liberty, not controls. To flourish, it needs support not process. There is still a role for technology transfer offices, and for folks who can file patent applications, and who can negotiate deals, but they need to do their work outside the framework of compulsory, self-interested, process-laden policies. For universities to be in the innovation business, they will have to exit the compulsory ownership of inventions for commercial gain business. It’s this choice that is hanging in the balance. We will see what choice wins out, and which road university presidents and faculty and legal advisers choose to follow.
[updated 10/17/19 to clear up inventors’ options wrt the (f)(2) agreement. I have left the old CFR citations to the standard patent rights clause for now. Just take out the (a).]