We’ve had some long posts lately. It’s been necessary. And there will be more, to show just how thoroughly technology transfer programs have run amok, how there are viable and attractive alternatives, that there are folks ready to develop these alternatives, and that we need to adapt to changing conditions with a new, fresh, grounded approach to university research enterprise.
Let’s be to the point:
- University administrators must stop demanding ownership of inventions.
- University innovation flourished without a compulsory system of ownership.
- Bayh-Dole does not require a university to claim ownership of inventions.
- Stanford v. Roche does not require a university to tighten claims to inventions.
- Academic freedom argues against university claims of ownership of inventions.
- The natural history of innovation points to networked, non-market practices.
- Faculty are not hired to invent for the benefit of their employer.
- Public science flourishes with open publication and use.
- Successful technology transfer does not require a university to claim ownership.
- Compulsory ownership creates unmanageable institutional conflicts of interest.
There is no compelling rationale for a university to stockpile patents obtained by demand. Trying to make a lot of money, preventing competition, suppressing private initiative, putting on a show of effort, and doing things because others are doing things–these are not compelling motives for universities to dismantle a working approach and replace it with bureaucracy. These reasons degrade the public perception of universities and their role. It won’t be any better to claim that stripping faculty inventors of their invention rights is necessary for innovation, economic development, or to protect the public from (so the argument goes) bumbling, gullible, and selfish faculty (and/or greedy, rapacious corporations).
The move to compulsory ownership is groundless, foolish, damaging. It is inventor-loathing, process-loving, power-grabbing, and frequently inept. It is wasteful, mean-spirited, superficial, and relationship-killing. Its “successes” are rare. Its marketing materials are at best merely aspirational, often deceptive, and frequently unsupportable. Its suppression of opportunities goes unreported. Streamlining its processes apparently means destroying individual initiative, if not by claims in IP policy, then in research policy, conflict of interest policy, consulting policy, or employment agreements.
Universities must roll back their claims of ownership to faculty inventions. Ownership should be a decision of research investigators and inventors. It should be a function of mutual agreement between investigators and sponsors. It should follow the diversity of interests, commitments, and opportunities that come with investigator-initiated research. The university’s role is not that of owner, but of steward. Not the “commercializing agent” but the rain-maker. Not the beneficiary but the benefactor. How difficult is this?
Yet, compulsory ownership programs appear to be sweeping the country, fueled by attorneys out rustling business giving legal–and unfounded–advice that Stanford v Roche requires present assignment language in university employment agreements.
We need a revised Bayh-Dole Act. How about the Cantwell-Hatch Act to Rebuild Momentum of 2012? Can be cited as the CHARM Act. In 35 USC 202(c)(7), add
“(F) a prohibition upon any compulsory assignment to the contractor of rights, or expectant rights, in inventions conceived or first actually reduced to practice in the performance of work under a funding agreement, and upon any claim of control or financial interest, whether such assignment or claim is predicated upon employment, participation in extramural research, use of contractor’s facilities or other resources, work performed for the contractor, other inventions owned by the contractor, or conflict of interest.”
That should do it. There are other things one could do as well, but this would be, as we might say, a good start.