I have a perspective piece on ownership, stewardship, and Bayh-Dole after Stanford v Roche that has been published in Genetic Engineering & Biotechnology News. I thought I would put a link here if folks wanted to see it.
Everyone talks about IP ownership. Ownership is a big word on campus. Ownership is the first thing you have to have if you are going to be in the patent arbitrage game. Ownership is a strong rhetoric, for leaders and lawyers. Unlike ownership talk, talk about stewardship is a weak rhetoric. No university has an IP stewardship policy. Yet that is what they desperately need. When a university implements a present assignment policy–self-executing, compulsory assignment lacking specificity–and commits IP first to a unit dedicated to making money from IP for institutional self-interest and calls that a virtue, you have the makings for organizational conflict of interest. Not the personal stuff, but the stuff where the institution itself has compromised its impartial attention to the public interest and governing its affairs so it can dip in and take a little–or a lot–for itself. No university I know dedicates a share of its licensing income to the poor, or to other nonprofits, or to industry. Imagine, setting aside a million dollars a year for small companies to use for scientific research. “Just ask, folks–that’s why we worked so hard to close deals.” Imagine the attention such a fund would half among entrepreneurs and second stage companies looking to grow through innovation. But no. It won’t happen because of institutional self-interest. The stewards would be kings.
And in that, there is a moral failing. The corporation is a fictional person. And as such, it also has a fictional character. And it can have fictional moral failings. The failure to share royalty earnings with the community is one. It is no minor breach. It is a dark spot on the fictional heart of technology transfer and the institutions with royalty sharing schedules that don’t have any room for the community.
And don’t give me any fictional s–t about Bayh-Dole. Bayh-Dole allows for remaining funds to be used for scientific research or education without any limitation on who gets to do the using. Another fictional moral failing in technology transfer is that the first line of fuss is how to keep things rather than how to put them in the hands of others.
Think of it, an IP stewardship policy. An implementation, in writing, of 2 CFR 200.316. Property trust relationship. It applies to any invention made with federal funds that the recipient acquires or improves. Whatever Bayh-Dole says about the disposition of title and use of the patent system to promote utilization, 2 CFR 200.316 says as well, start with working as a trustee on behalf of the beneficiaries of the federal award. The beneficiaries almost never include the recipient institution itself. But do you know a single technology transfer office that does this? Another fictional moral failing.
Enough fictional moral failings and you cease to be a folk hero and just start to look nasty, mean, arrogant, distant, foolish. Do you think perhaps, maybe that a share of the general disaffection with technology transfer is carried by this pile of fictional moral failings? Maybe after 30 years of Bayh-Dole, where fictional professional development organizations like AUTM count as progress how tightly one can squeeze institutional value out of the goodwill of inquiry, the public and industry, and faculty, come to see tech transfer like, dunno, credit card companies or cable companies…necessary evils, consistently well stocked with fictional moral failings, interrupted from time to time by an employee who risks being fired to do something thoughtful, involving personal discretion.
I don’t mean to demean cable companies and credit card companies with the comparison to technology transfer. But you know the fictional dark tiny hearts of which I write. But with technology transfer, and with university self-interest, we have our own institutional Grinches. We have self-interested policies and practices. We have nothing that reaches out, creates and celebrates opportunity, and delights in the success of others. It’s all control and paranoia and puffery, even puffery about how much institutional self-interest is the public interest. And we all know it’s a lie. The public’s interest may be the institution’s well-being, but the institution’s self-interest is dull, arrogant, narcissistic–fictionally speaking, of course, and of no interest to the public, except in considering whether any therapy might help (starvation of budget is the present preferred remedy).
And we human flesh and blood real people whose lives are affected by this lack of stewardship–it gets old, living a professional life conducted entirely without delight, without expression of sincere gratitude, without the pleasure of giving for the sake of giving (it would be a form of corruption under the ethics policy, a betrayal of the primary commitment to the institution). And it’s supposed to be about discovery and innovation, for gosh sakes.
Another very dark spot, the fictional moral failing of “conflict of interest” policies that are on the wrong side of history and are themselves the a (fictionally) vile work product of the very organizational self-interest that they so earnestly aim to upbraid in humans who live and outside of work seek relief from their stupid, feckless, immoral moralizing on behalf of fictional stewards who think they are kings.
We will see progress in university innovation when the first university eliminates its ownership policy for IP and replaces it with a stewardship policy. Then we will know that someone’s heart grew three sizes that day. Then there will be more applications to work in and with such an IP office than anyone thought possible. Companies might even want to pay royalties. And faculty might want to have a chance to help some companies prosper. Not for the commercialization for money thing, but because that’s a good way to help a lot of people at once, and for some folks, that’s a real, non-fictional joy. Now if we could just find some fictional, institutional equivalent of such joy, perhaps we would improve our luck, do a lot more licensing, and not feel dirty at the end of the work day, like we lived in some repressive, humorless fictional institution with such chronic moral failings that it has all but forgotten what it is like to celebrate, fictionally of course, discovery and innovation.
[Perhaps it is worth pointing out that stewardship is an agent model, while ownership allows a portfolio approach. With an agent model, a university takes control of an asset such as an invention on behalf of the community–including the inventors, but also the research team generally, and those who might benefit from the use of the invention. With a portfolio model, a university takes control of an asset for itself. For any given asset, it recognizes no particular obligation to place the asset. The asset serves the interests of the portfolio. It is the portfolio as a whole that is to be considered. If even one invention does well financially, the portfolio has done well. And the operating reality is that one invention a decade can float a portfolio of a thousand held inventions. From an agent perspective–stewardship–one deal in a thousand is unacceptable, mismanagement. Is it a failing, then, for university administrators to slip from stewardship to ownership? from agency to portfolio? Seems an easy thing, if one’s adiaphora means one no longer cares about the distinction.]