And all your student ideas are belong to us, too!

Students who are also employees, students working on a sponsored project, and students who have used University resources (other than for lecture-based coursework) shall also report all inventions and discoveries to the University’s Office of Intellectual Property and Technology Transfer and shall assign all such inventions and discoveries in the same manner as University employees.

From the University of Washington’s “Patent, Invention, and Copyright Policy.” See I.C, the middle of the paragraph. (My emphasis.)

Is this even legal? How does this policy statement come to have the force of a contract to compel assignment of inventions merely because an individual has “used University resources”? Note, the text does not even say that the “resources” were *used* to reduce the invention to practice. Oh, well, perhaps that’s because the University of Washington cannot get the definition of invention right and defines it (see the end of Paragraph B) for policy purposes as:

The term “invention” means any invention or discovery which is or may be patentable or otherwise protectable as to ownership…. An invention is deemed to be “made” when it is conceived or first actually reduced to practice.

These sentences try to track Bayh-Dole, not the Patent Act, and even then they get it wrong. In Bayh-Dole, it’s “otherwise protectable under this title”–meaning, protectable under 35 USC–the patent laws. In the University of Washington version, it’s any form of ownership–copyright, patent, trademark, trade secret, quasi-misuse of conflict of interest.

The second sentence also comes from Bayh-Dole, where it is part of the definition of “subject invention.” An invention is made under patent law when it is both conceived and reduced to practice. In Bayh-Dole, subject inventions are inventions that are made–both conceived and reduced to practice–where either the conception or the first actual reduction to practice (built, not merely filed as an application) comes within the planned and committed activities of a funding agreement. But here, in the finer, world class University of Washington version, this expansion of  “subject” is silently used to define the scope of “invention”! Thus, conception without reduction to practice is claimed as an invention and inventions are anything protectable as to ownership. Students may not have ideas without the University positioning itself to claim to own them.

You know, either policy words mean something or they don’t. If they mean what they say, then the University is making outrageous claims. If they don’t mean what they say, but rather are there so an administrator can make something up to suit his or her whim at the moment from a position of threat and strength, then the whole thing fails as unenforceable. No matter how attractive dictatorial powers are, university administrators of all people ought not be writing themselves into such roles. It’s incredible to hear that they not only do this, but (so I hear) they think they are “right” to do this, as if a moral fundamentalism is a winning argument for taking personal rights.

Washington state has a law (RCW 49.44.140) designed to protect employees from excessive claims to inventions made by employers. The University of Washington has a clever work-around, by claiming inventions made by non-employees!  Looks like there is more work to do in the legislature!

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