I’m looking at a new article on Stanford v Roche that ends with the assurance that universities can use present assignments and doing so will “fix” their ownership problem. Before getting into the article, I want to emphasize that this discussion is not about ownership in the abstract, and certainly not how to find an argument that will make inventors go away and acquiesce in administrative control of their work. The discussion is about how research improves community, how research results get used by others, and how the patent system may be used to promote such use.
Ownership itself is thus in play. Why should an ownership position be taken? When should that position be taken by an institution? How does this affect individuals who otherwise have ownership, but for the institutional requirement? What should be done with an ownership position when an institution demands one, or receives one, with regard to research results, or faculty expertise, or scholarship? If the absence of an ownership position, or of an institutional ownership position, would advance the use of research results, and introducing ownership would not, then would folks be so adamant about finding a winning ownership strategy? The obvious answer is that refraining from institutional ownership positions is not an option–look what doing so did for poor Stanford.
Some ownership folks have lost their way. If the discussion is only about the power of the institution, then the result will be how the institution uses its power to accumulate assets. This is just the thing that companies have to deal with–lawyers can help them acquire ownership, but are at a loss to know what to do then–sue infringers? make a lot of money? impress gullible investors? have a war chest in the attic just in case? For a company that’s lost its way on products and services, perhaps this is the survival menu. But for a university, this is just the stuff that violates the public mission, destroys goodwill, and works against the use of research and scholarship because it sits not only behind a paywall, but also with an institutional mindset with regard to hoped-for future value and all the pain of not wanting to admit a lot of resource has been spent to take an ownership position on work that has as a result become essentially worthless, both in financial terms, and in social terms, where the loss may be much greater, though no one bothers to “measure” it.
A second thing to keep in mind about this discussion is that it is not particularly about the law. The law is fine in the abstract, and even with cases to help everyone get on with just what parts of the abstract courts are likely to rely upon in the event of a dispute. Most academics, when they deal with Bayh-Dole, or Stanford v Roche, rush right to the USC. They ignore the CFR because they don’t care about implementing regulations. But in the case of research funding to universities, the matter is not about the law, but about agreements–federal agreements and private agreements. The law establishes a standard patent rights clause that agencies are to use unless they can justify modifications. In each federal funding agreement, there is a patent rights clause. That clause is a matter of agreement and performance, not statute. Same for the (f)(2) agreement, which does not show up in Bayh-Dole, but is a fundamental part of funding agreements, just as is 2 CFR 215, which lays out the federal funding agreement for grants to universities. Agreements are meetings of the minds–there are individuals who barter, agree, and exchange promises for consideration. Tracking the research enterprise at universities means tracking agreements, not merely reasoning from the parts that are “statutory”, though doing the latter makes for a nice, crisp law review article.
Finally, a third matter. Agreements are not merely for the purpose of imposing demands by authority on workers. although this may be overwhelmingly what the legal community commenting on Stanford v Roche advocates for. If only Stanford had done a better job imposing its administrative will on its workers, it would have been able to double-cross a company research collaborator and collected hundreds of millions. Darn! The lost wealth of failing to be properly despotic! If only universities would learn! No–agreements are about finding balance between agents willing to make promises to gain access to each other’s assets and services. For innovation, agreements–or the absence of them–matter hugely. The first responders to an insight or discovery or artistic composition or invention can make all the difference. The despotic institutional approach is to replace all the possibilities for a first response with a demand that institutional bureaucrats get the first crack. It doesn’t stand up to reason (other than love of a kind of despotic order) that faculty and student work must all go through a gate of bureaucracy as the first step–or even at some step. How is that going to improve research outputs for use by the community? No, and it doesn’t even do what’s promised–bringing order and fairness to all, ensuring that every “innovation” is properly reviewed and “protected” by creating compelling inducements for companies and investors to put their money into developing work for their use and that of others. For the most part, all it does is make a hash of scholarly activity, turn everyone doing research work into conflicted, selfish, authority-defying suspects, and accumulate “assets” that mostly do not have a future life, at some great expense to everyone.
We can go at the matters of law, but without recognizing that this is about how research supports innovation in the community, and the role of IP in doing that, and therefore the role of agreements among individuals that promote such innovation, the discussion of law is rather aloof from reality and pointless, other than for establishing some kind of reputation among folks who would rather have at it about the law than become engaged in the issues at the level of practice, public policy, and what creative individuals actually do with their work. It’s like wanting to have a ceremonial fistfight at every picnic. But why?
PR firms talk about “framing” the public debate. The present “frame” for Stanford v Roche is how universities can be more despotic and therefore gain ownership of more assets from their personnel more efficiently, to do whatever it is one can do with such stuff when one has got it in the recommended way–and presently that recommended way is by present assignments embedded in policy or otherwise at employment.
My argument, from a number of angles, is that present assignments do not operate as claimed in open university environments, given the general state of university research and IP policies, and instead create liability, administrative overhead, delays and ill-will, and operate against the movement of research expertise and results into community. We can chase this argument down in the law as well, but as far as I know, there is no law yet that bans despotic behaviors in university administration. “Despotic”–perhaps you don’t like that word here, and want something softer, more gray, suggesting that administrative decisions are the result of reasoned discussions within the university community. When I see those discussions taking place, then we can use a term like “firm enforcement of a collective decision delegated to administrative officials to implement in an equitable, clearly articulated manner”. We are not there yet. We are at the “if you impose it they will buckle” stage. A heady exercise of administrative power by minorlings in universities, with the help of attorneys who have taken a shine to them, but as those minorlings make a pitch not merely for patentable inventions with “commercial value” but rather go after all inventions, patentable or not, and all forms of intellectual property, whether intellectual property or not, and expertise, know-how, and data–then the minorlings are bureauklepts, and they are going after the entire output of the university research enterprise, and they have gotten access to a key element–policy–and they maintain that position by claiming they know more about policy, IP law, research regulations, and innovation than anyone.
It is those claims that I dispute. It is this position by administrators with a strong dose of institutional self-interest, with fingers touching policy, that represents a huge organizational conflict of interest. While public policy follows laws, it is also the source of laws. Pushing for universities to “tighten” their IP policies with present assignments, even if it can be done “effectively”, has next to no contribution to the public policy that frames public investment in university research. Or, put another way, such effective use of legal expertise to tie down all research assets to institutional control works against meaningful policy regarding public investment in university research. If university research becomes institutional in this way, why should the public fund it? Because the public has a high regard for the reputations of institutions maintained by receiving large amounts of public funds, which they spend in the region as they do “research”, and this spending *is* the benefit of research. The outputs of research are there to make even more money, at the expense of industry, and this money, too, will be spent largely in the region, to the greater glory of all. That’s basically it.
There is virtually nothing left of Vannevar Bush’s vision that research will enable innovation that creates jobs, health, and security through the creativity of independent investigators and the labors of American industry. Instead, it’s a world for lawyers helping institutions craft stick-em-dead ownership policies, because ownership can be so stuck, and innovation, well, is not yet much a matter for law, apart from regulating it to death in the name of economic development or public benefit.
From this, one might see why an Innovation Bill of Rights is necessary. The state indeed can curtail personal rights. The public policy that America works with emphasizes the importance of personal rights, including in matters of intellectual property, right down to federal research grants to university investigators. While it is possible for the state, or a university employer, to turn on its creative workers, an Innovation Bill of Rights sets limits to institutional demands–at public universities, at least–to restore the balance between state support for research, on the one hand, and individual initiative to pursue one’s insights, make commitments and agreements while doing so, and see that the work of research does engage community, not merely as a reputation-building expense, but as the genuine thing–new knowledge creating new opportunities for jobs, health, and security.