A Chronicle of Higher Education story has this headline: “Ambitious AAUP Effort to Guide Relations Between Academics and Industry Meets Resistance.”
The “resistance” is from two officials speaking for AUTM and AAU. These are the same folks who led the failed assault to turn Bayh-Dole into a vesting statute, and were turned away by the US Supreme Court in Stanford v Roche. But they keep at it, repeating arguments about the precious Gulag of Faculty Inventions that they have created, and how it would be a shame for anyone to call them on it.
AUTM has led the effort to misrepresent Bayh-Dole as a vesting statute, giving university administrations the right to take ownership of faculty inventions, put those inventions behind a patent paywall, and attempt a trade in patent monopolies. They pretty this up by saying that all they are doing is dedicated to serving the public interest. Sweet. But the reality is that administrative sincerity has nothing much to do with what happens in practice: inventions go to university ownership to die. What escapes does so despite the wonderful intentions expressed by AUTM and university administrations.
What AUTM won’t tell us is how many unlicensed inventions its universities hold, won’t report the total expenses for technology licensing operations, won’t break out the numbers for federally supported inventions, won’t report on how many patents have been licensed to moribund companies or to companies that otherwise have not supported the creation of commercial product (if commercial products are the goal of “commercialization”). No, information is not forthcoming from the Gulag. Conclude what you will.
I wonder if the AUTM and AAU officials have bothered asking their membership for input before making their pronouncements. It was a pretty quick response. One might have expected something more along the lines of “our members are studying the report now and I’m sure we will have a valuable discussion of the concerns and ideas presented by the AAUP.” But no, that sort of thing doesn’t happen. If AUTM and AAU officials didn’t consult their membership, then they are speaking out of turn. If they did, then it would appear that the memberships of AUTM and AAU have no differing points of view on whether an institution-run patent licensing office making comprehensive, compulsory claims to research IP is a really good thing. Apparently AUTM considers its membership to be a monoculture that endorses the positions that its spokesperson has taken: that faculty are too dumb to handle the best parts of their scholarship, no one but AUTM members can think about innovation, and a bureaucrat’s thumb in every discovery pie is the best possible national research innovation policy.
For AUTM members, this poses something of an ethical crisis. If they remain members, then they are endorsing the view espoused by their leadership or are at least complicit with it. If they don’t accept that view, then they are living a professional lie by remaining in the organization. Worse, they get tarred with the views of the AUTM leadership. If universities were not paying the dues for most AUTM members, the organization would collapse. For AUTM members, now is the time to speak out, or leave. Either way, it takes some courage. It will be interesting to see what AUTM members are actually made of.
In policy terms, the AUTM/AAU position is called “capture.” Arrange the affairs of the organization so as to exploit whatever it is that the government puts on offer. In the case of research funding, get as much of it as possible. In the case of inventions, exploit the government’s open policies regarding inventions made with federal funds to secure as much as possible for the financial benefit of the institution. There is nothing in Bayh-Dole about the law being a secret means to provide universities with the opportunity to take faculty scholarship and keep it from industry until industry pays. The idea that universities must own everything doesn’t come from Bayh-Dole. It comes from AUTM, and it comes with a strong undercurrent of disrespect for the role of faculty. Perhaps that is what AUTM and AAU both share–a disrespect for the role of faculty and students, a high regard for the role of minor bureaucrats.
While AUTM officials may truly believe that comprehensive, compulsory IP ownership policies are a really good thing, there is little indication that such policies are in general good for universities, for university finances, for the conduct of research, or for productive university-industry collaboration. History argues otherwise. Freedom argues otherwise. Diversity argues otherwise. Personal initiative, chance, openness, altruism, and responsiveness argue otherwise. The impossibility of being an expert broker in everything under study at a university argues otherwise.
It’s just “politics” for AUTM. AUTM has taken a formal position, told the world how important that position is, and now apparently has no way to back down. Even a Supreme Court decision cannot induce university licensing officials to recall their “guidance” about Bayh-Dole, correct their materials and revise their policies and inform their faculty of the errors.
The question for policy makers–at the federal and state levels, and among university leadership, both faculty and administrative–then is whether AUTM “opposition” is at all relevant to the discussion of how to align the $60b/yr of federal research funding to universities with benefits to the public? Are a few minor bureaucrats who have co-opted a once-respectable organization and who have been wrong big-time about such things as Bayh-Dole really the trusted drivers of American research enterprise? Does American research really exist to fill their Gulag of Inventions, to be dealt at the whim of AUTM members? Is the reason why faculty are so valuable to the American economy is that bureaucrats get to take their scholarship for institutional money-making ventures? No, of course not.
Good for AAUP, then, for putting this discussion on the front burner. Time to have other voices involved. We have seen enough of what minor bureaucrats running AUTM want. Now it’s time to look at alternatives. If AUTM wants to be part of that discussion, they will have to do something more constructive than simply oppose it.