Does a national research innovation system benefit from the mass conversion of generally open and diverse environments of university scholarship to institutionalized management behind a paywall? That’s what is happening in America right now. Efforts have only intensified after Stanford v Roche showed that it was not federal policy to vest ownership of federally supported inventions with the organizations that happen to host such research.
From a variety of angles, we argue that investigator choice + voice leads to enhanced standing for universities, better efficiencies for transfers of all kinds, and better outcomes for innovation–and for universities, their inventors, and industry. Choice + voice was the dominant practice for many decades, prior to Bayh-Dole. Bayh-Dole and its standard patent rights clauses are drafted to anticipate choice + voice, leaving it to universities and their faculty to decide on disposition of ownership and choice of agents. Such an approach rewarded selectivity, personal initiative, and specialization of agents for industry, operating model, and local conditions. The approach was wildly successful compared to institutional accumulation as practiced by federal agencies. No wonder Bayh-Dole was a great idea, seeking to tap into a diverse university-based choice + voice practice.
Now that is all up in the air. Some university administrators seek to establish for their institutions a bureaucratic monopoly that excludes choices for early stage invention management and diminishes the role for faculty investigators in identifying what research assets might be managed via intellectual property controls, and how that management should be conducted. Faculty decide what to study, who to collaborate with, who will provide support, what gets done, what to report, when and how to report it, and what to do next. Really, having a voice regarding intellectual property attaching to any of this is no big leap. Never was before. Now we are told that university management of inventions is incredibly “complex and nuanced,” and no-one but AUTM members, apparently, should be allowed even to discuss options. Well now.
There’s no question that IP management takes skill. It’s becoming clear, however, that the way university administrators have warped their IP policies has made IP management more difficult than it needs to be. Their intentions may be worthy, but their chosen architectures are part of the problem. Comprehensive, compulsory ownership policies that lack agent choices and investigator voice are a big part of the problem. Bayh-Dole aimed to reduce administrative overhead for the agencies. Now we find that universities are actively recreating that administrative overhead for themselves. What a disaster!
But things can change. University faculty and administrators alike can recognize the problems with putting everything in the hands of a monopoly licensing franchise, just as they can see why a university press should not be expected to publish all faculty works, or even review every work first to see if it is suited to the press’s interests. They can also see that putting all IP into one pot makes for a lousy stew. In fact, it makes for an impossible stew. There is no way that any general purpose university licensing office can effectively connect each research invention with a commercial partner. There is no way even to make a diligent attempt to do so. There is no way, furthermore, to serve the public interest by switching to a corporate or investment “portfolio” model in which most inventions are held back in the hopes that one or two per decade make a “big hit”–or even a modest hit. Even a portfolio model built on a compulsory, comprehensive “claim everything, release what becomes worthless–er, why bother to release even that?” fails to support university research, and certainly fails to support innovation generally. At best, such a model works as an infrequent wealth engine for a lucky few. Like buying lottery tickets, which university administrators ought to consider doing, as they may have better odds with a lottery model.
Implementing any of a variety of freedom to innovate policies would spark creativity, enable collaboration, and build positive working relationships among investigators, technology licensing offices and agents, entrepreneurs, and industry. There is stuff to do to make such things work, but that stuff is way better than the present movement to stifle creativity under a burden of institutional self-interest, control, and process, with the rather overt implication that faculty, unlike technology licensing officers, are incompetent, greedy, indifferent, and unworthy of public trust. We should get over this sort of rhetoric, but there it is.
By way of contrast, an appropriate–even crucial–role for university administrators is to serve as the trustees and mediators for interested parties of all sorts, rather than demanding the right to themselves be a self-interested party, and the first and most important such party to arrive at any new idea, insight, or invention. Commercial opportunities in research arise largely through personal initiative and smart selection of early partners, not by institutional accumulation of assets imposed by a one-approach-to-rule-them-all policy. That was the lesson the federal government learned prior to Bayh-Dole. That is what some university administrators apparently must learn all over again.