I have a hypothesis, not made idly:
University innovation comes about primarily as a combination of luck, goodwill, and diligence, typically in that order of importance.
Most of the major university licensing transactions appear to have followed this pathway. Something is discovered, invented, realized–often it is serendipity–and that is the luck part. How did that discovery come about? What discussion led to it, what mistake in the lab, what pursuit of something entirely odd, or off topic, or couldn’t be done?
It’s as if “research” is not about the “statement of work”–that officious document that justifies an institutional form of curiosity–but rather that “research” provides a social approval for futzing around with stuff to see what will happen. The best research is perhaps the work with the best futzing, not the best proposed statement of work.
After the luck part comes the goodwill. Goodwill is a difficult concept in discussions of innovation. For the most part, goodwill is ignored. You don’t see goodwill featured in university IP policies, nor in Science of Science Policy discussions. Goodwill is excluded almost by definition, because, it would appear, there is no goodwill in science and there shouldn’t be in science policy either. Yet goodwill is important. It is what motivates someone who has discovered or invented or epiphed to reach out to others and include them in his or her work. When these folk want a university to benefit–or a company, or a government, or another group–they ask that group to get involved, too. I propose that goodwill is an important motivating factor in how first developers choose who to work with, and who should benefit from that work.
Goodwill is also important at the acceptance end of the deal. Innovation is innovation because it represents a change in the established order, not merely a boast about it or threat to it. Companies may of course be threatened with the need to take a license from a university TLO, just as waiters can pack handguns to ensure payment for the meal and a sizable tip as well. But the primary reason why companies pay universities for licenses is because of goodwill: the companies have chosen to pay, not been forced to.
In most any licensing situation, there are plenty of ways for a company to avoid paying. The company can design around. The company can negotiate for an extended period until the university runs out of money to continue patent prosecution. They company can invent a bunch of improvements that block further university development and force a cross-license. The company can infringe and dare the university to come sue. The company can talk down the technology, inducing the university to drop its patenting efforts.
In short, companies pay because they choose to pay. It is the result of goodwill. This is a very difficult lesson for technology managers in university licensing offices. They think that the companies pay because they are forced to. They therefore think that the purpose of a licensing agreement is to set up a court action to force payment when the company decides to cheat on the deal. And there is a degree of prudence to this approach. But it fundamentally misses the foundation of the relationship.
Finally, there is diligence. Even when there’s a nice epiphany, and folks have agreed on a set of working relationships–epiphers with team, team with host institution and others, and team and host institution with yet others, and some of those yet others among themselves–there is still the matter of executing on an approach to get the new stuff out into use, where it can be examined, tested, studied, varied, improved, applied, and extended. This is the diligence part. Folks have to pick paths and work them until things get done. In a typical patent-centric approach, this diligence starts with filing patent applications and in communicating both IP and research information and progress to potential users and developers and investors. The diligence also extends to those who obtain the invention, that they learn how it works, and what it can do, and then do something with it.
Again, in the conventional TLO, diligence is reduced to a set of demands in a license agreement set out as milestones or minimums below which the contract can be terminated. Diligence is the proper response to a threat. Absent that, diligence is what motivates speculators to pursue development of an invention, inspired by the lucrative market that beckons. The job of the patent-centric patent license is to wordsmith diligence as a threat into a shared vision for the pursuit of substantial wealth.
But diligence need not arise in this way. Diligence may also be that commitment that capable people make to see something through, because they believe in it, because they wish to see others succeed as well, because they see how it might be beneficial, even broadly, to society in general. This sort of diligence comes about because people have the character for it–commitment, perseverance–and the resources to support their efforts. In the standard development of university licensing, investors provide resources because they are greedy for substantial wealth. It’s “high risk, high return” kind of thinking–essentially, make a pile while expecting to lose big trying.
In reading the technology licensing office literature, one might come to believe there is no other possible way in which new things get developed. Either it’s greed or nothing, and the job of the TLO is to harness the greed of investors on behalf of an institution’s own interest in making lots of money. No harm, really, if the investors lose a lot of money in the process–that’s their own fault, really, when they chose to be investors, meaning speculators. “Commercialization” comes to mean, not new beneficial products on the market, but rather money to be made by teasing gullible speculators taken in by the reputation of the university. Since no university (as far as I can see) routinely reports the date of first commercial use or sale for each invention they have under management, I surmise that “commercialization” does not mean much more than operating a shop to separate wealthy investors from their wealth. Perhaps there is some public benefit in that, but it’s not generally thought of as the domain of new technology management.
Consider, for instance, the natural history of warfarin. Karl Paul Link gets lucky. A farmer with a dead cow and a bucket of blood on the back of his truck comes into Link’s lab and asks for help. That’s a bit of luck. Then there’s the goodwill that Link and his students decide to work on the problem, and from that, a ton of diligence as they isolate the compound that prevents blood from coagulating, and then create a hundred variants on that compound over the years and work to characterize their effects. Then there is more goodwill, as Link builds a working relationship with WARF to develop one of the variant compounds into a rat poison. Then more luck, when an army recruit tries to commit suicide by taking the rat poison, and lives when given vitamin K as an antidote, showing that warfarin compounds are controllable. Then Eisenhower has a heart attack in Denver, and gets warfarin to manage his condition. That’s some luck, too. And from that, Link and WARF pursue a commercial version of warfarin for therapeutics. More goodwill, more diligence. This interplay of luck, goodwill, and diligence is not atypical. And this interplay is not improved by being submitted to an institutionalized, largely bureaucratic process.
If the sequence actually is, for the majority of university research findings an interplay of luck, goodwill, diligence, then the thing folks ought to be focused on is how to improve the inter conditions for this sort of play. I know, I know. We can write a policy that requires them! Er, no. In a form of reciprocal thinking, we actually do not benefit by requiring these things by policy. They are not creatures of process overseen by distant and largely unknowledgeable administrators. They are in the open realm, not the ordered realm. They are spontaneous, moral (in that System 1 sense of pattern recognition), and opportunistic. They run against the status quo simply because they are not the status quo.
How might a university create conditions for luck? for goodwill? for diligence? A good starting point is to drop the institutional demand for IP as a matter of employment or faculty appointment. While the slave can come to love his or her master, it is not the kind of relationship that universities ought to be fostering. If innovation is going to arise, it is because folks are mixing and ranging about, come to know and respect others who may help them in some way, and have the motivation to work at things when the time to do things is at hand.
There may not be a “process” for the sorts of innovation that arise in research. It may be that, in fact, we need the inverse of “process”–we need 1/process. That is, we need activity that leads to new practice that is itself not compelled to follow any one process. Not anarchy–not the opposite of process–but the inverse–where the behaviors arise from chartered opportunities and relationships rather than being compelled by a for-ordained procedure manual by which an ancient committee decided that it would be easier for administrators if they did not have to think but only enforce.
Luck. Goodwill. Diligence.
Maybe that’s a good account of research-originated innovation. Maybe that should be the basis of university IP policy, if not Bayh-Dole. I wonder how that would play out. Nothing I have seen indicates that the application of a bureaucratic process in any way enhances innovation outcomes. How might an institution improve the luck of its investigators? How might they enjoy the benefit of goodwill? What diligence might be applied in the service of these two aims?