University administrators are hot on the idea of compulsory institutional ownership of faculty “inventions.” The idea of “invention” is itself the subject of expanding ideas of scope–not just patentable inventions, but pretty much anything that a university administrator thinks could be sold off to trolls, bullies, and speculators. It’s really quite a remarkable account of public service. But despite reasons why states (in the form of public universities) shouldn’t be controlling faculty scholarship, the value of an independent faculty, the reduction of costs and overhead by developing a diverse network of invention management, and the importance of the university’s role as mediator and sometime steward rather than self-interested greedster, administrators still have these hot flashes of instant wealth.
The clever scheme that’s been cooked up sounds so very excellent: a system by which all inventions are reported and assigned to administrators, who hire diligent professionals who license the inventions to industry where they are developed into products that save lives and provide happiness, feeding lucrative royalties back to the administrative pot so that taxpayers won’t have to subsidize universities ever again. Call it the “innovation machine.” Pay no mind that it doesn’t work, historically hasn’t worked, damages things that it works on, and that no university is willing to report the actual condition of its portfolio of claimed inventions, only success stories that promote the eventual success of the innovation machine.
Somehow, there are still arguments that lead administrators to believe that the innovation machine is a really keen idea. The efforts toward expanding university IP policies to grab more ownership, and earlier, and with fewer formalities, and with less concern for what faculty investigators and inventors might think are all based on the idea that the innovation machine is just a wonderful thing. I thought I would compile a list of the arguments that must swirl in administrators’ heads to support the state condemnation of private invention ownership when the inventors happen to work at a public university.
1. The institution has better resources than inventors have to develop an invention.
Misses the point that others may have better resources than the institution has, and that the invention might be better developed without an institutional patent claim.
2. The employer has a right to own the employee’s work, or anything made with the employer’s “resources”.
Misses the point that the university is not an employer for IP purposes unless it assigns, directs, reviews, and approves the work, and that the work is done for the employer. Most faculty work does not meet this standard. The university provides resources without an expectation of ownership, and is often compensated for those resources by external sponsors, who seek the specific performance of faculty not their institutions.
3. Faculty and student inventors are ill-prepared for invention development.
Most all inventors are in this condition. Most all institutions, too, are in this condition, with less chance to deal with it. Institutional ownership may make the problem worse, not better. Think: poorly considered patent positions, institutional overhead in contracting apparatus, fixation on making money via a license deal. Institutional ownership also compromises the institution’s position to advocate and mediate.
4. Faculty shouldn’t be directly involved in commercial activity.
Owning an invention does not require one to be involved in a commercial activity. One can publish openly, or license to everyone, as one does with open source. Or one can use an invention management agent. Even the university can serve in this role, if no one better is available. Nothing about it requires a compulsory ownership policy. For all that, why is it any better for the university administration to be involved in commercial activity?
5. The university has an obligation to protect the public’s investment in research.
Taking an ownership position in inventive scholarship does not address this obligation. The public investment in research is merely a metaphor anyway. That “investment” does not expect a financial return to the university via an ownership position. See Boston U’s patent policy. See UCSD’s statement.
6. Private enterprise cannot get public assets for free.
That is, somehow all scholarly things that can be owned, must be owned, and if owned, must be used to force payments from private concerns, if not businesses then speculators, trolls, and bullies who prey on these firms. Lost is the idea of public service through scholarship, following the agricultural extension model.
7. Universities have established systems for inventions and inventors should use these systems.
As if there are no other established systems for inventions, and that an administrative “system” designed to create an immediate bottleneck is what a new invention needs most. Is the purpose of imposing monopoly requirements on university “systems” of invention management to snuff out any alternatives that might compete with such monopolies?
8. It is unfair to the other inventors if some inventors are permitted to avoid the university system.
I have actually heard this argument in the wild, made seriously. If the institution doesn’t screw over all inventors in the same way, it will be exposed to protests that it is being inequitable. Imagine that.
9. Compulsory ownership ensures the institution benefits from inventions made by faculty.
Just a money grab. Actually, compulsory ownership doesn’t ensure income. It ensures that the institution has a thumb in every effort, but that thumb may actually thwart the effort and encourage folks to go outside the system. Many benefits to a university come from things other than patent royalties. See Yale’s patent policy.
10. It is federal policy that institutions should have ownership of federally supported inventions.
No, actually, it isn’t. But that doesn’t stop advocates of the faux Bayh-Dole from saying that it would be really keen policy if the federal government did mandate university ownership. So assert that federal policy does mandate institutional ownership, and perhaps someday it will. Inventor loathing at its best.
11. States have laws that prohibit faculty from using their positions for private gain.
It is not at all clear that faculty, in inventing, are using their positions for private gain, nor that the use of state-provided resources carries conditions that preclude faculty ownership of their scholarship. Such laws, if they hold, amount to stripping academic freedom under the guise of “ethics”. Just what is “ethical” in such settings? Faculty are more like legislators than hired boffins of the executive branch. They are hired for their independent expertise, not to take direction from bureaucrats. That is why they are cats.
12. This is how it is done in the corporate world, and universities need to be more corporate.
Universities aren’t and should not be corporate in their employment of faculty. They are associations with the smarts at the periphery, not top-down corporations serving shareholders and speculators. The IP policies at many corporations don’t serve innovation, for all that, and there are appeals for companies to be more open.
13. Invention cannot be left to indifferent faculty.
Meaning, perhaps, that the university provides more incentives to get the next grant than to develop the findings of the last one. Nor can invention be managed by bureaukleptic administrators, creating a “portfolio” so that one or two a decade might be “big hits”. That sort of indifference with the rest is, apparently, “okay”.
14. Gosh, are you blind, the system is a crazy wild success!
Then why does no one publish their financials and show the status of each invention they have claimed? What is the baseline over prior approaches? Why are so few inventions licensed, and of those, why do so few result in new products? Whatever happened to open standards? No, the system is a wretched failure. The only ones getting consistently rich are the administrators who have decided the system is critical.
15. Without compulsory ownership, the system would fail, and innovation would stop.
This was the argument that 70 universities made to the Supreme Court. Really. Without slaves, there would be no diamonds. The true part is, yes, the compulsory part of the system would and should fail. But invention management, even with university involvement, would go on, and be better than it is now, with less overhead, fewer disputes, and greater focus on what a given office can do well.
I expect there are more arguments than just these. If the debate is decided based on how many fallacious, silly, unsupportable assertions the compulsory ownership crowd can make, then they appear to be winning. If, however, planning is a matter of the application of reason to affect the future, then university policies regarding when the institutional will take an ownership position should be based on reason, not on fallacy, not on hubris, not on assertion of administrative authority.
An independent faculty with freedom to innovate is at the heart of the rationale for public investment in university research. Take that freedom away and substitute a compulsory system of ownership and you destroy the rationale, create disincentives to invention or report inventions, disrupt innovation breakthrough networks, and over time grind down the spark of research into a muddle of bureaucratic controls and stagnation sprayed over with a mist of rhetoric about public benefit, taxpayer investment, economic development, and funding gaps requiring still more money.