The non-patenting of the first digital computer

In Turing’s Cathedral, George Dyson provides an account of the creation of the first digital computer at the Institute for Advanced Study at Princeton.   John von Neumann, leading the effort, in 1946 came up with a patent policy for the effort:

Employees agreed to assign their rights to the Institute, while the Institute agreed that ‘it will promptly and at no expense to the Employee have prepared, filed, and prosecuted an application for United States Letters Patent (and for patent in countries foreign to the United States, if it so decides) on each invention which the Institute determines is or may be useful to it.  Furthermore, “the Institute agrees to pay to the Employee all of the royalties, if any, received . . . on each invention . . . over and above the total cost to the Institute of procuring the patent or application therefore. (138)

That sounds like a decent patent policy, if an institution is going to insist on being involved.  One might note that under Bayh-Dole’s standard patent rights clause, such an arrangement is still perfectly fine.

Then, in 1947, George Dyson reports that the patent agreement was modified at the time of a follow-up contract with the federal government to fund the project, so that “most patent rights” would go to the Government.  The Government was, after all, bankrolling the effort.  The Government, in turn, wanted the details of the computer architecture available to everyone.   The rationale, according to Goldstein (as cited by Dyson) was “to prevent any commercial interest from attempting to exploit what should belong to the scientific community” (139).   The Institute, represented by Herman Goldstein, along with co-authors von Neumann and Burks then sent their report on computer architecture to the US Patent Office, asking that it be treated as a publication, rather than as part of a patent application.   As a result, the fundamental architecture for the new computer became public domain.

As Dyson tells it:

All technical details of the MANIAC and its programming were placed in the public domain, and freely replicated around the world.

This same strategy was used again in the development of the internet, and again with the web.  The open source movement follows as well from this same ethos.  One would think that these developments, and the strategy that they followed, would give folks a great deal of pause in the here and now, with all the unthinking claims about that institutional ownership, patenting, and commercial fussing is somehow simply crucial to innovation.  Yet it is not, clearly.  Dyson quotes Abraham Flexner, the first director of the Institute for Advanced Study: “the moment that research is utilized as a source of profit, its spirit is debased.”  That sort of idea was around in 1933, when Flexner made his observation.  It doesn’t seem to be today.  Have we “progressed”?  Is it “innovation” that we now hear that commercialization is not only good, but that it is the only serious route to realizing the results of research for the public benefit.

In 1962, when Archie Palmer published his updated compendium of university patent policies, a number still reflected Flexner’s concerns.

Stanford (1958):  “It is the University’s wish that a faculty member be prepared to make inventions to which he holds patent rights available to the public on a nonexclusive basis.”

University of Southern California (1961).  “It is not a policy of the University to seek nor to encourage specifically the development of patents of commercial value or to engage in their exploitation.”

Yale (1958):  “In general it is not the policy of the University to hold title to patents.”

Chicago (1954): “The basic policies of the University of Chicago include complete freedom of research and the unrestricted dissemination of information.  Research done primarily in anticipation of profit is incompatible with the aims of the University.  Neither the University nor any members of its staff shall retain ownership, management or licensing responsibilities for patents resulting from research or other activities carried out at the University or with the aid of its facilities.”

Johns Hopkins (1948):  “The ownership and administration of patents by the University is believed undesirable.”

Princeton (1961):  “It is not the University’s policy to take title to an invention or patent.”

Harvard (1934):  “No patents primarily concerned with therapeutics or public health may be taken out by any member of the University, except with the consent of the President and Fellows; nor will such patents be taken out by the University itself except for dedication to the public.  The President and Fellows will provide legal advice to any member of the University who desires steps to be taken to prevent the patenting by others of such discoveries or inventions.”

Of course, there were a number of universities, especially public ones, that had decided that public support dictated institutional ownership of faculty work.  Clearly, if the federal government could make assignment of inventions a condition of its sponsorship of faculty-led research, so too could state governments through the instrument of institutional funding of research, payment of salaries, or even the provision of resources.  A number of policies current in 1962 worry these issues, coming down with “principles” on one side or the other.

The question of patenting university work is still with us, and worth discussion.  There is nothing settled with regard to a “right way to innovate.”   It is not that commercial concerns are bad.  But there is room for considering how research might be advanced when fundamental discoveries, designs, and inventions are made broadly and openly available, in health care as in computers and software and 3d printing, so that everyone can practice them.   Even the anchor patents of the biotech revolution–Cohen-Boyer and Axel–were made available non-exclusively.  The role of the patent was not to attract private investment, but to ensure that no one company controlled basic tools to the exclusion of others.

The point, here, is not that open is always better.  It isn’t.  There are times to be proprietary, just as there are times not to be.  For university-based research, however, one might expect that the treatment of patents would look substantially different from how companies might use patents–there would be more standards, more commons, more dedication to the public domain, more share-and-share-alike, more commitment to making sure that fundamental discoveries “belong to the scientific community.”

Is the idea of a “scientific community” now just a myth?  A lost value?  A silly pretense in an age of university “value creation” from proprietary positions, seeking if not an exclusive corporate investor, then a speculative one hoping to start a company to sell to a big company later?   If so, if there is only the jostling of self-interest, and the claim to virtue of present university patent policies is that institutions are better at that self-interest than the faculty and therefore should own everything, then perhaps Flexner was right, and there’s something “debased” about the research that is done under such conditions.  Though the public cannot quite put its finger on it, we can tell that the spirit of the age is not one that considers a great civic undertaking ahead of monetary self-interest.





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