The AAUP has just published a draft report that lays out the case for the importance of academic freedom with regard to patents. Just because faculty scholarship may include inventive work does not trigger a mandate for absolute university control over that work, suspending academic freedom and compromising the independence of faculty investigation, instruction, and publication. For public universities, owning inventions–especially with the trendy broad definition of “invention” to include “non-patentable inventions”–means, essentially, state control of scholarship.
Crucially, this is not about faculty privilege. It is not about whether faculty might or should make money from their inventions. It is not about whether a faculty inventor has less skill at invention management than a university bureaucrat. This is not about treating all faculty inventors the same by forcing them all into a single bureaucratic process, no matter what the stated aspirations of the process are. And this is certainly not about ruining university licensing offices, dismantling technology transfer, leaving inventions on the shelf or artwork in the attic, or consigning America to be a backwater of competitiveness. In fact, it is about just the opposite of these things–undoing what a compulsory system of institutional ownership aiming to serve speculative interests has, in a creeping way, created over the course of three decades.
Think about it: if most faculty would choose to work voluntarily with a university licensing office, then why do you need a compulsory policy? Further, if the only way that a licensing office gets business is by compulsion, then what does that say about the quality of the services on offer? Voluntary university patent programs laid the foundation for the infrastructure of technology transfer offices. Voluntary university patent programs laid the foundation for Bayh-Dole. The success metrics at the time were largely those of voluntary programs, often using external agents matched to invention practice areas and goals of the inventors.
Under the compulsory regime that has been instituted through a gross misreading and misrepresentation of the Bayh-Dole Act, the university success metrics are now where they were for the federal government prior to Bayh-Dole–no better than 5%, not 30%. And that’s with the federal government not holding patents for “commercialization” and university administrators pouring their hearts and souls into commercializing any way they possibly can, including redefining “commercialization” to mean making money from patent positions, regardless of whether any new product is made, and regardless of whether any technology is transferred. Litigation for infringement is now apparently fair game. Hyping the potential of a research finding, trading on the reputation of the university, to lure in speculative investors is fair game. No university I know of reports publicly the information specified by the standard patent rights clause authorized by Bayh-Dole. No university reports the date of first commercial use or sale for each of the inventions it has under management. Why is that? What has become of university technology transfer in these past thirty years?
The AAUP discussion is about the conditions under which innovation may come about in the context of the other roles played by university faculty. It is about the role of university faculty as catalysts for innovative activity, not merely as egg-laying hens tended by business-minded farmers. What hangs in the balance is the distinctive standing of universities as hosts for independent inquiry. The AAUP discussion is about how to support university faculty research and faculty technology transfer, to put these important activities once again on a strong foundation, one that reaffirms faculty independence while ensuring that faculty have access to high quality professional assistance and resources and providing oversight to prevent exploitation of faculty by moneyed interests.
Universities certainly may receive money for inventions (and other contributions)–how that comes about is largely the choice of others–inventors, developers, entrepreneurs, investors, companies, alumni, boosters, governments, students, citizens. This is true even if there is a “license” in place. Does that leave a university “vulnerable” to “missing out”? Yes. But it also opens up universities to goodwill, to reciprocity, and to a special place in a society that values progress and looks to change one thing for a better thing, with a bunch of wrangling about what is indeed better. It opens universities up to deserve public funding, for industry to choose to pay, for faculty to take initiative suited to the nature of their work and their public commitments.
Federal funding of faculty work should never have become a vector for buying out scholarship for the speculative interests of institutions. It’s not in Bayh-Dole. There’s no national policy statement that an objective of Congress was to encourage bureaucrats to dominate federally supported inventions so as to establish patent positions by which to shake down American industry for payment. Yet university administrators not only espouse this point, but also call it a virtue, a public good. Things have gone far enough. Time for a reset. Time for administrators and faculty to acknowledge that the present “system” is not working as claimed, that there are alternatives that better serve the public, and that with freedom to innovate–that is, with institutions choosing not to claim ownership of faculty work–they restore university scholarship to a strong position in supporting innovation–feeding the commons, opportunistically collaborating, selectively patenting, and very rarely supporting monopolies.
Get university administrators out of the compulsory ownership of faculty scholarship–for their own good, for the good of the university, for innovation, for “competitiveness,” for “commercialization” and for economic impact. Technology licensing work will be much better for it.
There are all sorts of good arguments for monopoly control of inventions. There is money to be made. There is investment to be induced. There are products to be developed. Yes. But these are not the purposes of universities. The university does not grow stronger by mistaking administrative self-interest for the entrepreneurial initiative of its faculty. The university has a different path, that of steward or trustee, escrow agent, supporter. The university cannot afford to be conflicted, to be uncertain whether money is more important than the right thing. Further, there are all sorts of good arguments for non-monopoly control of inventions. There is money to be made, still. There is investment to be induced, through access and use rather than exclusion and isolated development. There are products to be developed, based on common access and growing use. Monopoly does not, must not, have a monopoly on innovation. The university is one of those places where there is no place for monopoly on discovery, on invention, on initiative. That’s what Freedom to Innovate is about.