In the “Innovation U 2.0” report, we find the now expectable misrepresentation of the Bayh-Dole Act:
Following the passage of the Bayh-Dole legislation in 1980 every US university had the responsibility–and new opportunities–to work with faculty innovators in assessing the commercial potential of their inventions, protecting the intellectual property embedded therein, and developing commercialization paths for the faculty invention.
This is nonsense. Bayh-Dole created no such responsibility. Any compliance pertained only to federal funding agreements, not all faculty work. The compliance consisted in delegating authority to research personal to protect government interests, educating faculty on the importance of reporting inventions, and timely reporting inventions to the government. That’s about it for the responsibility.
As for the institutional role in “protecting” intellectual property, that too is nonsense. Bayh-Dole does not apply to universities but to federal agencies. Bayh-Dole deals only with patentable inventions (including plant variety protection) made with federal support (not “intellectual property” generally), and there certainly is nothing that requires anyone to “develop commercialization paths.” The stated focus of Bayh-Dole is the use of the patent system to promote the utilization–the practical application–of inventions made with federal support. The law is of the form: if you are going to use the patent system to claim ownership of a federally supported invention, then for goodness sake use those patents to promote use. Commercial development was a matter for industry. Industry might best find out about federally supported inventions through the collaborations the law put forward as an objective.
Further, there is nothing in Bayh-Dole that gives university administrations a mandate to take ownership of faculty inventions. The Supreme Court’s 2011 Stanford v Roche decision made that clear. The federal invention policy put forth by Bayh-Dole was not “a university bureaucrat’s thumb in every innovation pie.” The report’s depiction of Bayh-Dole, especially in the context of the framing argument for institutionally controlled processes “tuned” to promote “technological innovation,” is a dream-come-true for bureaucrats looking for a fundable castle of possibilities, one with much to do and no particular interest in outcomes.
Whatever university administrators have done with regard to inventions made by the individuals they host, they have done on their own, not in response to faculty research personal pitching to lose control of their work, not from industry calling for an end to university inventors working with agents external to the university, not from the federal government mandating a responsibility to commercialize, but from university administrators themselves motivated by some urge–but what? money? control? order? recognition? Who is to say? But the deed has been done, evangelized to American research universities, and exported to many other countries that have blithely created laws to emulate what they have been told is America’s law, happily substituting bureaucratic control for freedom. Who would have thought America would export bureaucracy rather than freedom?
The data presented to persuade Congress to pass Bayh-Dole was derived largely from universities operating in freedom-to-innovate mode. Most did. A handful did not. Faculty sought out external agents to assist them with patenting matters, such as Research Corporation or a university-affiliated research foundation on the model of WARF, or any of a number of other organizations that were willing to assist. There was no mandate from Congress that this working, developing system needed to be destroyed and replaced by bureaucrat’s thumbs, by university administrative control of inventions, or even by a fixation on “commercialization.” Even in those instances where university officials talk about “commercialization” they do not generally mean “bringing new product to market.” “Commercialization” in university administrator talk means “seeking money from rich people and companies, playing off the threat of patent infringement litigation or licensing exclusively to a rival in an effort to increase the “value” of the patent right.” If the public and policymakers bumble into the belief that “commercialization” means something other than this, it has not been the concern of university officials to try to correct any such mis-impressions.
Perhaps it was the fact that Bayh-Dole gutted accountability for licensing practices that tipped university administrators to the opportunity. Perhaps the ruinously bad Bayh-Dole gesture to make agency-optional any university reporting on the status of federally supported inventions and exempting those reports from public disclosure led administrators to the realization that they could do anything they liked, report to the public only what made them look good, and lead policymakers to believe that the law, and their take-over of creative work, was an unqualified success. Or, a success with the potential for much more success, barrels more success, with more federal funding.
The misrepresentation of the Bayh-Dole Act stands as one of the singularly most destructive acts in the history of United States research policy. Having expanded research funding to university faculty, having altered the culture of universities to depend on that funding often to the exclusion of industry collaborations, having imposed a research compliance culture on what previously was largely an open, curious, and opportunistic approach to research, the federal government allowed university officials–and some agencies appear to have been complicit–to misrepresent the Bayh-Dole Act as a mandate for bureaucrats to take ownership of faculty work. The justification for doing so was “commercialization.” The game in town was to make money. The way to play the game was take all inventions from faculty, to file patent applications indiscriminately (especially after the provisional patent application came into effect in 1995), to hit up industry with a patent licensing process seeking an exclusive licensee, and if no such licensee came forward, then to start a company with venture funding, and if no venture funding came forward, to start a company with state funding or university funding or speculator funding, or no funding at all, ever–but with the rights tied up for the term of the patent, with the only meaningful action left being to sue companies for using the invention.
Now the IU2.0 report makes a virtue of turning this effort into a “well-tuned” process. As one “demotivator” poster at despair.com has it, “If you’re not part of the solution, there’s good money to be made in prolonging the problem.” What a disaster, but one has to admire the passionate advocacy for the idea of bureaucrats finally building a system that offers the potential to produce society-stimulating technology, and if not that, then at least the more subtle idea that bureaucrats can build a system that promotes the continued funding of bureaucrats, but more of them, at more universities, emulating the best of the bureaucrats at exemplar schools. Size indeed does not matter: any university can add more programs, and more bureaucrats to run the programs–so long as state and federal governments keep adding more money to the effort. Or, more nearly, so long as students can be induced to borrow money to pay for the effort, thinking what they are paying is tuition.
There’s pending legislation in Congress to push more federal money to university administrations for “startups.” I suppose the IU2.0 report will make the rounds in the service of the advocates of that legislation. I would not be surprised to see that the report does its job, puts a sweet, professional, sincere face on a devastating situation, and more federal money flows to administrators, as if our economy, or our innovation, runs on a system of administrative marketing of potential.
If you are a university administrator, and you read Research Enterprise, don’t take unkindly that I call you a bureaucrat. I have worked long in university settings, as a well-intentioned bureaucrat, and I continue to help university administrators and faculty and companies develop ideas and technology into stuff of value. “Bureaucrat” is a label, but more than that, it is an identity, one you have to accept. When you impose (or preserve) a system that requires creative people to give up control of their work to you based on an arbitrary policy instituted by means of a misrepresentation of federal law, then you work in a bureaucracy, perhaps even a corrupt bureaucracy, and you have as a matter of policy a thumb in every opportunity. You also have the power of the university, and its legal budget, to hammer away at anyone who tries to reason, or resist, or ignore the university’s (that is, your) policy claims, no matter how badly conceived and drafted–and most university policies I have read (and I have read many) are an embarrassing mess of badness. Face up to it, you are a bureaucrat.
If you, my administrative colleagues, want to lose the identity of bureaucrat, then roll back the compulsory ownership, back off the fixation on “commercialization,” drop the idea that process substitutes for commitment, and become an advocate, a supporter, even a trustee working on behalf of the intended beneficiaries of federally funded projects hosted by your university. If commercialization is a goal of any such project, then the university role, as trustee–as a matter of compliance with the terms of your federal funding–is to represent the interests of industry.
The condition of trust–and it is a higher standard that a trustee must hold–and your institutional obligation is to industry, not to your institution, not to some hoped-for generous but remarkably also successful and rich speculator, not even to the inventors. If you take faculty inventions as a condition of federal funding, then you agree to become a trustee. Become that trustee and find a new, intensely satisfying role, not of bureaucrat, not of administrator, but of advocate for American industry, American workers. The role actually is not new–it was well established before Bayh-Dole crazy-syndrome all but destroyed it. When universities, having come into ownership of patent rights to an invention, seek out American industry’s best interests, as a duty not as an attempted shakedown or even as barter, then universities will discover and rediscover pathways to innovation in a knowledge economy.