Close Encounters of the Third Kind begins with reports of strange doings from all over the world. Let’s start in a similar mode.
In The Rational Optimist, Matt Ridley makes the case that the inventions of the industrial revolution were not science-driven. Rather, they were the result of “tinkering businessmen, not thinking boffins” (256). Ridley argues that the prosperity created by these inventions funded the science that made sense of things: “the philosophers played second fiddle to the engineers” (409).
In Modern Arms and Free Men, Vannevar Bush discusses how new military technology breakthroughs were made during the second world war: “The real reason we made such progress was not bright inventors or clever gadgets. It was the fact that we had thousands of men who understood the underlying science in the field, who skillfully practiced the necessary techniques, who were good gadgeteers” (244). Bush makes it clear these folks were spread throughout society, so we had “the background” for making inventive progress: “for a generation youngsters had pioneered in the field in many ways, advancing the boundaries of fundamental knowledge in the universities and the detailed techniques in amateur efforts throughout the land”–and with these youngsters, industrial laboratories and radio manufacturing. Bush is adamant that the government and universities alone would not have been successful. “A regimented or governmentally operated system of universities and industry would not in a thousand years have produced the background for such an abrupt advance” (244).
In Railroaded: The Transcontinental Railroads and the Making of Modern America, Richard White describes the development of locomotives in the late 19th century: “Railroad technology remained a process of developing and passing on innovations without patents…. Mechanics tinkered with locomotives. They redesigned them and on some roads manufactured their own, developing distinctive and individualized machines, which workers recognized and named” (239-40).
In a letter to the editor published in the May 9, 2015 edition of The Economist, Matthew Dixon and Craig Holmes take issue with an account of a shortage of engineers in the UK. Dixon and Holmes argue that teaching more engineering students, even with added entrepreneurship skills, won’t increase manufacturing productivity–for that, they argue, employers need to create jobs that are sufficiently attractive to compete with all the other opportunities engineers have.
The Saturday/Sunday, May 9-10, 2015 Wall Street Journal ran an opinion piece by Charles Murray, “Regulation Run Amok–And How To Fight Back.” Murray points out that the Code of Federal Regulations runs to over 175,000 pages, and two the laws focused on business regulation, Sarbanes-Oxley and Dodd-Frank between them are over 3,000 pages. Murray points out that the vast majority of the nearly 4,500 federal crimes are crimes “because the government disapproves” and not because the actions are necessarily bad. A business faced with such technical, detailed, comprehensive regulation will find it impossible to comply with everything: “Worse are the regulations that prevent us from doing our jobs as well as we could…. The broadest problem created by intricately wrought regulatory mazes is that, in an effort to spell out all the contingencies, they lose sight of the overall goal and thereby make matters worse.”
In Systems of Survival, Jane Jacobs distinguishes two moral “syndromes” or clusters of virtues that show up together repeatedly. The first of these is the “commerce” syndrome, developed by merchants to deal with trade. The second is the “guardian” syndrome, developed by warriors and rulers to manage the affairs of government. It’s best to give you the virtues in table form, as Jacobs has them (215):
Jacobs argues that science belongs with the commerce syndrome. Science relies on honesty, competition, openness to change, and industriousness. Guardian class virtues–such as loyalty, obedience, exclusivity, and use of power–run counter to the values of science. As Ridley puts it in The Rational Optimist: “merchants and craftsmen make prosperity; chiefs, priests and thieves fritter it away” (161).
What to make of these reports from the field? When it comes to university technology transfer, it’s clear that the dominant approach involves adding complications. The Bayh-Dole Act is complicated. The standard patent rights clauses in federal contracting are complicated. University patent and copyright policies are complicated–all the more so by the addition of research policies, conflict of interest policies, consulting policies, and use of resources policies.
The field reports indicate that much of the discovery that we enjoy has come from people who were not working in government-regimented, rule-bound circumstances. These people often had no credentials in their field of inquiry. They were, by today’s university standards, unqualified to discover! And yet they did, as craftsmen, gadgeteers, merchants, engineers, amateurs. They did not need entrepreneurial training–they found their way by being free of piles of regulation. The world opens up when the people who want it “just so” get out of the way and quit trying to tell others how to do things.
We cannot deal directly with the forests of federal regulations–and even Bayh-Dole, that ambiguous tiki-god statute that is either good or evil, depending on the shadows it casts–is presently untouchable. But universities can break the cycle of complicated, dysfunctional, badly drafted and even more poorly conceived intellectual property policies.
The Basic Idea of a Simple Patent Policy
Start with the basic idea of a patent policy. The purpose of a university patent policy is threefold:
- to keep bureaucrats out of the way
- to authorize the use of extra university resources when faculty or others request help
- to recognize that when there is extra use of university resources, the university might expect to share in financial returns by those exploiting the invention.
Purpose 1 functions as a bill of rights: in the environment of the institution, those managing the institution have no claim on the creative work of those engaging in the teaching, research, and public service when supported by the institution. A university patent policy should make clear that there is no implied claim that the university is the master-employer and the faculty are unknowing servant-employees. Faculty do not request permission of administrators to work on what they work on.
Purpose 2 recognizes that institutional resources may well play a crucial role in the development of creative work. A patent policy delegates authority and resources so that when an inventor needs help, administrative personnel can help out. Technology transfer resources are clearly one area to which a university-based inventor might turn. It’s just that the decision to do so, following from Purpose 1, is entirely voluntary.
Purpose 3 authorizes a negotiation for access to extra help and resources. A policy might limit the need for negotiation by setting some standard expectations. If bridge funds are used, then those accounts are repaid from any commercial returns. If a sponsor requires university ownership of inventions and a faculty investigator agrees, then the university and investigator might share any royalty income on an established schedule.
Such a policy can run to four or five sentences and be done with itself:
University Patent Policy
The university will not take an ownership or financial interest in inventions which are or may be patentable made by university personnel. If university personnel invent and desire the assistance of the university beyond that ordinarily available to the faculty, the Vice Chancellor for Research is authorized to make available, on reasonable terms and in writing, such support. If such support takes the form of financial assistance, then a condition of that support should include a plan for repayment from any proceeds arising from the exploitation of the invention. If the university is required by a sponsor of research to take an ownership position in inventions made by university personnel in the course of sponsored research, then the university will share any royalty income arising from the exploitation of inventions made in such research with the inventors according to the following schedule: [schedule].
That about covers it. University folks do not need a pile of complex policy to help them invent or help them be entrepreneurial. What they need–and what anyone needs who has the ability to be creative–is a work environment that does not impose guardian class values on merchant and science class practices. Famous students cum entrepreneurs–Gates, Allen, Jobs, Zuckerberg–did not need entrepreneurship courses. They just needed freedom to do their thing. Faculty, too, who step into industry or startup settings don’t need entrepreneurship training so much as they need to find the next person in the chain that will help them realize their goals, as Andrew Hargadon pointed out some time ago in How Breakthroughs Happen (see page 11, for instance).
The reason why a university policy shop has to be the first stop a university inventor is required to make is because the policy shop requires it. If the patent policy were simple, and by default did not encumber university inventors, a university invention management shop might still be a preferred stop–not to make a show of obedience, not to allow a bureaucrat’s thumb in every tasty pie–but because a voluntary invention management shop has to operate at a much higher standard than a compulsory invention management shop.
Not in a thousand years will the present bureaucratic effort to control university inventiveness result in a meaningful national system of innovation–and not anything that comes close to the approach that had developed from the base established by Research Corporation and furthered by other research foundations. That base was destroyed by university patent administrators who misread the Bayh-Dole Act as a mandate to impose quasi-governmental control over inventors for the purpose of taxing innovation. The public claim was that such a tax would fund science and lead to economic prosperity. In practice, what this tax has done is to support the growth of a new, restrictive, guardian-minded university administrative class. For the most part, even this parasitic effort has failed–much of the funding for university patent administration appears to come ultimately from tuition, through a string of cross subsidies, and not from royalty income. In the beginning, business created the prosperity that supports science. In the current university patent policy version of things, a tax on science supports the regulatory framework that imposes the tax.
Time for a change. Before government got involved regulating business, merchants regulated themselves with lex mercatoria–the common law of commerce. Now we need to rediscover the common law of invention diffusion. “Simplify, simplify,” wrote Thoreau in Walden. University patent policies would be a great place to start.