In 1956, Leon Festinger and others published an account of a group in Chicago that believed that the world was about to be destroyed by a flood, but that those who took the appropriate actions would be rescued by a spaceship piloted by the Guardians, hyper- intelligent aliens from the planet Clarion.
Well, the predicted time came and the Guardians didn’t show up, which was a bummer for the group, but then the world wasn’t destroyed by a flood either. But the group didn’t give up on their idea. The time for destruction and rescue had come and gone, but those waiting for the end received a new revelation–their sincere efforts to warn others had brought about a divine change of heart and the world would not be destroyed–but there was still work to do to spread the word. The evidence–no spaceship arriving, no destruction of Earth–did not disconfirm the prediction, but merely transmuted it from one form to another.
Festinger proposes that five conditions might lead a person or group to shift from disappointment to proselytizing for their belief (see page 4; I have slightly abridged the list)
1. A belief must be held with deep conviction and it must have some relevance to action, that is, to what the believer does hor it behaves.
2. The person holding the belief must have committed himself to it; that is, for the same of his belief, he must have taken some important action that is difficult to undo.
3. The belief must be sufficiently specific and sufficiently concerned with the real world so that events may unequivocally refute the belief.
4. Such undeniable disconfirmatory evidence must occur and must be recognized by the individual holding the belief.
5. The individual believer must have social support.
These five conditions specify the circumstances under which increased proselyting would be expected to follow disconfirmation of belief. In the case of the Guardians from the planet Clarion, the prophecy of something bad was replaced by a mandate to spread a message of reform and hope.
For years I worked with the assumption that the management of university intellectual property was a rational decision based on a choice of purposes, goals, and methods. Universities, committed to public benefit, would implement programs that helped researchers put their findings into public use. IP could be a tool–one that helped to manage innovation relationships among groups–companies, governments, universities, nonprofits. Money, if it was to be made, would come as a result of company partners choosing to benefit inventors and their universities.
At the University of Washington, we used these principles to generate on the order of $30 million of value across hundreds of IP cases over a decade of management–and that was working primarily with software and digital media, ready to do open source distributions as we were to do venture-backed startups. We made money–more money on software copyrights, patents, and trademarks than most any other university in the country, and we did so by focusing on providing benefit. Repeatedly we were told that no matter what we did, the real way to make a bunch of money was to license exclusively biotech patents to big companies (and when that failed, to venture-backed startups, and when that failed, to companies backed by state economic development investment funds, and when that failed, to paper shell companies that might snare an SBIR grant and advertise them as having “potential” for innovation in a couple of generations, if only more university money is flushed down the economic development hole to support them). No matter what sweet words are written in policy statements and annual reports, most university administrators are fixated on royalty income. I have come to realize that IP management at universities is way more prophecy than reason. Thus, in the big picture, the IP policy discussion is not about reason, but rather how university administrators and faculty deal with failed prophecy. As long as they receive social support for their present approach, no matter how badly it goes, they won’t change anything but their rationalizations.
Around the same time that Festinger published When Prophecy Fails, he also published a theory of cognitive dissonance. He proposed two hypotheses: dissonance is mentally uncomfortable, so (a) a person will try to reduce dissonance and (b) will try to avoid information that increases dissonance (3).
If we look at university technology transfer, we find that
(1) universities have changed their policies to claim ownership of most anything that might be sold or licensed for profit;
(2) their programs have gone from ones that modestly facilitated the transfer of inventions to outside agents working with faculty inventors to expensive bureaucratic organizations “programmed to receive” all inventions (often defined broadly to include non-inventions or “anything we say is an invention is an invention”);
(3) licensing rates have fallen from as much as 30% (claimed in the run-up to the passage of the Bayh-Dole Act) to (apparently) less than 1% (about five times worse than that of the US Government in 1980). The University of California estimated recently that no more than 0.5% of disclosed inventions ever made it to commercial product (with no mention of successful commercial product).
University licensing offices, despite the often sincere efforts of the professionals hired to try to license patents for money, are mired in a policy architecture that has fundamentally failed. I spent 18 years embedded in the university licensing environment. I led university licensing groups, I attended university licensing conferences, I talked with university licensing professionals from all over the country. For the past five years, I have worked with startup companies and faculty trying to deal with universities. I’ve seen the awfully drafted licensing agreements sent out by universities; I’ve seen delusional interpretations of IP policy by university attorneys; I’ve seen the bad faith OTL emails forwarded to licensees from faculty fed up with their licensing offices. The level of university IP practice out there is pretty grim.
The advocates for the pseudo-Bayh-Dole Act–those that claimed the law handed universities outright ownership of federally supported inventions–prophesied that there would be a renaissance in university licensing, creating new products, improving the general welfare, stimulating the economy, providing jobs, and most of all making so much money for universities that children would not know what tuition was. Or something like that. Instead, there has been a huge growth in university spending on IP management, a change in university policies to demand ownership of anything valuable, and a subsequent massive build up of the number of inventions claimed by universities (“under management”). The key metrics are the amounts spent per publicly used technology and the number of unlicensed technologies plus the number of exclusively licensed technologies that have not become publicly used. On these metrics, the pseudo Bayh-Dole prophesy has failed–badly, damagingly, undeniably.
Yet university administrators appear unwilling to consider the evidence. Instead, like two University of Washington presidents in a row, they misrepresent their technology licensing programs, offering a vision of “potential” to get even more state and federal money for research and licensing. Faculty, not wanting to believe administrators are liars, generally go along, figuring more money for research is a good thing, even if nothing comes of it, and so is getting patents and startup companies on one’s c.v. to add to one’s bragging rights. Nothing much gets “out,” but no matter–the grasping, incompetently drafted IP policies; the bureaucratic licensing programs fixated on biotech and exclusive patent licenses; the over-wary, often inexpert legal counsel; the disruption of collaborations; the dysfunctional and often outright deceptive reporting of licensing “successes”–all this stays in place and even gets glossier, higher-profile treatment.
I’m left to conclude that university IP management is predominately a matter of prophecy, not reason. Despite clear evidence that the present pseudo-Bayh-Dole implementation has failed, administrators aim to avoid cognitive dissonance–they look for confirmation of their spending, rationalize their lack of success, and avoid asking for information that would tell a different story. As long as they have licensing officers and the advocates of the pseudo-Bayh-Dole Act around to tell them they are doing the right thing, they will keep throwing good money after bad, keep tightening up their IP policies to take more, and hope that Guardians from the planet Clarion will arrive to generate windfall profits from exclusive patent license agreements, or if not that, by suing the socks off big technology companies for infringement of patents that ought to have been licensed non-exclusively to industry but went instead to third-tier startup companies.