Banging Our Hearts Against the Wall

Now that an arguably effective national infrastructure for dealing with inventions made by university faculty has been systematically dismantled over three decades in favor of institutionally self-serving patent administration, it is difficult to see a road back to pre-Bayh-Dole management.

Remember, it was that pre-Bayh-Dole approach that produced the favorable statistics cited by the advocates for Bayh-Dole. Monopoly government ownership of research inventions was bad. What the advocates didn’t come out and say, however, was that they thought non-exclusive licensing was also a bad thing–they intended that universities would license exclusively, even as big biotech inventions from universities, such as Cohen-Boyer, were being licensed non-exclusively.

The new regime would be provincial rather than national, would be operated by universities and their foundations, not by external invention management agents, and would not be accountable to the federal government or the public. For this to work, academic freedom had to be restricted, policies had to change, and a new “culture” that valorized money-making speculation had to be created to supplant a vocabulary of public service and avoidance of direct commercial exploitation of research findings.

The auspices of the university had to be taken over for risk-taking exclusive licensing. The major risk was not to the administrators–who by contract passed financial risk to each licensee–but rather to academic freedom, to open collaboration, and to the “old order.” Each exclusive license increased the risk to–the liability of–the old order “holding back” the efficient pursuit of royalty income. The cover for royalty income took public forms, of course–“technology transfer” at first (adopted from a very different idea made popular by Research Corporation”), and then “economic development” and now mostly “innovation.” But the real focus is money from licensing, which is used to justify the new regime, even when the new regime is not responsible for the money, when the money happened *despite* the new regime. And this has been the agenda for more than three decades.

The way back therefore is a new way forward, not an improvement or refinement on the existing regime, but the development of competition to this regime. For that, however, the existing policy apparatus–with all of its misrepresentations, deceptions, deliberate ambiguities, exploitation of re-interpretation, and garble–has to be challenged. One way is to challenge with legal fights–and that will take a few million dollars. University faculty and the companies and investors who value their work need a foundation work such as the Electronic Frontier Foundation does for digital rights. We need a foundation with a pool of funds that can support legal analysis and legislation and–if necessary–litigation to take down bad university IP policies, and take out administrators who act in bad faith, and call out university attorneys who lack the requisite training and judgment to review intellectual property policy and practice.

Taking down the existing policy wall is the start. Then we grapple with freedom and build new roads as we travel them. It’s enough to know that totalitarian bureaucratically controlled approaches to innovation don’t work, even when masked as institutional expediency and dressed up with claims of public benefit. The future beyond thirty years of institutionalized patent hysteria is uncertain. But freedom is fresh, and the future is for the living. Time to step into that future.

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