Build your innovation policy around academic freedom.
The distinctive advantage of a university faculty member is that she or he has access to institutional resources (and so does not have to grub for them personally) but is free from institutional controls (and so can pursue lines of study independent of managerial direction). How one manages that access and how one limits controls are the proper objects of a university patent policy.
Vannevar Bush, veteran of university research administration, recognized the value of such conditions by drawing academics, industry scientists, and gadgeteering engineers into projects established outside the usual established orders–in labs and projects where they could work without the academic concerns for status, the industry concerns for profit, and the gadgeteers problems in finding resources. Bush’s teams created amazing stuff. Skunk works operate in a similar fashion within large companies. There has to be a degree of rebel for such operations to be effective.
It’s just that most university administrators don’t really give a rat’s ass about innovation–or they would attract the rebels and not try to define what a proper “rebel” must do. No “rebel application forms” and no “rebel code of conduct” and no “rebel performance review checklist.” For “rebel” read “inventor” or “entrepreneur.”
If university administrators cared as much about innovation as they do about petty authority, they would understand that academic freedom is the starting point for innovation and even for money; academic freedom is not the freedom that must be curtailed to ensure the success of the technology licensing program.
For that matter, if administrators really cared about money, and not simply about having power, they would embrace academic freedom and develop policies that provided freedom to innovate with access to institutional-scale resources–and then they would run programs that cost much less, were less complicated to administrated, were largely free of liability and the fussy conservatism that comes with, and they would find that they actually would net way more money from programs founded on goodwill and voluntary agreement than they are making now based on complicated, expensive, bureaucratic programs based on compulsion, monopolies, mealy-mouthed policy claims, and threats of legal action against faculty and industry alike for not conforming.
Instead, administrators are fixated on ownership. They expand the scope of claims from “inventions that are or may be patentable and have commercial value that the inventor desires to exploit by means of patenting” to anything that an administrator might call an “invention,” made by anyone who might touch university resources or facilities or pay.
Take everything, release only what you are forced to release, or what is worthless.
One can create all sorts of rationalizations to support this alternative position–the one presently in play at most American universities. The “worthless” part is optional. The reasoning goes like this–if it is worthless, then it is not worth the effort to release. If someone wants it to be released, then it is not worthless. Yes, Yossarian, it is a catch-22.
The mindset behind the “take everything” approach is that of the administrator who does not understand circumstances but wants to have control–draft broadly. Lawyers for the university then supply or review the language, taking their client to be the administrators and their adversaries to be the faculty. The language is drafted with “room for uncertainty”–built-in uncertainties in the form of lists, abstractions, self-serving paraphrasing of laws, novel definitions, inconsistent terminology, misplaced modifiers, and conflicts with other policies.
The awful apparatus of patent policies gets so awful in part because the policy is a hacked object–spaghetti code following on an unsuitable architecture; in part because administrators lack the practice skill to anticipate the future or know the details of sound practice; and in part because administrators want to control and order, build an empire based on a system, rather than encourage and adapt and allocate resources accordingly.
Here are university administrators’ working value statements to support a comprehensive, compulsory invention policy: Adapting to local conditions is inherently unfair and inefficient. Negotiating with employees is wrong and puts the university at a disadvantage. Inventors benefiting from their inventions without an administrator getting a share of the action is unethical. Inventors make bad decisions and are easily duped. An employee’s failure to follow policy is insubordination. Nothing is more important than the financial condition of the university. This area is complicated so we need the freedom to exempt ourselves from policies when we want. We should have a policy that reads like every other “peer” university’s policies.
From this, one can construct the values that actually guide such administrators: We don’t trust anyone’s judgment. We replace personal choice with systems. Anyone else succeeding makes our system look bad. It is better to kill opportunities than let inventions go out “the back door.” Nothing is more important than making our choices look good. The wording of policy does not matter so much as our interpretation of policy. We have no accountability to inventors or to the public if we fail to manage inventions to the point of public use and benefit. We should be lemmings and avoid standing out.
In the United States, faculty must now work with university patent policies built around the idea of central control, but the distinctive social advantage of a university lies in the diversity of expertise and initiative at its periphery. Universities have adopted the model of master-servant at the very moment when they entered the spotlight to do with federally supported inventions what they were doing with privately supported inventions–supporting, not taking. Instead of scaling by broadening capability to support, they scaled by dominating. Get everything, get it with impunity, get it without obligations, make money on whatever of it one can. Call it good.
One way to view university technology transfer is a backwater of financial grubbing that is largely inconsequential to the overall mission of a university but every decade or so hits on a big deal. That’s why university patent policies are often buried in the financial sections of policies.
Another way, however, to view university technology transfer is at the pivot point between research funding and the impact of outcomes of that research. There, technology transfer has situated itself at an interface fueled by about $60b/year in research funding, as a key element in a national policy on research, international leadership, and economic vitality. Technology transfer is the critical step in Vannever Bush’s vision–which the national policy largely follows from, often with less acuity than Bush had.
So, is university technology transfer a parasite, a nest for bureaucrats, a test of petty assertions of administrative authority, a sales office sucking up everything and selling very little? If so, then “take everything” is a great motto and grasping, dimly lit, complicated patent policies are the way to go. Slurp and enjoy. People work with you because you force them to, and you hope that with “training” they will be civil about it, and even perhaps over time grow fond of you. You gain because you take what you can. Plantation owners perhaps thought along the same lines.
Or, is university technology transfer a form of institutional conscience, a special form of instruction where the primary students are companies and professionals, not just those preparing for professional careers? If so, then “freedom first” is a great motto and simple, clear patent policies are the way to go. People work with you because they choose to, and you build the road together because you work out your common ground. Your institution gains because people want it to gain.
There is a choice here. The choice does have ethical–and innovation and money–consequences. If you are in a university, the best thing you can do, the thing most aligned with what makes a university a university is to build your patent policy around academic freedom. There, if you displace common law principles, displace them in favor of inventors and entrepreneurs. Base requests for ownership or control on mutually negotiated agreements. Choose to serve rather than dictate. It’s an approach that worked for sixty years in the U.S. It’s less expensive, less complicated, more effective, and with stronger goodwill. It’s an approach that can work again, once a university decides to return to that path.