I am working through the ways in which a university comes to acquire patent rights from faculty inventors. This is turning into a series of articles. This stuff isn’t easy–but then, as far as I can tell, it’s not easy by design. That is, university administrators have chosen this path, have made things complicated, have then twisted and garbled and concocted and invented arguments that have to be untangled or fought over in courtrooms or in legislatures or in the press. The end point of most of these discussions is not clarity and mutual understanding. It’s an argument, and university administrators, with access to nearly unlimited money to pay attorneys, are more than ready to take their argument to court, where “justice” is more about what specific claim of wrongness is being addressed, not about how a university ought to behave in the presence of inventions, and why.
These articles for Research Enterprise are about the “ought”–what is possible, and why these possible things should be sought. Getting at the law is not then an abstract thing–it is not about serving the law, but observing the law. At the root, law in a democracy is for the living–what is it that we mutually decide to do? Law provides a distribution of authority to the state to use force to ensure compliance with the law. Yet statutory law consists of words, and words are notoriously problematic, since they depend not only on usage, which may change, but also on interpretation, which also may vary with the purposes and experience and accidents of those doing the interpreting.
One may try to introduce definitions, but these tend to work only within the system of vocabulary being deployed, and only then when the definition is clear and consistent. Many definitions in university patent policies are anything but clear and consistent and make mush of what would otherwise be well-defined concepts, such as an invention which is or may be patentable. Even with clear definitions, one still has to bring them into the world of practice. And that’s a matter of interpretation. When is a life form patentable? That clear definition of invention doesn’t help that much. The answer lies in what a patent examiner will allow, or what a court will direct, or what a legislative bill signed into law requires–and all of those involve acts of writing and interpretation, too. We seek clarity, but our road lies toward muddle unless we find a way to agree.
Similarly, planning by arguing before judges over application and interpretation of law does not suggest itself as the first and best road to travel. Yet that’s what is happening–it appears that public policy regarding research and innovation is being written by lawyers creating arguments to serve client arguments. It is a strange twist indeed on Adam Smith’s invisible hand to argue that it’s not the butcher pursuing his self-interest that participates in creating an economy that discovers general good, but that it is the butcher’s lawyer, coming up with clever arguments in a dispute with a customer or another butcher or a supplier or the government that creates the economy that produces general welfare. That’s a vision that perhaps attorneys even might not think works so well–that our best hope for advance is to wait until attorneys are paid to fight something out. Enough fights with differing outcomes, and then there’s a basis to consider new laws, and laws–with all their quirks and politics of drafting–somehow then communicate the public good. A very strange economy indeed, not centrally planned but dictated or disrupted by laws, not enabling the individual to pursue her own best interests, but leaving that to attorneys who pursue their own best interests on behalf of paying clients.
One would think there are better ways to go about shaping the future for research and innovation policy and practices, carrying forward skills and concepts adaptable to the tasks that may present. It is not so easy, even, as trying to keep things as they were. Change happens, and the change that is most concerning is often the creeping change that does not appear at any one moment to be such a big thing, but over time turns out to be more than drift, more than a slight preference, and one recognizes that the succession of bits and pieces amount to something very different from what one started with, and not necessarily a desirable difference.
That’s where universities have got over the past fifty years of dealing with patent policy. What was once an activity aloof from university work, in the domain of industrial property and competition, has been taken in as an essential activity of university administration. In the process, university administrators have set aside academic freedom (isolating it to scholarship lacking utility), dropped the idea of faculty governance, imported corporate practices of management and applied them not simply to financial and building maintenance practices, but also to faculty activities in instruction and research. One might take all this to be a matter of progress, of modern overtaking the past, of efficiency. Yet universities have not gotten more efficient. They have gotten more expensive. They have gotten more complicated. They have vastly expanded administration, a sort of bureaucratic swelling that is expensive to maintain but apparently is necessary to survival. They have gotten richer–the ones that have survived. Huge endowments, massive revenue streams from tuition and sponsored research. And yet, somehow, after the money has been used up, students leave in debt and faculty must grub anew each year for more grant money. In order to do research faculty investigators also have to make enough money to support the administrators that feast off the indirect costs. Those administrators take about 20% more in their feasting than faculty-led grants can provide, so with some clever accounting, administrators shift tuition money from instruction to research. Student debt is a measure, first of all, of the amount of research administration that students subsidize, generally without knowing it.
All this is propped up by two arguments: that university research is essential to public welfare, and that the amount of research funding received should stand as the primary sign of a university’s excellence. Neither argument is necessarily true in general, though bits and pieces may be. But to suggest otherwise gets a huge, unreasoned but expectable push back, as Matt Ridley demonstrated with his recent piece in the Wall Street Journal about the limits of basic research. Ridley doesn’t argue that basic research has no benefits, but rather that there is a myth–a repeated, unthinking narrative assumed to be powerfully true–that basic science necessarily leads technological innovation. History is full of examples that demonstrate that the myth fails to account for discovery. Yes, it is possible to construct a narrative that links any given innovation to a set of studies in basic science, and yet it takes more than that to show that those making the discovery depended on those studies. Persistent explanatory narratives of institutional science have just as much potential to prevent discovery as to enable it. People messing around with stuff, without any theory to go on, have plenty of opportunity to make advances. It may be they depend on instrument makers, on outlandish claims, or on a customer’s wants. The motorcycle repair shop may be a better place to consider improvements to a bike than an academic laboratory, even if the laboratory has better equipment to test and refine those improvements once they are proposed.
We tell stories about how things come to be. We tell stories that project that there are more things yet to be that aren’t yet. Some of these things we can imagine, and some of them become reality, such as Dick Tracy’s two-way radio on his wrist. Others, we can’t imagine, until we do, and yet those things must have been there all along, even if we weren’t thinking to look for them. Innovation policy is just another such story, often told in the most obscure and dull language possible. Why not? Isn’t it ironic that innovation policy–about the new, the unexpected, about the grand hopes of a society to better itself, to find its new place in the expanse of university–typically chooses the dullest, abstract, complicated, fussy language and genres to try to articulate its vision? Have you read a university patent policy in the last decade (other than Waterloo’s) that didn’t just sound like mealy mouthed death?
Perhaps it is just too hard to write about good new things in the future. Or it may be that the good writers and thinkers generally aren’t led to contribute their ideas to university patent policy documents. Or perhaps those that write such policy documents resent the intrusion of fresh words and pointed thoughts and instead want to use platitudes, lists, and abstractions to get to the immediate business at hand: secure power, mitigate liability for having that power, and preclude objections to such arrangements. For that, appeal to the public good, and make it appear any alternative is selfish, foolish, untested, inefficient, impractical, mean-spirited, unfair, or just plain evil.
A number of people prefer order to anything else. Thus, they will accept a terrible patent policy for its appearance of order over relying on, say, common law and mutual agreements. It’s just too difficult, apparently, for some folk to rely on judgment, on negotiation, on having and enjoying the benefits of the absence of institutional controls. Oddly, the absence of institutional controls does not result in anarchy except for those who long ago gave up their freedom and thus lack the ability to be free when given the chance. Geez, Machiavelli got this part right a long time ago:
But when cities or countries are accustomed to live under a prince, and his family is exterminated, they, being on the one hand accustomed to obey and on the other hand not having the old prince, cannot agree in making one from amongst themselves, and they do not know how to govern themselves. For this reason they are very slow to take up arms, and a prince can gain them to himself and secure them much more easily.
Once a patent policy becomes a matter of obedience, and people adjust to it, they become accustomed to obey. Whatever university administrators may say about “entrepreneurial culture,” a compulsory, comprehensive patent policy runs toward “obedience” and over time empties out a university of its entrepreneurs, and changes it from a “republic” to a “principality.” A university cannot do that and remain a university, other than as a hulk carrying a social label. Once such a patent policy based on obedience is in place–master-servant employment, obligation to assign, a process that must be followed, forms, requirements, sanctions–people lose the capacity to govern themselves in matters of discovery and innovation. A professional class (or alternatively, administrators–or, bureaucrats–or, underlings with more power than status) takes over on behalf of the prince (here, the corporation of the university). Those making discoveries, those who might innovate, are trained not to respond to opportunity, but report it for disposition by those in power.
From this, one might see the legacy of Bayh-Dole. It has been used to transform university innovative life from personal initiative and local discourse into a life of obedience to institutional authority. Bayh-Dole is not directly responsible, of course. It took deliberate efforts by advocates of a totalitarian regime of institutional ownership of patent rights, by university administrators, by university attorneys, and even by some faculty members, to leverage Bayh-Dole into a federal mandate to bring administrative order to the messy, independent world of academic inquiry. For that, the administrators told simple (mostly untrue but compelling) stories:
- Bayh-Dole rightly vests inventions made with federal support outright in universities.
- Universities obtain patent rights to benefit the public.
- Patents are necessary to prevent inventions from “sitting on the shelf.”
- Exclusive licenses encourage private investment that otherwise will never happen.
- It’s all a huge success–just look at the number of offices, the patents, the money.
- Otherwise, the public loses the benefits of research.
- Otherwise, the university loses valuable research funding.
- Will you deny the public their research benefits to satisfy your greed or ego?
- Will you deny your university funding for research?
It all runs as a system, a circle of life administrated by the university following policy–government funded research creates inventions, inventions reported, ownership transferred, patents filed, licenses granted, investments made, products created, public benefits, the economy benefits, the university benefits and shares its benefit with inventors, and what’s left supports more research. To make this system work, assignment must be immediate. There is no room for negotiation, for personal needs, for idealism, for personal judgment, for independent views about the future or about value or about technology change. All follow the system, all commit to making it successful. There are no good alternatives to the system. All efforts to follow alternatives are bad. This is the best system possible, except for improvements to the system, making it even more efficient, better funded, less exposed to doubt, questions, or alternatives.
So there is a second thing that Bayh-Dole has done in addition to laying the groundwork for a culture of obedience to bring ruin to a culture of personal initiative (and it was the culture of personal initiative that led to Bayh-Dole allowing federally funded inventions to enter university invention management infrastructure. Bayh-Dole has also attracted a substantial number of professionals–administrators, licensing professionals, attorneys, state officials, and investors–who believe that a totalitarian approach to university inventions is the way to go. They view universities as targets for principalities, not as republics. Machiavelli, again:
But in republics there is more vitality, greater hatred, and more desire for vengeance, which will never permit them to allow the memory of their former liberty to rest; so that the safest way is to destroy them or to reside there.
And this appears to be the agenda, to drive out those that would have a university be a republic, and replace it with a princedom–or call it with its modern titles: management displaces governance; corporation displaces craft; principles replace practices.
In a prescient monograph The Return of History and the End of Dreams, Robert Kagan describes the return of world affairs to a contest between democracies and autocracies. On a much smaller scale, the last thirty-five years have seen a similar contest of wills in universities, played out in the wording to be placed in university patent policies. That wording does not reflect merely technical details in a bit of policy buried among the scores of policies that comprise a university’s formal documents but rather is an indication of the mindset concerned with the research enterprise activities that take place at a university.
If one becomes used to autocracy, then one loses the ability to deal with freedom. Jared Diamond asks why the Europeans with all their nasty, brutal in-fighting ended up coming to China, and it wasn’t China, with its history of civilization and technological improvements, that came to Europe. His reasoning was that China became an autocratic empire, and when the Emperor forbade voyages of discovery, and forbade development of technology. Meanwhile, the competing, fighting, disheveled Europeans also innovated their way to the “guns, germs, and steel” that gave them their advantage. Republic over autocracy, in simple terms. There is such a thing as too much order, too long a memory, to much complexity, to many logical conditions that must be true to ensure compliance.
Innovation prospers in disruptions to established order. The effort to manage the efforts that lead to disruptions in an established order–especially to planned disruptions–is a special matter. Stewart Kauffman in Investigations defines life as “in the ordered domain, on the edge of chaos.” Perhaps innovation prospers in the flip side–“in the chaotic domain, on the edge of order.” If that’s the case, then university policies on patents and inventions might do well to keep “management” of inventions just beyond management–that is, the role of a patent policy, like an inventor’s bill of rights, is to restrict the power of the institution rather than to expand that power. Encouraging people to learn to live with freedom–not just freedom of inquiry or publication or instruction but also freedom to innovate–is a proper role for a university patent policy. Obedience may feed a system of patenting and licensing, but it does not encourage personal initiative.
If innovation moves through the will of individuals rather than social abstractions (such as patent rights), then the thing a patent policy ought to most guard, if it is designed for innovation rather than accumulation, is the individual will, initiative, opportunity. Whatever the defects in such wills, and fusses, and disorder, and mistakes, preserving an environment in which such wills have expression–a republic–is a great advantage to a research enterprise devoted to innovation. This is a good time for those who value their liberty to take on the forces who prefer to live in–and gain their livelihood by maintaining–principalities of patenting.