In The Lever of Riches: Technological Creativity and Economic Progress, Joel Mokyr works through an economic history of technological change. He observes that sometimes changes happen incrementally, and sometimes with a sort of “macro” leap.
It appears that in some cases, at least, there’s an invention–an insight–that goes straight into use, and at other times, the first insight awaits variations or improvements or change in context to become valuable for use. That is, there’s a potential latency around insight and we might even postulate that latencies are in general “longer than immediate.” That is, it is rare that an invention on its own is ready to be developed for use. More often–way more often–it will have a long latency. In neolithic times, those latencies could run 10,000 years, easy. Now we fuss if we can’t do something within the term of a patent–or within two or three years in the case of some areas of information technology.
There are then these two complementary activities–insights and the variations that make the insights compelling. As Mokyr puts it: “the person who came up with the improvement that clinched the case receives more credit than the inventor responsible for the original breakthrough.”
H.S. Harrison provides a similar account of technological “mutations” in an article he contributed to A History of Technology (in volume 1). There, he posits “primary mutations” change natural objects into artifacts–into tools. These tools then undergo variations, changing in shape, becoming standardized, fitted to specialized tasks. Parts can be increased or decreased, and features substituted for one another. Cross-mutation involves adding a feature from one tool to another. A typical modern cross-mutation involves implementing in software a practice that was previously done manually, such as a calculation or monitoring activity. Diffusion, by contrast, involves the borrowing of design and adoption of tools, what the Constitution refers to as “progress” of the useful arts. A patent serves to announce a design (an invention or discovery) that otherwise might have been kept secret and provides an opportunity for the inventor to produce as much as possible to reap some value from a period of exclusivity. Once the publication of the design and the early effort to spread instances of it around have had the benefit of a “limited time” of exclusive control, the idea and instances of the idea are seeded broadly and free for others to adopt as well. Thus, progress, at least in theory.
Harrison and Mokyr both consider the roles of the “gradual changes” and “decisive steps” (as Harrison has it). Harrison suggests that we humans first learned to recognize we could discover things, not merely by accident or observation, but by working the problem. Early technological change was slow. We figured out how to improve the pace. We discovered discovery, as it were. We moved from “tool-user into tool-maker.” Harrison posits that for early us, our “vision reached no further than the known, or that what would be readily suggested by what was known” (66) and that “there must have come a change, by which man was able to conceive ideas of form and construction that were prophetic and original.” There is a parallel conjecture that in the history of consciousness, we learned to consolidate into an interior dialogue the thought-impressions from both hemispheres–the “bicameral mind”; that before this time, we heard voices, as it were, and attributed them to the gods, not to ourselves. We had no unified account of mind. Perhaps–who can say now, a hundred generations removed?
Mokyr observes that decisive steps may involve more than a first recognition that something can be done. There must be variation, adaptation to make the something attractive and functional. Harrison puts it this way:
We are so accustomed to read of great modern inventions, and our ideas of their origin and nature are usually so superficial and confused, that we are apt to gain the impression that now at least there are men who can look far ahead of the knowledge of their time, and discover and invent by laboratory or workshop divination. It is not so. The greatest discoverer or inventor can build only upon the work of his predecessors, and his greatness depends on his powers of analysis, insight, and synthesis, aided by some little foresight. By experimental methods he lays traps for suggestions, and although he has an end in view, the ultimate solution of his problem may evade him or surprise him. Experiment is experience sharpened to a point–useful as a digging-stick, but not as a divining-rod. (61)
We have the idea that there’s more out there in the world–we get the idea of a usable unknown to root for. But we don’t have a system for finding that unknown. The best we have got is experience “sharpened to a point”–an eye for detail, a sense of motion or relationship, a memory of something else that might unexpected apply.
What arises in this account is the idea that an invention–a bit of discovery, a free-mutation–often needs an environment in which it can be varied, messed with, applied, “developed.” And by “developed” I don’t mean “commercialized”; rather, I mean shifted from its starting point, the entry point into our experience of something new, to a point of usefulness, of application. That shifting is not so intentional as it may appear. That is, just by possessing something new doesn’t mean one has a clue where it will make its impact–if it ever does–and no amount of marketing some obvious application will change that.
Vannevar Bush seemed to be up against this same situation in his account of “frontier science” and an expectation that things discovered would find their use in lateral activities. Chemistry would contribute to medicine, physics to the military, mathematics to communication. Things would slide sideways, around, in directions that those doing the discovery had little inkling of, and those who might stand to benefit had no idea where to look for discovery. Medicine studying medicine can produce variations on a theme, but the likelihood of a really new observation has been trained out of folks soon enough. Medicine defines its problems as ones of the clinic, of the human physiology, but many of its problems may be ones of medical training, medical status, the body of knowledge called “medicine.” Explanation is the enemy of curiosity.
Consider, then, an idea about how to handle frontier science–or any effort that involves experience sharpened to a point. Art and music are just as adept at innovation in this way as science, and gadgeteers messing around with just about anything can find new things to mess with well enough without advanced training in mathematics or knowing the names of all the bones in the body. What sort of environment ought we offer to such folk; what sort of environment ought we not to take away or try to replace with our know-it-all-better sense of what will be “successful”? Perhaps the answer is that things that get found need places to be varied–the more variation, the more diverse the areas of messing around, the more combinations and juxtapositions, the greater the likelihood that someone will come across a combination of variation and application that makes the discovery attractive.
If this is the case, then we might also see that staking out patent claims on every new thing the moment is shows up may well work against variation, combination, messing around. If one is warned off–doing so is illegal, or doing so will require you to pay, or if you are successful, you can do nothing with your finding until we decide whether we care or not–then doesn’t that work against the environment we might think is conducive to making the discovery that rides on top of the initial discovery? Early on, we need a diffusing commons–enough people messing with things, with a variety of different experiences, that it’s possible that one finds something that clicks. Yes, we could imagine immediately all the applications for our new discovery, obtain a patent, and try to find a company to make it. But doing so is trying to force our ideas about what’s valuable into a marketplace that may already be doing well enough anyway.
We might expect new things to have a latency of variation, of application, of time and place. We might obtain patents, but these are no good if they don’t first promote incentives in this period of latency. Rushing off to build the most valuable product that comes to mind may be the most destructive thing for latent development. Find a new bioactive compound–the first thought is often to find a use in humans, when perhaps a use in animals is more readily available and helpful, and perhaps a use that’s not directed at physiology may be even more immediate. But the big market has allure, and the monopoly of a patent has allure, and people can’t help themselves but think that with a patent, if someone else does find a nice application, there will be a way of clawing back some of the later person’s money–or a company’s money–for having found something first.
But it doesn’t often work that way. The race is not always to the folks that finish first. Yeah, it’s not that sort of race. Obtaining a patent pushes the search for variations to the outer edges of the claims. Design around. Invent and patent stuff that blocks further development of the original invention. (I’m told this is a standard practice in some industries.) That is, the patent does not promote the use of the original invention. It promotes everything but that use. It promotes not the variations that would lead the invention toward variation toward application but rather efforts to block the effect of the patent itself or to avoid the patent altogether. It takes special effort to use a patent to promote use. Yes, if there’s a product right there in front of you, perhaps because your patent is for an invention that itself is extracted from a commons of previous work, then there’s the prospect of immediate development. Most inventions, however, are not “early stage” in that sense, that it would take a great deal of expense by a single company to create a product. Most inventions rather are “non-stage”–they are in their latency period, which historically can last tens of thousands of years. They can be lost to mind before they are ever messed with.
Whatever a university’s patent policy might be on ownership, the first order of business is to create an environment that engages the latency phase of getting an invention messed with, varied, substituted, and characterized. Without enabling this phase, most efforts to “commercialize” are wasted, even silly, even destructive. In the Tour de France, the competitors know that the moments to break from the pack are rare, that most of the work gets done by sharing the mechanical advantage of being in a pack, jockeying for position but dividing the work so there’s some energy left to race with at the finish line. It’s just with technology that the race doesn’t have a clear finish line–the line moves, or is on a different road than the official race route. A patent might have the odd effect of moving variation away from the invention to other materials, other methods–and that in a way is progress, too. But if the purpose of using the patent system is to promote use of the invention in hand, rather than the use of everything devised to beat down your patent, then the starting point is to make the invention attractive for messing around by others. For that, any messing around is success. If those doing the messing also allow their variations to circulate, then the latency phase has legs and there’s a chance that the invention in some form might find an application. It might take a year. It might take a decade. It might take 21 years–often, that’s the case when there’s a patent sitting around like an armed grenade.
There was, then, some sense to the federal patent commons. The federal government sponsored research, acquired the results, and put these in a commons–dedicated to the public domain or patented to preserve a domestic market from unfair foreign exploitation. Anyone could obtain access; the effort was not to “commercialize”–that is, was not to sell monopoly rights to speculators, even speculators in the form of companies–but rather was to create an environment for messing around, varying, applying. It’s just that big pharma rejected this idea. They wanted a betting pool of compounds for monopoly competition. So they boycotted use of compounds discovered with NIH funds. Latker and Bremer figured a way around NIH policy so they could sell monopoly rights to pharma, and pharma in return was willing to pay 0.5% to 1% royalties–at least for a while–for the happiness of the exploit. And thus we got the IPA system and later Bayh-Dole. The price for monopoly development, however, is steep–not only the billion or so dollars budgeted by a monopolist drug developer to screen many compounds–but also the disruption of the latency period in which a discovered compound might be messed with a variety of ways for a variety of purposes rather than existing under exclusive license as one compound among many targeting some major market of disease or pain.
If there’s a need in university patent policy, it is to restore the dominance of early, varied use of something discovered. Research use, hobbyist use, use in companies, use by accident–any such use ought to be acknowledged if not rewarded. It is on top of that use, built up over time and jumping opportunities and applications, that we are most likely to find a fit between a new version and something attractive, and from that fit may come opportunities for commercial versions, or for commercial products that depend on everyone using this new, readily adopted “fit.” The university in all this gives up the opportunity for huge financial return for most things first discovered or invented in its research programs. So do the inventors. But this is the test case for what matters more–public interest or self-interest. It turns out that self-interest, in the form of tightly held patents, works against even self-interest. Call it the need for “enlightened self-interest”; call it the importance of delayed gratification; call it “sophrosyne.”
There is a role for patents to deal with competition in the development of products that cost a bunch to develop and not so much to copy. But there is also a role for patents to create a commons that permits, even in a world of patents being used for other purposes, an invention to enjoy an active latency period during which it may be adapted for any sort of use, by anyone, without threat. Universities once played that role–for a brief period, anyway, after federal funding ramped up and before Bayh-Dole led administrators to try to tie everything up in institutional ownership and “commercialization” by means of patent speculation for profit. The public interest, once or twice a decade per university is served by a patent deployed to create a limited monopoly. For all the rest of the time, the public interest is served by the creation of active latency phases–whether public domain or commons or library or membership program or consortium or open source–the institutional interest is not making money for itself (or its inventors) but rather helping to make new things visible, and in contexts that likely are not reached by academic publications or the random reading of issued patents. If a patent can serve to make that happen better and brighter, great, file an application today. Otherwise, the patent works against use of the invention, works against the purposes of federally supported research. While the patent may have value as a speculative token, to be acquired by one group to be passed on to another and thus until a group realizes they have been had, that value is worthless relative to the use a patent may have in making active a latency period that otherwise might span centuries.
Most university patent policies burn their energy on ownership and royalty-sharing. The apparatus of definitions has to do with scope of the ownership claim, the demands for complying with the ownership claims, and the puffily arrogant rationalizations for ownership. Then there is the failed magic of commercialization, which gets no policy to speak of, and an often complicated discussion of how royalties are to be divided, appealed, and reported for tax purposes. There is next to no apparatus that would limit patent speculation or the use of patents to suppress use. And yet a university patent practice based on a portfolio model seeking exclusive “commercialization” partners does just that–it suppresses early latency periods of use and attracts speculators–often now in the form of university-promoted startups, where even the startups work to design around the license or switch to a different line of product development when the initial funding runs out (an SBIR grant, or a state economic develop grant). There is next to no apparatus in university patent policies to limit the scope or term of exclusive licenses, to reserve broad rights for use of all sorts, not just educational and research use at the host university, not even for any university–all sorts of uses. There is no indication that feeding the commons is in the public interest. These university patent policies–and I have read many of them–make a fetish over “protection” of inventions from the public, as if the only public good that can arise depends on a monopolist somewhere making a deal to share profits with a university administrator.
University research deserves a more thoughtful, broader-reaching approach to the role of patents in encouraging an active latency period for inventions and discoveries. Rather than suppress use–or reserve it for the wealthy–a university patent should mean “available to all, subject to the terms that encourage messing around until there’s a good reason for everyone to sit up and pay closer attention.” It’s like the search for a key to a chest of gold–except that we don’t know where either the key or the chest of gold might be. A patent can be used to enable the search–who knows where and how–or it can shut that search down for two decades and maybe forever. University patent policies make a big deal out of ownership and money, and next to nothing about the distinctive role of a university intending to operate at the frontiers of discovery.