Bush’s Idea
Vannevar Bush’s Science the Endless Frontier argues that the federal government has a proper role to play in advancing scientific research by supporting both research and scientific education. “The Federal Government,” writes Bush, “should accept new responsibilities for promoting the creation of new scientific knowledge and the development of scientific talent in our youth” (31). This is a good starting point–something new being introduced into the activities of the federal government, and fraught with challenges.
Bush proposes a new federal agency, one without an operational mission, to support these two goals. But there’s a hitch. How does the money move from the government to universities? Bush argues that the current agency practices are not appropriate to the task (emphasis added):
But nowhere in the governmental structure receiving its funds from Congress is there an agency adapted to supplementing the support of basic research in the universities, both in medicine and the natural sciences; adapted to supporting research on new weapons for both Services; or adapted to administrating a program of science scholarships and fellowships.
A new National Research Foundation would avoid the problems of “operational” agency missions:
Operating agencies have immediate operating goals and are under constant pressure to produce in a tangible way, for that is the test of their value. None of these conditions is favorable to basic research. Research is the exploration of the unknown and is necessarily speculative. It is inhibited by conventional approaches, traditions, and standards. It cannot be satisfactorily conducted in an atmosphere where it is gauged and tested by operating or production standards.
Bush was adamant that support for research must not take the form of mission-directed purchases of research services. Bush argues that this new agency must have “special authority” to deal directly with the needs of basic research. The agency must be free of the requirement to allocate funds through competitive bidding:
This is particularly so since the measure of a successful research contract lies not in the dollar cost but in the qualitative and quantitative contribution which is made to our knowledge. The extent of this contribution in turn depends on the creative spirit and talent which can be brought to bear within a research laboratory. The National Research Foundation must, therefore, be free to place its research contracts or grants not only with those institutions which have a demonstrated research capacity but also with other institutions whose latent talent or creative atmosphere affords promise of research success.
That is, funding is not to be based on competitive merit, but on an assessment of talent and “creative atmosphere.” Consider the conditions today, where the success rate is fewer than 1 in 5 proposals get funded at the NIH–51,000 proposals to fund just over 9,000 projects. That’s 40,000 proposals per year, just at the NIH–representing 500,000 or more researcher-hours to prepare–that is simply wasted. This is one consequence of a merit-based competitive system to fund research. Bush wished to avoid such a system–but this is one of a number of points on which he lost.
Contracting for Basic Research
Bush offers more detail on the new agency’s contracting practices:
Since research does not fall within the category of normal commercial or procurement operations which are easily covered by the usual contractual relations, it is essential that certain statutory and regulatory fiscal requirements be waived in the case of research contractors. For example, the National Research Foundation should be authorized by legislation to make, modify, or amend contracts of all kinds with or without legal consideration, and without performance bonds.
The support of basic research should not be mixed with that of procurement, even the procurement of research services.
Bush offers as well a discussion regarding the patent policy that the new agency should apply to federal research subvention. We will work through it sentence by sentence:
In making contracts with or grants to such organizations the Foundation should protect the public interest adequately and at the same time leave the cooperating organization with adequate freedom and incentive to conduct scientific research.
Four key concepts–public interest, protecting the public interest, freedom, and incentive. Much of the history of patent administration since has taken up the interplay between these concepts. Bush explains protecting the public interest:
The public interest will normally be adequately protected if the Government receives a royalty-free license for governmental purposes under any patents resulting from work financed by the Foundation.
That is, if the federal government supports research via subvention, it should not expect to be sued for infringement if it uses the results of the work it supports. Notice that Bush does not indicate whether the university or faculty inventors are the ones to provide the license–it does not matter.
Further, the federal government does not have to anticipate that there will be patents or contract to obtain patents or rights in patents. The matter is simply one of “if there are patents, then the government won’t get sued over them.” That’s enough to protect the public interest. There’s no other conditions placed on patenting or patents:
There should be no obligation on the research institution to patent discoveries made as a result of support from the Foundation.
No vesting of ownership in inventions, no incentive to patent, no implied duty to commercialize. None of that. The public interest is not somehow better protected by inducing patent labor.
There should certainly not be any absolute requirement that all rights in such discoveries be assigned to the Government,
That is, the government is not procuring patentable inventions when it comes to the support of basic research. Again, Bush is working to distinguish basic research that expands the frontiers of science from the procurement of research services. Of course, mission-directed research may also expand the frontiers of science. And so can noodling in the garage or doing art or fussing with automated looms or having the luck or wits to observe something that others have missed–having a “prepared mind” as it were. Bush, however, tries to avoid the conflation. He’s not interested (as, say, Dan Sarewitz is) in creating new scientific knowledge by having scientists work in applied settings, managed by engineers and company folks intent on making commercial products. There surely is new scientific knowledge to be had there, too, but Bush is interested in a different degree of knowledge–to put it in various forms, knowledge beyond the paradigms of established scientific orders (Kuhnish); primary mutations of technology, not variations (Harrisonish); “disruptive” innovation, not merely incremental improvements (Christensenish); moving away from established local maxima to find the deeper valleys that may lead to greater local maxima (Kauffmanish).
but it should be left to the discretion of the director and the interested Division whether in special cases the public interest requires such an assignment. Legislation on this point should leave to the Members of the Foundation discretion as to its patent policy in order that patent arrangements may be adjusted as circumstances and the public interest require.
That is, don’t set a patent policy into law or regulation–leave the new National Research Foundation alone to sort out the public interest between these bounds–a government license and no government demand to own. Further, notice, that Bush does not dictate anything with regard to the relationship between universities and their research staff. That’s because in 1945, most universities did not have a patent policy, and when they did, the university generally did not take title to patents, and when a university did take title to patents, it was often to protect the public from the abuse of patents and harm to research and the broad practice of research findings. There was no reason to require university ownership of patentable inventions arising from government support, nor to give the government a right to acquire patentable inventions if a university administration did not want to patent those inventions. Again, Bush was ignored on this point.