For fifteen years, Archie Palmer worked to get universities to adopt formal patent and research policies. Palmer’s work ran in parallel with the growth of federal subvention funding for research–the government just gave money to university-hosted research projects, not because anyone had any specific need but because it had been decided that more research was good for the public, that research was a good way of expanding the frontiers of science, and that with expanded frontiers, scientific research would provide benefits in the form of new technology, new industries, more jobs, and enhanced public welfare.
Now all these new and enhanced things sound pow’ful fine to me. But there’s not a whole lot of reason to restrict one’s attention to the idea that scientific research starts the process of discovery, or that it is exclusively (or even predominantly) from the findings of science that one draws the materials of innovation. For that matter, what we mean by “science” itself comes into play–is “science” a method? or a body of consensus findings? or an inventory of natural phenomena? or provisional explanations of relationships, couched in quantitative terms of mass, time, length, and charge? Or bits of all of this, as paints on a palette, that each of us gets to paint in our policy imaginations?
But this connection between science, technological innovation, and public welfare is the line that’s been drawn, and it’s quite the amazing line, both hopeful and seductive. Call it a happy myth to be all-in about. The heart of this myth, the driver, then, is federal subvention funding for research, funding research without a procurement goal, without a particular need, based on the comparative merits of proposed projects. What proposals appear to be the best to committees of proposal reviewers? The research is funded based on the consensus of committees of scientific reviewers–that the foundation for deciding merit lies in those with a technical understanding of quantitative methods, a conventional training in the area of study, and a continuing interest in themselves also getting funding in their turn from the same federal sources. In all of this, “merit” turns out to be a form of “prevailing consensus.” One might think, if the effort was for discovery and innovation, one might find that “merit” of this sort would be a poor guide to coming into anything surprisingly new. But this is how it is. It’s a system. Organized, conventionalized, socialized, internalized–and for university research administrators, formalized into a kind of truth, with a pantheon of its own, strange gods with names such as F&A and MTDC.
Behind Archie Palmer’s push for universities to adopt formal patent policies lie ideas of institutional authority, uniform procedures, and a hope for clarity with regard to inventions, patents, and money. Palmer did not advocate so much for institutions to take control of inventions, but rather that they ought to address control of inventions by means of policy rather than, say, making stuff up in the moment or using judgment, case-by-case. Palmer wanted clarity and efficiency, not monoculture, or compulsory assignment. Palmer remarked on the diversity of policy statements (and thought that was healthy) and noted that most universities did not advocate for compulsory assignment of patent rights, but rather favored voluntary arrangements.
But once policy is in place, then administrators take over. Once there is policy (rules) in the place of judgment (integrity), then motivations become externalized–one does something because that’s what the rules say to do (for reward or out of fear of penalties or through love of authority), not because “it’s the right thing to do.” There were two drivers. One was to make policies among the universities similar. “If smart people at University X have worked on this issue, why not just use what they have come up with?” I’ve heard that reasoning in the wild, in university policy discussions. In one case, I was invited in to a faculty senate committee’s discussions on a university policy statement they were drafting–it turned out to have large sections lifted verbatim from the policy of another university I had worked at. It’s just that the sections lifted took only part of the policy, without the qualifications and apparatus, and without any apparent knowledge of how the policy actually operated at the university that had adopted it. The paper versions of policy begin to look the same.
All this, despite the fact that most anything new–Cottrell’s Research Corporation, for instance–was not the result of institutional policy, uniform procedures, and the like, but came about because there was no formal institutional policy. If a faculty inventor at the University of California tried such a thing today, they’d be sued–because there’s a patent policy at the University of California that precludes personal initiatives such as Cottrell’s.
The second driver was to make patent policy within a university “uniform,” and with it, all IP policy, and policy relating to things whether or not IP–so long as they could be said to be “owned” in some folk way, that was good enough. There ought, so the argument went, be a single, uniform policy to address ownership of anything new. Here’s how COGR put it:
Since a vast majority of university research (particularly in the sciences) is funded by the federal government, university policy regarding technology transfer must be consistent with federal law and policy as set forth in the Bayh-Dole Act.
This first bit is silly. About 65% of research at most universities is federally funded–often a majority, but hardly “a vast majority.” Sillier, Bayh-Dole doesn’t apply to universities but rather to federal agencies, and is implemented in the form of federal contracts. The only thing that a university needs to do with regard to policy is not to have a policy that requires actions that would breach the federal contract. “Our policy is to comply with federal funding agreements.” Big whoop. The issue is not the policy but the actions required by the federal contract, such as requiring the (f)(2) written agreement from potential inventors, something no university (to my knowledge) has come close to complying with.
As for the “federal law and policy” part of Bayh-Dole that does apply to inventions–that is, to subject inventions–universities generally have no policy whatsoever. Universities don’t stipulate that they will never sue for infringement when someone adopts an otherwise unlicensed subject invention; universities don’t stipulate that any exclusive license they grant in a subject invention will be limited to, say, eight years or will otherwise include pricing requirements or incentives so that the public may obtain the benefits of the invention on reasonable rather than monopoly terms. (Stanford used to have a limitation on exclusive licensing in its patent policy, but that’s long gone now). Nothing like that.
While it is possible for a university to have different policies regarding the patenting and licensing of inventions which were not federally funded, in general, the university’s interest in maintaining the flexibility to draw research funds from multiple sources, including the federal government, and the desire to avoid applying conflicting policies, favor constructing a single policy that is consistent with the requirements of federal law and regulation.
And here is the fundamental statement of uniformity, totally illogical. Since university administrators want to allow mixing of research funds from different sources, they must have only one policy, and therefore that policy should be the one governing federal funding. But of course no policy is necessary for federal funding. But COGR’s effort is to make sure that there is just one policy:
The underlying tenet of the Bayh-Dole Act is that federally funded inventions should be licensed for commercial development in the public interest. That principle is reflected in virtually all university policies whether or not the invention is federally funded.
Notice how the COGR argument has flipped from “compliance” to an “underlying tenet” and “principle”–that is, to things that are not in Bayh-Dole at all. Bayh-Dole states its policy and objective as a matter of federal patent law, and stipulates provisions that federal agencies must include by default in any federal funding agreement for research at nonoprofits and small businesses. Bayh-Dole states that the patent system should be used to promote the use of inventions made with federal funds. Bayh-Dole does not stipulate that those uses must be constrained to “commercial development.” And it is not the “commercial development” that is “in the public interest” but rather that the benefits of the use of inventions be available to the public on reasonable terms.
In other words, COGR here announces a policy that has next to nothing to do with compliance with Bayh-Dole and instead states a claim about federal law that’s not in the law, but rather somehow “underlies” it, and then turns that claim into a “principle” and makes that principle the subject of uniform patent policy, to drive out all other possible policies. Ghastly, in its way. Nothing in Bayh-Dole requires a university to take any ownership position in inventions made with federal support, nor to license inventions for “commercial development” rather than simply for public availability and use. It’s not nonsense–it’s worse. It’s simply a statement of self-interest by patent brokers, making it appear that their work arises from a mandate buried so deep within federal law that the law itself cannot be brought to express that mandate openly and only by hints and presumptions.
One might think that COGR here in its stumbling way is attempting to announce a public covenant regarding patents held by universities, that the policy that should matter is that these patents should be held for “commercial development in the public interest.” But really that’s not what COGR is doing. Its policy statement actually runs against the idea of a public covenant on patents–restrictions on a patent property right. Instead, the idea is that universities, to mix sources of research funding and still have freedom to exploit patent monopolies, should adopt a single policy that mandates as a “principle” that exclusive patent licensing for “commercialization” is the purpose of new research technology. That’s a repudiation of the public covenant rather than a statement of it.