We are nearing the end of examining Howard Bremer’s Senate subcommittee testimony from 1979 on a bill that was remarkably like Bayh-Dole. Bremer’s testimony is useful in helping us get at the rhetorical effect of the monopoly meme–that without a patent monopoly, no research-originated invention would ever be used or developed or benefit the public or something or anything like that.
Eight, that the less restrictive a Government patent policy is, the
greater is the transfer of technology under the policy;
Here Bremer gets interesting. What makes a patent policy “restrictive”? Is it that the government insists on owning inventions made with public funding? If so, then how is it possible that a university patent policy that demands ownership of inventions even when not made with *university* funding is less “restrictive”? No, that would be a *more* “restrictive” policy.
If Bremer were arguing that inventors should be free of all restrictions on their inventions made with federal support, that would be something. Then, at least on the terms he premises here, technology transfer would be the most engreatened, as it were. But Bremer argues for trading government “restriction” for university “restriction”–using the power of the government to enable it! The government “restriction” on ownership is “everyone has access, including the investigators, the inventors, collaborators, and others competing to get federal grants or industry funding.” The university “restriction” that Bremer argues for and casts as “free enterprise environment” is “the university owns and only one company may get access, otherwise the invention will not be developed and the public won’t benefit, and the only acceptable alternative, short of government march-in, is that no one gets access.”
Vannevar Bush advocated in Science the Endless Frontier that the government should expect only a non-exclusive license to research inventions that it funded under a subvention program to advance basic scientific research in American universities. Bremer’s involvement in the IPA program and then again in Bayh-Dole (which has provisions much like the failed S.1215 bill), by contrast, was directed at taking ownership of inventions from inventors and–via the government’s open innovation default–from the general public and from industry and from the inventors and from investigators associated with the work but not inventors, and authorizing this taking as a matter of–yes–government patent policy. By his own argument Bremer advocates for a government patent policy that will be a dismal failure at technology transfer. At least here Bremer appears to be absolutely right. Bayh-Dole, to the extent that it has been misrepresented and twisted (most recently by NIST, following in Bremer’s path), has been dismal at “technology transfer.” Want to continue in self-delusion about it? Don’t look for any evidence.
Bremer completes his list:
Nine, that a uniform Government patent policy under which the
contractor has the first option to acquire title to inventions made
in whole or in part with Government funds will provide the maximum stimulus to invention and innovation and will be in the public interest.
That is, a government patent policy that arbitrarily allows universities to be as restrictive as they want without regard to their practices, their policies, their outcomes will somehow result in greater technology transfer. But Bremer doesn’t actually make that claim. We have to supply it as part of a cognitive illusion. Instead, Bremer argues an abstract point instead–that the federal government ceding its “restrictions” to university administrations to impose but now to deal in patent monopolies rather than in dedication to the public will provide
the maximum stimulus to invention and innovation
Bremer does not say here who will be stimulated–instead, abstractions are stimulated–“invention” and “innovation.” The logic demands that Bremer claims that university faculty will be maximally stimulated to invent by the restrictive claims placed on their inventions by university administrations acting out government patent policy. The logic demands that companies will be maximally stimulated to take exclusive licenses if university administrations own the patents rather than inventors or the federal government or companies chosen by the inventors or the inventions are not owned at all or are made freely available or at best licensed non-exclusively for a charge less than the cost of obtaining the patent in the first place. Perhaps. Do you think so?
Why would university faculty be stimulated maximally by having their creative work appropriated by university administrators–and not even to make broadly available but just the opposite, to foreclose all opportunities for “free enterprise” in favor of attempting to trade on a patent monopoly with a single “commercialization partner” that may turn out to be nothing more than a speculative investor betting on the future value of a patent right that the university can’t otherwise move? Is that even plausible? Is it plausible that university faculty will try harder to invent under such a regime? Is it meaningful that university faculty try harder to invent? Do inventions come because people have been promised (emptily as it turns out) that they will get rich if they invent more things or more quickly? Is that how research in the public interest gets better results? It doesn’t make any sense.
I’ve never seen university faculty try harder to invent because they have been offered money. They might try harder to report inventions, and they might report inventions non-selectively–reporting all manner of silliness–but mostly university faculty report inventions more often because they are told they have to and threatened with ethics violations and exclusion from federal grants if they don’t comply. I think Bremer was full of it in 1979, and those who follow in his path are also full of it–and despite what Bremer asserts, no, trading a default of federal government openness with regard to inventions made in basic science and in areas concerning public health for a highly restrictive policy of university dealing in patent monopolies has not been either a stimulus to invention or innovation nor has it been “in the public interest.” Unless of course by “free enterprise” we mean “enterprise based on petty monopolies” and “stimulus” means “despite university ownership” and “public interest” means “what’s good for private interests exploiting monopolies is good for the public”–and all the public should expect to get for its money and fluffy feelings of common interest.
What follows in Bremer’s testimony on behalf of the various university front groups that have sought to exploit patent monopolies is a working out of these nine points. It’s a political bluff that forms itself into a succession of faulty comparisons, conclusions that do not follow from premises, cherry picking data to give the appearance of general fact, and otherwise burying in abstractions and generalities would would be political untenable if it were made plainly for what it was–a plea for special access to the results of federal research on behalf of patent brokers primarily interested in dealing patent monopolies to the pharmaceutical industry with the least restrictions possible.
Here’s an instance:
Technology transfer by universities and nonprofits depends entirely on the underlying patent position . . .
The National Academy of Science published a few years ago a report on university technology transfer that identified eight mechanisms for technology transfer, only one of which was
licensing of IP to established firms or to new start-up companies.
And even there, the same report advocated for the “Nine Points to Consider” document (of which I had a tiny bit part in working on), which argues that exclusive licenses are not always necessary. Bremer, according the the NAS report, was simply wrong. Technology transfer does not depend entirely on a university having a patent position. It’s just not so. It’s not a matter of personal opinion, other than that any opinion is possible for those who insist on having opinions instead of facing reality.
There’s a technical sense in which university licensing of patented inventions depends entirely on the university’s underlying patent position. This is certainly true, because if the university doesn’t have a patent position, then it does not have a patent to license, and then licensing won’t much happen. But it’s not useful to conflate patent licensing and technology transfer. These are almost entirely distinct activities–though it is possible to have technology transfer also involve patent licensing. It is also possible to have patent licensing never result in technology transfer, just as investors in wine may trade interests in wines that never leave their warehouses in Hong Kong and never taste any of it.
Bremer ends his testimony without a hint of irony by quoting Adam Smith:
The uniform, constant and uninterrupted effort of every man to better his condition * * * is frequently powerful enough to maintain the natural progress of things toward improvement in spite both of the extravagance of government and the greatest errors of administration.
This is a version of the more famous “invisible hand” calculus by which private self interest when integrated over a society leads to beneficial results for the collective whole. But leading up to Bremer’s chosen passage, Smith has been discussing the problems of government revenues:
The whole, or almost the whole public revenue, is in most countries employed in maintaining unproductive hands. Such are the people who compose a numerous and splendid court, a great ecclesiastical establishment … Such people, as they themselves produce nothing, are all maintained by the produce of other men’s labor. . . .
Those unproductive hands, who should be maintained by a part only of the spare revenue of the people, may consume so great a share of their whole revenue, and thereby oblige so great a number to encroach upon their capitals, upon the funds destined for the maintenance of productive labor, that all the frugality and good conduct of individuals may not be able to compensate the waste and degradation of produce occasioned by this violent and forced encroachment.
Smith then argues that the “frugality and good conduct” of individuals is “sufficient to compensate, not only the private prodigality and misconduct of individuals, but the public extravagance of government.” That is, Smith makes an argument that government employs unproductive hands that might encroach on the productivity of laborers but for the frugality of individuals able to compensate for it through their own efforts to better their conditions. What of it for technology transfer? The irony is rich. Smith’s “unproductive hands” would include university licensing officers, working as they do for administrations, and the case of state universities, for government. They produce nothing themselves but eat up resources that otherwise would support the university’s faculty and students. At the University of Washington, recently in a six-year stretch, these unproductive hands burned through about $100m with a plan to make the university so much money it would change how it conducts its financial affairs. Well, didn’t happen. Instead, the unproductive folks practiced a “forced encroachment” on those undertaking research and instruction. The unproductive folks were well compensated, and they skated when the jig was up. A similar thing happened at the University of Utah under the guise of state-supported economic development through research. An audit found a culture of “deception” and no economic impact from the expenditure of nearly $100m.
We might say, then, that Bremer quotes a timely passage. That university technology transfer happens, in the presence of unproductive hands in patent licensing, despite the university’s patent positions and efforts to trade in patent monopolies. That individuals working on their own quietly achieve what the unproductive hands would otherwise consume. Bremer did not argue for universities inventors to be free of bureaucratic intervention–rather, he argued that relatively open government policies (which he implied were restrictive) should be replace by wildly and crazily restrictive university policies (which he labeled a free enterprise environment), and now with the sanction of the federal government sight unseen and without a means for public accountability or objection. Only a patent monopoly meme might lead one to believe up is down and down is up.