Bush v Kilgore v the Old Order v Now

In 2005, Nicholas Steneck at the University of Michigan taught a course in the history of science–“Science, Technology and Society–1940 to the Present.” Here’s his lecture outline for the part about federally funded science and engineering during World War 2:

President Roosevelt was persuaded to ask Vannevar Bush for his views on how government ought to fund science after the war, given how things were done during the war. See Nathan Reingold’s account in “Vannevar Bush’s New Deal for Research: Or the Triumph of the Old Order.”

Prof. Steneck outlines two competing proposals, one from Senator Harley Kilgore, and the other from Dr. Bush:

In Kilgore’s plan, inventions go to the government or the government gets a financial piece of the action, and the work is spread around so no areas of the country or companies or institutions are favored, as they were during World War 2. Look again at that first bit of outline–the “concentration” of economic power in a relatively few companies and universities–and therefore in a few geographic areas. How can the federal government fund research at scale and not play favorites with geographic regions? That’s a question far removed from getting research done or even squabbling over the results–it’s a problem of research as pork. It would be especially nice if there were plenty of results worth squabbling over, but no, the policy and legal folks had to squabble in advance, just in case, and–in their odd uncomprehending way, to ensure that it would be all the harder to produce results worth squabbling over.

We might note that when work on a common area of research is “distributed geographically” the work is fragmented. So much for the idea of “clustering.” The geographical distribution works only if no-one in those geographical districts has a proprietary position on the results. Government owns, everyone has access. That means, though, in practice that the results will flow to wherever they can be used–so much for the geographical distribution, which reduces to where money is delivered to be spent, and has little to do with where the results will be exploited. Things are worse yet if an IPA program or Bayh-Dole regime is added on top of the Kilgore geographic distribution. Then not only is the work declustered but each organization claiming its little patent piece of what ought to be a common, pre-competitive cumulative technology ends up fragmenting the ownership of the whole–access to the whole. Whatever is being developed necessarily now takes two decades to come back together as a single common platform.

How is such fragmentation in the public interest?  But that’s exactly what Bayh-Dole enables! And people complain about how difficult it is to find patent licensees–no duh.

Bush’s plan:

A “National Research Foundation”–

Actually, there is a whole section on patents in Science the Endless Frontier. The gist of it is that the government need not worry patents other than to require a royalty-free license for government purposes. Here’s the proposed “patent policy” for the National Research Foundation:

V. Patent Policy. – The success of the National Research Foundation in promoting scientific research in this country will depend to a very large degree upon the cooperation of organizations outside the Government.

Consider the pressure on corporations to cooperate in various ways during the war. When folks talked “the war on cancer” and some such, they weren’t just using a metaphor for dropping bombs on tumors or getting all intense about something–rather, they were demanding that cooperation to achieve a goal would take priority over competition. There would still be competition, but only within the context of striving to achieve the goal. We are not talking only for-profit cooperation here. There’s also the cooperation among universities and nonprofits, and the nonprofit sector with commercial interests. As for the universities, they report their research and their patent royalties individually, as if there is no cooperation whatsoever. Each takes credit for what it receives, without reporting joint grant research or jointly invented work–and certainly universities only grudgingly make their IP available to other universities, despite their fluffy words about reserving rights–those reservations of rights only are made overt when there’s an exclusive license to negotiate, and those licenses are a lot rarer than you might think.

So we might ask after the degree to which the cooperation of organizations outside the government evidences a common effort to achieve research goals determined to be in the public interest. For instance, should the public be so very desirous of drugs that turn acute conditions chronic, at a monopoly-supported price? Or might the public ought to desire discovery of cures and prevention? University administrators make a big deal about their efforts to “cooperate” with “industry” to “commercialize” drugs based on federally supported inventions–but do those drugs cure? prevent? or merely prolong?

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.

What is the public interest to protect? What does “adequate” mean in relationship to “freedom” or “incentive”? Why is it that cooperating organizations should have freedom and incentive to conduct scientific research and not, say, individual scientists, especially those with some talent for their work? Once the federal government has determined that it should provide funding to organizations rather than to individuals or groups of individuals (such as a research team), much of the policy has already implicitly been put in place.

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.

Bush answers our first question. The Government gets a royalty-free license. That is, for patents based on federally supported work, there should be no right of exclusion for the federal government. But that’s an odd thing–we would have to equate the public with the federal government for things to work. Much depends then on what the scope of “governmental purposes” turns out to be. If it is the Kennedy-Nixon patent policy scope of “make, use, and sell and have made, have used, and have sold,” and extended to state and all domestic municipal governments, then “public interest” means any division of government. No right to enforce a patent against any public instrument of government, or anyone working on behalf of any such instrument of government. We might say, Bush’s patent policy argues that there is no governmental “market” in which to exploit patent rights. Or we might say that Foundation-supported inventions enter the “public sector” domain, leaving exploitation of patent rights for the non-public sector.

There should be no obligation on the research institution to patent discoveries made as a result of support from the Foundation.

That’s certainly not Bayh-Dole’s position, once an organization gains ownership of an invention made under contract. Under the IPA program, on which Bayh-Dole is based, a nonprofit had an obligation to acquire ownership and file a patent application only if the nonprofit decided to file a patent application. Still, the IPA program created a federal master contract that individual faculty members had no access to, under which the federal government and university administrators agreed that the administrators could take ownership of any invention made with federal support that they wanted, so long as they then filed a patent application. Bayh-Dole preserves this arrangement but oddly, and in ways that most university administrators don’t want to know about, does not allow university administrators to take every invention made under federal contract even if they want to file patent applications–instead, Bayh-Dole only applies after university administrators have obtained ownership of a given invention under some other arrangement not having anything to do with federal funding or federal contracting.

Bush, however, argues that institutions should be able to own inventions and not file patent applications. That’s reasonable. An institution then could take ownership of a given invention to preclude anyone involved from filing a patent application. Or an institution could take ownership to file a patent application, with the purpose of making the invention available to everyone–or perhaps only to everyone that does not assert patent rights against anyone who is practicing the invention, creating a make-use commons for emerging research technology. Or perhaps making the invention available to everyone who agrees to maintain quality of product and truthful claims about the product.

There should certainly not be any absolute requirement that all rights in such discoveries be assigned to the Government, 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.

This is like Bayh-Dole–the government must announce exceptions to the general rule that if an organization acquires ownership of a given invention, it can keep that ownership. And it is sort of not like Bayh-Dole–the director should have discretion to determine special cases without having to wade through a mudpile of procedures and regulations created to make it difficult for anyone to have discretion–more like desperation.

Left open is what would be the circumstances under which the public interest *requires* assignment, if the public interest is generally met by a government public domain for all such inventions? The logic goes all over the place, but there are two obvious branches: (1) the public interest requires that no patents are obtained, and so the invention enters the public domain generally; (2) the government will manage patents on the invention. In this latter instance, the patent system might be used as a national repository to publish the invention in all its technical detail, or the government might intend to exclude some aspects of the invention from use–perhaps the government aims to exclude importation of products that would infringe, and therefore create more space for domestic manufacturing. Now that’s something Bayh-Dole ignores–good old patent-based protectionism. But then isn’t protectionism the fundamental political theme surrounding Bayh-Dole? Isn’t 35 USC 204–preference for US manufacturing–by its own account the most important section of Bayh-Dole? Isn’t that what Senator Bayh was aiming for when he introduced Bayh-Dole in the Senate–all that stuff about restoring U.S. technology leadership?

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.

Again, very unlike Bayh-Dole, which is legislation to dictate the patent policies of all federal agencies, and without regard to their particular missions or practices–as if “uniformity” is what the public most desires, when clearly “uniformity” is little more than “arbitrary to suit the convenience of non-federal patent administrators.”

Reingold argues that the “old order” represented by Kilgore’s plan won out, although the events that followed were attributed (when politically expedient) to Bush. Beyond that, we can see how the IPA program and then Bayh-Dole both undermine Kilgore’s approach and at the same time ignore Bush’s approach. A very old order apparently has won out.

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