People play innovation policy with stick drawings. Inventions are depicted as proto-products rather than as broad swaths of potential. Patents “protect” inventions from competing use that would discourage private purchase and speculation. A patent is depicted as merely excluding competing “free-rider” products rather than as excluding hundreds to thousands of compounds or methods or functional equivalents. Patenting is thought of as a single event in time, not a series of filings and continuations and continuations in part and divisionals taking place over five, ten years, plus multiple additional patent applications on variations and applications. And the activity of patenting to protect inventions and discoveries is put forward as if only a single organization with a single discovery at the start of time is involved. Nothing has come before. Nothing is happening elsewhere in the present. Nothing but unfair competitors to be excluded in the future. It’s a fantasy world drawn for policy-makers who have no conception of practice or who are willing to have their thinking purchased by vested interests.
Look at the depictions of the “technology transfer process” at most any university licensing office web site. They show just this stick drawing fantasy. They imagine that by a uniform administrative process they can create an engine of innovation that through owning, patenting, and exclusive licensing will create beneficial new products that otherwise would never be developed.
Here. Look. Boise State:
An idea ends up as a royalty, not as, say, multiple products beneficial to the public, available on reasonable terms, or as standards, or as research tools, or as methods that enhance professional practice or help a farmer improve the soil. According to BSU:
The technology transfer process moves innovations from the lab to the commercial marketplace for the benefit of faculty, Boise State University, industry and society.
“Ideas” are not “innovations.” Innovations are things that others have adopted, not ones that someone imagines might be adopted. “Commercial marketplace” is bureaucratic hand-waving–it could mean “products being sold”–you know, commerce, something sold at market. But it also means (in practice) transferring rights in inventions for speculative investment–a “marketplace” of for-profit speculators. Some may have a legitimate interest in developing products. But others may have an interest in exploiting an exclusive patent position relative to the rest of a given industry. And BSU is upfront about benefit–faculty and university first, then industry, then society. The end point is the generation of a royalty–any consideration for a patent license. What’s good financially for BSU is good for society.
Here the process begins at “disclosure” and ends at “revenue generation.” Faculty must report “patentable and non-patentable IP.” Basically, UNCW asserts the process involves anything that can be “commercialized.” And “commercialization” is depicted as a license to an existing firm or to a startup–an exclusive license, an exhaustion of the university’s rights in the patentable or non-patentable IP. The end point? “Revenue Generation.”
How about Wayne State:
Wayne State uses flow chart symbols to add an engineering feel, without any indication of how flow chart symbols are used. The start is “formal invention disclosure.” Then patent application and market strategy. Then variations on exclusive license. No benefit to society, no product, not even a royalty as end point. The process takes a report of discovery and reduces it to an exclusive license. The fiction in the diagram is that this process happens repeatedly and often. There’s no evidence put forward that this is true, and in the general case it appears that the process operates about 1 time in 1,000 to the point of a beneficial product available generally to the public for a reasonable length of time–not just a Chuck Yeager glimpse of space but making at least a few full orbits.
Here’s the Centers for Disease Control:
Even the government depicts the technology transfer process as one starting with invention, moving through “protection” and ending up with “financial return.” Sweet–no product necessary–move from patent to license to money.
We cannot leave out Canada. Here’s the University of Guelph:
Guelph takes a broad view–we have a “pre-disclosure” step. Lots of work then to assess, protect, market, and negotiate, leading to “post-license diligence” and “Revenue,” marked with a big dollar sign so we cannot forget just what revenue means.
Here’s LSU (choice of purple and yellow, no doubt to build team spirit):
Same sort of deal–lots of structure to the machine that takes discoveries and produces a license. Development and Commercialization are later, just happen. The process ends with the license. Note there’s not even a step in which the ownership of the discovery moves from its discoverers to the university. This version of the process must be in the public interest because there’s no mention of revenue.
Here’s a Bay Area law firm that counts the State of California among its clients:
Invention to “IP Protection” to “Monetizing Invention.” A patent is used to monetize an invention–generate money from an exclusive position. A clear, blunt depiction. No actual beneficial product available to the public on reasonable terms needed. Exclude, make money, repeat. A financial perpetual motion machine, with money from monetizing fueling more inventions.
In all of these depictions, despite the defects I have pointed out, there’s a single idea or invention or discovery. It gets “protected” by a patent or something behaving like a patent. Then there is “marketing” and “licensing”–an exclusive license implied. Then money. These diagrams make general claims then. That the process takes place without a context of research or sponsor purposes, without activity in industry, without a consideration of standards or interoperability or collaboration, without multiple pieces of invention taking place across multiple organizations. Discoveries and whatnot are depicted as singular things, and patents are made to appear to protect these singular things when in practice patents claim multiple–sometimes many multiple–things, and there are multiple patents, and the patenting activity is spread over time–if there is ever a license, the patenting activity may continue for years following the license. The university acts as the patenting agent, then, for an exclusive licensee–often on a cash reimbursement basis, meaning that the university charges nothing for its administration of the patenting process. In effect, the university subsidizes patent administration in the hope of future monetization.
More than all this, these diagrams make the claim that this process operates repeatedly, that this is the process and there is no other processes that might be at work, that would work were they not suppressed. Of course, other processes might have different end points than “license” or “revenue.” For instance, if a university declined to patent an invention and it was made broadly available, resulting in products available to the public (think: internet, polio vaccine, reprap 3d printers), then the university would not count a patent as meaningful, nor a license as necessary (since no ownership position with which to entice or threaten anyone), nor money from a license. None of these “metrics” of the “process” would be meaningful because the discovery moved from lab to use without any assertion of “protection” or “exclusivity” as necessary.
These diagrams are self-flattery at best. At worst, they represent a damaging, corrupting lie. But, oddly, no one bothers to contest them. It is as if technology transfer artists are fishermen, policy-makers and faculty are bass, and anything that looks shiny is to them food. Too easy.
The practice reality is different. It is not necessarily more complicated. It just does not form such an easy political bluff in which inventions are turned into money for the good of society. Research conducted in projects represented to be in the public interest, compelled to be passed through institutions asserting ownership and filing patent applications, dedicated to finding a single favorite company for each patent, with a goal of monetizing the invention, without regard to context or any actual public beneficial use of any invention, and without acknowledging that the “process” depicted operates perhaps 1 in 5 times to the point of “licensing” and 1 in 200 times to any product at all, and 1 in 1,000 times to sufficient revenue to feed back into more research–and even then, universities often don’t necessarily feed the revenue back into more research but rather allocate much of it to administrative expenses and construction projects.
Reasoning about university research enterprise policy starts with abandoning fantasy depictions of a technology transfer process as one’s cognitive anchor. It is not even about comparing the relative merits of different such diagrams. They all have to go. Simple as that. Be free. The world is a big place full of mystery beyond the ken of university administrators involved in discovery management. That mystery can be reduced to fantasy processes–people can be forced to make the process appear to be productive–and policy-makers can be duped into making what they believe are improvements to fantasy processes that fail in practice but are depicted as successful so that those processes will be even more “successful” and finally “unleash American innovation,” as NIST would have it.
People tell me–“we agree, the present model isn’t really working, but until there’s something better to replace it with, we have to keep using it.” That’s nonsense, of course, and even impossible, but one can see how someone lacking any actual sense of practice might retreat to such a position. Plantation system slavery is horrible, but until someone comes up with something we recognize as better, we have to use it and will do what we can to improve it so that to replace it with something better will be all the more difficult. And university research enterprise policy is much more attuned to plantation system methods than one might think. The analogy is apt.
The big problem is that people who insist on waiting for something better generally cannot recognize anything that’s better unless it is an improvement on the existing system. Rename the organization so it includes “venture” or “partnerships” or “commercialization” or “entrepreneur.” Reorganize. Put the licensing operation outside the university. Put it back into the university. Add more money for patenting. Add people with “industry experience”–meaning, apparently, people who aren’t making it any more in industry. Tighten up university ownership demands. Loosen up university accountability. Add novel programs for “express licensing” that doesn’t allow negotiation because, well, negotiation takes time. Add a startup program because, well, no one is licensing inventions otherwise, so self-dealing can be made to appear to be economic development and fool a different set of policy makers into providing more funding for, um, entrepreneurship. All such stuff aims to improve on the plantation system already in place. Makes the same fantasy assumptions about inventions, patents, licensing, and “commercialization” leading to money.
University administrators often include in their policies a gesture to public benefit that don’t so often show up in their diagrams of the process. But on the back side, I am repeatedly told that the only metric that matters is the money. I worked that life for 18 years. My first job in technology transfer was expressly premised on my ability to earn 8x my salary or I could kiss my position goodbye in three years. That’s the situation faced by many university licensing professionals–it doesn’t help them do their jobs, suppresses public spiritedness (other than when one can do well by doing good), and in the end also suppresses the opportunities for people to benefit from research findings.
The alternatives? Let’s choose just one to start: nothing, nothing, nothing at all. Nothing at all is a way better institutional approach than the current plantation system. And there’s no one in the country (as far as I know) that is willing to do away with a university’s compulsory ownership policies and authorization to grant exclusive licenses. The addiction is deep set, withdrawal so fearsome. No one has the will or the courage or the insight to do away with the plantation system–but for the blessed University of Waterloo. Even Wisconsin, that bastion of research freedom, finally succumbed to the fantasy rhetoric.
Nothing, however, means a great deal. No policy on ownership means that a university does not own unless it agrees to receive ownership and whoever does own desires the university to accept ownership. One might have a policy that prevents university officials from abusing their authority, but those policies are already in place–they just have to be enforced. No policy means that individuals are open to opportunity and are responsible for what they do. No policy means much greater diversity of response to opportunity. No policy means that people act from their own character rather than from a pre-conceived idea of process administered by administrators. No policy is tremendously liberating. But who these days wants liberty? Certainly not AUTM, not a majority of university licensing professionals, and perhaps not even a significant slice of university faculty. Instead, they want some form of “monstrous hybrid” between an institutional socialism (own everything for the greater good) and capitalism (to sell each owned thing off to a favorite capital speculator). Nothing, historically, was much better than that. Nothing is still much better. But it is clear we don’t live in an era in which those who could alter university policy have any desire for nothing, for the unknown of unanticipated discovery, for those involved working out for themselves, among themselves, what they will do.
There are other approaches. We will get to those. But nothing–that’s a kind of law-lessness that is suited only to a society that has confidence in the character of those that would discover new things for the benefit of society. That was Vannever Bush’s vision for patent policy at his proposed National Research Foundation. He did not get that foundation, and perhaps one reason why is that those forming federal policy did not share his confidence in the character of those who would undertake research to advance the frontiers of science. Perhaps that’s our fundamental dilemma: policy-makers believe that the people involved in scientific and medical research lack the character and judgment to make sound decisions with regard to the most important aspects of their work. That, then, is the starting point from which we have to work, if we are to propose anything that’s better than nothing. The current dominant system is, by contrast, worse than nothing, being a matter of organizational fantasy.