A university patent policy designed to promote effective technology transfer will have these key provisions:
Voluntary participation
Default institutional non-exclusive FRAND offer
These are key elements. FRAND is “fair, reasonable, and non-discriminatory.” We will work through the reasons why these are key provisions for policy. But first, let’s be clear. We are talking university policy for effective technology transfer.
We are not talking about university administrators trying to make a lot of money from patents. The current approach to licensing is no better at making money than other approaches, and in many cases is much, much worse despite all the glossy licensing office reports. The present approach involves a gambling ethos–speculate often and get lucky once a decade. Or, “high risk, high return.” Or, winners pay for losers. Or, this stuff is all “early stage.” All the same fluff talk. It’s just that the patent speculation involves (i) trading on people’s career research; (ii) dealing mostly with other speculators and gamblers; (iii) excluding almost everyone else, from the general public to researchers to small companies to entrepreneurs to big companies that don’t see the point of a university or federal agency demanding an investment in trying to develop a commercial product as a precondition of access or use. Other approaches have made money just as readily, if money is the thing. Other approaches, too, have made better money–money from better sources, for better uses, with better relationships. We can go down this road and explore what “better” means–so long as we don’t end up with what bureaucrats think of as “better.” Institutional pie in the sky is often shit pie, but to bureaucrats it sure looks like chocolate cream shimmering up there.
The dominant present approach–compulsory institutional ownership and default exclusive patent licensing–is much worse for technology transfer than even the past approach it has displaced. That past approach preferred open access and non-exclusive licensing as defaults. And the present approach is much worse at making money routinely to support technology transfer, if money is your thing. For the most part, the present approach sucks money. When money comes in, the present approach tends to be parasitic rather than catalytic, and tends to be lucky rather than procedural. If the institutional roles for effective technology transfer are to be a catalyst and to improve everyone’s luck, then policy needs to consider these two roles without the handwaving platitudes and useless demands to own inventions and control licensing without accountability and starting with exclusive licensing.
We are not talking about trying to make federal policy look good. It just doesn’t matter if someone asserts that the true secret purpose of the Bayh-Dole Act was to promote exclusive licensing for “commercial development.” Even if that were true–it isn’t, sigh–there’s no purpose served by universities trying to salvage that federal policy by repeating the assertion as their own. Their business is not to sell out their operating fundamentals to make a badly conceived, badly drafted, badly implemented federal policy look good. Their business is to follow their own lights, not to hitch themselves to a vision of patents imagined by federal bureaucrats and patent attorneys.
We are not talking about having university research serve the purpose of supporting patent licensing efforts or making university patent licensing offices look good. University research does not get better or more creative or more productive or more innovative because institutions take ownership of and patent results. And more productive research does not benefit from a more controlling, more process-controlled approach to technology transfer. There are procedures one can use, and it helps to know how to use them. It does not help at all to bake them into policy as defaults, and it does not help at all to ignore them in policy when their use runs against technology transfer.
And frankly, there have been problems with federally supported research at universities almost from the start in the 1950s and 1960s–with claims that this research was not as productive as it might be, that it needed help, and that help involved federal support for technology transfer. But if we want to wonder about research, we might start by asking whether federally supported research–peer-committee reviewed grant proposals, one in ten awarded, one to three year support, virtually no oversight, disconnected from both curiosity and practice–is really all that good a thing. If the purpose of technology transfer is to make a poorly conceived approach to federal involvement in university research look good, then again improving even technology transfer covers over the issues rather than bringing them to light in a useful way. We are not aiming to help technology transfer so that the federal-university approach to grant funding looks good and retains public support. We won’t solve the federal research support problem here. Instead, our aim is to survive and thrive in spite of bureaucratic visions of what research should look like, what results should matter, and how those results ought to be exploited by others, especially others working for other bureaucracies. Survive and thrive. Move outside of the bureaucratic radar–or rather, create a bureaucratic radar that self-limits and focuses on useful roles it may yet serve.
Finally, we are not talking about propping up university licensing offices or backing their assertions about their importance, about how the “technology transfer” process “works,” or what they take to be the metrics of their “success.” If in effective technology transfer, universities don’t make a lick of money to support random administration or even random unspecified “research” needs, that’s fine. We are dealing instead with how new technology comes into being, moves into and out of practice groups, and finds its way to practice groups that do useful things with it, where “useful things” does not mean, predominantly, to make money speculating on the value of excluding others and so attracting primarily those who think that sort of value is a really keen thing–just the extra added little bit necessary to turn their attention to university research as a domain for speculation rather than other things that they normally would be at to make money with their money.
Effective university technology transfer may use patents or venture capital or open access or commons or standards formation. The point in working through all this is to show the relationships among the various parts. If one defaults to exclusive patent licensing, even for a moment, then a huge set of ugly things kick in that some folks want to ignore–creating background rights/double licensing problems, destroying collaboration opportunities, abrogating freedom of research and publication, cheating on federal regulations, ginning up conflicts of interest and mind-numbing useless management plans.