Why I stepped away, and why I am back

I’ve been asked where I’ve been for the past year, and to brief about it, I decided to step away from writing and focus on other things, such as working with companies. I also felt that I had had enough dealing with Bayh-Dole and its rambunctious, logic and history challenged advocates, who seem to have a never-ending budget to cock up even more stupid positions, such as coming out against using the public protections built into Bayh-Dole to lower the prices charged for drugs based on federally supported inventions by introducing competition from the get-go. I’ve documented their failures sufficiently that it just gets stoopidifying to stay at it. Anyway, the step away became weeks, and weeks became months.

And months have brought a new sense of perspective, and a sense that there are still things worth writing out, and worth making an argument for (or against). And maybe that serves some purpose in the big wide world.

As it is, I’ve been writing here at Research Enterprise since 2008. Since then, I’ve posted nearly 1,800 articles, and have over 300 articles left in draft form, waiting for me to come back around to them. Over the past few years, Research Enterprise is seeing about 8,000 page views per year. It’s not even close to what a cute squirrel video would get, I know, but in the world of arcanity which is technology transfer and crude ugly things like Bayh-Dole, it’s somewhat amazing to me that there is as much continuing interest as there is. And for what I’ve been doing, I don’t see much anything else out there that doesn’t mouth the standard public narratives about university patenting and innovation (as if there is even a positive connection between the two).

That said, while I have given Bayh-Dole a careful analysis–and chased its history back into the notes of Norman Latker, Howard Bremer, and others, and considered the points of those who opposed Bayh-Dole, such as Admiral Rickover and Dr. Irene Till, and wondered about how Sen. Dole got Sen. Long to flip–what was that deal? Surely it was not so naive as Joseph Allen claims–a parting gift to Birch Bayh, who had lost his re-election bid and so would seem to be, essentially, a non-entity as far as political gifts were concerned–while I have studied these things, I don’t see that most anyone in positions of responsibility really cares about how corrupted and unworkable and remarkably and quietly ruinous Bayh-Dole is to the research, innovation, and entrepreneurial communities. Perhaps it’s just that those communities don’t much matter to those in positions of responsibility–or, at least, other things matter much more. People on posters don’t talk. As it is, Bayh-Dole is not practiced as it was put into law, the history people tell of it is largely farted out of their posterior cerebria, and the metrics they put forward to claim success are fabricated or nonsense–if not both. But meh, who cares? Even the Supreme Court decision in Stanford v Roche didn’t shake up university practice. Instead, they doubled down and became even stupider, and more demanding, and got themselves even crappier outcomes, which they turned into success stories for whomever they could snooker.

But there’s more out there worth considering. What roles might institutions play in guiding technology change? How would anyone in institutions get at these roles? Is research all that important?–at least organized “systematic” grant-funded (i.e., folks with lots of money funded) proposal-based (so you have to already sound plausible to and flatter those deciding on what to fund) research. Even if research is important, where ought it to be positioned? Perhaps it should be much closer to workfaces–like Bell Labs was, with ready access to engineers, to prototyping, to a defined purpose in a capable organization.

Vannevar Bush demonstrated as much with the combination of scientists, industry engineers, and “gadgeteers”–prototypers, all directed at problems raised in military operations–urgent problems, with lives on the line, to get it right and to work long hours to accomplish it. Maybe research is more suited to figuring out why things work once they have been discovered and less on trying to discover new things. Sure, research is also a kind of workface, and so there’s some opportunities to discover, but academic research in particular seems so often so remote from anything really interesting that it appears rather dull as a source of discovery in the form of the slow hunch or the serendipitous realization and the like.

And what is the effect of patenting “early” things or “outside the industry” things on the stuff that is called “the art.” There was a time when “the art” was expected to do its own innovation, following “obvious” lines of development, and patents were seen as having a purpose beyond this art and its developments, not as a way to disrupt or block or tax “the art.” When Edison started patenting moving pictures, the moving picture developers of “the art” moved from New York to L.A., apparently to be as far away from Edison as possible. Perhaps patenting early in the development of something new gets in the way, and delays it, or ruins it. Such was the case with early airplane work. The government had to step in and threaten to force cross-licensing if the nascent industry would not do it on its own. Too bad the government didn’t do that with nanotechnology in the 1990s, and instead pounded its chest over how many patents had been issued for inventions made in federal projects, too dull to notice how those patents fragmented the emerging “art” so that no one could practice without getting licenses to a score or more patents–and since universities were addicted to the idea of granting exclusive licenses or none and putting poison pills in their exclusive license agreements when on rare occasions they actually did find a way to grant a license to create disincentives for their licensees to grant non-exclusive licenses or cross license or contribute to a developing standard, well, things just stagnated. But, hey, patent success!

So perhaps the role for patents early on is to document progress but not restrict making, using, and even selling. A kind of discovery commons. We should consider that. Maybe there’s a role for the patent that excludes, to help out the little guy in dealing with the bigs. That history is largely one of buying out the little guys and creating patent pools that back monopoly positions. Maybe monopolies can be a good thing, perhaps for a time, perhaps if the folks behind them make sense. Then again, as one quip I read recently had it, once something is regulated, the easiest folk to compromise are the regulators. Then again, maybe competition theory has its own limitations. Just because people compete doesn’t mean things get better. That race to the bottom might exhaust not only a line of technology development but also our willingness to put up with unreliable products and poor service. Maybe we should be thinking about these things not as an academic exercise but as a way of challenging backing narratives that keep us from doing important new things we really ought to be doing and not making a bureaucratic hash of it (or even an academic hash, or ideological hash, or a technological bungling, or just your ordinary, everyday bunglings).

In working with hundreds of folk who have discovered, invented, developed, collected, and composed stuff, I’ve found that things grow best when there’s a project–some sort of shared work effort, with multiple people willingly involved and committed. Solo folks can do well, too, with their work, but it seems to me to be much more difficult. Much of the management thinking doesn’t get out in the open, so it’s difficult to become involved. And folks embedded in giant organizations require special help to keep their work clear of giant organization thinking, otherwise there’s a lot of Sheriff John Brown thinking–kill it before it grows.

So projects–a sort of social discipline, an informal but remarkably stable social way of doing things. And the special characteristic of projects that seems to matter most is that those leading the project look out for the others involved, and the others know it. I don’t know any university with an IP policy that even mentions the value of looking out for others in your work group to encourage a reciprocity that keeps all of you together in times of difficulty as well as the even more horrific times of plenty and fame.

Another important characteristic of projects is their capacity to form relationships. For some reason, work groups connecting to other work groups has a different dynamic than personal connections, and also a different dynamic than formal organizational connections, which involve big important worrying issues of institutional reputation, risk management for “deep pockets,” and proper and prudent contracting, reviewed and approved by layers of attorneys working to preserve the institution from danger rather than aiming to grow a unique opportunity. No use risking what you’ve got so that someone else can prosper, and no use helping someone else prosper when you think that if you just take over the opportunity you can make it prosper even more and have more return to the glory of the organization for having taken control. Isn’t that a key backing narrative of most university technology transfer? “We can be more effective at being greedy than you poor lame researchers can, so leave it to us, and we’ll share back a paltry bit with you while you do all the heavy lifting, if we ever get any profit to share, which we may not and don’t say we have to.” Sounds a lot like Thorin’s deal. Compromised dwarf thinking at its best. Essentially universities have implemented a “we are not rainmakers” policy–nothing good should grow in the conditions we preside over without us harvesting those things for ourselves as soon as possible and trying to grow them institutionally. Moloch feasting to follow.

How then does one help projects form relationships–who would benefit from the connection? How to increase a project’s capacity to form relationships, if more relationships at a time might matter. In some of our projects we found that getting from one outside relationship to even just five made a huge difference. And if one scaled from five to twenty-five, that was huge. Then other work groups connected with the project to see what the others were doing, and getting. Once it scaled further, people knew what was going on and just wanted to get theirs. Put in $5K a year and get access with help to work product that cost $150K or more to produce. Seems like a very good return on a very light contribution–subscription, membership, site license with option to redistribute or sell–call it what you want.

We might consider then how to grow projects rather than continue to try to attract sharing monopolists who agree to make products after huge amounts of isolated development from one’s tiny bit of confiscated and institutionalized IP. A project is a sort of “going concern”–people working together, with a set of working relationships with others interested in the project’s directions and work products. As such, a project is a keen sort of intangible asset–a non-IP intangible asset, or NIPIA. Universities don’t usually have a NIPIA policy. Perhaps that’s a good thing, although it is also something of a huge defect. And most university folk I know, if they thought they needed a NIPIA policy, would try to add it to their IP policy by stating that for the purpose of their IP policy, it includes all non-IP as well. In fact, that’s what a number of universities have done with the definition of invention in their policies, showing a deep willingness to be, well, just too stoopid for words. Invention gets defined to include non-inventions. That ought to cover all cases, yes? More Moloch feasting to follow. But if a university considered the value of intangible assets and not merely patents that can be used to shake down an industry or attract a happy monopolist, then maybe NIPIA would mean more than IP–consider the value of visibility, of relationships, of working knowledge shared with others, the creation of a critical mass of users, ease of obtaining feedback or suggestions or help. Think of goodwill. None of that is captured well if at all by patents and copyrights (though let’s talk trademarks in research sometime).

Maybe new things need, often, to run through a commons stage before (if ever) things get proprietary. Perhaps commons allows development of an “art.” Perhaps that art becomes the intangible asset that attracts talent and investment and willingness to adopt. Perhaps that’s the story with airplanes, with the digital computer, with the internet. Perhaps a commons could modulate into a set of standards, interoperable connection points, and lots of different products. Maybe that’s a more efficient way to develop new technology much of the time–most of the time–than the patent monopolist idea. Maybe this project to  commons to standards NIPIA development is way more suited to university involvement than the patent monopolist scheme (especially since the patent monopolist scheme barely works at all, and even when it does, it often seems to exploit more than benefit the public.

I write all this to point out just a few of the topics that it seems to me are worth exploring to change research technology enterprise practice, improve that practice, or even to get institutions out of unhelpful intervening disruptive practices that get in the way of the movement of ideas, technology, data, expertise–to support change that’s good enough to like, and want to see succeed, whoever “we” ends up being in the great scheme of things. I just feel–it is an intuition–that I’m part of the “we” that roots for more (or mostly other) than the usual university targets for their plans–patent monopolists and the people they hope to sell out to or to shake down.

Maybe I can find ways to develop these experiences drawn from my IP and NIPIA practice, and perhaps some of you will find that helpful. Let’s see.