Compel them to come in

Posted on April 28, 2016 by Gerald Barnett

The Christian religion became political when Constantine decriminalized Christianity (313) and Theodorus later made it the state religion (380). At that point, the ad hoc development of beliefs and founding texts became a matter of official business–the norming myths required administration, and thus, the “catholic” approach developed. Its first order of business was sorting out “true” Christian beliefs from all the rest–what came to be known as the “heresies.” By 385, the government was handing out death sentences to folks who refused to accept the state-approved version of Christianity. Fun stuff in the battle for souls and more importantly, for proper, authority-respecting citizens. As with other important norming behaviors, such as the 15-year run of Wikipedia, most of the Christian norming got done early on. The canonical texts of the Bible, by the year 400, for instance.

The problem of heresies persisted, however. Augustine of Hippo was one of the leading intellectuals of the newly politicized church. His book On Christian Doctrine concerns how to interpret sacred texts in order to reach the understandings that were being put forward as “true.” Augustine argued that a text might have four levels of meaning–the literal (what the words say), the allegorical (the “New Testament” meaning), the tropological (the meaning in the context of moral truth), and the anagogical (the relationship to world history viewed as time before Christ and time after Christ and the end of the secular world as we know it). Creating levels of meaning helped Augustine deal with questions from outer suburbia, such as if there’s human sacrifice in the Bible (for instance, Abraham and Isaac (nearly), and the sad story of Jephthath and his daughter, Judges 11.30-39), why isn’t it still okay now? Well, there are “levels” of interpretation and some things are not meant to be taken “literally”–but others apparently are (for instance, the six days of creation; Moses makes the sun stand still so Israelites can finish their slaughter of Amorites; Hezekiah sees the sun move backwards, etc). The point is that after the norming myths have been officially created, the interpretation of the world is a matter of mapping observation (and evidence, and whatever a text says) into the official norms rather than in challenging those norms with anything new (innovation–introduced change to an established order, to established norming myths) or outlandish or just plain wrong.

In this context, Augustine works through the problem of what to do with non-believers, the folks who just won’t accept the official norms of the Church (and the government), and therefore create disunity, might lead others into error, are in danger of losing their souls and suffering eternal punishment, and generally thumb their noses at authority. Continue reading →

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Dealing with Norming Myths

Posted on April 27, 2016 by Gerald Barnett

There’s a new study out at Future Internet that looks at how Wikipedia’s norms have developed over the years. In “The Evolution of Wikipedia’s Norm Network,” Bradi Heaberlin and Simon DeDeo examine Wikipedia’s form of governance and find it to be “highly conservative”–pages involving norms were created early in the life of Wikipedia. As they put it, “Policy growth precedes population growth.” The organization of work fell into “five central clusters” of interest (and influence): Article Quality, Collaboration, Administrators, Formatting, and Content Policy. These neighborhoods over time developed separate norms and patterns of control. Looking at Wikipedia policy pages, Heaberlin and DeDeo find that “all of these core norms were created early in the system’s history….The earliest members of the community first defined and articulated its core norms.” The authors ask, “Why are there no normative revolutions on Wikipedia?” They sketch then a provisional answer (my emphasis):

Recent work [60] has suggested that early users later form an oligarchy that monopolizes power, subverts democratic control, and comes into increasing conflict with the larger collective. If this is true, the enduring centrality of their own interests in the norm network may be a source of power.

…

Much of Wikipedia’s network simply coordinates technical practices, such as article naming conventions. The most important norms, however, attempt to rationalize the system around universal concepts, such as neutrality, verifiability, consensus, and civility. An important insight comes from a theory of bureaucracy and institutionalized organization developed by Meyer and Rowan (1977 [41]). They propose that norms such as these can function as institutional myths that make the system appear legitimate and less ad hoc, by connecting it to a rational framework.

A growing community then tends to prefer early statements of norms, which then become a source of power for those that have created these norms. Continue reading →

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Academic freedom, autonomy, and patrons

Posted on April 23, 2016 by Gerald Barnett

Paul Feyerabend, in the next to last essay of Farewell To Reason, responds to some of his critics, who state that they “believe in the autonomy of art, thought, and feeling over money.” Feyerabend is characteristically incisive in his reply.

So what do you mean by autonomy? Do you mean that an artist should do without money and starve, or live in a rathole? Do you mean that he or she should be fed and housed but without money being involved? On the basis of barter, for example?

…

And here and now money is of the essence. Money is not inherently bad; it is a means to an end.

…

So, our artists will use money, but he will not revere it like a God. Who will pay him? Perhaps a rich sponsor. In this case the artist may have to adapt his art to the wishes of his patron. Now when speaking of “autonomy” do you mean to say that the patron has no right to make his wishes known? Because the artist by the very fact of being an artist is above judgement by other people? That is sheer elitism. I reject it and I reject the contempt for others it implies.

The implication of Feyerabend’s argument is that the artist, in accepting money, provides something responsive to the desires of whoever has the money to provide. The artist is not autonomous in such an economy, but also has no need to place money above “art, thought, and feeling.” The artist can’t be bought out, perhaps, but also cannot be utterly independent of those who provide for the artist’s expenses. Of course, if art is so vastly independent of the mere mortals who consume it, then payment to artists might better be called a gift to the gods, to be managed on their behalf by the artist-priest. Feyerabend calls this “sheer elitism.” He doesn’t argue that elitism is “inherently bad”–he simply states that he rejects it. Continue reading →

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Was Bayh-Dole based on a misconception?

Posted on April 14, 2016 by Gerald Barnett

In an article published in 2013, Sean O’Connor argues that Bayh-Dole is the descendant of what he calls “the Biddle Report,” produced in 1947 by Assistant Attorney General John F. Sonnett (with final editing done by David Lloyd Kreeger) in an attempt to shape national policy regarding ownership of federally supported inventions. The paper makes an important contribution to the history of federal contracting, though it oddly does not mention the work of David Mowery, one of the primary academic historians of Bayh-Dole. Perhaps that is the result of law professors citing lawyers and not business professors.

O’Connor argues that the omission of an express assignment requirement in Bayh-Dole came about as the result of a “misconception” of how universities handled ownership of inventions. I will present a different line of reasoning and history and argue that Bayh-Dole’s approach–and that of the standard patent rights clauses it authorizes–is not the result of a misconception but rather of a clear understanding of where to set the limits of federal authority in contracting for inventions made at universities with federal support. I will further argue that setting up the situation as one of “misconception” creates an expectation that what remains is to inform people of the proper practice and implement that practice, sweeping away previous approaches as if they were merely erroneous. Continue reading →

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NASA Turns Bayh-Dole Into a Vesting Statute

Posted on April 10, 2016 by Gerald Barnett

The US Supreme Court in Stanford v Roche ruled that Bayh-Dole was not a “vesting statute”–the law did not place ownership of patentable inventions made with federal support with the universities that hosted the research:

Stanford contends that reading the Bayh-Dole Act as not vesting title to federally funded inventions in federal contractors “fundamentally undermin[es]” the Act’s framework and severely threatens its continued “successful application.” Brief for Petitioner 45. We do not agree. As just noted, universities typically enter into agreements with their employees requiring the assignment to the university of rights in inventions. With an effective assignment, those inventions—if federally funded—become “subject inventions” under the Act, and the statute as a practical matter works pretty much the way Stanford says it should. The only significant difference is that it does so without violence to the basic principle of patent law that inventors own their inventions.

NASA, as of a year ago, has reversed the Supreme Court decision by requiring each university receiving NASA funds to require a present assignment from potential inventors to the university of future rights in federally supported inventions. The effect is to create a standard patent rights clause for NASA contracts that vests ownership outright in the universities. In essence, NASA has done what the Supreme Court ruled that Bayh-Dole did not do. What is NASA’s statutory authority to make this requirement? Clearly, it’s not Bayh-Dole and it’s not the Department of Commerce’s mandate to create standard patent rights clauses. It’s not something in the implementing regulations that permits modifications of the standard patent rights clause. And if it’s from some other bit of law, then what? And is that bit of law pre-empted by Bayh-Dole’s precedence clause (35 USC 210)?

Consider NASA’s implementation of Bayh-Dole, as of April 2015. Continue reading →

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The path from Bayh-Dole to inventors

Posted on April 10, 2016 by Gerald Barnett

Bayh-Dole is a law of federal contracting for inventions. Let’s work through it, again.

1) Bayh-Dole applies to federal agencies, not to universities.

When university administrators say that “Bayh-Dole requires universities to commercialize inventions made with federal funding,” they are twice wrong. First, because Bayh-Dole does not apply to universities, and second, because even if Bayh-Dole did apply to universities, it doesn’t require anyone to commercialize anything. The standard is practical application, with benefits available to the public on reasonable terms. Not commercialization.

2) Bayh-Dole requires federal agencies to adopt uniform practices in contracting for patent rights in inventions made with federal support. That is, federal agencies do not have much flexibility in how they obtain an interest in inventions made with federal support.

3) There are five distinct steps from Congressional intent to university practice. It is essential to understand each of these steps.  Continue reading →

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The Mindset That Promotes Servile Relationships

Posted on April 7, 2016 by Gerald Barnett

In my last article, I cited claims from an article that insists that faculty are employees, employees have a duty of fidelity to their employers, fidelity sounds like fiduciary, so faculty have a fiduciary duty to their universities and therefore cannot do anything that would compete with their universities. Since universities are in the business of selling whatever it is that faculty make, doing anything other than assigning their work to their universities is a breach of their fiduciary duties. Done.

Really, this is the shape of the argument. Actually, it’s not much of an argument. It’s more a string of assertions. What is fascinating is that it reflects a mindset. In this mindset, there is no indication of any effort to worry these assertions. Assertions are presented as simple truths, as the way things are and entirely consistent with the way things ought to be. Masters control all things servile. Anyone employed is servile. Ergo, faculty are servile, and should be servile, and the world is good when they are servile. Woot.

The basic strategy is to classify faculty as employees, and then make assertions about employees, and then apply those assertions to faculty. In this way, one effaces the idea that faculty is anything other than a name for some employees at a university, but has nothing to do with a difference in obligations. All employees, in this view, are the same. So faculty cannot be any different, by definition. The rest follows as a happy ride at high speed with the windows down and logic blowing around off the seats and onto the shoulders of the road.  Continue reading →

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Look, It's a Thrush!

Posted on April 6, 2016 by Gerald Barnett

One of the biggest problems in dealing with university technology transfer is the propensity for people to reason from the names given to things, rather than what the things are. In biology, a truism is that one cannot reason from the species to the individual. A sus scrofa domesticus may be a pig, and pigs have four legs, but here’s a pig with only three legs. You can’t get to the individual from the general without losing a bunch. Richard Feynman, in “What Is Science,” a talk he gave to science teachers in 1966, made a similar point. Just because you know the name of a bird doesn’t mean you know anything about the bird–you just are aware of a convention of language:

Regarding this business about names and words, I would tell you another story. We used to go up to the Catskill Mountains for vacations. In New York, you go the Catskill Mountains for vacations. The poor husbands had to go to work during the week, but they would come rushing out for weekends and stay with their families. On the weekends, my father would take me for walks in the woods. He often took me for walks, and we learned all about nature, and so on, in the process. But the other children, friends of mine also wanted to go, and tried to get my father to take them. He didn’t want to, because he said I was more advanced. I’m not trying to tell you how to teach, because what my father was doing was with a class of just one student; if he had a class of more than one, he was incapable of doing it.

So we went alone for our walk in the woods. But mothers were very powerful in those day’s as they are now, and they convinced the other fathers that they had to take their own sons out for walks in the woods. So all fathers took all sons out for walks in the woods one Sunday afternoon. The next day, Monday, we were playing in the fields and this boy said to me, “See that bird standing on the stump there? What’s the name of it?”

I said, “I haven’t got the slightest idea.”

He said, “It’s a brown-throated thrush. Your father doesn’t teach you much about science.”

I smiled to myself, because my father had already taught me that [the name] doesn’t tell me anything about the bird. He taught me “See that bird? It’s a brown-throated thrush, but in Germany it’s called a halsenflugel, and in Chinese they call it a chung ling and even if you know all those names for it, you still know nothing about the bird–you only know something about people; what they call that bird. Now that thrush sings, and teaches its young to fly, and flies so many miles away during the summer across the country, and nobody knows how it finds its way,” and so forth. There is a difference between the name of the thing and what goes on.

Continue reading →

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3 Reasonable Approaches to University IP Policy

Posted on April 6, 2016 by Gerald Barnett

There are three relatively well-formed ways that a university might acquire rights to inventions made by faculty. Let’s review, starting with the clearest and simplest.

  1. Donation

An inventor donates an invention to the university and the university agrees to accept it. There may be stipulations on the donation–that the university will file a patent, or that the invention will be licensed broadly on a non-exclusive basis. The donor may get a big tax write-off that’s worth real money, and separate from the cost and risk of deploying the patent rights that are donated.

Note–when a university demands assignment, it denies faculty inventors the financial benefit of tax deductions for donating their inventions to the university. Furthermore, it prevents an assessment of the value of the invention at the time of acquisition, which would at least make transparent the nature of the acquisition and the reasoning behind it. There would have to be a finding of value (not merely on principle–ahem–“inventions are always valuable”, not sentimental (“our inventions are valuable because they are ours”); there would have to be a finding of public purpose, not merely “more grist to try to make money with by running a betting pool for mostly second class speculators.” Continue reading →

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The Casino Factor

Posted on April 5, 2016 by Gerald Barnett

We have been working through how a university might come to acquire patent rights from its faculty. I’ve discussed the problems in the dual monopoly system–comprehensive, compulsory assignment of a broad set of things labeled “inventions” combined with a strong preference for exclusive licensing of those inventions, and a virtual refusal to consider non-exclusive licensing as an early, primary objective (except when a research sponsor demands it) or to waive ownership claims or to assign back claimed inventions that the university has done nothing with. Still, this system persists, and is described as a really good thing. I resist the various similarities to plantation economics.

One thing that’s apparent in the various claims made for why a faculty inventor must assign inventions to his or her host university is that the folks making the claims think such assignments are a very good thing. There is no worrying that such assignments–

  • are an improper use of university authority
  • conflict with academic freedom
  • put the university in an unacceptable institutional conflict of interest
  • undermine public support for universities (they have patents worth millions and millions!)
  • put universities in an adversarial relationship with industry
  • work against innovation, entrepreneurship, and economic vitality
  • adopt much of the model the federal government was criticized for in the run-up to Bayh-Dole.
  • condition faculty to leave “commercialization” to others
  • mix really good stuff with many things unsuited to the approach
  • prevent faculty inventors from showing by their own choice their commitment to benefit their university with their inventive work
  • degrade the surrounding infrastructure for invention management in the private sector
  • add needless administrative delays and complications to efforts by others to obtain, learn how to use, and deploy research findings
  • reduce the diversity of approaches available to be used to encourage transfer of technology.

None of this gets worried by senior administrators, at least not aloud, not in any writings that I can find. Continue reading →

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