Incommensurate Innovation Mindsets

Posted on January 25, 2014 by Gerald Barnett

Alasdair McIntyre in After Virtue presents two contrasting arguments. Shortened up and re-cast slightly, they are:

(a) Justice demands that every citizen should enjoy equal opportunity to develop his or her talents. But that requires equal access to health care and education. That means no citizen should be able to buy an unfair share of those services, as might be offered on an open market. Thus, government should provide medical and educational services, and private providers should be abolished as unjust.

(b) Everyone has a right to incur only those obligations he or she desires. Doctors must be free to practice as they wish, and patients must be free to choose their health care. Teachers, likewise, must be free to teach as they choose; students, free to choose how they will learn. Freedom requires the abolition of restraints on private decisions imposed by licensing and regulation, whether by universities, trade associations, or government.

McIntyre observes that the first argument is based in equality, while the second is based on liberty. His point is that the two arguments are incommensurate–they talk past each other. The vocabulary for discussing “ought” has come unhinged, what McIntyre calls a symptom of “moral disorder.” Continue reading →

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To be the lighthouse, not the reef

Posted on January 15, 2014 by Gerald Barnett

Judging from the tone of Chris Gallagher’s reporting on S. 1720 and S. 1310, the anti-troll bills working their way through the US Senate, university administrators are not paying much attention to the consequences. If these bills are combined and harmonized with HR 3309, then universities can expect in future patent infringement litigation:

  • Substantially more complex pleadings, which will run up the costs;
  • Being identified by licensees as “interested parties”;
  • Potentially being liable for the defendant’s costs, if the defendant prevails.

The patent is not a perfect instrument. Continue reading →

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The basic researcher as poet-maker

Posted on January 5, 2014 by Gerald Barnett

In 1953, the NSF in its third annual report publishes a discussion of basic research. In its opening paragraph, the NSF associates scientific creativity with that of “poet or painter”:

A worker in basic scientific research is motivated by a driving curiosity about the unknown. When his explorations yield new knowledge, he experiences the satisfaction of those who first attain the summit of a mountain or the upper reaches of a river flowing through unmapped territory. Discovery of truth and understanding of nature are his objec- tives. His professional standing among his fellows depends upon the originality and soundness of his work. Creativeness in science is of a cloth with that of the poet or painter.

S.K. Heninger, in Touches of Sweet Harmony, argues that Sir Philip Sidney, with his Defense of poesie in 1595, moves beyond the idea of poet as versifier or feigner and introduces the idea that the poet “makes”or “invents” new concepts, new social forms, somethings out of nothing: “One may be a Poet without versifying, and a versifier without Poetrie” (Heninger, citing Sidney, 290). Continue reading →

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Ten Reasons Why Deans and Provosts Should Support Freedom to Innovate

Posted on December 22, 2013 by Gerald Barnett

Freedom to innovate policies limit the manner in which universities and other non-profit organizations claim ownership of intellectual property developed in the research and instructional programs they host. These limitations, far from being adverse to institutional interests, promote a creative, engaged, and personally responsible research enterprise. Here are ten arguments for senior university administrators to advocate for freedom to innovate. Continue reading →

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Adam Smith’s Innovation by Division of Labor

Posted on December 16, 2013 by Gerald Barnett

Daniel Kahneman in Thinking, Fast and Slow describes what he calls “What You See Is All There Is”:

The combination of a coherence-seeking System 1 with a lazy System 2 implies that System 2 will endorse many intuitive beliefs, which closely reflect the impressions generated by System 1. Of course, System 2 also is capable of a more systematic and careful approach to evidence, and of following a list of boxes that must be checked before making a decision–think of buying a home, when you deliberately seek information that you don’t have. However, System 1 is expected to influence even the more careful decisions. Its input never ceases.

Here, System 1 is our “always on, jump to a conclusion, take the most available pattern” cognitive system, and System 2 is our “lazy, rule-capable, analytical” sense that works at a low level much of the time until called upon to gear up for actual work, either to support System 1’s leaping happiness or to challenge System 1 with reason, evidence, and stuff that matters, but lies outside System 1’s ken. Continue reading →

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Misunderstandings of Bayh-Dole

Posted on December 14, 2013 by Gerald Barnett

Sean O’Connor has written a well documented and argued article regarding the history of the Bayh-Dole Act and what he argues is a flaw in government reasoning regarding assignment practices for inventions that arises from a report written in 1947 called the Biddle Report. O’Connor is worth paying attention to. The Supreme Court cited his work in the AIPLA amicus brief at important points in the development of their decision in Stanford v. Roche.

O’Conner argues that, following the Biddle Report, government policy makers assumed that universities like other federal contractors routinely required assignment of inventions made by employees. This assumption then made its way into assumptions behind Bayh-Dole, and from there to university practice, and even into Supreme Court comments in Stanford v. Roche.

It may well be that this is the case, or at least a part of the case. In my twenty years of work in university technology transfer, however, no one ever mentioned the Biddle Report as an authority for IP policy or practice, nor did anyone ever suggest that Bayh-Dole was predicated on an assumption that universities took title to inventions in the corporate fashion of using a patent agreement that required assignment. Nothing of the sort. Continue reading →

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Is more and more research spending the answer?

Posted on December 12, 2013 by Gerald Barnett

Battelle is out with a new study forecasting “Global R&D Funding” for 2014.  The report covers countries and various areas of research such as biotech and energy.  The findings are rather bland–the US will spend $465 billion next year on research, with industry spending 71% of that, and universities (mostly with federal money) spending 16%.  The US spends about one third of the world’s research budget, with Asia spending two fifths and Europe spending about one fifth.  The US will spend about 2.8% of its GDP on R&D, about like previous years.  The report goes out of its way to suggest that China will outspend the US on R&D by 2022. I get the impression that this is supposed to be a problem.

In another way, however, the report is noteworthy–for what is left out and unremarked. Research and development appears to have little by way of outputs. Impact is reduced to the effect of expenditures on R&D, and the beneficial effect of that spending on the economy. That’s how the number of jobs involved is calculated. The impression the report gives is that the activity of research is way, way, way more important than the findings of research. Continue reading →

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The Woody Guthrie Public License

Posted on December 6, 2013 by Gerald Barnett

Kevin Carson wrote a book a few years ago called Organizational Theory:  A Libertarian Perspective. In it, he develops a number of concepts that ought to be central to university thinking about research and innovation. Carson picks up on Ronald Coase‘s question–if markets are supposedly so much more efficient than hierarchical planning, why do we have so many hierarchical companies and institutions? Carson then spends much of the book working through such things as the separation of knowledge and power and how authority allows one to push costs onto workers and community and secure benefits for oneself, or one’s company–meaning, company owners.

In a research setting, one might ask, why should universities, which argue for the value of open laboratories, broad exchange of information, for collaboration and public spiritedness, be suddenly transformed into agencies seeking to own and control pretty much anything that faculty and students might dream up, make, invent, or document? The claim at universities for discovery is based on market anarchy–that is, based on a disregard for commercialism, hierarchy, and authoritarian control of inquiry. At the same time, now, we are confronted by the argument that university ownership and control is altogether good when it comes to inventions and other research assets, and even necessary for the public to realize a “return” on all that “investment” of research dollars. How can one have open labs and closed control of everything meaningful? How can that control be viewed as a good when it is primarily dedicated to making money from exploiting the right to exclude others? It’s a real puzzler. One might think that it’s not so much puzzling as absurd, working at cross-purposes to university research and discovery–at cross-purposes to the fundamental role of universities in our society. Continue reading →

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It's *Not* Just a Tax, You Know

Posted on November 30, 2013 by Gerald Barnett

It’s Just a Tax

I have always wondered where the dismissive argument that non-exclusive licenses are “just a tax” came from. The expression comes up a couple of times in Sally Smith Hughes’s interviews with Niels Reimers, who ran Stanford’s patent licensing 1968 to 1996. Here is one instance. Hughes mentions a criticism of the Cohen-Boyer patent was that recombinant DNA had already been widely adopted in industry before the patent issued.  Did Reimers see that as a “stumbling block”? (My emphasis here and following).

Well, no. I typically like to be at the front end of technology transfer. That is, we approach companies and propose we work together in developing this technology. We’ll file the patent, we’ll exercise the right to exclude others, and we’ll develop it together. Well, when you do nonexclusive licensing, in a way you’re just applying a  tax. But I had no shyness about that here.

In response to Hughes citing Stanford President Donald Kennedy in a press release saying that the Cohen-Boyer licensing effort would “assist the process of technology transfer by making sure lots of players get into the game.  This increases the probability of valuable new applications for human science,” Reimers says: Continue reading →

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On making (Seeking Money = Public Service) federal research policy

Posted on November 29, 2013 by Gerald Barnett

Here is a paper from 2006 (actually, it looks like a near-final draft) by Fiona Murray on the OncoMouse licensing problem. At the time, the OncoMouse was one of the big issues for university tech transfer offices.  The paper is a great read, showing how the mouse research community, called the “Mouse Club,” organized a patenting opposition to the OncoMouse licensing effort, using patents to undermine the value of the OncoMouse patent and its outrageous licensing requirements and build an alternative social order around patenting.

There have been a string of these licensing problems, now–Harvard’s OncoMouse, WARF’s handling of stem cell inventions, and the disease assay patents licensed by Utah, Minnesota, and Cornell, to name a few.  In these licensing efforts, exclusive licenses from universities have allowed, or encouraged–or even mandated through diligence clauses–that companies attack university research and medical center services in order to generate a profit for the company and the licensing university.   Research and medical center use of university-hosted research developments is seen as infringement, not success; further, the research part is apparently seen as competitive with the host university’s own desire to corner the market on future research funding.

I hesitate to try to reconstruct the reasoning why university administrators would set up such horrendous licensing agendas–but it is clear that they can largely get away with it.  The oversight is lacking when the institution itself has created and defends its own institutional conflict of interest. “Money or public service? Aw, screw it. Go for the money. No, better, make going for the money the definition of public service–by making a lot of money, there’s more money for research, and that will result (eventually) in more products for the public, and more opportunities for us to make money. Yeah, that’s it. Money-making is public service.”  Without oversight and without a moral backbone, the university does become more “like a company”–more like, say, Enron, and less like, say, Whole Foods.   Continue reading →

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