The March-In That Ain’t

Posted on October 10, 2012 by Gerald Barnett

I came across an interesting commentary by John Conley on the NIH’s refusal to exercise march-in rights under Bayh-Dole. The post is from January 2011 and has to do with the problems Genzyme has had producing an enzyme that helps patients with Fabry disease, which is caused by a genetic mutation that creates an enzyme deficiency. Genzyme has an exclusive license under NYU patents. Some Fabry patients appealed to the NIH to march-in and grant licenses to other manufacturers to produce the enzyme, but NIH has refused, making it appear that the agency as a matter of policy simply won’t ever march in.

By creating the march-in right, Congress expressed concern about the dark side of granting proprietary rights in publicly-funded technology. Does the NIH’s track record amount to a rejection of that concern?

Check out the insightful comment to Conley’s discussion by Robert Cook-Deegan, as well. Perhaps, as another commenter notes, the NIH is simply afraid of disrupting university exclusive licensing by marching in.   Continue reading →

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Research Shanzhai

Posted on October 9, 2012 by Gerald Barnett

In the Teece formulation, innovation represents a competition among first movers, imitators, and infrastructure.  Each aims for a share of the value of something new and worthwhile.  Patents might be thought to aid the inventor, giving him or her a chance to be first mover.  But most patents are immediately assigned by employees to employers, putting most inventions in the hands of established players, who may use those same patents to prevent others from practicing, or in a variation cross-licensing so that only patent holders can practice, making the practice and craft communities dependent on products that are purchased rather than goods and services that are made in the moment, when desired.  Infrastructure also aims to take its share through supply of raw materials and parts, regulation, standards, and existing IP positions.  The thumbs in the pie may become so plentiful that the pie is mostly all thumbs before anyone tries to add a filling of something new.

If by patent reform people mean re-arranging the thumbs in the pie somewhat, then one can see how others might call for getting rid of the pie altogether.  But the problem isn’t the pie–it’s the thumbs!   Getting rid of patents is like getting rid of the pie pan.  The thumbs will still be there, with all the filling.  Infrastructure, in particular, is voracious.  If one redirects inventions and their patents from big existing companies to startups, then the investors rig for selling the startups right back to the big existing companies.  Lots of efforts in innovation are really there to save the operating status of the status quo–(i) incremental improvements to force new purchases of the same products; (ii) mitigation of badnesses created by the status quo’s preferred operations–so, yes, clean up the pollution and solve the problem of laid off workers; and (iii) efficiencies of all sorts, especially ones in which software or robots replace humans–labor-saving devices.

Even varieties of “green” initiatives serve this purpose.   Continue reading →

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Extending Affiliates Programs

Posted on October 8, 2012 by Gerald Barnett

“Affiliates programs” are generally donation-based financial support programs for university departments and schools.  In exchange for a membership fee, an affiliate program participant gets various premiums–invitations to research reviews, open houses, and job fairs; access to university labs and faculty investigators; visibility in program materials.   Most affiliates programs are in engineering, as that is where they started and largely have stayed.  Frederick Terman at Stanford appears to be the creator of affiliates programs–another of his amazing run of innovations in research enterprise.   Here is a great account of the history of these programs at Stanford by Carolyn Tajnai.

The primary purpose from the university side is to get companies engaged with university work, for the good of both companies and university research and instruction.  A secondary purpose, always lurking, is to get more money from industry.  From the perspective of companies, interest in affiliates programs ranges.  One of the most insightful comments I heard regarding them, from a big company’s university liaison,  was that affiliates programs were most interesting when a company is hiring, and much less so otherwise.   One might think, then, that the opportunities for affiliates programs is best in industry sectors that are showing growth in general, and with a continuing need for new talent.   In this setting, affiliates programs augment a fundamental method of technology transfer–getting students placed in jobs that take advantage of their specialized training. Continue reading →

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If Siri were free of rights, would there be a Siri?

Posted on October 8, 2012 by Gerald Barnett

Here is another article out today, from Peter Cohan, arguing that the US patent system should be scrapped.  Are we are well past being able to reform it?  Cohan’s five reasons don’t include regulatory capture, market inefficiencies, the march to over-strong rights by the interested parties, and the fueling of an “arms race” that has little to do with innovation, as Boldrin and Levine argue in their draft paper.  Nor does Cohan worry the political unlikelihood of reform as a reason to scrap the patent system.

Folks have growled about patents in software and genes for some time, without much happening.   Instead, the public domain has continued to vanish, for patent and copyright alike.  It would seem that allowing a broad range of “inventions” that really ought not be patentable is aligned with the growing sense of stagnation in our research and innovation initiatives.  Yes, the premises are all grand–cures and new energy and better spam filters–but the underlying work just isn’t there.  If patents serve more a jockeying for position among major corporate players and less a chance for independent inventors to build an idea into practice, then is there a reason, if not to scrap the patent system, then to change how patent owners deal with products involving multiple inventions? Continue reading →

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The Basic Premise of University Invention Management

Posted on October 7, 2012 by Gerald Barnett

Use = Success

There’s really not much to add.  Infringement is not an option.

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On Deliberately Weak IP Rhetorics

Posted on October 7, 2012 by Gerald Barnett

I mentioned Boldrin and Levine’s argument against patents.  Their paper (it is posted but labeled a draft) is very uneven, moving between dubious assertions and insightful analysis.  Lurking over their discussion, though they do not acknowledge it, is Teece’s paper on profiting from technological innovation, which identifies innovators, imitators, and infrastructure providers as being in a competitive state amongst themselves for a share of the value created by new technology becoming used.   Intellectual property is a social innovation of sorts to address the relative strengths in this competition, providing at least initially some advantage to inventors and authors with regard to the subsequent exploitation of their work.  The odd thing in Boldrin And Levine’s analysis is that they appear to assume that IP is entirely the domain of companies battling other companies, and that the only purpose of a patent is to protect the failed competitive position of big companies.  That comes off as a cynical view couched as academic certainty:

The dead hand of dying institutions . . . gets hold of the industry as they attempt to tax consumers, new entrants and any potential competitor.  Far from being encouraged, when an industry matures innovation is blocked by the ever increasing appeal to intellectual property protection on part of the insiders. (p. 5)

The example Boldrin and Levine use is that of the Android operating system.  What they don’t consider is why Apple and Microsoft, coming at things from different directions, both apparently despise Android and yet have tolerated other operating systems in mobile phones created by competitors.  Surely the smartphone industry is not “dying”–it is in the throes of growth and innovation.  It is just the opposite of dying.  For dying stuff, maybe we might look at typewriters or film-based photography.   I’m not seeing big patent litigation there. Continue reading →

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Patent Abolition

Posted on October 6, 2012 by Gerald Barnett

John Gruber at Daring Fireball draws attention to an article in the The Atlantic by Jordan Weissmann who reports on a paper from the Federal Reserve by Michele Boldrin and David K. Levine arguing for the abolition of patents. The authors assert that while weak patent systems may do some good, strong patent systems stifle innovation and serve the interests of the established status quo companies and institutions.

One might note that in the present university IP policy situation, the appeal for present assignments and other “tightening” measures have come from “old guard” institutions when it comes to invention management. It would appear to be a point in line with the paper’s argument.

The paper sets aside the idea that is at the heart of many descriptions of Bayh-Dole, that the use of the patent system does promote innovation arising from university research:

The related idea that patents somehow improve communication about ideas – a notion key to the “public-private” partnership between governments and private research organization in which the government funds the research and then gives the private organization a monopoly over anything developed in the course of research – is backed neither by theory or evidence.

Continue reading →

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Cleese on Creativity

Posted on September 25, 2012 by Gerald Barnett

In a talk on Creativity (from 1991, it seems), complete with Danish subtitling to help expand your language competency, John Cleese talks about “open” and “closed” modes of operating, and the need to move between these two modes to find solutions to problems and then implement them.

For what it’s worth, I found this YouTube video not by looking for it, but by popping off to Guy Kawasaki’s blog looking for his 10/20/30 post on powerpoint pitches, and from that seeing one of his links on powerpoint presentations, and thinking that might be worth looking at, and then scanning down Garr Reynolds’s Presentation Zen blog and finding this.  Not terribly on task?  But then, how do we find out about the world if we never “go open” and play at things now and then?

There is a connection, of course, with innovation management, but for now, here’s the Cleese video at Presentation Zen.  If you don’t have the half hour for the talk, Garr has provided a quick summary of key points, sadly uden den danske.

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Recovering Agent Choice

Posted on September 24, 2012 by Gerald Barnett

Having looked at the various topics Research Enterprise has covered over the past four years, it’s also good to look at where we are in terms of university innovation management.

Prior to Bayh-Dole’s passage in 1980, university innovation practice was diverse, highly selective, and led by faculty decisions regarding what to hold on to, and what to let go to sponsors, and especially to the federal government.  Most universities operated on an external agent model, with many recommending inventions to Research Corporation and a number to an affiliated research foundation.  A very few universities operated their own licensing offices.  For federally supported inventions made at universities, faculty inventors typically made the decision when to seek to retain invention ownership rather than assign to the government.  For institutions in which such retention of rights was claimed regularly, the government worked out institutional patent agreements, or IPAs.  For others, an agency and inventors negotiated things out, with the agency responsible for making sure that whatever private arrangements were proposed would meet agency objectives and look out for a broader public interest. Continue reading →

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Code 10-9

Posted on September 24, 2012 by Gerald Barnett

It’s been four years, now, that I’ve been writing for Research Enterprise.  Over 450 comments, essays, technical discussions, and parody Star Trek scripts later, it’s time to take a look at where things stand.  Over this period, Research Enterprise has discussed concepts of innovation, done close reads of the Bayh-Dole Act, worked through the Stanford v Roche case from multiple angles, played a role in the drafting of amicus briefs in that case arguing for a sound interpretation of Bayh-Dole (and in particular that Bayh-Dole is not a vesting statute).  We have spent time diagramming Bayh-Dole, pointing out the method of operation that Bayh-Dole uses, and in particular the (f)(2) requirement that most university administrators refuse to implement.

As for university policies and practices, we critiqued the move to present assignments, especially at the University of California and the University of Washington.  We reviewed scads of university IP policies, showing how they were almost without exception contradictory, inept, overreaching, and failing in their purposes.  Continue reading →

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