The Root of the Problem

Posted on March 11, 2012 by Gerald Barnett

In the current Businessweek there’s a short interview by Tom Keen with John Taft about the idea of stewardship in the banking industry.  The parallels with university IP are striking:

[T]he leaders of our financial institutions lost touch with their stewardship values.

It is quaint, but it’s a core principle. When money managers, broker dealers, investment bankers, etc., do what they’re supposed to do, they match up investors with people who need capital. So financial institutions serve—or should serve—an agent’s or intermediary’s role. What we’ve seen, though—going into the financial crisis, and we still see it today—is that financial institutions have moved away from that agent’s role to a principal role. That’s what’s gotten us in trouble.

Are you behaving every day in a way that is good for your clients, or are you thinking about how to make money yourself? Client service—that’s what stewardship is.

Yes, “stewardship” is not at the top of the trendy lists of things that spark innovation–but perhaps it should be there, along with self-sacrifice, service, altruism, good faith, even love.  Continue reading →

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IP policy architectures, simpler than possible

Posted on March 10, 2012 by Gerald Barnett

One of the challenges of dealing with university technology transfer is that many of the descriptions of what is to be accomplished are cast in the singular, without context.  Policies are then built around these singularities, and anything multiple is simply a matter of repeating the singularity.

Thus, imagine an invention being made by an inventor, who dutifully reports to a technology transfer office, which reviews the invention, takes ownership, files a patent application, and seeks a commercialization partner, and when successful licenses the patent rights and receives royalty payments, which it shares with the inventor and with the university.   It’s a simple, clear story about what should happen.  Look at the number of singularities–

an inventor
an invention
a tech transfer office
a commercialization partner
a license
a university

Yes, there can be others involved, but these are *exceptions* to the expectations of policy and in fact disrupt the foundational architecture.   Continue reading →

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Mapping Invention Portfolio Expectations

Posted on March 9, 2012 by Gerald Barnett

What is the shape of the unknown?  One might think, well, if it’s unknown, then how can we know?  And yet we work with the unknown all the time.  In this series of essays, a lot of my work has been to deal with assertions about the unknown, where the unknown has to do with discovery and innovation arising from university research.   The big challenge is that even when one can pull down the administrative curtains and show that something like the “linear model” is barely capable of operation, what’s left is not clarity, but mystery, bewilderment, unknown.  What are we supposed to do if the disclosure-patent-license bit generally doesn’t operate as billed?   And that’s the real question.  If the answer is to reapply the generally accepted institutional approach, then it’s not really worth discussing the real question.  But if the answer is to work out new directions for institutional involvement in discovery and invention, then there is plenty of work to do with the unknown.

In dealing with the unknown, it becomes apparent that the unknown largely has the shape of our expectations of it.  It is like we have a window in the mind that looks out over what we don’t know, but we can pull the drapes and that spot will then have the properties of the drapes, along with our uncertainty of what might lay beyond.  We tend to operate by substituting our expectations for the properties of what we don’t know.  When we are lost in a strange city, we might then be cautious, not because folks around are dangerous, but because we have no idea what to make of our situation, and so substitute an expectation of danger for what we don’t know.

This sort of thing comes up with regard to university inventions.  I’ll try to illustrate with some diagrams.  Continue reading →

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Regulation Is Not a Plan

Posted on March 5, 2012 by Gerald Barnett

A recent interview (only one free article a month) at The American Interest with Peter Thiel caught my eye.  The interview takes up the idea that there has been a stagnation of innovation since the 1960s, other than in IT and banking.  A reason for this, Thiel argues, is that so much of the landscape is regulated to the point that only large, expensive efforts can do what used to be done with much more modest investments.  The Economist once quipped that the more red tape, the less developed the society.

Continue reading →

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Stealing IP from grant proposals, oh no!

Posted on March 4, 2012 by Gerald Barnett

In the US House of Representatives, bill HR 3433 would add “grants transparency” to the review and awarding of federally funded grants and cooperative agreements. The bill would require publication of awarded grant proposals within 15 days of notice of award, agency actions to screen reviewers of grants for conflicts of interest, encourage merit-based review of awards, and the publication of the names and employers of reviewers of grants in the same grant program in the six months prior to each award.

There are problems (and more problems) with the way the present peer review system is managed by the federal government, and there is enough money in play–upwards of $60b–that it makes good sense to look for improvements and innovation.

One problem that has been argued is that while peer review of publication makes good sense, peer review of grants appears to benefit the established order–just *not* the thing that efforts at discovery and transformation would seek out. Continue reading →

Posted in Commons, Innovation, Social Science, Sponsored Research | 1 Comment

The University D-Economy, Fitt 5

Posted on February 23, 2012 by Gerald Barnett

I have been looking at various statements regarding the “D-economy.” It goes by various names–Shanzhai rules, débrouillards, System-D. The Wired write up was interesting. Here is another, from Coley Hudgins at Resilient Family. Here’s another by Robert Neuwirth (who was featured in the Wired article):

This spontaneous system, ruled by the spirit of organized improvisation, will be crucial for the development of cities in the 21st century.

The growth of System D presents a series of challenges to the norms of economics, business, and governance — for it has traditionally existed outside the framework of trade agreements, labor laws, copyright protections, product safety regulations, antipollution legislation, and a host of other political, social, and environmental policies. Yet there’s plenty that’s positive, too.

In other words, System D looks a lot like the future of the global economy. All over the world — from San Francisco to São Paulo, from New York City to Lagos — people engaged in street selling and other forms of unlicensed trade told me that they could never have established their businesses in the legal economy. “I’m totally off the grid,” one unlicensed jewelry designer told me. “It was never an option to do it any other way. It never even crossed my mind. It was financially absolutely impossible.” The growth of System D opens the market to those who have traditionally been shut out.

Now, here’s the thing. This System-D economy matches very well university scholarship. University scholarship has been, traditionally, under the radar of government policy and outside the bounds of institutional controls. Continue reading →

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Patent battles and research fragmentation

Posted on February 22, 2012 by Gerald Barnett

John Dvorak over at PC Magazine has an interesting comment on the patent battles shaping up in mobile.  His more general observation, however, is what  caught my eye:

This whole idea of actual inventions and the monopoly is over. Around a million patents are granted per year worldwide and most are unique and often obvious ideas that are not an invention at all. Rather, they are new ideas for a process or unique twists on old notions. None of them can be turned into nice little monopoly businesses.

Except if the ownership of the patent is the business in itself.

So, this is what it is all about. Patent some little idea and then license it so someone else can make or finish making the product.

Isn’t this how universities have set up shop? Continue reading →

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Projects, the Treatment for Fool's Dream Virus

Posted on February 21, 2012 by Gerald Barnett

The gulf between the Supreme Court decision in Stanford v Roche and the push in universities for present assignments is huge.   The Court decided the question whether Bayh-Dole was a vesting statute.  It said no. Wasn’t.  By doing that, it confirmed that federal research innovation policy did not “rest on the vest”.   Federal innovation policy, therefore rests on something other than outright university control of federally funded inventions.

Folks need to get this into their heads.   Federal innovation policy does not rest on the vest. Lack of vesting is not a technical oversight.  Vesting was not assumed in the law but somehow just not written that way.  Vesting is not a good idea that was implicit in the law.  Vesting was not a secret, fingers-crossed purpose of the law.  There is no mandate to help the law out by implementing vesting privately.  It is a virus-like idea infecting a class of administrators and the attorneys who love them that it’s government policy, or should be, that university inventors, especially, should have no rights in their inventions.  It is not a really good thing for universities to strip inventors of their rights, whatever the rationalization about “public benefit” and “commercialization” and “we are more effectively greedier than faculty are”.  It’s like robbing a person before they think to give you a gift, because, well, they might not give you a nice enough gift and thus the robbing is in the public interest, to ensure a really nice gift is received, and it is satisfyingly big enough. Some policy.  It’s difficult, even, to see how it is so seductive.

The problem that university folks have has next to nothing to do with Bayh-Dole, but rather with the virus in their brains about vesting. Continue reading →

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Please Leave the Den Now

Posted on February 21, 2012 by Gerald Barnett

Attorneys analyzing Stanford v Roche and the Bayh-Dole Act from a distance need to understand:

Bayh-Dole is directed at federal agencies.  It requires agencies to use a standard patent rights clause in their funding agreements.  The patent rights clause is what universities agree to, not the law, which does not apply to them.

In that standard patent rights clause is the (f)(2) agreement, which is not in Bayh-Dole. Universities agree to require (f)(2) of their employees.   It is the (f)(2) agreement that transmits agency interest in inventions through contractors to potential inventors employed by the contractors but made available to work on federally supported projects. It is by contractor action that the (f)(2) agreement is realized, and it displaces any contractor requirements that would conflict with its obligations. Continue reading →

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Recycling Losing Arguments as Policy Intent

Posted on February 20, 2012 by Gerald Barnett

In a recent essay on the Stanford v Roche decision, Sean O’Connor gives a fascinating perspective on the push by the University of California to impose a present assignment obligation on faculty.  I could not figure how they could rationalize the idea that doing so was not a policy change, when everything pointed to a clear change in policy, or at least a willful disregard for policy.  The UC policy is clearly a review + request style policy, with the request backed up by policy demands, of course.

In a 1997 case, Doug Shaw, the creative force behind the UC Davis strawberry development program, sued the University of California to prevent it from unilaterally changing its patent policy, and thus forcing changes to the royalty arrangements that he had negotiated under the previous patent policy.  In the course of arguing their side of the case, the UC administration argued that the “promise to assign” language meant the “complete transfer of [his] right to the University”.

The court didn’t buy this argument. Continue reading →

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