Research Enterprise

There is a dark lesson in the Stanford v. Roche situation. For two years, university patent administrators have led an all-out attack on research inventors, have distorted Bayh-Dole, and demonstrated they form a monoculture of inventor-loathing, bureaucracy-creating political operators. It’s nothing pretty. No public discussion, no minority views, no candid briefings.

The attack claimed that research personnel were selfish, gullible, and inept, and the folks that would protect the public are the brave, orderly, and expert technology transfer professionals, armed with policies that take title to inventions as expeditiously as possible. They argued that Congress intended as federal innovation policy that every invention made with federal funding would pass through the greasy thumbs of bureaucrats. As a result, they argued, Congress stripped university inventors of all rights to inventions made with federal funds, to keep these inventions safely out of the personal control of inventors, for the public benefit.

It is a dream. A paradise of bureaukleptimania. It would be really funny if the argument was made by a person in a bird suit: “And another thing, har, har, har, ur, the whole goal of university inventions is to ensure that the university has a position to shakedown anyone who tries to benefit from federally funded research. Ha! Har, har!”

Well, we don’t have folks available in bird suits to shoot a video for you, so you will have to imagine it. As I write this, university general counsels are drafting language to “tighten” employment agreements to include a present assignment of future inventions. This, because they think the lesson of Stanford v. Roche is that Stanford didn’t have the right patent agreement in place. They get the law wrong, the facts of the case wrong, the decision wrong. What can one expect? Yes, they will get the lesson wrong, too.

The lesson they should get: strengthen university openness, build collaborations without getting up tight on losing monopoly positions, make resources available to support innovation, and work within the constraints and consequences of your research community. Innovation should be more important than process, more important than university monetary interests. Innovation is wild, outlandish, disorderly, and unpredictable. So quit trying to control it. It is not working for you guys. You need to figure new ways to do things.

There’s talk that the Stanford v. Roche decision somehow forces a change in university practice from using promises to assign in patent agreements to present assignments of future inventions.

This is nonsense. The same loons who could not read Bayh-Dole cannot read court decisions either. No surprises here. I am not being any more gracious to these folks now than I was last week or two years ago.

The Supreme Court made clear that Bayh-Dole does not vest title to inventions with universities. Universities have to get that title the old fashioned way, by written assignment. No surprises here, either, except for the loons, who must be shocked. Continue reading →

Let’s look at some of the claims made about Bayh-Dole.

1.  Bayh-Dole is about commercialization. Only a little tiny bit.  Get over it.

No, really.  Look at the objectives of the Act, at 35 USC 200.  The primary emphasis is on practical application, with a host of affiliated activity, including collaboration between universities and industry, support for small companies, job creation, protection of the public from non-use or misuse of inventions, and encouragement of competition.  Commercialization is one element in the list, not central, not all important, not all consuming of the others.  Continue reading →