Taking it to the Street

Posted on August 19, 2010 by Gerald Barnett

Jane Jacobs wrote one of the definitive critiques of central planning in her The Death and Life of Great American Cities. Fifty years on, the work still hits home. In DLGAC, Jacobs starts with the life of the street, arguing that mixed use with many sets of eyes creates an environment of self-governance that provides vitality and protection for residents and strangers alike. Indeed, the presence of strangers is one of the hallmarks of a city in contrast to a town. People coming to a street to do business, or visit, or show off, or adventure, or because they are lost, or to do mischief. This is a life of a city street, not at all the same in a small town.

Jacobs works from street to neighborhood to district to the city itself, at each stage taking aim at the central planners and their blight-creating desire for orderly plans, systematic projects, encasing the life of cities into box diagrams. One of the amazing arguments Jacobs touches on but does not quite come out and make is that a city neighborhood cannot be drawn with sharp boundaries. It is an environment in constant exchange with its surroundings, with overlays of interest of all sorts, with people leaving to work the day elsewhere and others coming in to visit its parks or do business in its shops. One might say, a neighborhood, while a geography, does not conform to a geometric representation. The border is a counterfactual that may not have any particular use in planning. One might think of fuzzy sets as an analogue. But more than that, one has to recognize that a neighborhood is what it is, and our tools of modeling it, or representing it, are only as good as our observation and experience of it. It has no idea form. There is no substitution of a simplistic approximation that still carries the most important elements, because those most important elements are themselves caught up in the indefiniteness of the place. One might say, this is no land for the nomothetic, for the computer programmer seeking always for an algorithmic expression as a proxy for process, or a process in place of social assimilation.

What is all this doing in a blog on research enterprise, though? What does a fifty year old book about mostly east coast cities before the age of low cost intercity transportation have to do with research? Quite a lot, actually. Jacobs starts out “This book is an attack on current city planning and rebuilding.” If we ask, to what extent is research life an activity of a city, one might recognize much of the discussion becomes relevant. The street becomes the research laboratories, with their mix of storefronts and visitors, residences and strangers. The neighborhood becomes the area of study, both regionally and in terms of disciplines. The district translates the interests and needs of the street in a form that addresses the interests and urges of central planners, university administrators, policy wonks. In this, we see possible roles for activities called by names such as technology transfer or research administration.

Up in the air: is technology transfer going to be a district that articulates the needs of the street to central planning? Or is it determined to be the arm of central policy implementing standard practice on the basis of consistency and fairness, demanding that the street conform to “what is best for it” and after that time, not attempting to change? Perhaps it’s a dichotomy that is too overt. One might see in it the fight of nomothetic against idiographic. Of the desire to regularize and enforce vs the urge to make one’s own way, even if that does not amount to anything, much less service to some for-ordained committee-approved big picture. One might even posit that it is doing what is authentic and not in service of such grand big pictures that is itself amounting to a great deal, repeated over the fabric of research endeavors.

Research enterprise is a rich street culture. It is where inquiry and discovery take place. It is where a mixing of ideas and realizations takes shape and demonstrates what is possible, turning inklings into data. At the heart of research is not the grandly obvious, but rather then search for inklings worth following. It is a search for the rare event, for the epiphany, for the fortuitous observation that opens up an understanding, that creates the possibility of observation, that challenges what we thought we knew, or puts that knowledge in a new condition. Yeah, a lot of things, like that.

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Hmpf, vol. 2

Posted on August 13, 2010 by Gerald Barnett

I came by a report by The Science Coalition called “Sparking Economic Growth: Federal Funding + University Research = Innovation, Companies and Jobs“. Title says it all. The Science Coalition says it is “a non-profit, nonpartisan organization of 50 fo the leading public and private research universities in the United States.” The next sentence, though, tips it. TSC is “dedicated to sustaining the federal government’s commitment to U.S. leadership in basic science.” That is, lobby the public to support more government research funding for universities. Let’s see if the argument holds up.

First, let’s be clear. Folks can create a loser of an argument and still there’s something to the underlying practice. Just one can’t say the folks with the loser argument are “really right”. Rather, one can’t dismiss the practice just because it is represented by feckless folks. We don’t abandon science just because there are bad teachers out there. Second, this is a big adult report written with lots of glossy and pre-meditation. There’s no complaining I’m being mean or too hard on it. This is no kiddy document done by darling dears out of love for crayons. It’s a big time shill for billions, so let’s give it a poke. I only have time for a single sentence, really. There’s plenty more. I’ll try to get to the statement of “facts” because that is just too choice. But perhaps a sentence is enough to make the point.

In Sparking, we find a nice claim right up front:

“When public money is invested in university-based basic research there is a tremendous return on investment.”

This is a statement in the form of rhetoric of those things that it’s hard not to want to be true. If folks are going to do research, then wow wouldn’t it be great if they did things that created a big return on investment. Just I don’t get what the return on investment actually is, or why research funding is an investment at all, or why basic research matters so much to returns on investment compared to say applied research. Let’s parse this buzzard.

The idea of “investment” suggests a need for “return” and some venture objectives that go with. One might think that research services are procured rather than invested in. Or that university proposed work is awarded or subsidized. How does all of this funding come to be investment? A common definition of invest is “to provide money for profit”. What is it that the government wants out of the work? Presumably the “return” isn’t monetary. And how long is it willing to wait? 50 years? So in a lot of ways, the idea of investing is inapt. Why would that be the language the Coalition adopts? After all, these are universities. But they are using the language of speculation, of business. It’s like they are appealing to government greed, or risk behaviors, or what to do with having way too much money. I find it very odd that universities would not use the language of exploration or knowledge or education or imagination. Instead, the whole endeavor is framed as an investment for profit by the universities. It is as if they *want* to be in business rather than education. When organizations choose not to use a vocabulary central to their activities, one has reason to question the motives, competence, and data.

Second, what is meant by “basic” research? Here is a list of definitions of basic research over the years. We can see “basic” means something along the lines of “systematic study” + “knowledge” + “fundamental aspects of phenomena” + “no specific applications in mind.” It’s actually something of a prissy definition.

One can see in it the roots of an argument that not all investigation has to have an immediate application to someone’s business. That studying genetics might come around to have bearing on disease. Studying the atom might lead to new forms of energy. Sort of an argument physicists and astronomers and geologists might make to explain why they are not working for a company. Or, within a company, why not all scientists aren’t employed on product development. In some definitions of basic research, there is the claim that if work is patentable, then it wasn’t basic research. Not sure about that, since a lot of systematic study these days requires building instrumentation that may be inventive, even if the investigation is about stuff that isn’t. The idea, however, is that the research is intended to be aloof from commercial issues. There is no need to feed product lines or even where there is new instrumentation, the reason to create it isn’t to invention industrial property.

In any event, universities don’t use “basic” in any defined way. They want pretty much anything they do to be called “basic” research because it is done at a university. Scholars futzing around creating knowledge without a clue in the world about what the import might be is a small subset of the research funding received by a university. If we really thought university researchers were clueless about applications and markets, then it would be obvious there was a need for technology transfer. If all university is basic, and that means the investigators are clueless of application, then why we need administrators to bridge the cluelessness gap.

Oddly, the Coalition doesn’t make a case for technology transfer offices getting any funding or even any visibility. The companies the report lists just spring up like mushrooms. That’s because technology transfer happens as a folkway, like childbirth—it is complicated and painful, but mom doesn’t have to be a specialist to do it, and no one can do it for her. Thus we get universities explaining that technology transfer really happens a lot of ways, through publication and instruction, students getting jobs and faculty consulting, conference presentations and open houses. Really, that’s how it all happens. Universities just have the corny policies on IP and technology transfer offices for show, to appear to comply with grant regulations. It’s all simply incoherent. It only sounds good if you skim it. Yeah, yeah, wonderful.

We need also to turn to the idea that universities are the best place to “invest” in “basic research”. On the surface of it, I don’t see why this would be. Why not more government funding for basic research in industry? Industry has had a wonderful track record creating new technology and world leadership and jobs and space food sticks.

And, why not more funding for basic research at independent research foundations? Look at the work at Howard Hughes Medical Institute, or the Myelin Repair Foundation, or the Institute for Systems Biology, or the Fred Hutchinson Cancer Research Center. Why not funding for basic research there, where it would be right up against folks totally focused on their work, without any of the overhead for teaching, academic appointments, and the fussy cycle of an academic calendar?

And, why not funding for more folks forming companies along with all that basic research funding? Get the basic research out into focused, investor-driven timelines and really drive that horse through the mud. That’s what Venter did, and boy did you see the universities pull out their own whips to keep up.

And why does it matter if other countries might be “getting ahead” of the US in *basic* research? Can’t we learn from others? Is it a race? Why are we trying to do it all ourselves? I can see why we might want to manufacture some stuff–at least if we can do it as well as our foreign counterparts. But that’s not basic research, really, is it? I wonder what the government’s return is for investing in applied research, or development of product? For that matter, how many companies have been created off federal funding at universities that *aren’t even in the US*? That is, since IP and technology transfer don’t figure in the Coalition’s view of tremendous return, how sloppy do universities get with their special inventive stuff? Well now.

The overall effect of this report is like someone singing a nonsense song so you will go to sleep. Very pleasant, there, about the slithy toves….. where do I put my wallet, again?

So we learn here that when the government acts as a profiteer, the stuff that has tremendous profits is work done by folks with no clue about applications to industry, and that after the fact they rather repeatedly stumble into stuff good enough to form companies and make a bunch of money, so it is not material whether those returns are realized by the government, or by the universities, or by the investors and principals in start up companies who are aiming to make a profit. A very odd profiteer, the government, looking only to the happiness of investors and scientists becoming accidental industrialists. We will mention here that research universities lose money—in the millions—on their federally sponsored research. So clearly the Coalition is in it for something other than, like, financial solvency. It’s great to see the altruism, but it’s strangely modest that it’s not called out more clearly.

If we really wanted to go at it, we’d look at the companies cited as successful and ask how much of the federal investment in *basic* research is actually represented here. Further, we can ask, after we get past five or six recognized company names, whether the rest are viable, doing anything meaningful, and how their situation represents a “tremendous” return on government “investment” in basic research.

I’d say, a tremendous return would be a cure for a disease, or a form of energy that doesn’t pollute and costs next to nothing, or a new food crop that takes little water, is easy to harvest without slave labor or picked so green it stays rock hard, and tastes like a slice of heaven. I’m not talking about space food sticks, here. A tremendous return is a company that creates jobs that last for years, rather than one that operates long enough to get bought out by something big and then shut down. Of course, if basic research is done for knowledge’s sake, then it’s sort of spooky that the knowledge takes the form of venture backed companies. I’d have thought it would be fattened libraries and conferences.

So show me the tremendous return on the basic research as represented by these companies. I’m not seeing it. Feels like a drop in the bucket. Looks like a fruit fly egg in the pie. Smells like a shill job for something fluffy we should all want, if we want the government to act as a profiteering investor.

I know–since when did universities have to be, like, honest? Isn’t it enough to come off as confident and sincere? And we wonder why universities are having a time coming up with government support these days.

Posted in IP, Metrics, Sponsored Research, Technology Transfer | Comments Off on Hmpf, vol. 2

Early Stage Technology

Posted on August 13, 2010 by Gerald Barnett

What does “early stage” mean in “early stage technology”? Does it arise from DoD “Technology Readiness Levels“? Perhaps. With TRL treatment, we are deep into the Linear Model. The starting point is basic research, which has to be translated into applied research, and thence through systematic development to demonstration, testing, and launch as product or cruise missile. It is all very rational, thorough, even pat. One might also add often slow, expensive, wasteful, and fussy–but who are we to go up against the consensus?

In discussions of this sort, topics come in pairs. There is the part you like, and its chosen adversary. Here, one response is, well, you can accept our TRL development (which we love) or you can advocate for foolish, uninformed rush to implement stuff that might not ever work and cause huge disasters at great expense and be blamed for it all (which we hate, as do all properly reasonable people). The challenge is to change the dichotomy, not argue it. One might ask: are there any alternative developments of a TRL schema that would move more quickly to a resolution about viability? Are there ways to reposition the source of new technology so it arises within the systems in practice and basic research is drawn in to wrap general theory around stuff that already works in local situations? Is it possible that the whole TRL process has been constructed to deal with improper claiming in the context of procurement contracts, and that at heart this has little at all to do with technology development and a whole lot to do with what people say when they want money, and the people handing it out don’t rightly know what anyone is talking about. That is, perhaps TRL is an effort not to be gamed by folks trying not to be feckless.

Or, one can go with dichotomy, join in with those in love with TRL as formulated, and show that one is a true buddy and no advocate of chaos and pain. In Harrison White terms, we might say that a TRL dichotomy aims to create an “arena” where the fundamental issue is whether one is “in” or “out”. In terms of set logic, it creates a counting principle to divide folks up into groups. Politically, it aims to create a bimodal distribution with the major peak being those that accept TRL, and who are certified to obtain rewards (in the form of federal contracts) and a smaller, preferably not organized remainder who are excluded.

Overall, the usage “early stage technology” points to a genre of discourse on research that aims to rationalize inquiry with regard to how anything new gains acceptance. The emphasis is on a movement from uncertainty to certainty, of progressive validation and improvement, until something new is fit to join existing technology and worthy to replace other technology to be retired. Much as one might handle officer training. Eventually, you may become an admiral, but first we will prove you out in the lower ranks with limited responsibilities to see what you are made of.

We may go further and ask what is it that suggests technology has “stages” and whether these are inherent in the technology, or are stages of acceptance by the status quo, or by purchasing officers tasked with representing the status quo, as it seeks out things that are new, but that preserve the roles and status of the status quo. The navy does not seek out new technology that would end the practice of the navy as we know it. Only enemies of the navy might do that.

There are studies around that argue that the Linear Model arises as economists confuse early reports of NSF activity, separated into provisional categories of basic, applied, and development, into an implied chronology starting with basic–that is, a process, with inputs and outputs, nicely situated for econometric analysis for productivity and efficiency and the like. Again, it is entirely possible even if the early stage economists were feckless, that there is something to it–that folks discover, futz, get bolder, futz seriously, companies and governments get interested and get folks to futz a lot, especially on their own time to reduce actual outlays, and then right as all the really juicy core patents expire, adopt and make another pile of money, or scare the floating bejesus out of some foreign navy.

But I’m not persuaded the Linear Model means much for IP practice. (Well, it means a lot, since it gets invoked a lot, and people get fussy if you question it, but as for being a good guide, it’s up there with What Would Journey Do? Basically, the Linear Model is a weak metonymy that has service in justifying systematic university research to the public and competing for budget within federal budget allocations.

In the construction of fictions, there are two great traditions. One involves metaphor. This is pretty well known. Transfer a meaning from one context to another, as a comparison (simile) or as an assertion (common metaphor). He is like a tree (simile–in some way). He is an oak (meaning, big and strong perhaps, rather than balding, which would be an oak in winter). The other involves metonymy, which is rather less well known. Metonymy involves substitution of an instance for a class, or vice versa. This may be a part for a whole (synecdoche) or a closely related thing or attribute for the thing itself (common metonymy).

The beauty of metonymy is that it typically reports something verifiable rather than simply comparative. If I say, the White House reported that the economy is doing better, I am not saying there is a talking house, but rather that people associated with the office of the president in the White House have something to say. But there is a White House. Similarly, I can say that I’m going to visit San Jose when really I’m going Los Gatos, but more people recognize San Jose because there was a song about trying to get there and not one about Los Gatos. Since San Jose and Los Gatos are both members of the class “cities in the Bay Area” I merely pick one that’s more recognizable than others. For general work, that’s good enough.

In new ventures, the bios of the founders stand for the experience of everyone who will join the company. Metonymy. In university technology transfer annual reports, “success stories” stand for the activity of the whole portfolio over the year. What folks want you to understand is that there are many more such stories, of which this is just an illustrative selection. Folks don’t say something like, whew it was a rough year and this it, the sum total of anything we could find that is halfway successful, and we’ve spun it out as good as we can without outright lying about things, well not more than otherwise. Nope, don’t get that. The idea is, the success stories are pieces of a much bigger whole, or a whole that the office strives for, a whole in the future that will be better than the much more limited whole of now.

So we have the Linear Model as a class of activities surrounding the development of technology. There may be a handful of instances in the class, all of a kind. And yet we have little to go on that this class is well populated. A few instances stand for an implied general practice. It’s a fact, you see. But what if Linear Model practices is only a small, difficult, long, and infrequent subset of innovation practice? Then, efforts to train people in the practice of the Linear Model would be efforts to prevent competing models to become visible, obtain the expertise needed for their operation, and even gain the policy support to empower activity. That is, if one moves from Linear Model as instance to Linear Model as the only member of the class, then one’s activities are aimed at preventing any challenge that there other members to the class.

Same for university technology transfer offices aligned with AUTM’s monoculture of practice. There’s one way to practice under Bayh-Dole, and it is owned by AUTM’s Practice Manual. Cross these folks and they come down on you all snarky and threatened. It’s understandable, because they have bought into the Linear Model as sacred text, and have sold it back to administrators, government officials, scientists, and the public as a fact of life. They cannot afford to be wrong, or limited, or no longer relevant. And, in instances, the Linear Model appears to operate. But mostly, it is just a product of early economist futzing that touches on one thing out of potentially many, made into something so serious a whole professional organization is willing to stick its collective tongue to the Linear Model’s frozen surface and stay there, with nothing else, really, that can be said on the matter.

The first challenge, then, in looking at “early stage” technology is to get a grip on whether this is a workable mindset for dealing with innovation. In one sense, sure, one can make these assertions, kick up a TRL analysis and brace for the next decade of testing. But what if the technology isn’t “early stage” (meaning not labeled that)–what if it is an adoption of something already well established in another area of practice–that is, it is mature technology being repurposed? What then? Outlier! Exception! What if the technology is merely a set of partial practices and it is the full set of practices that must mature as a new platform, so the reported technology is itself neither early nor late, but is just what it is, with no TRL analysis possible because the platform itself is coming together, and at that time it may be clear that the technology, as first developed, is already as good as it is going to get, and what needs to happen is that other pieces of the platform have to be put in place. Too fluffy! Pie in the sky!

Perhaps you get the picture. It may be that the only way to get a clear sense of what is happening in practice is to abandon, at least for a time, one’s hold on terms such as “early stage” and recognize that these terms *do something*–they *create the social expectations that feed a practice model*. Call the situation something else– “complementary technology” or “way cool stuff” and you propose rather different patterns of dealing.

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With Facts Like This, Who Needs Reason?

Posted on August 12, 2010 by Gerald Barnett

Looking at this report by The Science Coalition. The “facts” about “the innovation process” are more than a little strange. I get the point of the report–more government funding for university research. Will need a Hmpf addendum to work through this. Perhaps it’s okay–maybe *no one believes this stuff*.

Posted in Sponsored Research, Technology Transfer | Comments Off on With Facts Like This, Who Needs Reason?

Masks of Pluralism

Posted on August 12, 2010 by Gerald Barnett

Joan Roelofs’s Foundations and Public Policy: The Masks of Pluralism provides a critique of superficial consensus building. The basics are to capture passionate outliers, make them dependent for funding, and eventually lead them to conform to a consensus rallied around pre-set policy goals. Essentially one seeks to replace passion with abstraction, deliberation with acclamation, and run based on “data” from studies rather than any understanding that might arise from experience. Nomothetic, not idiographic. Life should imitate policy.

Now, entrepreneurship and innovation run counter to all this. That’s an interesting thing. That policy planning can work at cross purposes to on-the-ground recognition. The innovation that the status quo contemplates is what it is capable of self-proposing. And what the status quo tends to self-propose will be socially invariant. That is, the consensus has a really difficult time self-proposing something that changes anything, really. Certainly not the relative positions of those forming the consensus, much as they may clamor for such a change.

One might think that a consensus formed by wordsmithing and generalization is not the same as that formed by independent recognition of mutual interests or a willingness to leave enough alone. Thus, is it possible to have “innovation planning” or “planning for economic development” that is really *transformative*? If the status quo, the consensus, the majority of experts all get to a decision on what to fund, and how to manage the results, are we really anywhere near something transformative? Perhaps, but I’m not betting on it.

This is where Renee is right. The inventor is privileged to have passion for something. This does not mean: overly grand expectations of wealth and fame. This does not mean: wasteful enthusiasm without competence or experience. This does not mean: ego blocking all efforts to assist. Passion, here, means a willingness to endure to achieve a result. To go after it with career on the line, with a keen sense of the hard work to be done to make a go of it, with a persistence that’s not daunted but also is not clueless.

No tech transfer office built on a process or institutional ownership basis can live up to the passion of the inventor, or the inventing team. One’s ownership of patent rights cannot own the energy of the group, its tacit knowledge, its sense of opportunity, its passion. And if one is not able to participate in that passion, then one is a dead weight on it, hauling it back to a consensus, full of diligence, fairness, compliance, consistency, and administrative reality. As Hayak would have it, the central planner can never adequately anticipate the life of the individual. In this, the individual falls away. And in the world of inventing–regardless of the patent side of things–passion is a key attribute that runs alongside invention. Invention without it–who cares? Invention in which it is deliberately stripped away by policy–worse.

The starting point for innovation “management” by universities is to keep anyone out of it that hasn’t got something to contribute with passion. Not a pretend thing, but authentically, expertly, and focusedly. Another way the growth of university technology transfer as a process-bound, policy-dictated, duty-forced, systematic activity degrades if not destroys the very thing it claims has value.

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Having Feck

Posted on August 12, 2010 by Gerald Barnett

“Feckless folk are aye fain o’ ane anither.”

We see in this Scots proverb a classic condition of the bozonet. It’s a human condition, and I don’t begrudge the feckless their friends. But it does mean that majority rule in an area that hires inexperience faster than it creates competence runs a lot of risks. The feckless are capable of making their work look like the common standard, rationalizing their work based on their fecklessness, adding sophistication and training to the lot of it, and seeing anything that challenges the work in progress as a threat, untested, a distraction, an exception to the norm, and well, unfriendly.

In the world of innovation, which is frequently a challenge to the status quo, one has special difficulties being part of a feckless monoculture of group self-love. One runs the risk of *professionalizing* fecklessness, enfranchising problems that arise from fecklessness as properties of the underlying work. What happens when an activity scales so that it runs by a consensus of rationalizing claims but cannot show an underlying effectiveness? That is, what happens when an activity lacks feck? What one gains by way of bolstering up of one’s feelings of self-worth one loses by persisting in fecklessness.

Now, “feck” is a good Scots word, meaning something on the order of being capable, active, having heft, effective. There is no implication that the feckful lack for friends; but rather that the feckful get things done, have resources, and perhaps choose their associates based on competence and strength rather than on, say, shared fecklessness.

There are always places in which we lack the skill we need. There is always a vulnerability in being new to an area of practice. It’s a reason we form teams, to trade on complementary expertise and division of labor. There’s no question that working on innovation in a university research environment is challenging. It can also be cool. But it is like the cool as in mountain climbing, exposed to huge drops and high winds, with toes and noses at risk. It is not the place for a feckless complacency, even a sincere one, or one talking up virtuous goals. “We work for the public good” or “Innovation drives the economy” are fine but the proof is in having feck, being ept, working gruntled. In a lot of ways, I’d rather climb with someone intent on getting to the top and down again alive for the pure rush of it than someone who is climbing to look good while climbing, climbing while saying all the right things–feckless climbing. The feckless act as if things will magically work out if they say the right things or do what every other feckless person is doing. It gets worse when they come to believe that innovation will magically happen if they put enough compliance with looking good fear into everyone else that they do the climbing for you and score style points on the satellite feed to the sponsors.

To have feck is to enlarge the capacity to get things done. To have feck is to be capable, not stubborn or fearful or narcissistic. To have feck is to be adaptable to changing conditions. To really figure out how to contribute to research discovery, to be part of a breakthrough network, to find oneself in the middle of a great endeavor–that takes something more than spin and buzzhorpal and having buddies that share uncomfortable feelings of inadequacy sublimated into dislike and outrage about what’s new and different in IP management.

So here’s to the folks in IP management having the feck to get things done!

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What Happens Here is Excluded Here

Posted on August 11, 2010 by Gerald Barnett

I was in Mexico recently as part of a 5 week training program for new technology transfer professionals. Our piece of the training was negotiation and licensing. The participants had brought with them real world examples from their own institutions–opportunities they were working to develop into commercial partnerships.

As Héctor and I reviewed the operating plan for these cases, each team had roughly the same strategy–file patents in Mexico and either the US or Europe, and try to find the most powerful company in the market, and do a deal. Sounds pretty reasonable. But wait.

Héctor was very good at looking at this. Why are you filing a patent in Mexico? he would ask.

–Porque estamos en México.

(We were working two languages at once, with a translator).

But Héctor would persist–

–So what? Why does it matter that you are in Mexico? What does it get you to file in Mexico if the market where you will make money is the US or Europe?

–Quermos fabricar en México.
–But do you need to manufacture in Mexico? How will filing here help you?

And in this way, Héctor revealed the awful truth of it. The patent law was being used, first, to sort out the local institutional ownership problem. Then folks turned toward the twin goals of major market (abroad) and manufacturing (local). Both of these offered the prospect of negotiated licenses, and then product would be made and sold, money would flow, royalties paid, jobs made, repeat.

The truth, however, was a different. By only filing in Europe and Mexico, the inventive work was entirely free to Japan, the US, Brazil–anyone else. The Mexican would-be manufacturer would be the one saddled with paying the added royalty with diligence clauses and threat of penalties for non-performance. The advantage goes to operations and markets *elsewhere*. In the desired scenario, the obvious one, the use of the patent system, unless you get to a deal *very quickly* and get first-in advantages, will necessarily work against the locals. The administrative overhead, the threat of infringement, the costs involved–these all work against the local transaction using a patent license, even if the intention is to create new manufacturing opportunities in Mexico. Instead, the intention and the practice outcomes are *mismatched*.

It’s all covered over, however, by a simple, even attractive, model of how things should work, without a sense of context. It is this simple model that is easy to teach. It is the simple model that seduces administrators with its studliness. It is the simple model that policy and compliance people try to implement and make more efficient by demanding formal processes that dictate what the model says must be done and exclude anything else. (A threat to efficiency, a threat to authority, a threat to management, and a confusion to people who have been told there is only one model!) And then, really talent people get fired if they can’t make the darn thing work.

The situation is not any different in the US, even if one thinks it is a major market. Take a situation in which a US university receives an invention disclosure and finds the foreign rights are already blown through early publication. All that’s left is the US rights with the 1 year grace period. So the university files and gets a patent in the US. But doesn’t close a license. Now there’s a patent in the US, but the technology is free to the rest of the world. The patent doesn’t protect the invention, it isolates it. If the US market is the only one that matters, or is the only place where manufacturing is possible, then there’s still some hope. That would appear to be the primary issue for whether to file at all. If there is any other possible market, the patent serves to make it harder to work on the invention in the US than to do it elsewhere. Why not develop the invention in Canada or Singapore and sell in Europe or Brazil? It may not be the biggest potential market, but it may be that any of these alternative markets serve well to get launched, prove the technology, and make money. We are seeing in areas such as cell phones and laptop computers that companies can do very well without bothering with the US market. To heck with it.

To generalize: if you don’t move your patent rights immediately, they shift from being an empowerment to being an obstacle. It may be that this shift takes place within the 60 months from first notice of invention. Perhaps by one or two years after the patent has issued, if it is not licensed, then it is an obstacle in the local market and for local manufacture. It isn’t the patent’s fault. It is the university’s fault. It is a fault in the practice model.

Look at it another way. Bayh-Dole says, use the patent system to promote use and create American jobs. Folks go, okay, file in the US and license US manufacturers and we are good. But then they go further, license suggests royalties, so we should get a “fair consideration” or the public should see a “return on investment”. Meaning: local companies should pay more for rights that foreign companies get for free. If one wanted to do this right, one would file a PCT and go into *other countries* and *not file in the US*. That is, create a US commons–any company in the US can make, use, sell, and import without obligation, and if they want assistance, well, then, come provide some support to the originating lab and if they feel chippy enough with the added funding, they will help you. Foreign companies have to deal with the patent licensing stuff, either with the university (to get rights to make, use, and sell in the rest of the world) or with companies in the US commons (where they can get a sublicense to import). Now the balance is tipped toward the local market.

In other words, in using the patent system to promote US jobs, US universities should not be filing US patents only unless the entire market for sales and manufacture is in the US. So, perhaps improvements in US footballs. Otherwise, skip the US and file in the countries where the competition is for global markets. China, India, Europe, Brazil, Indonesia, South Africa. Create export markets, create value outside US regulatory systems, but leave US companies free to compete. So grant exclusive make/use rights in foreign jurisdictions, but not exclusive sell or import rights. For sell, make it *sole* if one is going that way–only one license to a company in the jurisdiction but could be licenses to US firms to do the same thing. Nationalist-centered? Of course. But there it is. That would be promoting the patent system to encourage use (in the US) and make American jobs (by setting up export markets).

The university response might be: but then we don’t have the prospect of making a pile of money! Well, soooooo? Making a pile of money every time was *never* the objective of university research or of Bayh-Dole. It’s how universities are not like corporations. And it is why universities are so important to corporations, that they *don’t* operate like a business. And it’s why the simplistic public formulations of technology transfer as patent licensing for money and public benefit don’t hold up. It’s not that the intention is wrong. It’s just that *improving* the local outcomes by stockpiling more and more unlicensed US patents works *against* US innovation. Not everywhere is or can be Vegas. Time to stop pretending otherwise.

Posted in Bayh-Dole, Commons, IP, Technology Transfer | Tagged | 1 Comment

Research- [ of | on | with ]

Posted on August 10, 2010 by Gerald Barnett

There’s one more important area of research invention use, and that is as a research tool. In the practice, we can differentiate three kinds of tool activity, in addition to throwing bones into the air and heading for monoliths orbiting Jupiter. These tool uses can be characterized as evaluation of, research on, and research with.

Evaluation-of is at the core of scholarship. It is how published claims get verified. If you claim a research result and that result depends on a new tool, such as a sensor, a data set, or a software code, then other scholars need to have access to evaluate the claim. This is where we get into the politics of science. If scholars only allow their friends access to their tools for evaluation, then the independence of peer review is seriously compromised. Patent folk worry about evaluation-of because it could come up with data that varies from the claims made in the original research, and that in turn might hurt the commercial marketing efforts or even patent prosecution.

Research-on has to do with exploring the operation of the tool beyond published claims. How can the tool be modified, extended, improved? Patent folks worry about this kind of thing, because research-on can result in improvement patents, can beat one’s own researchers to other aspects of a cluster of inventions. One may have reported a general effect but not have figured out the best composition of matter by which the effect is enhanced. Research-on worries point up the uniform lack of resources in the university community to deal with improvements scattered over a number of institutions. Each university asserts its provincial position and sits on its rights until forced to work out some sort of arrangement with another institution. In aggregate, the universities present a barrier to entry to anyone trying to put together a coherent package of rights. Worse if the package of rights is intended to be non-exclusive.

Research-with means the tool is useful for others conducting research. Research can be conducted for any number of purposes—to extend knowledge, yes, but also to develop new therapies and to stake out new areas for study. Patent folks go white knuckled at the thought of letting go of research-with rights. After all, some of the big hit winners in university licensing have been research with inventions–Cohen-Boyer (gene splicing), Hall (expression of polypeptides in yeast), Axel (cotransformation). And some of the most bothersome research issues foisted on universities by industry have involved research with tools–cre-lox and PCR, among others. Thus, in university IP admin thinking, research tools smack of product sales possibilities. The distinction between academic research and industry research doesn’t much matter. The academic research could be funded by industry. Or it could compete with one’s own institutional position for grants.

If we look at the CANVIS development for a minute, we can ask where these research practices end up. CANVIS stands for the five primary areas of university support for research results—commercialization, arbitrage, new venture, internal implementation, and scholarship. Commercialization means developing and selling product. Arbitrage means selling a right to others for less than one paid for it. New ventures are start ups, whether for-profit or non-profit. Internal use focuses on self-implementation, without the need for a product and without a specific interest in creating a product for others. Scholarship has to do with all aspects of scholarly communications, exchange, and review. University research policy has to deal with all five, not just one.

Evaluation-of certainly supports scholarship. We note that scholarship does not have to be restricted to work done at universities, or even at non-profit research organizations. Companies may have research labs that are every bit as scholarly as their non-profit cohorts. But evaluation is also an early step in commercialization and internal use discussions. While scholarship might benefit from open evaluation-of, efforts to market patent rights often require the use of a confidentiality agreement or even an option agreement before allowing access to invention materials and information. As one gets worrider and worrider about it, one worries whether a university could obtain evaluation-of information while working on a research project funded by an industry sponsor with rights to data and inventions. Is this paranoia or prudence or simply a failure to properly construct a research rights administration program?

A lot of the university research use world caved in with the Madey v. Duke decision. With that decision went most of the folk concept that there was a research exception within patent practice. The research exception operated a bit like fair use—that an invention could be studied and built upon as a way of promoting progress. It was a sort of “fair competition”. Perhaps it still is. But with Madey, companies—and universities—had to worry about infringement even in research settings. In practice, there are not a lot of incentives to go about pursuing research infringement, but in pharma situations, where billions of dollars may be riding on patent rights in a class of compounds, research-on restrictions still seem to be very much in play.

What ought to be happening here? First, universities should be re-implementing privately a broad research exemption. It is in their best interest. It is the role they should be playing. It is good public policy. This exemption should reach uniformly to all evaluation-of, regardless of the purpose or tax standing of the evaluator. Declare public purpose and make this a general license for all technology under administration. Go further and offer to help in that evaluation of by providing not only confirmation of rights but also data sets and expediting access to the lab reporting the invention. This access is especially important in the six months following a report of invention, where the experimental set up is likely still in place and others can not only learn about the invention but observe the experimental conditions under which work has been performed.

Second, universities need to develop administrative tools to support research-on. Under Bayh-Dole, there is a mandate to administer patent rights so that further research and discovery are not impaired. Research-on indeed represents a direct pathway to improvements and springboard inventions (which may not improve the original invention but are based on it). Restricting research-on work by requiring paperwork or making demands for access to resulting IP (“reach-through” requirements) restrict both rapid advancement and competition in research. Typically, universities in granting exclusive licenses reserve rights for research and educational uses. These reservations, however, are typically only formalized at the time of the exclusive license and are never announced publicly. This practice needs to change. Universities should announce these reservations of rights publicly when an invention is accepted for management. The reservation of rights—essentially a general public license for research-on—should be included in all non-confidential summaries and in publication acknowledgments, so everyone is on notice.

The challenge with research-on is gathering back together fragmented rights. One way to do this is with a research consortium, patent pool, or research commons. Another way is to create an open exchange, in which rights are documented and made available to be re-mixed without a lot of bi-lateral negotiation delay. Critical to any of this are solutions to two key issues; royalty-stacking and point of control. Bayh-Dole made uniform federal agency policies on invention procurement in federally supported research. Now it is up to universities to create uniform protocols for providing access to industry and the broader community.

We have to recognize that most university research originated technologies involve multiple inventions, multiple IP, multiple organizations. This is the default condition. Yet university IP policy and practice starts with solo case, solo IP, and solo organization, and then tries (or doesn’t even try) to extend to the case of multiple. The default is itself a flaw in seeking collaboration. Provincialistic over-simplicity is the default. Multiple should be the default. Solo is a strange case with a lot of warning signs. Absurdly simple = danger.

Research-with represents the most challenges. Tools can be products. There can be commercial markets for such tools, even if a lot of the buyers are no n-profits. Here, the move has to be made into support for the internal use audience. Technology transfer is teaching with enablement across a new technology in context of the infrastructure and tacit knowledge needed to implement. Not everything is taught via productization.

Universities need to separate management of internal-rights licensing from commercial product licensing. A sound measure of the value of a product version of a research invention is that it adds value over what organizations can do for themselves. If an organization can self-implement by reading publications, then using a patent right to keep them from doing this is counterproductive. Doing so does not promote use, but rather suppresses use in favor of a monopoly position. This may be the money position but it is lousy headed public policy. The basic way to do this is to separate make/use rights from make/use/sell rights. If granting broad make/use rights would prevent any company from wanting a sell right, then right there one can question the value of the patent as an asset for research administration.

Posted in Commons, IP, Social Science, Technology Transfer | Tagged | 1 Comment

Contexts

Posted on August 9, 2010 by Gerald Barnett

Have been looking at a new collection of essays edited by Leroy Searle, “The Natural History of Reading”. Searle makes a general claim: “we do not start, in reading, at the ‘beginning,’ but at a particular point in a history of reception.” We are in media res, working from the ever-present thick of things out towards arguable starting points upon reflection and apparent objectives, both near and distant, to which we might aspire.

Technology transfer, IP management, innovation–these are activities that are all about reading. By reading we don’t mean just words on a page, gulped into a grammatical smoothie. We are talking about observation, recognition of pattern and relationship, forming interpretation that leads to action. It’s what an American (or Canadian) football quarterback does in evaluating a defense, and what wide receivers are doing at the same time.

If this is the case, then the *assertion* made by the Linear Model is that things start at the beginning rather than in the middle. That somehow, things start with basic research in isolation, and then gradually it dawns on folks that things might have a use, then pow! there are patents on inventions, licenses, and economic vitality. In the little linear model that university technology transfer offices nearly uniformly put out (no, it’s not a monoculture, sigh) says that everything starts with the invention disclosure, then an assessment for monopoly position relative to markets willing to pay, and from there it’s an effort to license for an upside “in the public interest”. That is, the public wants us to make money on this stuff. Or something like that.

If we expect that when we interpret we typically find ourselves in the middle of things, with competing histories and competing futures, then the Linear Model and its devil underling the little linear model come off as heuristics gone bad. They simplify an account *after the fact*. The mistake is to think they are any guide to practice. It is the difference between telling a story with a beginning, middle, and end, and finding oneself in the midst of one, and taking a local action to figure out how the story might be working. University IP policy and practice comes to be defined by the effort to enforce this model on research and innovation practice. Nomothetic. Process-bound. Management myth. However one wants to put it. Life is forced to imitate art, and not very good art at that.

Posted in Projects, Social Science, Technology Transfer | Comments Off on Contexts

The Iron Man

Posted on August 9, 2010 by Gerald Barnett

This is good stuff. Makes my point. There is room for some iron in the discussion, just not with the waiters, and it doesn’t have to come out until after hours.

Posted in IP, Social Science, Technology Transfer | Tagged | Comments Off on The Iron Man