More on Feynman’s Patents

Posted on August 3, 2024 by Gerald Barnett

Back in 2013, I wrote a stubby post to create a link to audio of an interview with physicist Richard P. Feynman, in which he describes how he came to be named as inventor on U.S. patents. Since that post is getting a number of readers recently, I thought to take a look at it, and as seems usual, I found some comments forming. So here goes.

First, another link to the interview, posted by Muon Ray on YouTube. Feynman tells the story in Surely You’re Joking, Mr. Feynman! in the chapter titled “I Want My Dollar!” (pp. 162-65) in my Norton paperback edition.

Short version: Feynman is working at Los Alamos during WW2 when he gets a note from the lab’s government patent officer, a Captain Smith, asking for inventions involving nuclear energy, to be patented by the US Government. Feynman later meets Smith at lunch and tells him that his note was “kind of crazy” to ask the scientists for *every* idea–“There are so many ideas about nuclear energy that are so perfectly obvious, that I’d be here all day telling you stuff.” Smith responds with–“Like What?” Feynman rattles off nuclear powered submarine, airplane, rocket, and amped up nuclear reactor as an electrical power station, and, as he was leaving, says there are “a million ideas.”

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Espresso Granola

Posted on July 29, 2024 by Gerald Barnett

Okay. I have been making granola for dunno over five years. Here’s my once uber-non-public recipe. Combine the Goop Mess and Espresso with the Dry Mix. Bake, stir, and cool. Easy. Expectable IP comment to follow.

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Why I stepped away, and why I am back

Posted on July 21, 2024 by Gerald Barnett

I’ve been asked where I’ve been for the past year, and to brief about it, I decided to step away from writing and focus on other things, such as working with companies. I also felt that I had had enough dealing with Bayh-Dole and its rambunctious, logic and history challenged advocates, who seem to have a never-ending budget to cock up even more stupid positions, such as coming out against using the public protections built into Bayh-Dole to lower the prices charged for drugs based on federally supported inventions by introducing competition from the get-go. I’ve documented their failures sufficiently that it just gets stoopidifying to stay at it. Anyway, the step away became weeks, and weeks became months.

And months have brought a new sense of perspective, and a sense that there are still things worth writing out, and worth making an argument for (or against). And maybe that serves some purpose in the big wide world. Continue reading →

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Thorin’s Deal

Posted on July 20, 2024 by Gerald Barnett

For the past few months, I’ve been memorizing The Hobbit as part of a project of mine to have a look at how (my) memory works. So far I’m towards the end of Chapter 2. The poetry is the hardest to work with, with some remarkably lame lines–“the fire was red, it flaming spread.” Maybe that’s a Tolkein commentary on dwarf song-writing ability. But onward. The Hobbit is a story about a contract between a company of dwarves and a small foot-furry human-like creature that lives in a very comfortable hole in the ground built by his father.

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Recreating Bell Labs, or Not

Posted on July 18, 2024 by Gerald Barnett

It is time to get back to writing here. I will resume by pointing to a new article by Brian Potter at Construction Physics on Bell Labs, “What Would It Take to Recreate Bell Labs?” Potter identifies a number of characteristics that contributed to the many technological developments created at Bell Labs–including:

  • embedded in a huge government-regulated company monopoly
  • a leader who wanted a productive laboratory to justify a monopoly in the public interest
  • lots of development resources, less research
  • a huge initial successful technology development (signal amplification)
  • access to a rich set of problems
  • urgent need informing activity and collaboration
  • ability to rapidly test and modify new ideas
  • being in the right place at the right time
  • could get to new ideas first with more resources than others
  • after 1956, was required to license its patents

Consider the present university research enterprise. How many of the characteristics of Bell Labs in its heyday do you see? University research typically lacks development capability (which is supposed to be done by exclusive patent licensees), Universities are not embedded in going activities generating a rich set of problems with urgent needs. Yes, finding a cure for cancer is an urgent need, especially to every individual diagnosed with cancer–but university research has pivoted toward decades-long drug development and disregards the urgent need in favor of an abstracted need that produces federal funding in the form of grants. And what about being in the right place at the right time? How can a university patent policy deal with that? Once an organization has become an omnibus–with engines and wheels pointed in every direction at once–how does it reconfigure to focus on something that does show up, where it could be at the right place at the right time? How can one dismantle so much activity and administration to be on time to what is likely a unique opportunity? No, universities conceive research as a continuous state “industry”–even research for its own sake as long as the federal government accepts that idea. Research as a public good instead of the results of insight (however come by) as the public good.

This distinction is captured even in the Bayh-Dole Act, carried over from the Kennedy’s 1963 patent policy: “practical application”–an invention is being made “under such conditions as to establish that the invention is being utilized and that its benefits are …. available to the public on reasonable terms.” But this bit of Bayh-Dole is attacked by university administrators and the service organizations that feed on university licensing efforts. To their mind, the public is served when a university makes money from licensing and polishes its reputation by having made money. I will mention only that making money in an exclusive license deal may have nothing to do with getting an invention used (it may result in just the opposite), and even if an invention does get used, it may not be available to the public on reasonable terms. Just try to get any university administrator to be candid about their work on that point.

It’s not the research and not the patents and not even the (rare) license–it’s the benefits available to the public on reasonable (i.e., non-exclusive or as if non-exclusive) terms (including necessarily, price). This is quite contrary to the universities’ adoption of the patent monopoly fallacy–that only with company monopolies will anything new become beneficial to the public. There’s nuance there–after all, AT&T was determined to become a public monopoly, but there’s a lot to consider to get from that goal to universities determined to license the patents they acquire exclusively or not at all.

Could any sort of improvements in a “technology transfer system” mediated by administrators and licensing professionals ever hope to get to a new Bell Labs? No. Really, no. Even if we had the conditions that were present when Bell Labs launched, a university as it is presently configured would be a poor foundation. And we don’t have those external conditions, either, in addition to universities not able or willing to create the internal conditions that ought to be present as well.

I will leave it to you to read Potter’s article to find out what he thinks is possible today.

 

 

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10 Ways Universities Deal in Patents

Posted on May 24, 2023 by Gerald Barnett

I have been thinking about how university technology transfer is depicted, versus how it actually happens. The depictions are something of a prophetic hope–inventions reported to the university’s licensing office will be evaluated for “commercial potential” and those that look promising will be acquired, patented, and marketed to companies to develop into beneficial products. A win for the public, for industry, and for the university and its inventors (in the form of royalties and prestige). It sounds wonderful, but practice does not follow the prophecy, and there’s a big problem with that–repeating the wonderful depiction in the absence of practice is disingenuous, even false, even fraud. It’s not even just putting a positive spin on things. It’s just not what happens.

Universities expanded their patent policies from voluntary reporting and assignment to compulsory assignment of inventions. They expanded the scope of what is to be reported from patentable inventions made in the course of their official duties to anything a licensing officer describes as inventive even if not patentable made within the field of an inventor’s professional expertise. That expansion means university licensing offices claim an awful lot of stuff that they cannot possibly deal with. This, in turn, means that the most frequent outcome of a university taking ownership of an “invention” is that nothing, nothing ever happens. If this were a Talking Heads song, then it would be “Heaven.” But that heaven, described, is a sort of undesirable hell.

Consider the possible outcomes. Here’s a sketch of what typically happens. No one keeps records to document all this, but from twenty years in the technology transfer world, here’s something to start with, going from most frequent to less frequent, if not rare. Continue reading →

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Bayh-Dole, Federal Agency Conflict of Interest, and the Covid Vaccines

Posted on May 6, 2023 by Gerald Barnett

Here is a recent video clip of an interview with Robert F. Kennedy, Jr. He asserts that it was known that HCQ and Ivermectin were effective in treating corona viruses by 2004.

Kennedy cites 21 CFR 56.102(d):

Emergency use means the use of a test article on a human subject in a life-threatening situation in which no standard acceptable treatment is available, and in which there is not sufficient time to obtain IRB approval.

You can’t have “emergency use” if there’s an available “standard acceptable treatment.” Continue reading →

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Faculty Strategies for Getting Their IP Back, 2

Posted on May 4, 2023 by Gerald Barnett

Here are some strategies for getting IP back that don’t work or avoid IP ownership.

(1) Don’t disclose an invention to the university, and file for a patent on your own. Your application will be published in a year or so. Someone will see it and ask questions. If you spin up a company someone will notice. If you license to a company someone will notice. At some point you will be asked to assign and you can fight it then, in court and with the university ready to smear your reputation and ruin your career, or you will cave.

You may be able to work the system if you have a consulting deal with a company. That depends on how well drafted and guarded the university’s policy is on consulting. Many university policies on consulting these days try to stipulate that any consulting agreement’s terms on IP are subordinate to a university’s claims. That stipulation may not hold up, but the university has more money for the legal fight than you can imagine. That’s even more the case if you also are a co-owner of the company you have set up to consult for. Then there’s likely also a policy on “deeper involvement than consulting.”

Even though you might think that the university has no claim or it would be unfair if it did make a claim on inventions that you make outside the university, with a company, say, or at least not using university time and resources, many university IP policies make a claim to any invention you make in your “field” or in the area of expertise for which you are “hired” or “employed” (ignoring that faculty are not “employed” for IP purposes unless they expressly agree to be, but for another time). Continue reading →

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Faculty Strategies for Getting Their IP Back

Posted on May 4, 2023 by Gerald Barnett

If you are a faculty member at an American university, you will get a lot of twisted advice from your university technology transfer office about intellectual property, Bayh-Dole, and patent policy. The advice (and descriptions about technology transfer) is mostly wrong or ill-conceived but it might sound plausible if you don’t know practice, and to contest it will cost you somewhere over $200,000 in attorney fees. You may win, in a pyrrhic way, but even then you won’t be better off for it. They will just double down, change their policy to try to cover for whatever you forced them to admit, and continue on. It will cost the next person another $200,000 five or ten years on when the next opportunity arises.

Anyhows, there are ways to navigate university technology transfer without the big fight. Here are some thoughts on strategy. Your situation may be different. Your circumstances may be different. You may not have the interest or connections or time. But maybe these thoughts give you some ideas about how to work the system to your advantage, and to that of the stuff you create, make, collect, discover, invent, realize, cultivate, and compose.

Most university IP policies now demand that all inventions must be assigned to the university. Invention is defined broadly to mean all patentable and non-patentable inventions, software, know-how, improvements (what are those?), and anything that might have “commercial value.” What’s a non-patentable invention? Anything that a university administrator calls an invention. Essentially, anything that doesn’t have an ownership theory in patent law. So, if you make something or think something or realize something, you are at risk that a university administrator will call it an invention and bring it under their policy of demanding to own it. There’s really nothing you can do once you report it to them. Continue reading →

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AUTM arguments for not complying with Bayh-Dole

Posted on April 20, 2023 by Gerald Barnett

Just a quick note here on AUTM arguments are for not complying with Bayh-Dole. Just off a meeting that paid attention to AUTM’s position. I’ll summarize the main arguments here.

  1. Access in the form of commercial products is more important than compliance.
  2. Exclusive licenses are more difficult to close without the incentive of monopoly pricing.
  3. Without exclusive licensing, commercial products won’t be made.
  4. Bayh-Dole’s “reasonable terms” requirement would mean fewer exclusive licenses.
  5. “Reasonable terms” don’t include reasonable price because price isn’t mentioned.
  6. Senators Bayh and Dole claimed they never intended Bayh-Dole to be used for price controls (which they did).

In short, the argument goes–if we were to comply with Bayh-Dole, then we could not grant as many exclusive licenses–but rather than own up to our noncompliance, we claim that we are complying with Bayh-Dole and ignore the parts that we aren’t complying with. They don’t bother pointing out how few exclusive licenses they actually grant compared to the size of their patent holdings, or how few of those exclusive licenses that they do grant result in actual commercial products. It’s really hard, the way they do it, obviously.

Put another way, Bayh-Dole must be ignored to the extent that it expects reasonable pricing or the promotion of competitive use of subject inventions–even though these are express objectives of the law. Another way, AUTM argues that Congress intended patent monopoly pricing and suppression of competitive use of inventions made in federal work as necessary incentives for the commercial development of those inventions. Or, bluntly, the only way that new medicines get developed is if pharma companies have the freedom to screw the US public on pricing, and since that is just how it is, it makes sense for universities to get a share–however miniscule–of this price gouging of the sick and the federal government. The royalty paid to the university in a small way lightens the pain of the price gouging by giving the public a “return” on the federal payment of research funding. There is no point in finding other ways to develop new medicines–all other ways will fail. Continue reading →

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