Research Enterprise

We may posit that for any “concept” that we can pull out of the air, there’s an implied “cost” to make that concept into a “commercial product.” We could imagine a walking cat-bus, say. We could work out the robotics, the software controls, the tiger-like furrish finish, the headlamp eyes; also conditioning the market for accepting walking public vehicles, training drivers, and the like. We could do all these things and produce a walking cat-bus, but it might not turn out to be profitable. We might find that the public won’t even subsidize it. Thus, just because a walking cat-bus might be patentable (well, it’s not patentable as a concept, obviously, because it has been anticipated, if not by Studio Ghibli, then by Chinese engineers) doesn’t mean that there must be some effort to create a commercial product because only then might the public benefit from the concept. The patent doesn’t come first in the logic. It comes later, and as an option. If we are concerned only with concepts that the public must have, and to have must first be commercial products, and to be commercial products requires great expense, and that great expense must be borne by a single source, and that source is not the federal government or a state government or a nonprofit institution, and the source of funding expects a financial return on that expense (i.e., some form of profit), then a patent might be the thing.

Bayh-Dole, in encouraging this sort of thought, makes it appear that every invention that might be made at a university, or at least in federally supported research, must be subject to this sort of calculus, but in the reverse order: first, obtain a patent; then, determine to create a commercial product (rather than offer a tool or enable industrial use); then exclude all other forms of support but for a single investor (so, no commons development, no consortia, no standards, no foundation or government support); then have that investor spend whatever is necessary to create a product (and so drive up the investment required and the need for substantial return on that investment); then use the patent’s monopoly position to receive the maximum return on that investment. Call that return on investment the inducement for investors to participate in this scheme. But point out, too, that the problem has been transformed into finding wealthy, speculative investors willing to share huge potential profits, but only if they have a monopoly for the entire run of the patent. Wealthy, risk-taking but sharing speculators. Now, that’s a rare breed of speculator. Talk about narrowing one’s market. Continue reading →

There once was an active debate around whether the federal government should support research just to support research. Vannevar Bush’s Science the Endless Frontier formed part of this debate, and did a great deal to seal the case for government support for “basic research”–meaning, actually, government-funded research without a procurement purpose; research for the sake of expanding scientific knowledge, not for any institutional or commercial purpose. For such research, Bush advocated for the “free play of free intellects” hosted by universities, where (so he assumed) investigators would be free of institutional influences but supplied with institutional-grade resources (as grants-in-aid) to pursue exploration where they would.

Bush sought to create a government funding mechanism that avoided procurement contracting but remained accountable for outcomes; that provided public money but justified support for individual scientific efforts to discover and characterize new phenomena, new scientific laws, new scientific tools and methods. You know, an endless frontier of new science. Folks got the part about government funding, but they refused to accept the idea that funding for basic research should come without contractual strings or should be focused in a single extra-governmental organization. Thus, subvention funding for basic research became a special case of procurement funding. Instead of funding individuals, attention shifted to funding projects, since it was easier to manage review of proposals for “quality” than to make decisions about who had the potential and ideas to open up new areas of science. It was easier to turn support for science into a bidding process than to seek out talent and push it to new frontiers.

This new competitive proposal review procurement process retained the idea that inventions should be deliverables to the government, so that the government could decide how the patent system should be used in matters of scientific knowledge. The default was that inventions would be dedicated to the public, or if a patent was sought, to be licensed non-exclusively and preferably royalty-free. This default became known as the “government title” approach. Continue reading →