Patent Law

Educational Savvy

By Gary Odom and Jordan Kuhn

From a public-interest standpoint, the blessing of blogging has been to demonstrate how the mainstream press is filled with hacks on assignment. While bloggers live and breathe their subject matter, "professional" media do topical cameos, resulting in nicely wrapped provocative stories, at a slanted angle, but with a garnish from "the other side" for the illusion of a "fair and balanced" perspective. This week we have Janet Rae-Dupree for the New York Times, wistful in "When Academia Puts Profit Ahead of Wonder:" "In academia's continuing pursuit of profit, the wonder of simple serendipitous discovery has been left on the curb."

In typical rigging of the playing field by the U.S. government, the 1980 Bayh-Dole Act let universities profit by patenting federally funded research. Naturally, universities responded in fumbling, grasping fashion. Good thing, bad thing, you make the call. Ms. Rae-Dupree fudges history to dangle the angle of the bad thing.

In the past, discovery for its own sake provided academic motivation, but today's universities function more like corporate research laboratories. Rather than freely sharing techniques and results, researchers increasingly keep new findings under wraps to maintain a competitive edge. What used to be peer-reviewed is now proprietary. "Share and share alike" has devolved into "every laboratory for itself."

Then Rae-Dupree does a 180, deflating her bucolic view of the past with the anecdote of DNA finders Watson and Crick, who "zealously guarded their work from prying eyes until they could publish their findings."

Coming to the nub, Rae-Dupree laments the profit motive.

Perhaps the most troublesome aspect of campus commercialization is that research decisions are now being based on possible profits, not on the inherent value of knowledge. "Blue sky" research -- the kind of basic experimentation that leads to a greater understanding of how the world works -- has largely been set aside in favor of projects considered to have more immediate market potential.

Kevin E. Noonan over at Patent Docs takes exception to the deception of Rae-Dupre's sloppy research.

Similarly wrong are the purported consequences of the infiltration of filthy lucre into the ivory towers of academe. The piece bemoans that "[b]lue sky" research... has largely been set aside in favor of projects considered to have more immediate market potential." Perhaps a quick perusal of the grant proposals to the National Institutes of Health or the National Science Foundation would have helped, since these are replete, even today, with exactly this kind of "blue sky" research. The reason is simple, and well understood by those who actually do the science: technology is when you know the answer, and the important and exciting work in science comes when you not only don't know the answer, you aren't really sure about the question. Grant proposals, while needing to convince the funding agency that the proposal has a chance of providing useful information, are not geared towards technological applications; perhaps Ms. Rae-Dupree is confusing this type of grant with applications for Small Business Innovation Research (SBIR) grants, which resemble the types of non-"blue sky" research she mentions.

Ultimately, the gripe comes down to who profits. Rae-Dupree takes the slant that universities haven't structured their licensing deals to suit the taste of corporations. So much for lamenting the profit motive.

Exclusive licensing of a discovery to a single company thwarts that innovation's use in any number of other fields. R. Stanley Williams, a nanotechnologist from Hewlett-Packard, testified to Congress in 2002 that much of the academic research to which H.P. has had difficulty gaining access could be licensed to several companies without eroding its intellectual property value.

Noonan:

Many of the critics cited in the article represent industry, and they recite how the current state of affairs -- where universities can patent their inventions -- has stymied commercial application of these inventions. This is undoubtedly the case; it is always easier just to take the fruits of another's labor than to pay for them. Uncritical reproductions of these types of complaints from industry can serve only one purpose, to persuade policymakers to rethink the Bayh-Dole scheme. While this might be good for those industries who have recently shown disdain for any innovation other than their own, it would not be good for the rest of us.

There are certainly some inefficiencies in the current system that are mentioned in the article, for example that only a few major universities have reaped the greatest benefits of licensing patented technology. Rather than damning the effort, however, this data merely confirms that invention, and profitable commercial exploitation of invention, is unpredictable, serendipitous and a lot harder than most of us (including, perhaps, some tech transfer managers) contemplate. The fact is that permitting university patenting over the past quarter century has fostered wide innovation, new products including new drugs and therapies, and promoted U.S. jobs and the economy. We would be foolish indeed to go back to having U.S. academia let corporations free-ride on the innovations produced as the fruits of their research.

Why not "damn the effort"? It remains unclear what justifies Noonan's position, the very premise behind Bayh-Dole: that universities should be able to profit from government (theoretically public) funds in such a manner. To hell with the patent sovereign immunity of state universities, that can have their cake and eat it too. Equitably, state university patenting is a game of dirty pool. If the public paid for the research, put it in the public domain, and let the conglomerates run with it, if only because the government is too stupid to make money with patents, and Joe Sixpack taxpayer can't use it, but might get a job with Mega-Tech Corporation, shipping the box out that holds the patented invention.

Full post as published by The Patent Prospector on September 09, 2008 (boomark / email).