On February 28, 2013, I spoke at the Association of University Technology Managers (AUTM) annual meeting in San Antonio, Texas. The topic of the panel I participated on was simple — Tech Transfer Needs You to Defend Bayh-Dole. My remarks appear below.
Continually there are calls from detractors who want to change the technology transfer system regardless of how wildly successful it has been. See Why Bipartisanship Matters and Statement of Senator Birch Bayh on 30th Anniversary of Bayh-Dole and University Licensing and Biotech IPRs Good for the Economy and Conversation with AUTM President Todd Scherer. What is more disturbing is that many want to change it back to the way it was before Bayh-Dole was enacted in 1980; back to a time when University technologies and innovations were so cumbersome to license that they simply were not licensed. See The Good Steward: Turning Federal R&D into Economic Growth and Exclusive Interview: Senator Birch Bayh. In fact, The Economist has written that Bayh-Dole is the most successful piece of domestic policy legislation in the United States since the end of World War II.
I provide this longer than intended introduction to my remarks at AUTM because I was speaking to a crowd of individuals who know the fact and they understand the truth. I say below that there is not a shred of evidence that supports the detractors, and 100% of the evidence supports those who favor Bayh-Dole and a continuation of University technology transfer that is based on ownership of patent rights. I don’t go through fact by fact what we in the industry all know to be true, which means that the inevitable head-in-the-sand detractors will want to pounce and claim that I am wrong. If you are inclined to disagree with me then read the links above, and read the many other articles we have published on Bayh-Dole. The evidence is overwhelmingly in support of a robust, property based, IPR technology transfer regime that was ushered in by the landmark Bayh-Dole legislation.
Finally, throughout my remarks I make reference to “Joe.” That “Joe” is my friend Joe Allen, who was also on the panel and is a frequent featured columnist on IPWatchdog. Joe’s latest articles, which published earlier today, summarizes his presentation. See Time to Take a Stand.
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Remarks of Gene Quinn
AUTM annual meeting
February, 28, 2013
Thanks for having me. I don’t have too many slides, but one of the things I am going to talk to you about during my time here on the panel is how do you get the story out that you have to to tell that is going to help win the day. Because the story really is critical. As Joe said, emotion is driving the other side and they have no facts. It’s almost impossible to believe that they can base all of this attack, and the attack is, I’m sorry to tell you, gaining steam. The attack is real! It is not just us saying this. There is a real chance that they are going to dismantle Byhe-Dole, as idiotic as that sounds. So you have to take this really seriously. And they are doing this with not a shred of evidence on their side and 100% of the evidence on our side. The problem is, they have 60 minutes, and they have the NY Times, and they have a lot of other sources.
I am a patent attorney and I am a blogger. So I write, but I am not a news blogger, I am an opinion blogger – I am an advocate for the patent system. So that is where I come from. I spend a lot of time every day and my staff also spends time every day looking through press releases, looking for stories. And I can’t tell you how many times I have come across something that I knew was good but I couldn’t get any information on. I mean literally no information other than the self-congratulating, back slapping stuff that you see in two or three paragraphs in a press release. So that is one of the things I want to talk to you about today. How do you get your story to those journalists and reporters out there who care?
No More Investigative Reporting
Now the Supreme Court is deciding he Myriad case this term. There are people that believe that Myriad Genetics has a patent on your left arm. Why, because that is what 60 minutes told them. And they tuned into that 15-minute segment and maybe paid attention for 3 minutes. We live in such strange times, as Joe said, that bring us to the point where we almost think that anything can be true. They are out against us. Now I start with the basic premise that the media is lazy. Not because I necessarily believe that they are, in fact lazy, but because I understand that in a presentation like this you are going to need to remember something. If you think the media is lazy, then you got the point I want you to leave here with. The media has a short attention span and stories have a short shelf-life. Furthermore, traditional print media, for whatever reason, is going belly up. Just look at all of the newspapers around the country, all of the magazines. They are going belly up. They are not making any money.
Reporters are being asked to more with less. Bloggers have to turn around 2, 3, 4 things a day or more. Whether it is they are lazy, or they are over-worked or they are underpaid or a combination of all of those things, you need to spoon feed the media far more than ever had to before. They are no longer doing investigative journalism because that is too expensive. Why do you think cable news is where it is at right now? They have almost no correspondents in the field. Nobody is digging anything up. It is opinion and opinion and more opinion on top of conjecture. So you have to really work to get your side of the story out there in a way that you never used to have to do when news was about news and not opinion.
What are the facts?
We have to engage on the facts because at some point in time the facts become so overwhelming so that if you are trying to reach out to this community of people who care. And at the base level, when push comes to shove there are going to be people who care. The question is are you going to become involved early enough to get to those people who care with the information they need to defeat this nonsense?
I think we have to engage in facts, because the facts are in our favor. I have talked to good, solid media people with respect the Gene patent debate. One person pointed out to me at one point that everyone on the other side is saying exactly same thing. So I said to her: “Yes! Doesn’t that make you the least bit suspicious?” She said: “That’s why I’m talking to you, because you are not saying that.”
So there are people who care but it is hard for them to find good information. And unfortunately you all and your employers are, in part, to blame for that. I don’t want to assign blame or play the blame game really. That isn’t why I’m here today. But what I would like you to look internally at what you are doing. The message that the industry has got going out is not working. And it is not working for very small reasons that could be corrected with easy tweaks.
What’s the story?
Now here is a big-ticket item. The great and worthy super genius that is funded, has grants, three PhD’s and speaks 18 languages and is revered on campus may not be the story you need to tell! The story may be that a start up company, based off his or her technology, hired a single mother of three who has a disabled child who was unemployed for 18 months and now has benefits and a high paying, stable job. That is a story that all of us can relate to because everyone has been touched by this recession or knows someone who within one or two degrees, or one or 2 doors in our neighborhoods, who has been touched. That is a story that resonates.
Another story that resonates? I spent some time teaching at the law school at Syracuse University so I know a little bit about how technology transfer works, or at least did work, at Syracuse University. What happened at Syracuse University while I was there, and I can’t believe this is unique, was that if the inventor reinvested 100% of the inventors cut from licensing activities into his or her lab then 100% of University revenues would also go back into the inventor’s lab. You see, rather than divvying up the pot coming in with so much money going to the University, a percentage going to the Technology Transfer Office and a percentage going to the inventor, 100% would go to the lab. So some of the younger, more energetic and capitalist PhD’s and researchers were getting 100 cents on the dollar put back into their labs so they could do further research. That is a great story. Your researchers believe enough in what they are doing to not take any remuneration for what they have created? And they are putting it back into education, back into the lab to further discovery? Now that is a powerful story to tell if you have something like that going on.
What is the purpose?
You have to explain what is going on and why this matters. Be substantial and be substantive. Platitudes are great! They make everyone feel wonderful, but they don’t convey anything. This is the greatest invention ever may sound wonderful, but doesn’t everyone always think and say that?
As a patent attorney, I read a lot of patent applications and I get to the end and I frequently think: “I have no idea what this thing even does.” I know what it is, but why? Why does this matter? Somebody thought it mattered and spent an awful lot of time and money to get it patented, but what is going on?
You have got to be substantive. You don’t go through three paragraphs of really dense science and expect the average person to understand what that means. So at the end you may want to say – “And, by the way, this is a cure for cancer” – if that so happens to be true.
What is unique?
Don’t just say that this is an important break through, but say HOW it is an important breakthrough. What is it going to do? What is this going to revolutionize? Get it out there! And I’ve even got some language here. I’m big on fill-in-the-blank. If you could come up with a template for people to fill in the blank to get the information you need, then smooth it out to make it readable an interesting. Try something like this: “This is a major breakthrough compared to other solutions that have sought to do X using Y and Z.” It’s simple stuff! “The ABC development by the team at D is more elegant and easier to deploy than L, M, N, O. This leads to Q, R and S which is T because V.” That type of paragraph pulls it all together.
I can tell you when I read a press release, if it is going to go viral. There was a press release that came out that is totally unrelated to what we are talking about here, where Tiffany and Company sued Costco because at least one Costco store was selling counterfeit Tiffany Diamonds. Whether that was the rogue store manager, who knows? But that press release was written like a magazine article. The contact information was at the bottom of the press release. So I had my assistant contact them to see if we could get the complaint or any other information. Within minutes we had a copy of the complaint and they were available to answer any questions that we had and even supplied additional information. Go back and search that and you will see that every outlet in the world picked that story up because it was handed to them on a silver platter. You could write an article about that story, which we did, in about an hour. You could do it right from your desk, not having to pick up the phone and talk to anybody else or do any additional investigation. That is your goal and if you can accomplish that goal then the good stuff that you’ve got going on is going to go viral, at least within our relevant community, and sometimes outside our community because you have people who are creating tremendous life-saving innovations.
Our Patent Pending
This is my last slide and my pet peeve. If you are going to mention a patent pending, for goodness sake, say what it is and what it does and why it matters!
I will give you an example, although I won’t tell you what company because it will put them in a bad light, but they had this great story. They were talking about their patented technology. My audience would have been extremely interested in that story and technology. My audience, people like you, patent attorneys, people on the Hill, they are not looking for the platitudes. They are looking for the “Why, what’s going on?” They are looking for the meat of the patent application.
For example what is claim 1? Give me the abstract or something from the summary of the invention so I can get a feel for what you are talking about here. And their response was, “I’m sure you can understand that our patent application hasn’t published yet and it is our right to keep it private so we won’t disclose anything.” And I said that’s fine, that’s your right, but just realize that I am not writing this story without any more information about your patent. Their response was, “We really think this is a great story and we wish you’d write about it anyway.”
What can I write? Other than your patent pending technology that I don’t know anything about, haven’t seen and do not have any idea what it does, is wonderful! Nobody is going to take that seriously.
Confidentiality is a concern. So what I suggest, if I were in the University or private sector and could make the decision, I would have your patent attorney who prepared the patent application create an executive summary. That is just going to be cutting and pasting little bits pieces of that application that you can disclose without fear. Eventually, if you filed the application, it is going to get published. So, if you can use that to your benefit today, to help your licensing people create a buzz, why not? You only need that one call. Everybody wants to be Stamford, right? Everyone wants to be Columbia. But your phone has got to ring before you can be those people. So you have got to create a buzz. It all comes back to this: It’s better for you, it’s better for the inventor, it’s better for the University and it’s better for the industry.