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It’s Not Paranoia – They Really Are After You


Written by Joseph Allen
Allen & Associates
Posted: Mar 4, 2014 @ 10:10 am

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This month’s column is based on my remarks to the Association of University Technology Managers (AUTM) at their annual meeting in San Francisco.

First of all, congratulations!  You made The Washington Post and they even spelled your name correctly.  Unfortunately, AUTM was specifically called out in an article titled Patent Trolls Have a Surprising Ally: Universities.  The name of another article appearing at the same time Patenting University Research Has Been a Dismal Failure, Enabling Patent Trolls: It’s Time to Stop while long winded speaks for itself.  And two innocuous sounding reports from the Brookings Institution Building an Innovation Based Economy and University Start-Ups: Critical for Tech Transfer say that Congress should amend the Bayh-Dole Act to give the federal government control over whether you can grant exclusive licenses, that you have been unsuccessful as most technology transfer offices are not self-supporting, that your business orientation conflicts with the mission of a university and your alleged model of “licensing to the highest bidder” has failed. The New York Times accurately summarized the intended message in its headline Patenting Their Discoveries Does Not Pay Off for Most Universities.

For a profession that keeps a low profile and goes out of its way not to antagonize people, you may wonder what in the world’s going on that you are gaining such notoriety.  The answer is that you are in the sights of several groups who do not wish you well.  Some want to weaken the patent system for their short term benefit, some believe society would be better off if inventions were freely available without patents; some don’t think it’s moral for universities to work with industry, and others believe they should determine who reaps the rewards of innovation.  While operating on diverse belief systems, they all have one thing in common: they don’t like you.

They also share two other traits: they’re playing for keeps; and are not going away any time soon.

Our opponents have been very successful working the popular media to our detriment.  While we have reams of data showing that university technology transfer under the Bayh-Dole Act has greatly benefitted the U.S. creating revolutionary products, entirely new industries, millions of good paying jobs and thousands of start up companies, we tend to speak to ourselves ignoring the larger audience that will determine our fate. Meanwhile our opponents adroitly use the media as their megaphone employing easily understood emotional slogans claiming that the public interest is being sacrificed by university patent licensing.

It’s a maxim in politics that whichever side defines the debate and successfully casts the competitor in the most unflattering light wins.  If the current debate over the value of the patent system and university technology transfer was a prizefight, it would have been stopped in the early rounds as we continually take a pounding, rarely throwing a counter punch.

Our rivals have long term strategies to promote their ideologies. When we respond at all it is with uncoordinated tactics.  This puts us permanently on the defensive, which is not a good place to be in sports, politics or war. Napoleon said that the only possible outcome to a purely defensive posture is surrender.  And he knew a thing or two about conflict.

Perhaps the first step in turning things around is realizing that we are engaged in a long term struggle and that we must respond.   This is not to say that every time someone says something we don’t like that we attack them.  We need to distinguish between legitimate criticism and unreasonable assaults by implacable ideologues.

Opposition to the patent system and Bayh-Dole is a quasi-religious belief.  We are not going to convert the most passionate opponents. Indeed, many earn their livelihoods and build their reputations through these attacks.  Others create prominent academic careers on poorly conducted studies “proving” their preconceived theories as they become nationally recognized experts.

Ignoring such foes in the hopes that they will go away, or trying to appease them is both naïve and dangerous.  They must be publicly resisted, not to protect our self-interest but because their theories would do tremendous damage to our country.  University-industry partnerships are a driving force of our economy.  They will help determine whether this country remains the most innovative nation in history or sinks into mediocrity.  The stakes in this contest could hardly be higher. Like it or not, if we don’t pick up the gauntlet no one else will.

We cannot pretend that the ideas of the other side are so off the wall that no one believes them.  As fewer and fewer Americans make products, policy makers and the public have little idea how much sweat, time and money are needed to take early stage inventions from the lab into the marketplace, nor do they understand the staggering odds facing the entrepreneur. Either we fill this information gap or our opponents surely will.

So what do we do?  Well, the good news is that we really do have the facts on our side. We must boldly, proudly and publicly present them.  We need to educate policy makers, the media and hardworking American taxpayers that public-private partnerships are good for the economy, for the public welfare, for the advancement of science and as a justification for the billions of dollars spent on federally funded R&D.

The Bayh-Dole system is Jeffersonian. The law rekindled the fuel of interest for the fires of genius President Lincoln spoke of by restoring the incentives of the patent system to federally funded R&D.  Bayh-Dole decentralized technology management out of Washington, set up a few simple rules for licensing and commercialization and got the federal bureaucracy out of the way.  The results have literally helped restore America’s technological leadership which was rapidly evaporating before the law was passed. It’s ironic that this success is often better known abroad than here as other countries adopt our model.

Decentralization also means that not everyone will manage technologies equally well. However, there are real incentives for all to adopt best practices and AUTM has been remarkably successful in raising the standards of the profession.

Many of our critics seek to impose their unproven theories by restoring centralized bureaucratic control.  We need to point out that when things go wrong in a decentralized system, the damage is limited and gets corrected as others show the way forward.  When they go wrong in a centralized system the results are catastrophic as evidenced that not a single new drug was commercialized when the government took invention rights away from universities in the pre Bayh-Dole world.  The U.S. cannot afford to relearn such lessons which exact a terrible price on the economy and on public welfare.

We need to immediately challenge flawed reports and stories when they first appear.  Those posing as objective scholars must be called out when hiding behind rhetoric and shoddy reasoning.  The critics must meet a significant burden of proof to change a system as successful as the Bayh-Dole Act.

We can demonstrate that millions are alive today and millions more are living better lives around the globe because of the technologies you have helped commercialize. We have a message that can stand up to any challenge that’s thrown against us, but we must have the courage to present it.

Let’s adopt the advice Shakespeare provided for times like these:

            Beware of entrance into a quarrel, but being engaged there in,

            bear’t that the opposed must beware of thee. (Hamlet, Act 1, Scene 3)

In other words, don’t go around picking fights— but if one is forced upon us, go for the win.


About the Author

Joe Allen is a 30-year veteran of national efforts to foster public/private sector commercialization partnerships, and author of numerous articles on technology management for national publications. Joe served as a Professional Staff Member on the U.S. Senate Judiciary Committee with former Senator Birch Bayh (D-IN), and was instrumental in working behind the scenes to ensure passage of the historic Bayh-Dole Act. Joe has served as the Executive Director of Intellectual Property Owners, Inc., a trade association representing major R&D companies, he was involved in the creation of the Court of Appeals for the Federal Circuit, and he also served at the U.S. Department of Commerce as the Director of the Office of Technology Commercialization. From 1992 until 2004, Allen was with the National Technology Transfer Center (NTTC), becoming President in 1997. Clients included NASA, the Department of Defense, EPA, the Department of Veterans Affairs, and the Department of Commerce. Between 2004 until 2007, Allen was the Vice President and General Manager of the West Virginia High Technology Consortium Foundation. In 2008, Joe founded Allen & Associates to continue to facilitate public/private partnerships between universities, federal laboratories and industry.

8 comments
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  1. Good post Mr. Allen.

    My only fear is that this forum only serves the choir, and that your message needs a broader, if not altogether different, audience.

  2. Anon-

    Rest assured, Joe’s message gets out. Each month we have a significant inside the beltway readership. We have traffic from Congress, the White House, K-Street, and virtually every relevant agency. No doubt many here are the choir, but there are others who do pay attention, including some in the press. The Hill has been very good about linking to relevant new stories and I know others in the press that at least periodically read.

    Of course, it certainly will help if the choir were to send good articles like this one to friends who may be casually interested. I told the AUTM group when I spoke 2 weeks ago that if they couldn’t send articles defending University patents and Bayh-Dole to at least 5 friends they weren’t really serious about doing anything to preserve and protect the industry.

    Bayh-Dole works. We all know that. Unfortunately, the forces that have an anti-patent agenda are winning the PR battle, which is truly a shame. Nevertheless, we will continue to do our part to get the truth out.

    Cheers.

  3. Thanks Gene – and thank you and your contributors for the continued efforts to keep the record straight.

  4. Joe,

    Thanks for getting the “word” out. Some Winston Churchill might be appropriate here: “we shall fight on the beaches, we shall fight on the landing grounds, we shall fight in the fields and in the streets, we shall fight in the hills; we shall never surrender.”

  5. Paranoia? The spam catcher really is after me. Release please. :-)

  6. The main force behind the attacks on our patent system are the big monopolists (Google et al.) who have advantages outside the patent system and want to reduce the risk of disruption. Patents are one of the few tools available to small, disruptive innovators. If not for patents, the first phone company would have been Western Union, the telegraph monopoly, not the small (at the time) Bell Telephone startup. As other examples, Edison, the Wright brothers and Farnsworth (TV) were not manufacturers. The battle over the patent system is one between David and Goliath, with a Goliath very skilled in PR and sometimes pretending to represent David.

  7. Headlines harp the T-word and time to terminate them:
    http://thehill.com/blogs/hillicon-valley/technology/199954-lawmakers-look-to-push-patent-troll-bill

  8. Great, great article and sobering. Unless AUTM and the tech transfer community wakes up to the fact they MUST be energetically PROACTIVE in getting the message out that most anti-patent messages are spurious and MUST tackle head on legitimate problems in university commercialization.