Philosophical Musing….

Again, I find myself inspired to post here, after reading one of Gerald Barnett’s most recent blog postings, Five Defects in Persistent Readings of Bayh-Dole | Research Enterprise.  Early in the post he makes a statement that really struck a nerve with me (emphasis added):

I made this list of serious defects in characterizations of Bayh-Dole in the academic and popular press. Why do these persist? It must be that there are folks who really want to promote defective readings of the law.

Why did this strike me in particular?  It took me a few minutes to think that through.  First I realized that my experience in technology transfer was a key factor.  In the first few years of my career, I certainly mirrored exactly the same “reading” of Bayh-Dole because most of the training and mentoring I received was from people who understood the legislation in this manner. It is part of “our” professional identity to understand and communicate the essence of the legislation that was the foundation upon which our technology transfer offices were built.

After those first years, I became less concerned with any “essential” truths on Bayh-Dole as my job focused primarily on details–making decisions on patent applications, reviewing patent prosecution correspondence, meeting with new inventors, negotiation of licenses (or executing the more common agreements, non-disclosures, MTA’s, etc.). Professional development centered upon attending conferences and workshops which either 1) repeated the conventional wisdom on Bayh-Dole, or 2) focused narrowly on the technical side (patent law, etc.). It isn’t unusual for anyone to get caught up in the day-to-day activity and feel little or no interest in reflection upon something that has ceased to be a question.

Unfortunately for me, I am often “accused” of over-thinking on pretty  much any issue or subject. Also, I am more inclined to question conventional wisdom than most. I am not particularly impressed with arguments that have little in the way of DATA to support them. Of course, I wouldn’t t let that get in the way of the daily routine. I managed to continue with the meetings with inventors, whether (or not) I “believed” in all the myriad “assumptions” of the legal foundations and how the legislative underpinnings were supposed to work.

Admittedly, I was sometimes at a loss when asked to really “justify” some of the policies and processes I was expected to operate under.  I could honestly agree with, or at least provisionally consider, many of the opposing viewpoints–for example, why did the university policy require faculty to assign all patent rights to the university?  How can the policy state that faculty will own copyright in most of their work, but then add provisions where the university claims a specific work?

If I had reservations about whether these issues were being dealt with “rightly” I mostly kept them to myself. After all, if I raised doubts with the wrong person, their conclusion might be that I didn’t really understand my job, especially if they bought into the conventional thought on the subject. In a few instances, when I did at least highlight some of the more problematic points, there was little interest in making changes–and for a variety of reasons.  For example, policy was too difficult to change, and no one understood it anyway. Besides, there I was again–thinking too much, and asking too many questions.

This gets to the heart of why I pretty much left well enough alone. It was easier to keep on track with everyone else, and I didn’t really have the energy (or the commitment) to do more. I focused on the technical side, glossed over those pesky “principles” and just tried to approach each projects from a common sense point of view. It could be fairly uncomfortable, but I’m generally more tolerant of that sort of ambivalence.

With respect to Bayh-Dole, I’m willing to bet that many others in same position will either 1) avoid questioning conventional dogma, or 2) insist upon the innate truth of said dogma. Perhaps this does result in their promotion of “defective readings of the law.” I may find it regrettable, but I also find that I can sympathize with them to point. It’s hard to come to an unconventional conclusion and attempt to stick to it–especially if there is some chance that you will come to an incorrect conclusion, or at least a certain percentage of people will judge you to be “wrong.” Even when I do find myself coming to unconventional conclusions, I often default to discreet silence and not publicly expressing my doubts. However, by my silence, it’s possible to conclude that I am contributing, albeit passively, to promoting the opinions that others are more aggressively voicing.

This was the point that made me pause in reading Gerry’s original  blog entry. What, precisely, do I really “believe” and what should I then do about it?  I have to think more about the subject, and that I will leave for another posting.

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