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.

Technology Transfer…Taking the High Road?

Creative Commons Attribution-Share Alike 2.0 Generic license, photo by Patrick Mackie

The Bonnie Banks o’ Loch Lomond, From Wikipedia, the free encyclopedia

Chorus:

O ye’ll tak’ the high road, and Ah’ll tak’ the low (road)

 And Ah’ll be in Scotlan’ afore ye

Fir me an’ my true love will ne-er meet again

On the bonnie, bonnie banks o’ Loch Lomon’.

In the course of any particular day, I am often approached with very general questions on topics related to technology transfer.  I am expected to serve faculty, staff, and students as a resource for information. In particular, this is meant to ensure that they fully understand the issues and processes, and can more effectively engage in commercialization activities. Unfortunately, this means that the questions posed may range from the legal/technical “what is meant by ‘prior art’?” to the more esoteric issues associated with policy and decision-making, such as “how can we become more successful in spinning out new ventures?”

Of course, the latter sorts  are the ones that keep spinning around in my head, since in many cases even I have difficulty with a clear, concise, answer.  In large part, this is because I recognize the inherent problems with decision making in these situations.  The real question being asked in some of the situations is “what is the RIGHT thing to do?”

At the heart of any decision is an effort being made to choose an action in pursuit of some goal.  In order to do so successfully, the decision maker must:

1. Clearly articulate the goal
2. Identify options available for some active choice
3. Understand the consequences of those alternative choices
4. Evaluate other factors which might impact the final decision process

In this general sense, many decisions are conceptualized as a “cost-benefit” analysis, with the decision-making process focusing on the relative gain attendant upon a choice relative to the loss or “expense” involved.

Obviously, some decisions can be made using much simpler processes, such as a coin toss. Such decisions are often made by single person, on matters with little impact on either that individual or anyone else (yes, I would like iced tea to drink), and no complications.

Australian Rules Football match at Hyde Park, London, on 8 January 1944. Source:  Australian War Memorial

 This image is of Australian origin and is now in the public domain because its term of copyright has expired.

Other decisions, however, require extraordinary efforts directed toward fact-finding and analysis, along with multiple meetings of large groups of people who must conform to a formal structure for coming to a decision.  This sort of decision is likely to impact larger groups, or have potential consequences that justifies investment of time and energy into making the best choice possible. Furthermore, this may involve individuals or groups with widely divergent opinions on what constitutes the “best” choice.  Frequently, the decision is couched in terms of “right” and “wrong” such that there is an unfortunate attribution of possible fault and blame attendant upon the choice.

For decisions related to technology transfer, the process can be extremely complex.  Choices may be constrained in various ways that are uncomfortable for those involved. The culture of academia can also play a larger role than is typically appreciated—this may amount to a set of “almost sacred” values held by some of the people involved. Frequently cited values in academia include “academic freedom” and “dissemination of knowledge,” but there are many variations along these lines, attributing a sort of “purity” of thought and intentions to the academic world.  If technology transfer decisions are subjected to this sort of “good vs. evil” analysis, there will be individuals on both sides of the question claiming the moral “high ground” as it were.   Suddenly, it becomes difficult to decide which position constitutes the “high road” and which the “low road.”

This is further complicated when you realize that perhaps no one knows which road—the “high” or the “low” one—is “better” in some absolute sense.  As the Wikipedia article points out, there may be different interpretations brought to the imagery.  The low road is sometimes equated with death, the soul of the departed Scotsman returning home, so the traveler on the “high road” may be making a more expeditious choice, but not necessarily a “better” one.  There is a sort of moral judgment implied of course, but there remains room for speculation on the relative values demonstrated.

A recently published study [Philosophical Transactions of the Royal Society B: Biological Sciences, Vol. 367, No. 1589. (5 March 2012), pp. 754-762] confirms that the brain actually processes decisions differently if the choices involve “sacred” values held by a particular person.

Economic, foreign and military policies are typically based on utilitarian considerations. More specifically, it is believed that those who challenge a functioning social contract should concede if an adequate trade-off is provided (e.g. sanctions or other incentives). However, when individuals hold some values to be sacred, they fail to make trade-offs, rendering positive or negative incentives ineffective at best.

Obviously, this is true for university policy as well.  As the authors in the study point out, policy decisions are seldom made with any degree of introspection on the possible difference in value judgments on the subject in question. The study concludes that there is a problem encountered when attempting to evaluate certain choices when viewed against deeply held convictions–the brain simply doesn’t process this sort of decision well.  The entire process takes a different track so to speak.

Given this understanding, it’s easy to see how difficult the choices might be for university technology transfer.  In fact, there may be surprisingly little effort made to analyze some of the “defacto” decisions made, under guidance of existing policies. In worst case scenarios, policy is wielded as a weapon (either against a faculty member or a potential licensee!) and the university (technology transfer) agents are derided for being “inflexible.”  The university representatives feel it is a matter of taking a stand, holding positions consistent with their understanding of their institutional policy. They are held to this standard for making the decision. No matter how “reasonable” the tech transfer office might wish to be, university administrators can be hostile to suggestions that policies provide for flexibility—after all, what would be the point in having a policy then?

Thus, when I am posed a question that has at its heart, a possible conflict with the deeply held values inherent to the academic world, I tend to hesitate in providing answers. While not  “sacred” on par with belief in a deity, there is sometimes an undercurrent of feeling that technology transfer involves something “not right” in the context of the presumed mission of the university. For some researchers, a decision has already been made that commercialization is “good” for the university, and much of the decision-making process defaults to typical “cost-benefit” categories.   But there will be faculty for whom this kind of answer is insufficient.  In order to work with them, to give real answers to their questions, it is important to realize that technology transfer is perceived as putting a price tag on something that isn’t even on the market.  I do try to respect this position and in the course of doing my job, attempt to bring clarity and consensus to the decision-making process in technology transfer.  Even when I’m tempted to just toss a coin!

The Trouble with Technology Transfer

For, quarreling, each to his view they cling. Such folk see only one side of a thing.

Jainism and Buddhism.

Udana

68-69:Parable of the Blind Men and the Elephant

I’ve spent the better part of two weeks pondering some basic questions on the subject of “technology transfer”  at public univerisities–with the primary question being “is the system broken?” Of course, there is an assumption that it IS broken, since so many people seem to think it so.  Thus, assuming the technology transfer “system” needs fixed, the question becomes “how should it be fixed?” As always, I wanted to look for data, and wasn’t quite clear what data would be pertinent.  I also wanted input and thoughts from others, since as my mom sometimes reminded me “remember, you’re not always the smartest one in the room.”

So I met with a few of my colleagues, I called a few others, and did some reading (for those who don’t know me, when in doubt, I often look to a book).  I read “The Innovator’s Solution” by Clay Christensen and Michael Raynor. On my way to work, I listened to the audio version of one of Seth Godin’s books, Lynchpin for inspiration (audio versions of his books always seem better than the text version).  I skimmed mutliple blogs on the subjects of innovation, invention, and technology transfer.  A lot of the input I received from all sources seemed to confirm the assumption that the system wasn’t working. There were also a lot of opinions on how to improve the system, some best characterized as proposing an entirely new system. I began to sense that the “problem” was overwhelming in the complexity of the thing…so many moving pieces!

Recognizing that one can only gain so much from reading, I then asked myself some of the same questions. After all, I’ve been “doing” technology transfer for over fifteen years now, and I’ve run into more than a couple of instances where the conventional system didn’t seem to “work.” It seems that maybe technology transfer DOES work for certain parties, but not for others?  Or maybe the conclusion should be derived from The Innovator’s Solution–it works under certain circumstances, and not in others?  The insights lead to more questions.

On the other hand, there is one simple answer–technology transfer does work when the parties to a particular transaction or project agree that it will work.  Naturally, this means that each party recognizes or acknowledges the interests of the other parties, and thus, they are able to reach a common ground.  They agree on the roles each will take, and the “value” associated with those (e.g., the royalty rate). The trouble creeps in when one or more of the parties insists on a different view of the roles or the value (or both). It can be terribly difficult work to find an “answer” that will satisfy everyone. 

For example, a faculty member might insist on a higher share of the income, or  maybe the prospective corporate licensee insists on a lower than expected royalty rate (one that allows for more benefit to accrue to the bottom line of the company).  In these cases, the licensing  office, the party who is “doing” the transaction, may be frozen.  Perhaps the university administration insists that policy or legal restrictions are more important than reaching a deal–what can the technology transfer group do? They don’t have the authority to override policy.  Even if they attempt to raise the issue for discussion, the administration might resist–they don’t see the need for an “exception” in this case.  Further, how much time do they really want to devote to make an alternate decision?

Everyone probably remembers hearing in school, a poem about  several blind men asked to describe an elephant, and each attempts to do so by touching the part of the animal which is closest.  While there are several versions of the story, this is often used as a parable to illustrate how a group of people can approach a question ostensibly on the same subject, and come away with different answers.  If each party is too focused on those issues most critical in their own view,the group may be unable to reach consensus on how to proceed.  At that stage, there is no way to reach agreement. Or if an agreement it is reached, it might represent too many concessions by one of the parties. 

However, in most of the instances I have encountered, the problems did not seem insurmountable at heart.  Rather, it was more often the case that one or more of the parties appears to have little incentive to work through the issues raised.  Like the blind men in the Buddhist version of the story, they are reduced to “quarrelling” and not negotiating. If  each party to a technology transfer deal approaches it with the intention of truly “understanding” the proverbial elephant, it doesn’t guarantee success, but at least success is an option.