No conflict of interest for faculty ownership – but there is for patent administrators with university ownership

[Gerald, “11 rationalizations regarding university compulsory patent ownership,” Research Enterprise, 08/01/16, https://researchenterprise.org/2016/08/01/11-rationalizations-regarding-university-compulsory-patent-ownership/, accessed 7/17/24, GDI-JCR]

This is the argument university patent administrators take to the university conflict of interest folks. University resources must not be used for personal gain; therefore, university resources cannot be used to invent or develop an invention that would be owned by the inventor. That would be a misuse of resources and a betrayal of the public trust. So, the argument goes, a university must demand ownership of inventions to save the inventors from the shame and discipline that must come if they are caught out claiming to own for their own, personal, selfish financial benefit. The university’s compulsory assignment policy is then merely an administrative remedy to avoid ethics problems created by private ownership of inventions. “We have no choice but to be totalitarian about it–anything else would condone unethical behavior.”

There is nothing inherently unethical in owning something that is used or improved in university activity. This happens all the time with scholarly manuscripts, with artistic works, with scripts for screenplays derived from novels written by faculty teaching creative writing or literature or dental hygiene. This happens all the time with collections of rocks or plants or shells or photographs or recordings–made by individuals and brought into the university to assist research, teaching, or just to stimulate discussion. These are not unethical acts–they are part of the very reason a university exists. The point of faculty appointments is to provide faculty with the resources to do what faculty do–teach and study–without having to take side jobs to get by. The universities resources provided to faculty are not the sacred bones of the public, to be touched only by priests, but rather are a form of subvention, a gift-in-aid to members of the faculty. That faculty have personal ownership of what they think, write, design, make, and invent is not unethical–it is a consequence of what a university is.

Even if personal ownership of inventions did create a conflict of interest (or an appearance of a conflict of interest), that conflict is manageable. Decisions regarding a given invention within the university can be referred to someone who doesn’t have an ownership interest or financial interest in the invention. One might own an invention and make it freely available to all. Where is the personal conflict? Oh, well, at UCSD patent administrators argued that it was a conflict of interest to release software open source because then, maybe, someone might pay someone who had worked on the software to help them with it. Thus, releasing software open source was–went the argument–the equivalent of cutting the university out of its licensing money in order to create opportunities for personal consulting.

University of Washington patent administrators a few years ago went even further than UCSD. They argued that it was a conflict of interest for faculty to use university resources to improve their personal know-how, because they might then use that know-how in private consulting–even if that private consulting was as a volunteer. Thus, the university must also own every faculty member’s know-how. The patent administrators didn’t rightly know how they owned know-how, but they were insistent that they did own it, and it was an ethics violation otherwise. (They ignored the exception in state ethics law for faculty involved in research–it was all about asserting their administrative power, never actually about ethics).

One might see in the UCSD argument the makings of an institutional conflict of interest, or a professional conflict of interest for the patent administrators. Their jobs depend on the money they bring in from licensing. Thus, when they construe the personal ownership activities of faculty as unethical, it is their own conflicted opinion that they assert, not some truth about the university and its resources. In an employer-employee relationship, the employer’s goods might be used only for the benefit of the employer. That’s an argument for fiduciary duty. But in a subvention, the provider’s goods are made available as aid to what those benefiting are trying to achieve anyway. The deal is: if you agree to join the faculty, we will make these resources available to you to do what you do. The deal is not: you now become an employee and everything you do will belong to us or you are an unethical cheat.

The challenge in deciding how a university’s resources are to be used, and what obligations a faculty member has to the university, is a matter of a university’s agreements with the faculty member–what has the university committed to, not just what the faculty member has committed to.

The claim that personal ownership of inventions creates a personal conflict of interest is bluster. Ownership is not the issue. Actions based on ownership may represent a conflict of interest or misuse of university resources, or may not. But it is not a conflict of interest to own. It is not a conflict of interest to dedicate inventions to the public domain (and so deny the university patent officials from the opportunity to make money from those inventions). And if there were to be a conflict of interest arising from actions, those conflicts are often manageable. The greater conflict of interest arises when patent management officials are permitted to make allegations in the name of the university about conflict of interest where their own jobs and careers depend (as they see it) on the university’s assertion of ownership for everything they can.