Universities are typically considered to have two complementary goals: providing education and performing research. While the determination of which objective deserves primacy has long been debated and is not within the scope of this paper, it is indisputable that productive research serves to further a university's goal of education, both directly by adding to the body of knowledge to be dispensed to the students and indirectly by increasing the university's prestige, thereby attracting lucrative grants, quality students, and competitive faculty members to the university. It is, at the very least, safe to say that research is the heart of the academic system. Standing between a university and its goal of research are two basic, but substantial, obstacles: lack of funding and lack of access. Although lack of funding is fairly self-explanatory, a few statistics provide data on how important funding is to the research arm of the academy. Research is a generally expensive pursuit, with primary expenditures including equipment, materials, and labor costs. In 2002, an estimated thirty-six billion dollars was spent on research activities at academic institutions in the United States. The federal government has long been the primary source of academic research funding, with the National Institutes of Health (NIH), the National Science Foundation (NSF), and the Department of Defense (DOD) providing a vast majority of the funds. Although the government continues to allocate resources for university research, there are increasing numbers of universities, scientists, and projects seeking a piece of a finite level of funding, and of course, there is always the concern that other, non-research priorities may require a change in the government's distribution of funds. Because of the high, and often fixed, costs of conducting research, funding is a prerequisite to research. Decreased funding necessarily decreases the amount of research. The natural extension of this relationship is a reasonably settled principle-decreased funding results in decreased innovation. While certainly less settled, as a matter of principle, the problems related to lack of access are perceived to cause no less of an obstacle to university research and the inevitable result of decreased innovation. No study has yet definitively tied a decrease in research and innovation to the availability of patents to and exploitation of patents by universities. Even the first premise, that university patents cause a decrease in funds available for research and a decrease in access to essential resources for research, is tenuous at best. I contend that the answer is not to eliminate university patents or diminish rights available to universities in their intellectual property, but rather to encourage universities to view and exploit their intellectual property assets like a savvy business enterprise would. In fact, the obstacles related to lack of funding and lack of access may actually be mitigated by university patenting, if universities start obtaining and using their patents strategically. It should follow that by removing obstacles to university research, the level of activity and thus innovation should actually increase. While big business did not initially embrace patenting and, in fact, shared many of the same barriers that universities express with respect to entering the intellectual property arena, studies have regularly shown that both patenting by businesses and innovation are rising. While universities are relative newcomers to the patent world, one benefit is that they do not need to reinvent the wheel. Although there are certainly issues that are unique to universities, the barriers to entering and participating in the intellectual property arena are very similar: lack of money, lack of knowledge, lack of infrastructure, and concern about upsetting the culture of academic research. In fact, even the concerns that are unique to universities are, at bottom, variations on the same barriers that businesses face. For example, the wide variety of subject matter being researched at universities may be unique to academia, but at its essence, the barrier is in providing an infrastructure equipped to handle such diversity. Similarly, academic freedom adds a certain twist to the research and development culture, but there exist similar cultural barriers in industry, as evidenced by the open source movement. Thus, a university can and should look to and adapt the guidance and experience of big business to organize and implement an intellectual property management scheme, hopefully to achieve similar positive results.
Rembrandts in the Research Lab: Why Universities Should Take a Lesson from Big Business to Increase Innovation,
Me. L. Rev.
Available at: https://digitalcommons.mainelaw.maine.edu/mlr/vol59/iss2/8