Patents need not apply: Open transfer

Working openly is a completely different style of working – it is about making the entire research process accessible, from discovery to transfer and everything in between (or beyond!). As a result of my working openly, I am not experienced with patents exactly  because patenting requires secrecy I do not apply. In other words, working openly causes friction with patents – in this blog post I discuss that working openly does not preclude knowledge/technology transfer.

Patent-commercialization-transfer

The goal of knowledge/technology transfer is not the same everywhere. A definition I found from Data & Analytics for Good defined it as “creat[ing] and mov[ing] ideas from research institutions to the marketplace with the end goal to improve quality of life and benefit society [...] An institution is usually measured by its ability to convert research efforts into commercial income.” This is one definition, from a US centric organization, which highlights an (aspirational) pathway of transfer: 

Patents --> Commercialization --> Transfer

If we take the patent-commercialization pathway to transfer, we run into a first issue: The private innovation myth. As Marianna Mazzucato indicated in their book The Entrepreneurial State, private entities capitalize on a long value chain primarily driven by public funding. Private entities may end up patenting the final stages of that value chain as a way to secure that commercialization, but this is a mere mechanism to capture the value without properly redistributing it through the chain. Take for example the Oxford/Astrazeneca vaccine, which was 97% publicly funded. Originally, they aimed to release it to the public for free,  yet after lobbying by pro-patenting parties, they ended up patenting the vaccine after all, with the profits going to the private entities.

Another issue is that the patent-commercialization pathway can actively prevent knowledge transfer. Continuing with the example of the COVID-19 vaccine, there were plenty of parties ready to produce more vaccines, such as Covax. Yet, patents like the one on the Oxford/AstraZeneca vaccine, prevented them from producing the much needed doses. In this case, patents prevented transfer in favor of capturing value. Another way patents can prevent transfer is when the goal of commercialization supersedes the transfer goal. This happened with universities in the United States, who formed a company aimed solely at patent litigation (also called patent trolling), in order to squeeze as much income from their patent portfolio as possible.

These examples do not mean patent-commercialization pathway cannot lead to transfer, but they also indicate the patent-commercialization pathway it is not sufficient to cause transfer either.

Open transfer

When we work openly, we litter the world with prior art, which requires us to find alternative pathways to transfer. After all, the patenting is hampered by prior art. Patenting agencies only grant patents for things that are not yet shared in public, and working openly is about sharing that work in public as it is happening (i.e., creating prior art). Does it mean that findings resulting from working openly cannot be transferred, because no patents can flow from them? That argument does not hold – the potential to be innovative is not a one to one reflected by our potential to patent.

New transfer pathways can switch out the patent in the patent-commercialization pathway. For example, we could create product-commercialization or service-commercialization pathways to transfer knowledge and technology into society. However, these come with new pitfalls, such as the 11 deadly sins of product development. Transfer offices could play a role in providing the needed support and upskilling to tackle these challenges. Transfer is work after all, and it is not obvious how to do that in the slightest.

The product or service pathway would still rely on commercialization as the cornerstone of transfer. If we are coming up with alternative transfer pathways, why would we require them to all to be about commercialization? There is plenty of transfer potential that does not need to be grounded in commercialization – if it gets incorporated into non-commercial projects that is also the potential for meaningful impact. It is a great opportunity to reevaluate whether commercial income is a good measure for transfer to begin with.

The role of the transfer office is not to have all the answers on how to realize open transfer. I primarily encourage transfer offices to not reject the transfer potential when people who work openly come to them. If you cannot patent, it can still be transferred and have an impact. Sharing research work openly and on an ongoing basis is happening, whether that fits into the existing tools or not. This indicates alternative or new tools need to be sought. Practically, a recent report on open hardware provides three steps to take now, tomorrow, and in the long term, which I adapt for open transfer:

1. legitimize and nurture research that does not fit the current transfer pathways

2. standardize and recognize patterns of new transfer pathways

3. so that in the long term, you are ready to assess and reinforce these new pathways to knowledge transfer.

Open transfer is not a challenge that will solve itself, even though it appears by research evolving and without being asked for. Transfer offices have a great opportunity to adapt and provide stronger pathways to knowledge and technology transfer. Right now, very few organizations are developing serious strategies to do so, even in the countries that are at the front of other areas of open scholarship.

 


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Patents need not apply: Open transfer
Liberate Science GmbH, Chris Hartgerink June 12, 2024
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