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Public Fights Over Private Rights in Higher Education

What is public and what is private in higher education?  As many have noted, the dividing line is not always clear, particularly when the concern is one of educational goals or the policy rationales for any major institutional action.  Pressing the issue is the fact that universities over the past decade have struggled to define the bounds of their role in the expanding knowledge economy, where intellectual property rights (IP) increasingly are viewed as the fount of corporate, regional, and even national prosperity.  Ever more entrenched in the market, many universities are turning to IP as a cure for what ails them, or at least as a cure for what policymakers say ails them: declining revenue and shrinking sources of revenue.

The “I” in IP is not new to universities; after all, without intellectual inputs and outputs, the whole premise of the university folds, and such has been the case in this country since the arrival of the colonial colleges.  Increasingly, however, it is the nature and use of the “P” in IP that is attracting popular attention when it comes to university IP, university-owned patents in particular.  Granted, the concept of private rights incentives furthering the public interest is as old as the U.S. Constitution—and, thanks to the Bayh-Dole Act of 1980, universities have decades of experience using patent rights (stemming from inventions made by faculty members) to leverage intellectual outputs for the greater good of society. 

What is new is the role these endeavors are playing in the construct of the modern university.  Once viewed as an ancillary undertaking, of interest to but a few market-oriented scientists and paraprofessionals in an obscure wing of the university, the very activity of technology transfer has become, in the words of University of California-Berkeley ethics professor, David E. Winickoff, “a crucial site where the very idea of the modern university is being unsettled, reworked, and reestablished.”

Professor Winickoff’s thoughtful and timely new article, forthcoming in Jurimetrics, traces the emergence of university technology transfer in the public sphere.  In it he details the recent history of controversies inspired by university decisions involving IP—everything from the pricing of AIDS drugs developed at universities to the patenting of the Oncomouse.  The piece contributes to a larger dialogue concerning the complex hybrid nature of the modern research university as both public and private actor and brings readers to consider critical—and actively contested—questions concerning society’s expectations for university IP, most importantly: “To what extent are universities responsible for preserving the public domain?  As owners of intellectual property, what are their distributive obligations to diverse publics, from the local to the global?”

Several recent news events place a finer point on these questions and underlying tensions.  Last Friday, Boston University filed thirty—that’s right, 30—separate patent infringement lawsuits against companies it claims are infringing a patent it owns directed toward “Highly Insulating Monocrystalline Gallium Nitride Thin Films,” a technology that BU alleges the various defendants have used in products that contain blue LEDs, such as handheld phones and tablet devices.  The list of over 50 corporate defendants is a veritable “Who’s Who” of the high-tech world (to wit: ACER, Blackberry, Canon, Dell, Eastman Kodak, Fujifilm, Microsoft, Motorola, NEC, Nikon, Nokia, Olympus, Panasonic, Sharp, Sony, Toshiba, and Vizio, to name but the defendants that are household names), and comes after earlier filings this year by BU against Apple,, HP, LG, and Samsung over the same patent.

Patent infringement lawsuits brought by universities—whether alone or in conjunction with a licensee—are not a new phenomenon, although activity on this scale by one university is unprecedented.  Will it bear fruit for BU?  I have argued elsewhere that whatever the financial recoveries from litigation of this sort, with them may come attendant intangible costs that could hurt students and faculty, such as revocation of sponsored research funding by defendants and refusals to conduct on-campus interviews.  Professionals in tech transfer have told me these are real concerns, and indeed, one company sued by the University of Illinois made public its retaliatory decisions earlier this year—much to the chagrin of the university.

Despite these risks, several noteworthy outcomes stand as a model for BU and all other universities contemplating an infringement litigation campaign, and no outcome is more remarkable than the one achieved by Carnegie Mellon University last December.  Pittsburgh-based CMU alleged that California-based Marvell Technology Group willfully infringed a patent owned by the university directed toward increasing the ability of hard-disk drive circuits to read data from high-speed magnetic disks.  The local jury agreed with the hometown institution and awarded CMU $1.2 billion—you read that correctly, billion—in damages, a verdict and figure that the trial judge declined to overturn or amend in her recent ruling on post-trial motions, released on Monday.  If the damages award is upheld on appeal, it will stand as the largest damages award ever in a patent infringement case.

What do these developments mean for our understanding of public and private in higher education?  University leadership face difficult choices when it comes to institutional agency over IP, and there are no shortage of proposals aiming to strip universities of their ability to manage, disseminate, and spark commercialization of new products as best as they see fit.  As one tool in their arsenal, more universities each year are learning to litigate, but the lesson the public should take from these mounting battles is unclear.  As Professor Winickoff observes, changes in academic science and the functions of patents and technology transfer to universities mean that “the boundaries of the public and private domain are under active negotiation.”  Negotiation can be beneficial, but where will it lead?  Successful negotiations typically result in compromise—all parties give a little.  For proponents of a public interest in university IP, perhaps the most salient questions are what they are hoping to maintain, and what they are willing to lose.

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