Can University Administrators Nullify A Supreme Court Decision?

They can certainly try. That’s what Defending the Freedom to Innovate: Faculty Intellectual Property (IP) Rights After Stanford v. Roche, (http://www.aaup.org/report/defending-freedom-innovate-faculty-intellectual-property-ip-rights-after-stanford-v-roche) a newly released draft report from the AAUP, documents—the year-long effort by many of our most distinguished research universities to nullify the US Supreme Court’s historic 2011 Stanford v. Roche ruling. Spearheaded by the entire University of California system early in 2012—and since joined by public and private universities like the University of Chicago and the University of Illinois—this multicampus effort aims to take away the faculty patent rights established by two hundred years of patent law and reinforced by the nation’s highest court in 2011.

In Stanford v. Roche, the Court ruled against a coalition of universities that had been asserting that the 1980 Bayh-Dole Act not only gave institutions the right to own faculty inventions but also mandated they do so. Faced with a firm rejection of this claim, many institutions responded by trying to nullify the decision. They typically chose one of two routes: either making all faculty sign a new form giving away all present and future patent rights or simply declaring university ownership on a campus website.

Faculty are beginning to protest, but many are afraid of retaliation. Interestingly, the dispute is not about money. For decades most universities recognized that faculty members owned their inventions and had the right to decide whether they should be commercialized. If they were marketed, a faculty inventor and the campus would usually share any profits. That is still the case. But faculty are losing the power to decide whether and how their inventions should be disseminated. And that right is covered by academic freedom.

The dispute is no longer only about patents. The MOOC revolution is leading some institutions to demand ownership of online instructional materials as well. For generations, course lectures were covered by copyright and owned by faculty unless they voluntarily chose to grant ownership to their university. As the AAUP’s draft report points out, all a university needs is a license to distribute an online course, but many are pressing unnecessarily for ownership as well.

The AAUP is launching an educational campaign to inform faculty about their rights and to encourage faculty senates and contract negotiating teams to secure the rights the Supreme Court has confirmed. There is no evidence that university administrators understand inventions better than faculty members do. The AAUP believes the public good is better served by those who know these scholarly products best deciding whether to give them away for free or seek commercialization.

The draft report—and supporting documentation—is available at http://www.aaup.org/get-involved/issue-campaigns/intellectual-property-risk. It will be followed by a January 2014 book to be published by the AAUP and distributed by the University of Illinois Press, Recommended Principles to Guide Academy-Industry Relationships.

Cary Nelson, chair, subcommittee on intellectual property
Henry Reichman, chair, Committee on Academic Freedom and Tenure

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