Forbes Opinion: The Electronic Frontier Foundation Misfires on University Patents, by Richard Epstein
This post originally appeared in Forbes on November 4, 2016.
Just recently the Electronic Frontier Foundation (EFF) has published an extraordinary request to research universities as part of its “Reclaim Invention” campaign: please stop putting your patents into the hands of insidious patent trolls. EFF seeks to put teeth in its proposals by asking state legislatures enact statutes “to bar state-funded universities from transferring patents to patent-assertion entities, broadly defined and branded as trolls. It proposes that these transfers be null and void if they do not meet statutory criteria, and suggest that the universities in question be punished by a forfeiture of research funding and student financial assistance. In the eyes of the EFF, universities should exercise a higher sense of social responsibility and only sell or license their patents to those companies that “will actually do something with them.” In its view, universities should resist the temptation to license their patents to the highest bidder to make better use of public grants, student tuition and private donations.
The claim is preposterous, and the proposed sanctions wildly misguided. EFF seeks to manufacture a conflict of interest by treating all non-practicing entities (NPEs) as trolls that gobble up patent rights solely to threaten other businesses litigation in order to extract unmerited royalty payments. Yet it offers no empirical evidence that universities have in any sense misbehaved in the way in which they have managed their patent portfolios, or even some description of the various licensing practices that they do follow. EFF’s proposals would be a real threat to university tech transfer (itself a major driver of startups and job growth in university innovation hubs), which is critically dependent on a university’s ability to license patented technologies to startups. EFF’s lack of institutional awareness leads them to make serious errors in analysis and judgment.