Technology Transfer: The Change of European Governance of Research from a Private Law Perspective

Abstract

The current paper focuses on the characteristics of modern, patent based technology transfer in recent initiatives and explores its effects on public research. First, it will describe the legal and institutional landscape of patented academic research and technology transfer offices, both on the national and European level. Second, it will discuss the effects of technology transfer policies on universities. Positions in social science literature are split. Some argue that universities have transformed into entrepreneurial entities (Etzkowitz, H., & Leytesdorff, L. (1997). Universities in the global economy: A triple helix of academic-industry-government relation. London: Croom Helm, European Universities.; Acs, Z., & Audretsch, D. B. American Economic Review 82:363–367, 2004), other argue that different norms in academia and industry subsists and might assume even a greater significance in the face of closer links (David et al. 1999; Mowery, D. C., & Sampat, B. N. (2005). Universities in national innovation systems). The paper argues that this binary analysis does not properly describe the transformation of public research organizations prompted by the “third mission”. It explores the concept of a university (to be more precise: the university boards) as a “hinge-joint” between industry and in-house scientists. Universities will have to safeguard segments in which those norms are maintained which cushion “idle curiosity” (Merton, R. K. (1942/1973). The normative structure of science. In N. W. Storer (Ed.), The sociology of science (pp. 267–285). Chicago: University of Chicago Press.). In other parts, they will develop entrepreneurial policies, both on faculty level, and on the level of each individual scientist. As R. Münch noted, technology transfer cannot be foregone since it is not technology transfer which is transforming public research organizations but overall global developments broadly labelled as information society and globalisation (Münch, R. (2009). Globale Eliten, lokale Autoritäten: Bildung und Wissenschaft unter dem Regime von PISA, McKinsey & Co. Frankfurt am Main: Suhrkamp, p. 106).

From a private lawyers perspective, the technology transfer initiatives have granted universities “more rights” which they can use according to their preferences. Those preferences are not fixed, neither confined to profit maximization nor to “giving away knowledge assets”. From a functional point of view, it seem important to translate the novel function of universities as “intermediaries” into policy concepts and legal terms. (1) Universities are important because they are different from industry. This is because they bring about a different type of knowledge. (2) Most of them are financed by public money. Therefore, the public mission has to be taken on board. In the long run, universities have to devise policies which ensure that continuous conflicting goals are served on a transparent basis.