Association for Public Policy Analysis & Management

How does something move from a legitimate rule to a corrupt exception? So much work in institutional theory has emphasized how innovations of many kinds—from technologies to models to practices---spread and how they stick, thereby reflecting a process of increasing legitimacy and deepening taken-for-grantedness. Despite a legacy of fruitful work, we know much less about the reverse: how once legitimate, high functioning and even efficient practices not only disappear, but are rendered inappropriate or even illegal. Is this process simply reverse institutionalization (de-institutionalization), thereby exhibiting the unraveling of something old to make room for something new?

I address this problem through an empirical analysis of the origin and evolution of the experimental use exemption in intellectual property protection, with an emphasis on the intersection of academic and private sector sciences. I combine field work with comprehensive data on 50 years of intellectual property litigation in the US, distinguishing among the origins of innovations (e.g. whether universities or firms) and the character and quality of the disputes (e.g. whether infringement and how experimental use may or may not have fared in decisions). A practice of open use for experimental purpose that was once widespread and appropriate has become rendered a form of malfeasance that sanctions knowledge and the actors that produce it.

I argue that our scholarship in this realm has fallen prey to what scholars warned so long ago about the pro-innovation bias, whereby innovation, like “motherhood,” or “patriotism” implies characteristics that actors of society ought to possess (Rogers and Shoemaker, 1971; Rogers, 2003). So much effort, notably my own, has emphasized the emergence of entrepreneurship in the life sciences, and the ways in which the institutionalization of intellectual property protection has permeated universities, labs and individuals to the extent that to be a legitimate academic scientist means to hold a portfolio of patents and even firms. Scientists are no longer simply producers of knowledge, but agents of both the fate of that knowledge and new actors in the form of firms to steward that knowledge.