“This is about governments using data for performance rather than compliance” was a resounding message coming out of the U.S. Department of Education’s conference on June 10 on the use of Pay for Success contracts in education. These contracts, known globally as social impact bonds, continue to be at the forefront of global conversations about results-based financing mechanisms, and have garnered significant momentum this week with passage of the Social Impact Partnerships for Pay for Results Act in the U.S. While limitations certainly exist, their potential to revolutionize the way we fund social projects is tremendous.

A social impact bond (SIB) is a set of contracts where a government agency agrees to pay for service outputs or outcomes, rather than funding defined service inputs, and an investor provides upfront risk capital to the service provider. The investor is potentially repaid principal and interest contingent on the achievement of the predetermined outputs or outcomes.

In our research on impact bonds at the Center for Universal Education, we have analyzed the use of SIBs for education in the U.S., other high-income countries, and low- and middle-income countries. Practitioners in each of these contexts are having far more similar conversations than they may realize—all are united in their emphasis on using SIBs to build data systems for performance. There is tremendous potential for lessons learned across these experiences and across the broader discussions of results-based financing mechanisms for education globally.

Current SIBs for education globally

There are currently five SIBs for education worldwide: two in the U.S. for preschool education, one in Portugal for computer science classes in primary school, and one each in Canada and Israel for higher education. In addition, a number of countries have used the SIB model to finance interventions to promote both education and employment outcomes for teens—there are 21 such SIBs in the U.K., three in the Netherlands, and one in Germany. There is also a Development Impact Bond (DIB), where a donor rather than government agency serves as the outcome funder, for girls’ education in India. The Center for Universal Education will host a webinar to present the enrollment and learning outcomes of the first year of the DIB on July 5 (register to join here).

U.S. activities to facilitate the use of SIBs for education

At the June 10 conference at the Department of Education, the secretary of education and the deputy assistant to the president for education said that they saw the greatest potential contribution of SIBs in helping to scale what works to promote education outcomes and in broadening the array of partners involved in improving the education system. Others pointed out the value of the mechanism to coordinate services based on the needs of each student, rather than a multitude of separately funded services engaging the student individually. In addition to using data to coordinate services for an individual, participants emphasized that SIBs can facilitate a shift away from using data to measure compliance, to using data to provide performance feedback loops.

The interest in data for performance rather than compliance is part of a larger shift across the U.S. education sector, represented by the replacement of the strict compliance standards in the No Child Left Behind Act of 2002 with the new federal education funding law, the Every Student Succeeds Act, signed into law in December of 2015. The law allows for federal outcome funding for SIBs in education for the first time, specifically for student support and academic enrichment programs. The recently passed Social Impact Partnerships for Pay for Results Act also allows for outcome funding for education outcomes. The Department of Education conference explored potential applications of SIBs across the education sector, including for early home visiting programs, programs to encourage completion of higher education programs, and career and technical education. The conference also analyzed the potential to use SIBs for programs that support specific disadvantaged populations, such as dual language learners in early education, children of incarcerated individuals, children involved in both the child protection and criminal justice systems, and Native American youth. Overall, there was a focus on areas where the U.S. is spending a great deal on remediation (such as early emergency room visits) and on particular levers to overcome persistent obstacles to student success (such as parent engagement).

To help move the sector forward, the Department of Education announced three new competitions for feasibility study funding for early learning broadly, dual language learners in early education, and technical education. The department is also facilitating connections between existing evaluation and data system development efforts and teams designing SIBs. The focus on early childhood development by the Department of Education is reflective of the national field as a whole: Programming in the early years is becoming a particularly fast-growing sector for SIBs in the U.S. with over 40 SIBs feasibility and design stages.

SIBs for education in low- and middle-income countries

There is only one DIB for education in low- and middle-income countries; however, there are a number of SIBs and DIBs for education in design and prelaunch phases. In particular, the Western Cape Province of South Africa has committed outcome funding for three SIBs across a range of health and development outcomes for children ages 0 to 5.

Though the number of impact bonds may be relatively small, a significant amount of work has been done in the last 15 years in results-based financing for education. The U.K. Department for International Development (DfID), the Dutch Ministry of Foreign Affairs, the Asian Development Bank, the World Bank, the Global Partnership for Output-Based Aid, and Cordaid had together funded 24 results-based financing initiatives for education as of 2015. Of particular interest, DfID is funding results-based financing projects through a Girls Education Challenge and the World Bank launched a new trust fund for results-based financing in education in 2015. As with impact bonds in the U.S., a primary aim of results-based financing for education in low- and middle-income countries is to strengthen data and performance systems. Early childhood development programs and technical and vocational and training programs have also been identified as sub-sectors of high potential. Here are a few final takeaways for those working on results-based financing for education in low- and middle-income countries from the U.S. Department of Education conference:

1. The differences between the No Child Left Behind Act and the Every Student Succeeds Act should be analyzed carefully to ensure other data-driven education performance management systems promote both accountability and flexibility.
2. In building data systems through results-based financing, ensure services can be coordinated around the individual, feedback loops are available for providers, and data on early education, child welfare, parent engagement, and criminal justice involvement are also incorporated.
3. There are potential lessons to be learned from the U.S. Department of Education’s effort to conduct more low-cost randomized control trials in education and the U.S. Census Bureau’s data integration efforts.
4. SIBs provide an opportunity to work across agencies or levels of government in education, which could be particularly fruitful in both low- and middle-income countries and the U.S.

As the global appetite for results-based financing continues to grow and new social and development impact bonds are implemented throughout the world, we’ll have an opportunity to learn the true potential of such financing models.

       

       

       

       

       

       

       

       

       

       

Justin Wolfers, professor of Economics and Public Policy at the University of Michigan, re-joins Brookings, Vice President and Economic Studies Co-Director Karen Dynan announced today.  Wolfers was a visiting fellow from 2010-2011.

A world-renowned empirical economist, Wolfers will continue in his role as co-editor, along with David Romer of the University of California, of the Brookings Papers on Economic Activity (BPEA), the flagship economic journal of the Institution.  He will continue his focus on labor economics, macroeconomics, political economy, economics of the family, social policy, law and economics, public economics, and behavioral economics. His appointment as senior fellow will last 13 months.

Wolfers is also a research associate with the National Bureau for Economic Research, a research affiliate of the Centre for Economic Policy Research in London, a research fellow of the German Institute for the Study of Labor, and a senior scientist for Gallup, among other affiliations. He is a contributor for Bloomberg View, NPR Marketplace, and the Freakonomics website and was named one of the 13 top young economists to watch by the New York Times.  Wolfers did his undergraduate work at the University of Sydney, Australia and received his Master’s and Ph.D. in Economics from Harvard University.  He is a dual Australian-U.S. national and was once an apprentice to a bookie which led to his interest in prediction markets. 

“We are pleased to re-welcome Justin back to Economic Studies,” said Dynan. “His work continues to challenge the conventional wisdom, and we look forward to collaborating with him once again.” 

“Justin is outstanding at communicating economic ideas to a wide audience, as evidenced by his regular writings for media as well as his large social media presence,” added Ted Gayer, co-director of Economic Studies.

“I have enormous affection for the Brookings Institution, which provides not only a home for deep scholarly research, but also an unmatched platform for engaging the policy debate,” said Wolfers.  “The Economic Studies program has a rich history of being the go-to place for policymakers, and I look forward to coming back and engaging in debate with my colleagues there.”

       

INTRODUCTION—

Achieving universal education is a twofold challenge: to get children and youth into school and then to teach them something meaningful while they are there. While important progress has been made on the first challenge, there is a crisis unfolding in relation to learning. Around the world, there have been major gains in primary school enrollment partly due to the United Nations’ Millennium Development Goals and the abolition of school fees by many national governments. However in many countries, students are spending years in school without learning core competencies, such as reading and writing. To address this learning crisis, the global community and national governments need to place a much greater focus on the ultimate objective of education—to acquire knowledge and develop skills.

This shift in focus away from just enrollment to enrollment plus quality learning requires measuring learning outcomes. However, the global education community is not yet systematically using effective instruments for measuring primary school learning in low- and middle-income countries. This policy brief reviews the global efforts among the primary donors to support the measurement of learning outcomes. It then suggests steps needed to transition global education policy into a new paradigm of enrollment plus quality learning, which includes: scaling up the implementation of national education accounts and national assessment systems; increasing attention to monitoring early learning during child development to improve readiness for school; and expanding the systematic use of simple assessments of basic cognitive functions in the early grades to help teachers improve their practice.

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Editors’ Note: President Obama came into office promising to turn the page on a chapter of American history defined by two wars in the greater Middle East, writes Tamara Wittes. Ironically, however, his fixation on closing one chapter led him to decisions that opened a new one that reads very similarly. This post originally appeared on The Atlantic.

President Obama came into office promising to turn the page on a chapter of American history defined by two wars in the greater Middle East. His consistency in delivering on that promise is admirable, as is the focus with which he has learned from and sought to avoid his predecessor’s mistakes regarding the use of American force abroad.

Ironically, however, Obama’s fixation on closing one chapter led him to decisions that opened a new one that reads very similarly. This new war on ISIS—Obama’s war—which began in August 2014, can be traced to two errors of judgment. Jeffrey Goldberg’s article on “The Obama Doctrine” reveals that these errors were driven by the president's determination to keep his promises to the American people and to avoid the mistakes of the past.

The first mistake was Obama’s retreat from Iraq—the withdrawal not just of U.S. forces, but even more so of diplomatic energy and leverage, which, successfully deployed, might have mitigated the collapse of the Iraqi political experiment and thus blunted the rise of ISIS. After Iraq held its (pre-American withdrawal) elections in 2010, the Obama administration took a hands-off approach to Iraqi domestic politics, and it failed to replace the American military presence with a robust set of civilian, economic, and other partnerships to sustain American influence. In 2011, my last of about two years working on Middle East policy in Obama’s State Department, we were planning for sharp cuts in civilian programs for Iraq alongside the military drawdown—and over the next two years, U.S. economic aid to Iraq dropped nearly 50 percent. The administration had ample warning about the damage Iraqi Prime Minister Nouri al-Maliki’s sectarian and power-hungry behavior was having on Iraqi security and stability. But the president and Vice President Biden, who managed the Iraq portfolio on Obama’s behalf, chose to do very little to constrain Maliki as he began to unravel the tentative political bargains between Sunnis, Shiites, and Kurds within federal Iraq.

America’s regional partners decried the rise of Iranian influence as the United States stepped back, and feared Maliki’s steps against Sunni politicians could reignite civil violence, but the White House brushed off their concerns in both Iraq and Syria. And so the Gulf states sent their own support to Sunni tribes in western Iraq and militias battling Assad in Syria, stoking the sectarian flames and setting the stage for extremists to outbid them. As ISIS began to gain ground among Sunni populations alienated from the central government, the administration didn’t see any reason to invest in persuading Maliki toward a political accommodation that might have tamped down the emergent Iraqi Sunni militias and held Iraq together. That’s not to say Obama would have succeeded—but because he wanted to turn the page on the Iraq experience, he failed to try.

Likewise, Obama’s read of the Syrian conflict as holding only narrow implications for American interests was a signal failure to learn the lessons of the 1990s and recognize the risk that Syria’s civil war could spill over in ways that directly implicated U.S. interests. It did not, in 2012 and 2013, require special foresight to apply to the Syrian case other lessons from history than those Obama focused on. The experience of the 1990s clearly suggested how a neglected civil war offered easy opportunities for a violent jihadist movement—just as the Afghanistan war did for the Taliban in the mid-1990s—and how large-scale refugee flows would destabilize Syria’s neighbors, including key U.S. security partners like Jordan and Turkey. And as we now know, ISIS used the security and governance vacuums created by the Syrian Civil War to consolidate a territorial and financial base that the United States has been seeking since late 2014, with limited success, to undermine.

These two errors of understanding and judgment, both driven by the president’s commitment to avoid his predecessor’s mistakes, left major risks to regional stability unaddressed, and thus fed the rise of an ISIS threat so significant as to compel Obama, in August 2014, to overturn his longstanding preferences and recommit American blood and treasure to fighting Islamist extremists on the ground in Iraq, and now in Syria. His errors (as well as the famous “red line” climbdown) also provoked anxious regional partners to take their own initiatives to advance interests they felt Obama had slighted—condoning jihadism at times along the way, and very often exacerbating the disorder and sectarianism on which ISIS feeds.

Obama feared a slippery slope going up against Bashar al-Assad in Syria—but the war against ISIS is the slipperiest slope of them all.

Obama feared a slippery slope going up against Bashar al-Assad in Syria—but the war against ISIS is the slipperiest slope of them all. In just under two years, the administration has moved from airstrikes, to 475 additional military advisers in Iraq, to over 4,000 troops on the ground including U.S. special-operations forces in both Iraq and Syria. At the same time, the metastasizing threat from ISIS is forcing Obama to order limited military strikes in Libya, consider plans for further military intervention there, and build up military commitments to the Sunni Arab states of the Persian Gulf—the latter two steps, if Goldberg’s piece is accurate, against his own inclinations. An American president who, in May 2013, rejected the notion of a “global war on terror” has now launched one.

Meanwhile, the wide gulf between Obama's fixation on defeating ISIS, and his regional partners’ focus on pushing back Iran and Assad, means that America finds itself with too few partners to share the burden of this battle, which U.S. generals now call a "generational struggle.” America’s regional friends are acting to defend their own interests, not always in ways congruent with American interests. Obama’s apparent inability to see the conflicts between his Syria policy and his ISIS policy, and his reticence to do the sustained work necessary to hash out common priorities with the Gulf Arabs, Turkey, and Israel, have generated a problem more costly and harder to solve than the free-rider problems he complains of. The price is visible in, for example, Obama’s wordless facilitation of Saudi Arabia’s war in Yemen—which, ironically again, has given al-Qaeda in the Arabian Peninsula its most congenial working environment in years.

Finally, Obama’s actions—his reticence to push Maliki, his dithering over Abdel Fattah el-Sisi’s 2013 military coup in Egypt, and now his reversion to uncritical security partnerships with Gulf states in the name of fighting ISIS—suggest that what he fears is not just military entanglement: It’s entanglement of any kind, any uncertain investment of American leverage to try and shape outcomes in places where the locals’ interests are not already aligned with Washington’s. This is clear from his abandonment of any concerted nonmilitary effort to generate lasting stability in the Middle East in the way he still says is necessary. Obama’s own strategic judgment—announced publicly in May 2011 and repeated to Goldberg—is that stability in the Middle East will only emerge through addressing dysfunctional governance. But after the first blush of 2011, Obama demonstrated little readiness to invest political capital or build platforms for persistent engagement on behalf of the messy, imperfect, and always incomplete work of democratic growth. To the contrary, Obama cut funding for democracy assistance globally throughout his presidency. Between May 2011 and his 2013 speech at the United Nations General Assembly, democratic reform in the Middle East moved from a “top priority” to a bare footnote.

Having failed to implement his own views on the primacy of governance, Obama is now using force to defeat ISIS while abjuring the work necessary to build something with which to replace it. That path bodes ill for the anti-ISIS project he has launched, and recreates for the next U.S. president the same dysfunctions in U.S.-Arab relations—moral hazard, security overcommitments, and the like—that Obama resents. To be sure, the weakness and illegitimacy of state institutions and the upwelling of societal conflicts in the Arab world is making the process of reforming politics both lengthy and painful. But those challenges are the inescapable legacies of authoritarianism, and would have emerged no matter how or when the region’s regimes collapsed. They are certainly not a consequence of American intervention or mere “tribalism,” nor are they evidence, as Obama suggests, that American military intervention in Libya “didn’t work.” What didn’t work was the administration’s constant reliance on arguments about slippery slopes and the wisdom of restraint to shoot down proposals for deeper U.S. engagement in regional problem-solving—even and perhaps especially nonmilitary engagement. The policy debate may have been won in public, but the policy objective was lost.

A president elected and reelected on a platform of ending wars in the Middle East has reproduced, at the end of his presidency, the very situation he inherited, decried, and swore to avoid.

It is a tragic irony: A president elected and reelected on a platform of ending wars in the Middle East has reproduced, at the end of his presidency, the very situation he inherited, decried, and swore to avoid: an escalating war against a vague terrorist enemy, with no geographic boundaries, no clear military or strategic objectives, and no principles or policies that might stop the slide down this slippery slope.

The Obama presidency’s relentless focus on avoiding entanglements came alongside a failure to reckon with risks—especially those risks that grow from inaction. This should be instructive for us all, but perhaps especially for those who, surveying the many messes in today’s Middle East, conclude that Obama was right to sit out the Syrian war, and is right today to regret his intervention in Libya as a failure.

The lesson is that inaction is not obviously better than action as a moral choice in foreign policy—it is a choice, and it carries consequences. The United States is a global power, one that moreover roots its global power in a set of universal moral claims. As such, America's choices (whether to do, or to not do) have global implications, and carry moral responsibility. One cannot avoid the moral responsibility for these choices by citing the Hippocratic Oath, or by creating some idealized set of criteria, the total fulfillment of which are necessary to justify even a limited use of American military power. While Obama repeatedly reminds Goldberg that his primary concern in contemplating force is the risk to the American people, not to citizens of other regions, the new war on ISIS reminds us powerfully that threats to others, left unaddressed, very easily land on America’s doorstep in ways its citizens see and feel.

[I]naction is not obviously better than action as a moral choice in foreign policy—it is a choice, and it carries consequences.

Taking foreign policy seriously, and taking moral responsibility for American power seriously, means recognizing that all America’s choices have consequences, and policymakers must nonetheless choose a path in situations of imperfect information and facing imperfect options. A global power cannot simply avoid messes, ignore risks, and set its sights rigidly on the pursuit of strategic opportunities. It cannot do so because even the best opportunities can be torpedoed by unaddressed problems. Given the necessity and moral responsibility of choice, delay and avoidance in the face of those problems are merely the dishonest versions of a decision to do nothing.

That’s why I don’t condemn Obama for launching this new phase of the global war on terror, and I don’t think his supporters, who voted for an end to wars, should either. I commend him for recognizing the gravity of the threat ISIS presents to regional and international security, for admitting his long-held preferences cannot hold in the face of this challenge, and for stepping up to explain to the American people why and how he was reversing course. I only wish he’d admit that his reticence to recognize the risks of inaction helped make it so, and that, in that regard, the lessons he learned from his predecessors were woefully incomplete.

       

       

       

Event Information

A conversation with U.S. Secretary of Commerce Penny Pritzker

On Thursday, June 2, U.S. Secretary of Commerce Penny Pritzker joined Senior Fellow Robert Kagan for a conversation on the economic dimensions of the liberal world order, including the critical economic opportunities on the global horizon and the role America’s private sector can play in helping shape modern commerce. They also discussed the importance of trade agreements to strengthening U.S. global competiveness. Suzanne Nora Johnson, vice chair of the Brookings Board of Trustees, moderated.

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• Economic opportunities and the liberal international order

       

       

       

Editor's Note: This article was the first published in the June 2008 World Cities Summit edition of ETHOS.

At the dawn of a new century, broad demographic, economic and environmental forces are giving American cities their best chance in decades to thrive and prosper. The renewed relevance of cities derives in part from the very physical characteristics that distinguish cities from other forms of human settlement: density, diversity of uses and functions, and distinctive design.

Across the United States (U.S.), a broad cross section of urban practitioners—private investors and developers, government officials, community and civic leaders—are taking ambitious steps to leverage the distinctive physical assets of cities and maximise their economic, fiscal, environmental and social potential.

A special class of urban interventions—what we call “transformative investments”—is emerging from the millions of transactions that occur in cities every year. The hallmark of transformative investments is their catalytic nature and seismic impact on markets, on people, on the city landscape and urban possibilities—far beyond the geographic confines of the project itself.

Recognising and replicating the magic of transformative investments, and making the exception become the norm is important if U.S. cities are to realise their full potential.

THE URBAN MOMENT
The U.S. is undergoing a period of dynamic change, comparable in scale and complexity to the latter part of the nineteenth century. Against this backdrop, there is a resurgence in the importance of cities due to their fundamental and distinctive physical attributes.

Cities offer a broad range of physical choices—in neighbourhoods, housing stock, shopping venues, green spaces and transportation. These choices suit the disparate preferences of a growing population that is diverse by race, ethnicity and age.

Cities are also rich with physical amenities—mixed-use downtowns, historic buildings, campuses of higher learning, entertainment districts, pedestrian-friendly neighbourhoods, adjoining rivers and lakes—that are uniquely aligned with preferences in a knowledge-oriented, post-industrial economy. A knowledge economy places the highest premium on attracting and retaining educated workers, and an increasing proportion of these workers, particularly young workers, value urban quality of life when making their residential and employment decisions.

Finally, cities, particularly those built in the nineteenth and early twentieth centuries, are compactly constructed and laid out along dense lines and grids, enhancing the potential for the dynamic, random, face-to-face human exchange prized by an economy fuelled by ideas and innovation. Such density also makes cities perfect agents for the efficient delivery of public services as well as the stewardship of the natural environment.

Each of these elements—diversity, amenities and density—distinguishes cities from other forms of human settlement. In prior generations, these attributes were devalued in a nation characterised by the single family house, the factory plant, cheap gas, and environmental profligacy. In recent history, many U.S. cities responded by making the wrong physical bets or by replicating low-density, suburban development—further eroding the very strengths that make cities distinctly urban and competitive.

Yet, the U.S., a nation in demographic and economic transition, is revaluing the quality of life uniquely offered by cities and urban places, potentially altering the calculus by which millions of American families and businesses make location decisions every year.

DELIVERING "CITYNESS": THE RISE OF TRANSFORMATIVE INVESTMENTS
Across the U.S., a practice of city building is emerging that builds on the re-found value and purpose of the urban physical landscape, and recognises that cities thrive when they fully embrace what Saskia Sassen calls “cityness”.¹

The move to recapture the American city can be found in all kinds of American cities: global cities like New York, Los Angeles and Chicago that lie at the heart of international trade and finance; innovative cities like Seattle, Austin and San Francisco that are leading the global economic revolution in technology; older industrial cities like Cleveland, Pittsburgh and Rochester that are transitioning to new economies; fast-growing cities like Charlotte, Phoenix and Dallas that are regional hubs and magnets for domestic and international migration.

The new urban practice can also be found in all aspects or “building blocks” of cities: in the remaking of downtowns as living, mixed-use communities; in the creation of neighbourhoods of choice that are attractive to households with a range of incomes; in the conversion of transportation corridors into destinations in their own right; in the reclaiming of parks and green spaces as valued places; and in the revitalisation of waterfronts as regional destinations, new residential quarters and recreational hubs.

Yet, as the new city building practice evolves, it is clear that a subset of urban investments are emerging as truly “transformative” in that they have a catalytic, place-defining impact, creating an entirely new logic for portions of the city and a new set of possibilities for economic and social activity.

We define these transformative investments as “discrete public or private development projects that trigger a profound, ripple effect of positive, multi-dimensional change in ways that fundamentally remake the value and/or function of one or more of a city’s physical building blocks”.

This subset of urban investments share important characteristics:

• On the economic front, transformative investments uncover the hidden value in a part of the city, creating markets in places where markets either did not exist or were only partially realised.
• On the fiscal front, transformative investments dramatically enhance the fiscal capacity of local governments, generating revenues through the rise in property values, the growth in city populations, and the expansion of economic activity.
• On the cognitive front, transformative investments redefine the identity and image of the city. They effectively “re-map” previously forgotten or ignored places by residents, visitors and workers. They create nodes of new activities and new places for people to congregate.
• On the environmental front, transformative investments enable cities to achieve their “green” potential by cleaning up the environmental residue from prior industrial uses or urban renewal efforts, by enabling repopulation at greater densities to occur and by providing residents, workers and visitors with transportation alternatives.
• On the social front, transformative investments have the potential, while not always realised, to alter the opportunity structure for low-income residents. When carefully designed, staged and leveraged, they can expand the housing, employment and educational opportunities available to low-income residents and overcome the racial, ethnic and economic disparities that have inhibited city performance for decades.

DISSECTING SUCCESS: HOW AND WHERE TRANSFORMATIVE INVESTMENTS TAKE PLACE
The best way to identify and assess transformative investments is by examining exemplary interventions in the discrete physical building blocks of cities: downtowns, neighbourhoods, corridors, parks and green spaces, and waterfronts.

Downtowns
If cities are going to realise their true potential, downtowns are compelling places to start. Physically, downtowns are equipped to take on an emerging set of uses, activities and functions and have the capacity to absorb real increases in population. Yet, as a consequence to America’s sprawling appetite, urban downtowns have lost their appeal. Economic interests, once the stronghold in downtowns, have moved to suburban town centres and office parks, depressing urban markets and urban value.

Across the US, downtowns are remaking themselves as residential, cultural, business and retail centres. Cities such as Chattanooga, Washington, DC and Denver have demonstrated how even one smart investment can inject new energy and jumpstart new markets. The strategic location of a new sports arena in a distressed area of downtown Washington, DC fits our definition of a transformative investment. Leveraging the proximity of a transit stop, the MCI Arena was nestled within the existing urban fabric on a city-owned urban renewal site. The arena’s pedestrian-oriented design strengthened, rather than interrupted, the continuity of the 7th Street retail corridor.² Today, the area has been profoundly transformed as scores of new restaurants, retail and bars dot the arena’s surroundings. Residents and visitors rely heavily on the nearby transit to come to this destination.

Neighbourhoods
Ever since the physical, economic and social agglomeration of “city” was established, the function of neighbourhoods has remained relatively untouched. While real estate values of neighbourhoods have shifted over time in response to micro- and macro-economic trends, a subset of inner city communities have remained enclaves of poverty. Victims of earlier urban renewal and public housing efforts, millions of people are consigned to living in neighbourhoods isolated from the economic and social mainstream.

Cities such as St. Louis, Louisville and Atlanta have been at the forefront of public housing (and hence neighbourhood) transformation, supported by smart federal investments in the 1990s. For example, the demolition of the infamous high-rise Vaughn public housing project in St. Louis enabled the construction of a new human scale, mixed-income housing development in one of the poorest, most crime-ridden sections of the city. This redevelopment cured the mistakes made by failed public housing projects, by restoring street grids, providing quality design, and injecting a sense of social and physical connection. Constructing a mix of townhouses, garden apartments and single family homes helped catalyse other public and private sector investments.

What made this investment transformative was that it included the reconstitution of Jefferson Elementary, a nearby public school. Working closely with residents, and with the financial support of corporate and philanthropic interests, the developer helped modernise the school, making it one of the most technologically advanced educational facilities in the region. A new principal, new curriculum, and new school programmes helped it become one of the highest performing inner city schools in the state of Missouri.

Corridors
City corridors are the physical tissue that knit disparate parts of a city together. In the best of conditions, corridors are multi-dimensional in purpose, where they are destinations as much as facilitators of movement. In many cities, however, corridors are simply shuttling traffic past blocks of desolated retail and residential areas or they have become yet another cookie cutter image of suburbia—parking lots abutting the main street, standardised buildings and design, and oversized and cluttered signage.

Cities like Portland, Oregon and urban counties like Arlington, Virginia have used mass transit investments and land use reforms to create physically, economically and socially healthy corridors that give new residents reasons to choose to live nearby and existing residents reasons to stay.

Portland conceived a streetcar to spur high density housing in close-in neighbourhoods that were slowly shedding old industrial uses. The streetcars traverse a three-mile route through residential areas, the water front, to the university. Since its construction, the streetcar has not only expanded transportation choices, it has helped galvanise new destinations along its route—including new neighbourhoods, retail clusters, and economic districts.

Parks and Open Space
City green spaces (such as parks, nature trails, bike paths) were initially designed to provide the lungs of the city and an outlet for recreation, entertainment and social cohesion. As general conditions declined in many cities, the quality of urban parks also declined, to the great consternation of local residents. Green spaces were turned into under-used, if not forgotten, areas of the city; or worse still, hot spots of crime and illegal activity. Such blight discouraged cities to transform outmoded uses (such as manufacturing areas) into more green space. In cities with booming development markets, parks failed to be designed and incorporated into the new urban fabric.

Across the US, cities are pursuing a variety of strategies to reclaim or augment urban green spaces. Cities like Atlanta, for example, have created transformative parks from outmoded economic uses, such as manufacturing land along urban waterfronts or by converting old railway lines into urban trail-ways.

Cities like Scranton have reclaimed existing urban parks consumed by crime and vandalism. This has required creative physical and programmatic investments, including: redesigning parks (removing physical and visibility barriers such as walls, thinning vegetation, and eliminating “dark corners”); increasing the presence of uniformed personnel; increasing the park amenities (such as evening movies and other events to increase patronage);³ and providing regular maintenance of the park and recreational facilities.⁴

Waterfronts
Many American cities owe their location and initial function to the proximity to water: rivers, lakes and oceans. Waterfronts enabled cities to manufacture, warehouse and ship goods and products. Infrastructure was built and zoning was aligned to carry out these purposes. In a knowledge-intensive economy, however, the function of waterfronts has dramatically changed, reflecting the pent-up demand for new places of enjoyment, activities and uses.

As with the other building blocks, cities are pursing a range of strategies to reclaim their waterfronts, often by addressing head-on the vestiges of an earlier era.

New York has overhauled the outdated zoning guidelines for development along the Brooklyn side of the East River, enabling the construction of mixed-income housing rather than prescribing manufacturing and light industry uses.

Pittsburgh and many of its surrounding municipalities have embarked on major efforts to re-mediate the environmental contamination found in former industrial sites, paving the way for new research centres, office parks and retail facilities.

Milwaukee, Providence and Portland have demolished the freeways that separated (or hid) the waterfront from the rest of the downtown and city, and unleashed a new wave of private investment and public activities.

WHAT IS THE RECIPE FOR SUCCESS?
The following are underlying principles that set these diverse investments apart from other transactions:

Transformative Investments advance “cityness”: Investments embrace the characteristics, attributes, and dynamics that embody “city”—its complexity, its intersection of activities, its diversity of populations and cultures, its distinctively varied designs, and its convergence of the physical environment at multiple scales. Project by project, transformative investments are reclaiming the true urban identity by strengthening aspects of the ‘physical’ that are intrinsically urban—be it density, rehabilitation of a unique building or historic row, or the incorporation of compelling, if not iconic, design.

Transformative Investments require a fundamental rethinking of land use and zoning conventions: In the midst of massive economic global change, 21st century American cities still bear the indelible markings of the 20th century. In the early 20th century, for example, government bodies enacted zoning to establish new rules for urban development. While originally intended to protect “light and air” from immense overbuilding, later versions of zoning added the segregation of uses—isolating housing, office, commercial and manufacturing activities from each other. Thus, transformative investments require, at a minimum, variances from the rigid, antiquated rules that still define the urban landscape. In many cases, examples of successful transformative investments have become the tool to overhaul outdated and outmoded frameworks and transform exceptions into new guidelines.

Transformative Investments require innovative, often customised financing approaches: Cities have distinctive physical forms (e.g., historic buildings) and distinctive physical visions (e.g., distinct districts). Yet private and even public financing of the American physical landscape, for the most part, is standardised and routinised, enabling the production of similar products (e.g., single family homes, commercial strips) at high volume, low cost and low quality. Transformative investments, however, require the marrying of multiple sources of financing (e.g., conventional debt, traditional equity, tax-driven equity investments, innovative financing arrangements, public subsidy, patient philanthropic capital), placing stress on project design and implementation. In addition, achieving social objectives often require building innovative tax and shared equity approaches into particular transactions, so that appreciations in property value can serve higher community purposes (e.g., creating affordable housing trust funds). As with regulatory frames, the evolution from exceptional transactions to routinised forms of investments is required to ensure that transformative investments become more the rule rather than the exception.

Transformative Investments often involve an empirically-grounded vision at the building block level: While a vision is not a necessary pre-requisite for realising transformative investments, cities that proceed without one have a higher probability of making the wrong physical bets, siting them in the wrong places, or ultimately creating a physical landscape that fails to cumulatively add up to “ cityness”. It is easy to find such examples around the country, such as isolated mega-projects (a new stadium or convention centre) or waterfront revitalisation efforts that constructed the wrong projects, having misunderstood the market and the diversifying demographic.

Telescoping the possibilities and developing a bold vision must be done through an empirically-grounded process. A visioning exercise should therefore include: an economic and market diagnostic of the building block; a physical diagnostic; an evaluation of existing projects; and the development of a vision to transform the landscape. From here, disparate actors (public, private, civic, not-for-profit) will have the best instruments to assess whether a physical project could meet specific market, demographic and physical needs—increasing its chances of becoming truly transformative.

Transformative Investments require integrative thinking and action: Transformative investments are often an act in “connecting the dots” between the urban experiences (e.g., transportation, housing, economic activity, education and recreation), which are inextricably linked in reality but separated in action. This requires a significant change in how cities are both planned and managed.

On the public side, it means that transportation agencies must re-channel scarce infrastructure investments to leverage other city building goals beyond facilitating traffic. It means that agencies driving a social agenda, such as schools and libraries, have to re-imagine their existing and new facilities to integrate strong design and move away from isolated projects.

In the private sector, it means understanding the broader vision of the city and carefully siting and designing investments to increase successful city-building and not just project-building. It means increasing their own standards by using exemplary design and construction materials. It means finding financially beneficial approaches to mixed income housing projects and mixed use projects instead of just single uses. In all cases, it requires holistic thinking that cuts across the silos and stovepipes of specialised professions and fragmented bureaucracies.

BUILDING GREAT CITIES
For the first time in decades, American cities have a chance to experience a measurable revival. While broader macro forces have handed cities this chance, city builders are also learning from past mistakes. After investing billions of dollars into city revitalisation efforts, the principles underpinning particularly successful and catalytic projects—transformative investments—are beginning to be clarified. The most important lesson for cities, however, is to embrace “cityness”, to maximise what makes them physically and socially unique and distinctive. Only in this way will American cities reach their true greatness.

---

• ¹Saskia Sassen defined the term “cityness” to be the concept of embracing the characteristics, attributes, and dynamics that embody “city”: complexity, the convergence of the physical environment at multiple scales, the intersection of differences, the diversity of populations and culture, the distinctively varied designs and the layering of the old and the new. Sassen, S., “Cityness in the Urban Age”, Urban Age Bulletin 2 (Autumn 2005).
• ²Strauss, Valerie, “Pollin Says He’ll Pay for Sports Complex District, Awaits Economic Boost, Upgraded Image”, Washington Post, Thursday, 29 December 1994.
• ³Personal communication from Peter Harnik, Director, Center for City Park Excellence, Trust for Public Land, 6 June 2005.
• ⁴Harnik, Peter, “The Excellent City Park System: What Makes it Great and How to Get There”. San Francisco, CA: The Trust for Public Land, 2003. Available online at http://www.tpl.org/tier3_cd.cfm?content_item_id=11428&folder_id=175

      

In partnership with the ESADE Business School and the City of Barcelona, the Metropolitan Policy Program planned and participated in three intensive days of learning in Barcelona in June 2011.  The focus of the session was to look at examples of strategies Barcelona, Spain and its greater metropolitan region is embracing to rebuild and re-invent their economies.  The goal is to share innovative ideas with U.S. metros engaged in similar initiatives as they face the challenge of moving to a new economic growth model.

This paper features brief synopses of the tours and meetings held with the City of Barcelona and the Catalonia Region on their economic development strategies.

Specific strategies include:

Barcelona Activa »

Barcelona Economic Triangle » (PDF)

22@Barcelona » (PDF)

Parc de l’Alba »

Click on any image below for a larger version

Barcelona Activa
The 22@Barcelona revitalization area	The Parc de l'Alba revitalization area

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• Download the Full Paper

      

For years, corporate campuses like Silicon Valley were known for innovation. Located in suburban corridors that were only accessible by car, these places put little emphasis on creating communities where people work, live and go out.

But now, as the economy emerges from the recession, a shift is occurring where innovation is taking place. Districts of innovation can be found in urban centres as disparate as Montreal, Seoul, Singapore, Medellin, Barcelona, and London. They are popping up in the downtowns and midtowns of cities like Atlanta, Cambridge, Philadelphia, and St. Louis.

These are places where advanced research universities, medical complexes, and clusters of tech and creative firms are attracting businesses and residents.

Other innovation districts can be found in Boston, Brooklyn, San Francisco, and Seattle, where older industrial areas are being re-imagined and remade, leveraging their enviable location near waterfronts and city centres and along transit lines. Innovative companies and talented workers are flocking to these areas in abundance.

Even traditional science parks like Research Triangle Park in Raleigh-Durham are scrambling to urbanise to keep pace with their workers' preference for walkable communities and their companies' desire to be near other firms.

In these districts, leading anchor institutions and start-ups are clustering and connecting with one another. They are coming together with spin-off companies, incubators, and accelerators in the relentless pursuit of new discoveries for the market.

These areas are small and accessible, growing talent, fostering open collaboration, and offering housing and office space as well as modern urban amenities. They are both competitive places and "cool" spaces.

The growth of innovation districts is being driven by private and civic actors like universities, philanthropies, business associations and business improvement districts. Yet local governments play an important role in accelerating the growth of districts and maximising their potential . Three roles stand out:

1) Mayors are leading efforts to designate districts

Barcelona's former mayor Joan Clos set his eyes on transforming his city into a "city of knowledge". Through extensive, focused public planning and investment, Clos designed an innovation district from the debris of a 494-acre industrial area, which was scarred and separated from the rest of the city by railroad tracks. His vision included burying these tracks, increasing access via a new public tram, designing walkable streets, and creating new public spaces and housing.

Today, the area is a 21st-century urban community with 4,500 firms, thousands of new housing units, and clusters of universities, technology centres, and incubators.

Across the Atlantic in Boston, former mayor Tom Menino declared the South Boston waterfront an innovation district in 2010. Menino persuaded innovators like MassChallenge to move to the district and exacted important concessions from developers (including land for innovation-oriented retail, shared labs and other spaces, and micro-housing) to help realise the district's vision.

2) Changing land-use laws to build spaces with a mix of facilities

Barcelona and Research Triangle Park, for example, developed bold master plans encouraging the "mixing" of large and small firms, research facilities, housing, restaurants, and retail and outlining where to create open spaces for networking. Cambridge, Massachusetts, by contrast, has allowed incremental moves from rigid, antiquated rules to encourage similar outcomes in Kendall Square .

3) Supporting scarce public resources with large private and civic investments

In New York , former mayor Michael Bloomberg deployed $100m in municipal capital to prepare the infrastructure necessary to lure Cornell and Technion universities to Roosevelt Island. In other cities, including St Louis and Seattle, local resources are financing infrastructure improvements to buttress and accelerate private growth.

Given that many innovation districts are adjacent to low-income neighbourhoods, cities like Philadelphia are considering smart use of school investments to prepare disadvantaged youth for good jobs in the Stem (science, technology, engineering, and math) economy.

As this decade unfolds, we should expect more cities to use their powers in the service of this new model of innovative, inclusive, and resilient growth.

This opinion originally appeared in The Guardian

       

       

       

       

       

       

       

       

       

       

       

       

Event Information

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This year marks the centenary of the atrocities perpetrated against the Armenian people of the Ottoman Empire during World War I by the governing Committee of Union and Progress. Most scholars and many governments consider these horrific events––in which more than one million people were systematically massacred or marched to their deaths––to constitute the first modern European genocide. Turkish society has begun to open up and confront the issue over the last decade. Turkish authorities, however, continue to reject the use of the term genocide, contest the number of deaths, and highlight the fact that many other minority groups, Muslims, and Turks were killed in the same period as the war-ravaged empire unraveled. For descendants of the survivors, Turkey’s official refusal to reckon fully with this painful chapter of its past is a source of deep distress and concern and undermines societal efforts toward understanding and reconciliation. Armenians have also raised the question of reparations, further adding to the problem.

On May 13, the Center on the United States and Europe at Brookings (CUSE), together with the Massachusetts Institute of Technology (MIT) Center for International Studies, the Hrant Dink Memorial Human Rights and Justice Lectureship at MIT, and the Carnegie Endowment for International Peace held a conference with several leading scholars of the Armenian genocide and other international experts. Speakers considered the historical record and circumstances of the genocide amid the disorder of World War I; how Turkey, Armenia, and other key actors have dealt with the legacy of 1915; and how this legacy continues to reverberate in the region today, with protracted conflicts in the Caucasus and where religious and ethnic minority groups have been deliberately targeted for expulsion and death amid the upheavals in Iraq, Syria, and other states that emerged from the rubble of the Ottoman Empire.

Join the conversation on Twitter using #Armenia1915

Video

• 1915 and the unmaking of peoples: Deportations, massacres, and genocide
• The making of an “almost intractable conflict” and attempts at its resolution
• 2015 and its horrors : A century after 1915

Audio

• Armenians and the legacies of World War I

Transcript

• Transcript (.pdf)

Event Materials

• 20150513_armenia_transcript

       

       

       

       

       

There's a little more than a week to go before the Democratic National Convention begins in Boston. Senator John Kerry is both raising and spending money at a furious pace. The Kerry campaign raised about $182 million from March through June. Senator Kerry also outspent President George Bush in advertising throughout most of the summer. But the president still has more cash on hand, reportedly $63 million at the end of May. That's the latest figure available. The president also has more time to spend that money before accepting his Republican nomination on September 2. Anthony Corrado is an expert on campaign finance.

Listen to the entire interview

      

       

Universities cash handsome awards on infringement cases

Last month, a jury found Apple Inc. guilty of infringing a patent of the University of Wisconsin-Madison (UW) and ordered the tech giant to pay $234 million. The university scored a big financial victory, but this hardly meant any gain for the good name of the university.

The plaintiffs argued successfully in court that Apple infringed their 1998 patent on a predictor circuit that greatly improved the efficiency of microchips used in the popular iPhone 5s, 6, and 6 Plus. Apple first responded by challenging the validity of the patent, but the US Patent and Trademark Office ruled in favor of the university. Apple plans to appeal, but the appellate court is not likely to reverse the lower court’s decision.

This is not the first time this university has asserted its patents rights (UW sued Intel in 2008 for this exact same patent and reportedly settled for $110 million). Nor is this the first time universities in general have taken infringers to court. Prominent cases in recent memory include Boston University, which sued several companies for infringement of a patent for blue light-emitting diodes and settled out of court with most of them, and Carnegie Mellon, who was awarded $237 million by the federal appellate court on its infringement suit against Marvell, a semiconductor company, for its use of an enhanced detector of data in hard drives called Kavcic detectors.

Means not always aligned with aims in patent law

When university inventions emerge from federal research grants, universities can also sue the infringers, but in those cases they would be testing the accepted interpretations of current patent law.

The Bayh-Dole Act of 1980 extended patent law and gave small-business and universities the right to take title to patents from federal grants—later it was amended to extend the right to all federal grantees regardless of size. The ostensible aim of this act is to “to promote the utilization of inventions arising from federally supported research or development.” Under the law, a condition for universities to keep their exclusive rights on those patents is that they or their licensees take “effective steps to achieve practical application” of those patents. Bayh-Dole was not designed to create a new source of revenue for universities. If companies are effectively using university technologies, Bayh-Dole’s purpose is served without need of the patents.

To understand this point, consider a counterfactual: What if the text of Bayh-Dole had been originally composed to grant a conditional right to patents for federal research grantees? The condition could be stated like this: “This policy seeks to promote the commercialization of federally funded research and to this end it will use the patent system. Grantees may take title to patents if and only if other mechanisms for disseminating and developing those inventions into useful applications prove unsuccessful.” Under this imagined text, the universities could still take title to patents on their inventions if they or the U.S. Patent and Trademark Office were not aware that the technologies were being used in manufactures.

But no court would find their infringement claim meritorious if the accused companies could demonstrate that, absent of willful infringement, they had in fact used the technologies covered by university patents in their commercial products. In this case, other mechanisms for disseminating and developing the technologies would have proven successful indeed. The reality that Bayh-Dole did not mandate such a contingent assignation of rights creates a contradiction between its aims and the means chosen to advance those aims for the subset of patents that were already in use by industry.

I should clarify that the predictor circuit, the blue-light diode, and the Kavcic detectors are not in that subset of patents. But even in they were, there is no indication that the University of Wisconsin-Madison would have exercised its patent rights with any less vigor just because the original research was funded by public funds. Today, it is fully expected from universities to aggressively assert their patent rights regardless of the source of funding for the original research.

You can have an answer for every question and still lose the debate

It is this litigious attitude that puts off many observers. While the law may very well allow universities to be litigious, universities could still refuse to exercise their rights under circumstances in which those rights are not easily reconciled with the public mission of the university.

Universities administrators, tech transfer personnel, and particularly the legal teams winning infringement cases have legitimate reasons to wonder why universities are publicly scorned. After all, they are acting within the law and simply protecting their patent rights; they are doing what any rational person would do. They may be really surprised when critics accuse universities of becoming allies of patent trolls, or of aiding and abetting their actions. Such accusations are unwarranted. Trolls are truants; the universities are venerable institutions. Patent trolls would exploit the ambiguities of patent law and the burdens of due process to their own benefit and to the detriment of truly productive businesses and persons. In stark contrast, universities are long established partners of democracy, respected beyond ideological divides for their abundant contributions to society.

The critics may not be fully considering the intricacies of patent law. Or they may forget that universities are in need of additional revenue—higher education has not seen public financial support increase in recent years, with federal grants roughly stagnated and state funding falling drastically in some states. Critics may also ignore that revenues collected from licensing of patents, favorable court rulings, and out-of-court settlements, are to a large extent (usually two thirds of the total) plugged back into the research enterprise.

University attorneys may have an answer for every point that critics raise, but the overall concern of critics should not be dismissed outright. Given that many if not most university patents can be traced back to research funded by tax dollars, there is a legitimate reason for observers to expect universities to manage their patents with a degree of restraint. There is also a legitimate reason for public disappointment when universities do not seem to endeavor to balance the tensions between their rights and duties.

Substantive steps to improve the universities’ public image

Universities can become more responsive to public expectations about their character not only by promoting their good work, but also by taking substantive steps to correct misperceptions.

First, when universities discover a case of proven infringement, they should take companies to court as a measure of last resort. If a particular company refuses to negotiate in good faith and an infringement case ends up in court, the universities should be prepared to demonstrate to the court of public opinion that they have tried, with sufficient insistence and time, to negotiate a license and even made concessions in pricing the license. In the case of the predictor circuit patent, it seems that the University of Wisconsin-Madison tried to license the technology and Apple refused, but the university would be in a much better position if it could demonstrate that the licensing deals offered to Apple would have turned to be far less expensive for the tech company.

Second, universities would be well advised not to join any efforts to lobby Congress for stronger patent protection. At least two reasons substantiate this suggestion. First, as a matter of principle, the dogmatic belief that without patents there is no innovation is wrong. Second, as a matter of material interest, universities as a group do not have a financial interest in patenting. It’s worth elaborating these points a bit more.

Neither historians nor social science researchers have settled the question about the net effects of patents on innovation. While there is evidence of social benefits from patent-based innovation, there is also evidence of social costs associated with patent-monopolies, and even more evidence of momentous innovations that required no patents. What’s more, the net social benefit varies across industries and over time. Research shows economic areas in which patents do spur innovation and economic sectors where it actually hinders them. This research explains, for instance, why some computer and Internet giants lobby Congress in the opposite direction to the biotech and big pharma industries. Rigorous industrial surveys of the 1980s and 1990s found that companies in most economic sectors did not use patents as their primary tool to protect their R&D investments.

Yet patenting has increased rapidly over the past four decades. This increase includes industries that once were uninterested in patents. Economic analyses have shown that this new patenting is a business strategy against patent litigation. Companies are building patent portfolios as a defensive strategy, not because they are innovating more. The university’s public position on patent policy should acknowledge that the debate on the impact of patents on innovation is not settled and that this impact cannot be observed in the aggregate, but must be considered in the context of each specific economic sector, industry, or even market. From this vantage point, universities could then turn up or down the intensity with which they negotiate licenses and pursue compensation for infringement. Universities would better assert their commitment to their public mission if they compute on a case by case basis the balance between social benefits and costs for each of its controversial patents.

As to the material interest in patents, it is understandable that some patent attorneys or the biotech lobby publicly espouse the dogma of patents, that there is no innovation without patents. After all, their livelihood depends on it. However, research universities as a group do not have any significant financial interest in stronger patent protection. As I have shown in a previous Brookings paper, the vast majority of research universities earn very little from their patent portfolios and about 87% of tech transfer offices operate in the red. Universities as a group receive so little income from licensing and asserting their patents relative to the generous federal support (below 3%), that if the federal government were to declare that grant reviewers should give a preference to universities that do not patent, all research universities would stop the practice at once. It is true that a few universities (like the University of Wisconsin-Madison) raise significant revenue from their patent portfolio, and they will continue to do so regardless of public protestations. But the majority of universities do not have a material interest in patenting.

Time to get it right on anti-troll legislation

Last year, the House of Representative passed legislation closing loopholes and introducing disincentives for patent trolls. Just as mirror legislation was about to be considered in the Senate, Sen. Patrick Leahy withdrew it from the Judiciary Committee. It was reported that Sen. Harry Reid forced the hand of Mr. Leahy to kill the bill in committee. In the public sphere, the shrewd lobbying efforts to derail the bill were perceived to be pro-troll interests. The lobbying came from pharmaceutical companies, biotech companies, patent attorneys, and, to the surprise of everyone, universities.  Little wonder that critics overreacted and suggested universities were in partnership with trolls: even if they were wrong, these accusations stung.

University associations took that position out of a sincere belief in the dogma of patents and out of fear that the proposed anti-troll legislation limited their ability to sue patent infringers. However, their convictions stand on shaky ground and their material interests are not those of the vast majority of universities.

A reversal of that position is not only possible, but would be timely. When anti-troll legislation is again introduced in Congress, universities should distance themselves from efforts to protect the policy status quo that so benefits patent trolls. It is not altogether improbable that Congress sees fit to exempt universities from some of the requirements that the law would impose. University associations could show Congress the merit of such exemptions in consideration of the universities’ constant and significant contributions to states, regions, and the nation. However, no such concessions could ever be expected if the universities continue to place themselves in the company of those who profit from patent management.

No asset is more valuable for universities than their prestige. It is the ample recognition of their value in society that guarantees tax dollars will continue to flow into universities. While acting legally to protect their patent rights, universities are nevertheless toying with their own legitimacy. Let those universities that stand to gain from litigation act in their self-interest, but do not let them speak for all universities. When university associations advocate for stronger patent protection, they do the majority of universities a disservice. These associations should better represent the interests of all their members by advocating a more neutral position about patent reform, by publicly praising universities’ restraint on patent litigation, and by promoting a culture and readiness in technology transfer offices to appraise each patent not by its market value but by its social value. At the same time, the majority of universities that obtain neither private nor social benefits from patenting should press their political representatives to adopt a more balanced approach to policy advocacy, lest they squander the reputation of the entire university system.

       

This post originally appeared on the Center for Technology Innovation’s TechTank blog.

Universities cash handsome awards on infringement cases

This October, a jury found Apple Inc. guilty of infringing a patent of the University of Wisconsin-Madison (UW) and ordered the tech giant to pay $234 million. The university scored a big financial victory, but this hardly meant any gain for the good name of the university.

The plaintiffs argued successfully in court that Apple infringed their 1998 patent on a predictor circuit that greatly improved the efficiency of microchips used in the popular iPhone 5s, 6, and 6 Plus. Apple first responded by challenging the validity of the patent, but the US Patent and Trademark Office ruled in favor of the university. Apple plans to appeal, but the appellate court is not likely to reverse the lower court’s decision.

This is not the first time this university has asserted its patents rights (UW sued Intel in 2008 for this exact same patent and reportedly settled for $110 million). Nor is this the first time universities in general have taken infringers to court. Prominent cases in recent memory include Boston University, which sued several companies for infringement of a patent for blue light-emitting diodes and settled out of court with most of them, and Carnegie Mellon, who was awarded $237 million by the federal appellate court on its infringement suit against Marvell, a semiconductor company, for its use of an enhanced detector of data in hard drives called Kavcic detectors.

Means not always aligned with aims in patent law

When university patented inventions emerge from federal research grants, infringement suits test the accepted interpretations of current patent law.

The Bayh-Dole Act of 1980 extended patent law and gave small-business and universities the right to take title to patents from federal research grants—later it was amended to extend the right to all federal grantees regardless of size. The ostensible aim of this act is to “to promote the utilization of inventions arising from federally supported research or development.” Under the law, a condition for universities (or any other government research performers) to keep their exclusive rights on those patents is that they or their licensees take “effective steps to achieve practical application” of those patents. Bayh-Dole was not designed to create a new source of revenue for universities. If companies are effectively using university technologies, Bayh-Dole’s purpose is served without need of patents.

To understand this point, consider a counterfactual: What if the text of Bayh-Dole had been originally composed to grant a conditional right to patents for federal research grantees? The condition could be stated like this: “This policy seeks to promote the commercialization of federally funded research and to this end it will use the patent system. Grantees may take title to patents if and only if other mechanisms for disseminating and developing those inventions into useful applications prove unsuccessful.” Under this imagined text, the universities could still take title to patents on their inventions if they or the U.S. Patent and Trademark Office were not aware that the technologies were being used in manufactures.

But no court would find their infringement claim meritorious if the accused companies could demonstrate that, absent of willful infringement, they had in fact used the technologies covered by university patents in their commercial products. In this case, other mechanisms for disseminating and developing the technologies would have proven successful indeed. The reality that Bayh-Dole did not mandate such a contingent assignation of rights creates a contradiction between its aims and the means chosen to advance those aims for the subset of patents that were already in use by industry.

I should remark that UW’s predictor circuit resulted from grants from NSF and DARPA and there is no indication that the university exercised its patent rights with any less vigor just because the original research was funded by public funds. In fact, it is fully expected from universities to aggressively assert their patent rights regardless of the source of funding for the original research.

You can have an answer for every question and still lose the debate

It is this litigious attitude that puts off many observers. While the law may very well allow universities to be litigious, universities could still refuse to exercise their rights under circumstances in which those rights are not easily reconciled with the public mission of the university.

Universities administrators, tech transfer personnel, and particularly the legal teams winning infringement cases have legitimate reasons to wonder why universities are publicly scorned. After all, they are acting within the law and simply protecting their patent rights; they are doing what any rational person would do. They may be really surprised when critics accuse universities of becoming allies of patent trolls, or of aiding and abetting their actions. Such accusations are unwarranted. Trolls are truants; the universities are venerable institutions. Patent trolls would exploit the ambiguities of patent law and the burdens of due process to their own benefit and to the detriment of truly productive businesses and persons. In stark contrast, universities are long established partners of democracy, respected beyond ideological divides for their abundant contributions to society.

The critics may not be fully considering the intricacies of patent law. Or they may forget that universities are in need of additional revenue—higher education has not seen public financial support increase in recent years, with federal grants roughly stagnated and state funding falling drastically in some states. Critics may also ignore that revenues collected from licensing of patents, favorable court rulings, and out-of-court settlements, are to a large extent (usually two thirds of the total) plugged back into the research enterprise.

University attorneys may have an answer for every point that critics raise, but the overall concern of critics should not be dismissed outright. Given that many if not most university patents can be traced back to research funded by tax dollars, there is a legitimate reason for observers to expect universities to manage their patents with a degree of restraint. There is also a legitimate reason for public disappointment when universities do not seem to endeavor to balance the tensions between their rights and duties.

Substantive steps to improve the universities’ public image

Universities can become more responsive to public expectations about their character not only by promoting their good work, but also by taking substantive steps to correct misperceptions.

First, when universities discover a case of proven infringement, they should take companies to court as a measure of last resort. If a particular company refuses to negotiate in good faith and an infringement case ends up in court, the universities should be prepared to demonstrate to the court of public opinion that they have tried, with sufficient insistence and time, to negotiate a license and even made concessions in pricing the license. In the case of the predictor circuit patent, it seems that the University of Wisconsin-Madison tried to license the technology and Apple refused, but the university would be in a much better position if it could demonstrate that the licensing deals offered to Apple would have turned to be far less expensive for the tech company.

Second, universities would be well advised not to join any efforts to lobby Congress for stronger patent protection. At least two reasons substantiate this suggestion. First, as a matter of principle, the dogmatic belief that without patents there is no innovation is wrong. Second, as a matter of material interest, universities as a group do not have a financial interest in patenting. It’s worth elaborating these points a bit more.

Neither historians nor social science researchers have settled the question about the net effects of patents on innovation. While there is evidence of social benefits from patent-based innovation, there is also evidence of social costs associated with patent-monopolies, and even more evidence of momentous innovations that required no patents. What’s more, the net social benefit varies across industries and over time. Research shows economic areas in which patents do spur innovation and economic sectors where it actually hinders them. This research explains, for instance, why some computer and Internet giants lobby Congress in the opposite direction to the biotech and big pharma industries. Rigorous industrial surveys of the 1980s and 1990s found that companies in most economic sectors did not use patents as their primary tool to protect their R&D investments.

Yet patenting has increased rapidly over the past four decades. This increase includes industries that once were uninterested in patents. Economic analyses have shown that this new patenting is a business strategy against patent litigation. Companies are building patent portfolios as a defensive strategy, not because they are innovating more. The university’s public position on patent policy should acknowledge that the debate on the impact of patents on innovation is not settled and that this impact cannot be observed in the aggregate, but must be considered in the context of each specific economic sector, industry, or even market. From this vantage point, universities could then turn up or down the intensity with which they negotiate licenses and pursue compensation for infringement. Universities would better assert their commitment to their public mission if they compute on a case by case basis the balance between social benefits and costs for each of its controversial patents.

As to the material interest in patents, it is understandable that some patent attorneys or the biotech lobby publicly espouse the dogma of patents, that there is no innovation without patents. After all, their livelihood depends on it. However, research universities as a group do not have any significant financial interest in stronger patent protection. As I have shown in a previous Brookings paper, the vast majority of research universities earn very little from their patent portfolios and about 87% of tech transfer offices operate in the red. Universities as a group receive so little income from licensing and asserting their patents relative to the generous federal support (below 3%), that if the federal government were to declare that grant reviewers should give a preference to universities that do not patent, all research universities would stop the practice at once. It is true that a few universities (like the University of Wisconsin-Madison) raise significant revenue from their patent portfolio, and they will continue to do so regardless of public protestations. But the majority of universities do not have a material interest in patenting.

Time to get it right on anti-troll legislation

Last year, the House of Representative passed legislation closing loopholes and introducing disincentives for patent trolls. Just as mirror legislation was about to be considered in the Senate, Sen. Patrick Leahy withdrew it from the Judiciary Committee. It was reported that Sen. Harry Reid forced the hand of Mr. Leahy to kill the bill in committee. In the public sphere, the shrewd lobbying efforts to derail the bill were perceived to be pro-troll interests. The lobbying came from pharmaceutical companies, biotech companies, patent attorneys, and, to the surprise of everyone, universities.  Little wonder that critics overreacted and suggested universities were in partnership with trolls: even if they were wrong, these accusations stung.

University associations took that position out of a sincere belief in the dogma of patents and out of fear that the proposed anti-troll legislation limited the universities’ ability to sue patent infringers. However, their convictions stand on shaky ground and only a few universities sue for infringement. In taking that policy position, university associations are representing neither the interests nor the beliefs of the vast majority of universities.

A reversal of that position is not only possible, but would be timely. When anti-troll legislation is again introduced in Congress, universities should distance themselves from efforts to protect the policy status quo that so benefits patent trolls. It is not altogether improbable that Congress sees fit to exempt universities from some of the requirements that the law would impose. University associations could show Congress the merit of such exemptions in consideration of the universities’ constant and significant contributions to states, regions, and the nation. However, no such concessions could ever be expected if the universities continue to place themselves in the company of those who profit from patent management.

No asset is more valuable for universities than their prestige. It is the ample recognition of their value in society that guarantees tax dollars will continue to flow into universities. While acting legally to protect their patent rights, universities are nevertheless toying with their own legitimacy. Let those universities that stand to gain from litigation act in their self-interest, but do not let them speak for all universities. When university associations advocate for stronger patent protection, they do the majority of universities a disservice. These associations should better represent the interests of all their members by advocating a more neutral position about patent reform, by publicly praising universities’ restraint on patent litigation, and by promoting a culture and readiness in technology transfer offices to appraise each patent not by its market value but by its social value. At the same time, the majority of universities that obtain neither private nor social benefits from patenting should press their political representatives to adopt a more balanced approach to policy advocacy, lest they squander the reputation of the entire university system.

Editor's Note: The post was corrected to state that UW’s predictor circuit did originate from federally funded research.

       

       

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The Center for 21st Century Security Intelligence seventh annual military and federal fellow research symposium

On March 1, the seventh annual military and federal fellow research symposium featured the independent research produced by members of the military services and federal agencies who are currently serving at think-tanks and universities across the nation. Organized by the fellows themselves, the symposium provides a platform for building greater awareness of the cutting-edge work that America’s military and governmental leaders are producing on key national security policy issues.

With presidential primary season well underway, it’s clear that whoever emerges in November 2016 as the next commander-in-chief will have their hands full with a number of foreign policy and national security choices. This year’s panels explored these developing issues and their prospects for resolution after the final votes have been counted. During their keynote conversation, the Honorable Michèle Flournoy discussed her assessment of the strategic threat environment with General John Allen, USMC (Ret.), who also provided opening remarks on strategic leadership and the importance of military and other federal fellowship experiences.

 

Video

• Opening remarks and The future of the All-Volunteer Force
• The next generation of terrorism
• Harnessing technology in the future force
• Keynote discussion: Assessing the strategic environment
• To intervene, or not to intervene?

Audio

• Beyond 2016: Security challenges and opportunities for the next administration