Why is Bayh-Dole a part of federal patent law? It concerns how federal agencies contract for research, not (apparently) how patents are awarded. Why didn’t Bayh-Dole become part of the Federal Grants and Cooperative Agreements Act of 1977? If Bayh-Dole is part of patent law, then might we expect that Bayh-Dole makes patents on subject inventions different from patents on ordinary inventions? Let’s have a look.
Here’s the original statement of purpose for the Federal Grants and Cooperative Agreements Act (things got revised in 1982, two years after Bayh-Dole):
(b) The purposes of this Act are—
(1) to characterize the relationship between the Federal Government and contractors, State and local governments, and other recipients in the acquisition of property and services and in the furnishing of assistance by the Federal Government so as to promote a better understanding of Federal spending and help eliminate unnecessary administrative requirements on recipients of Federal awards;
(2) to establish Government-wide criteria for selection of appropriate legal instruments to achieve uniformity in the use by the executive agencies of such instruments, a clear definition of the relationships they reflect, and a better understanding of the responsibilities of the parties;
(3) to promote increased discipline in the selection and use of types of contract, grant agreement, and cooperative agreements, and to maximize competition in the award of contracts and encourage competition, where deemed appropriate, in the award of grants and cooperative agreements; and
(4) to require a study of the relationship between the Federal Government and grantees and other recipients in Federal assistance programs and the feasibility of developing a comprehensive system of guideline for the use of grant and cooperative agreements, and other forms of Federal assistance in carrying out such programs.
The FGCAA (“fig-caw”) established (overtly) simple rules to determine whether the government should use a grant, contract, or collaborative agreement. A contract was to be used for procurement, a grant for providing support for a public purpose, and a collaborative agreement when the work involved substantial involvement by the federal government.
In the FGCAA, we have elements that we find in Bayh-Dole: matters of sponsored research, especially at universities; a need for uniform policy that’s government wide; and rules on acquisition of property and services by a contractor relative to the interests of government. Continue reading