No matter how one takes apart the assertions of the advocates for the Bayh-Dole Act, they just keep coming back, like some obsessive combatant out of Road Warrior. In the articles here at Research Enterprise, I have documented and reasoned and cited the evidence and the arguments that show that Bayh-Dole has been and continues to be a dismal failure. But things are beyond reason. Bayh-Dole represents a prophecy about good things to come, about potential, about bureaucrats trying so very hard, so earnestly, to make good things happen by owning research inventions, by attempting to license those inventions for commercial development. That prophecy has failed, but the adherents are deeply committed to the idea beyond all reason and double down. They can’t just walk away. This is not the Society for Putting Things on Top of Other Things, after all.
Without getting caught up in the details, let’s summarize.
1. Bayh-Dole is based on fake history. Universities were involved in technology transfer before Bayh-Dole. Bayh-Dole is premised on involving federally funded inventions in the same system of management that universities used for non-federally supported inventions. University licensing of inventions was not better than the federal government’s licensing, especially in biomedical matters.
The federal government did not own all inventions made with federal support prior to Bayh-Dole. Department of Defense contractors generally could own inventions made by their employees. The NIH and NSF operated Institutional Patent Agreement programs for nonprofits that required institutional ownership of inventions made with federal support when the nonprofit decided to file patent applications. Other federal agencies could allow contractors to own inventions on a contract-by-contract basis or on an invention-by-invention basis.
For universities, for biomedical inventions and basic science invention–Bayh-Dole represented no change in practice. At best there was a three-year lapse from the termination of the IPA program as ineffective and against public policy in 1978 to mid-1981 when Bayh-Dole came into effect. The 28,000 federal patents wasting away meme was just a political bluff by a federal attorney. But the fake history lives on, repeated as if Twilight were real. Continue reading