Crap, crap, crap, Bayh-Dole, and crap talking points

Posted on September 28, 2020 by Gerald Barnett

Think of these as presentation slides, but without the actual mental pain of seeing slides.

Bayh-Dole

has failed to produce the outcomes claimed
has destroyed university research freedom and technology transfer
is a drafting nightmare of inconsistencies, half-hearted gestures, and red tape
lacks public oversight, accountability, right of appeal, and enforcement

Universities

don’t comply with Bayh-Dole’s patent rights clauses
misrepresent Bayh-Dole
misrepresent their technology transfer metrics
take and botch research findings that they have no right to

Federal agencies

don’t comply with Bayh-Dole
don’t enforce the standard patent rights clauses authorized by Bayh-Dole
don’t use the rights Bayh-Dole reserves for them
don’t protect the public patent abuse

Bayh-Dole practice

undermines university research
suppresses use
caters to patent speculators over early adopters
puts a bureaucrat’s thumb in every beneficial research result
is parasitic, not catalytic

Nothing demonstrates that Bayh-Dole has been successful. Bayh-Dole is a dismal failure.

Repeal Bayh-Dole
Re-instate the Kennedy patent policy
Forbid restart of IPA programs
Follow the 1947 AG’s report
Forbid federal exclusive licensing

Fund development of inventions important enough to patent and which are directed to the objectives of publicly funded work, then release non-exclusive, royalty-free.

Companies with real markets may retain rights in inventions they acquire made in federally funded work, with a license to practice to the government, except in public health and when a federal agency funds development.

Nonprofits and contract research organizations can retain patent rights on a public showing that their holding exclusive rights better serves the public than does open access. They get three years from patent issue to prove themselves right or what they’ve claimed goes open.

Stipulate that no nonprofit or university gets any federal research funding if it makes any claims on anything in federally supported research.  Inventors may make claims. The public may make claims. That’s it.

Crap, crap, crap, Bayh-Dole, and crap.

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Crap, crap, crap, Bayh-Dole, and crap (short attention span version)

Posted on September 28, 2020 by Gerald Barnett

Bayh-Dole is crap.
Bayh-Dole practice is crap.
Bayh-Dole outcomes are crap.
Universities bluff about Bayh-Dole and about their metrics.
Federal agencies don’t protect the public from university patent abuse.
Federal agencies don’t act on the rights Bayh-Dole reserves for them.
Crap, crap, crap, Bayh-Dole, and crap.

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University Patent Policy for Effective Technology Transfer, 4: The Eat and Fart Model

Posted on September 26, 2020 by Gerald Barnett

No one in their right mind reads a book primarily because it has a copyright. “Gosh, all these books in the public domain–I need to find one with a solid, enforced copyright!” Similarly, technologists with stable brains do not seek out new inventions and discoveries because those have been patented. Other people are attracted to the patents, but not your basic or above average technologist. We don’t even buy products because they have been patented. “Oh, look at this one–it has 50 patents–it must be the one I want–this other one has only 48 patents. Not so good. And eeew–that one is infringing!” We just don’t care. No one with working brains leads technology transfer efforts with a patent or copyright. But that’s just what university licensing offices do as standard practice! Conclusions to follow.

If you consider a university research lab, there are plenty of “assets” floating around, beyond potentially patentable inventions. There are talented people, some with significant reputations and social networks. There are research sponsors and collaborators. There is technical data, and experimental setups, and loads of instrumentation made to do usual and unusual things. There’s software, procedure manuals, articles and manuscripts, demos, instructional materials, observations on progress or lack thereof, ideas about what to do next or to do better or not to do at all. Most of this is not “Intellectual Property” but rather “intangible assets”–non-IP intangible assets, or NIPIA.

We might ask the general question, then: even if a lab has made an invention, what assets should one lead with to effectively transfer technology? Put another way: what assets might the most efficiently form relationships through which technology in the lab might move into use by others? What assets–IP, NIPIA–might one choose from to form those relationships? What does one lead with? And what technology gets transferred? Continue reading →

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University Patent Thickets

Posted on September 24, 2020 by Gerald Barnett

Here’s a passage from Walton Hamilton and Irene Till, “What is a Patent” in the Spring 1948 issue of Law and Contemporary Problems:

It is the very purpose of the patent lawyer to flood the office with an endless stream of applications. In the field in which his client operates he wants to lay legal claim to all that is, or may become, a part of the technical process. The arsenal serves the double purpose of an armament to ward off competitors and an array of choice weapons with which to attack them.

The authors then give an example:

A single case will outline the general strategy. The Ethyl Gasoline Corporation took out a single patent on the Midgley process for combining gasoline with tetraethyl lead.

Then, to entrench this patent in a strategic position in a field of industrial use, a host of applications were filed. One patent applied for was for gasoline and a volatile compound of lead other than tetraethyl. Another was for gasoline burned in the presence of a gaseous ethyl compound of a metal. A third was for a compound of tetraethyl lead used as a pellet rather than a fluid.

One group of five patents covered gasoline, tetraethyl lead, and at least one other agent. Four patents covered tetraethyl lead combined with other lead compounds.

A group of eight–all granted on the same day–covered a volatile compound of metals other than lead. Specifically, one patent made use of selenium; another, tellurium; and others, arsenic, cadmium, bismuth, titanium, tin, nickel carbonyl, antimony. One patent was for a phosphorus compound, three· for aniline; three for substances other than organic metal compounds-ammonia, benzol, iodine.

And six were for patent processes for atomizing the antiknock substance. One patent was for adding tetraethyl lead at the time the fuel· is dispensed to the consumer, and thirty-one were made to cover processes for the manufacture of tetraethyl lead or other compounds. Similar patents have been added from year to year.

The end was to exclude all invention–if such mechanical combinations could be called invention–in a field of use dominated by a single simple idea: the mere addition of an antiknock substance to gasoline.

Note that, save for the initial idea, there is hardly a trace of novelty here.

Continue reading →

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If you are against a crappy law like Bayh-Dole

Posted on September 23, 2020 by Gerald Barnett

Kevin E. Noonan, a biotech patent attorney, made an interesting assertion in a LinkedIn comment on the fourth article in this series. Maybe he was being flippant, but let’s consider:

People against Bayh-Dole just support private industry (much of it abroad) being able to steal innovation paid for by US taxpayers

Behind Dr. Noonan’s assertion is the idea that Bayh-Dole is intended to serve as a form of nationalist protection. Federally supported research, so the argument goes, is published openly. Thus, foreign companies can easily obtain those results, create products, and sell them back to U.S. taxpayers, and not owe anyone anything–those companies don’t necessarily pay U.S. taxes, and don’t pay inventors a royalty, and don’t pay the contractors who hosted the federal research anything either. Somehow, by getting nonprofits to take inventions away from inventors (and from research teams, and collaborators and introducing a bureaucratic licensing step that might never happen, especially if a university holds out for an exclusive licensee, this would correct the situation and now the U.S. would be again the world leader because those patents would (if universities sued) prevent foreign companies from “stealing” those otherwise open access research results. Continue reading →

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University Patent Policy for Effective Technology Transfer, 3: Yale patent policy on exclusive licensing

Posted on September 22, 2020 by Gerald Barnett

University patent policies do not address exclusive licensing, and yet exclusive licensing is at the core of much current university patent practice. Exclusive licensing is the key thing that Bayh-Dole enabled. And Bayh-Dole, in its federal agency licensing authorization, pees all over itself trying to provide a rationale for federal agency exclusive licensing, creating stains having to do with authorization, enforcement, necessity, required plans, required clauses, public notice, and secrecy. Stinks but they got it done. Meanwhile, university patent policy remains entirely indifferent to this central feature of patent practice.

We will work through a university patent policy for its licensing guidance. I’ve chosen Yale as an instance. There are plenty of others, but we have to start somewhere.

Here’s Yale patent policy on licensing:

1. If the University decides to participate in the patenting or licensing of an invention, the Office of Cooperative Research will seek to enter into appropriate licensing arrangements to commercialize the invention.

Policy requires “appropriate” arrangements. Bland to the point of useless. But it’s clear that the policy restricts licensing to commercialization–so much for licensing for use, or for standards, or to support open access. If the idea is that only inventions that are suitable to commercialization are within scope of the policy, then we would expect that the policy would sort inventions in this way and concern itself only with those determined to be suitable for commercialization. The burden of policy, then, with regard to exclusivity, would be one of identifying those conditions under which the university would decide specially against allowing non-exclusive access–for use, for making, and even for selling.

There’s a fundamental institutional conflict of interest built into this decision. Continue reading →

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Reflections on Shill Reflections on Bayh-Dole, 7: Grubbers, innovation, and march-in

Posted on September 21, 2020 by Gerald Barnett

Reflections on Bayh-Dole by “industry leaders”–shills out shilling for industry. Good shilling earns shillings, so it is a viable career choice. We use these shills reflecting on Bayh-Dole to also reflect on Bayh-Dole, though our reflections won’t earn us any big bucks.

Korn noted that the Act has had dramatic effects on promoting innovation in the biopharmaceutical industry. He noted that the Act has allowed researches and universities to seek out partners like pharmaceutical companies.

True! Bayh-Dole enables universities to do exclusive deals on inventions made in federally funded work with pharmaceutical companies, and do those deals without public oversight or right of appeal. Even inventors don’t have a right of appeal. By “promoting innovation” Korn means, apparently, suppressing industry access to an invention in favor of granting access to a single company, who then effectively becomes the new owner of the invention. If no company comes forward to take the deal, then “promoting innovation” means “denying access to everyone until someone infringes, and then suing them.” The value in such deals, however, derives from denying open access and from the prospect of monopoly pricing if a product is ever produced–or suing for compensation for having been denied the value of denying open access and a financial share of monopoly pricing. There’s money everywhere to be had in matters of public health and apparently it is a public good for university administrators to be in their grubbing for their share along with the best of the grubbers. Continue reading →

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Reflections on Shill Reflections on Bayh-Dole, 6: Fragmentation, lockup, and babble talk

Posted on September 20, 2020 by Gerald Barnett

We are still reflecting on reflections on Bayh-Dole. It’s a hall of mirrors, with reflections all the way down to the insubstantial substance of the operation of the statute itself. We continue with a reflection on a reflection of what Bayh-Dole has done.

Bayh-Dole (the article here quotes Joseph Allen)

“decentralized technology management from Washington D.C. to the universities and small businesses that make inventions with government support, so they had the incentive and the ability to own and license” their inventions.

Let’s unravel this mess. The federal government funds *individuals* at universities based on proposals the individuals draft and submit to federal agencies via their universities. The universities receive the funds on behalf of these individuals, and provide facilities and administrative management for which they are compensated by the federal grants in the form of “Facilities & Administration” overhead–often one third of the total grant award. Inventions that result are the inventors’ or the public’s. But not the nonprofit hosts’–unless the host institution makes some agreement on the side about that, not tied to the federal funding.

The incentives to work at a university include freedoms of research and publication. Bayh-Dole has been used to undermine both, misrepresenting the law to make it appear that the university owns or should own inventions “to comply” or “to make the law work.” Inventions are not the university’s. Not their inventions. Continue reading →

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Reflections on Shill Reflections on Bayh-Dole, 5: Incentives and basic research

Posted on September 19, 2020 by Gerald Barnett

We have been working through a set of reflections on Bayh-Dole by a set of patents-in-healthcare shills. We are at this claim:

prior to the Act, the government often funded research to spark innovation, but then put the research in the public domain for non-exclusive licensing,…

We know the premise is fake. But the claim now goes bizarre:

which left inventors without an incentive to research.

The claim is that university researchers had no incentive to do research if their universities could not take ownership of inventions and keep the inventions from open access, including access by the researchers themselves outside the university that hosted their work. University researchers had not stopped doing research for the thirty years of federal policy on open access. University researchers were not the ones boycotting federal funding or asking federal agencies to make it a default that university administrators could take inventions from their work whenever they wanted, and the researcher would have no further right of access to those inventions, but for the approval of the administrators.

Researchers had incentives to conduct research that did not involve hoping to profit from patent monopoly positions held by university administrators. If a given researcher thought that any particular idea was suitable for patenting, that was a researcher’s choice, not a university patent administrator’s choice. That researcher selectivity was crucial to effective use of patents in research settings. For federal funding, the researcher had to make a case for pulling back rights from open access. But default open access appears to have had nothing to do with researcher incentives. Continue reading →

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Reflections on Shill Reflections on Bayh-Dole, 4: Fake history, executive branch patent policy, and contamination

Posted on September 18, 2020 by Gerald Barnett

Back to reflecting on fake history, namely this:

prior to the Act, the government often funded research to spark innovation, but then put the research in the public domain for non-exclusive licensing,…

Executive branch patent policy from Kennedy on (until Reagan botched it all up) provided that company contractors with non-governmental markets should be allowed to own patentable inventions made by their employees, and nonprofits and contract research organizations, which did not have markets, should have to make a case for their ownership of patentable inventions–how would their exclusive control better serve the public than open access? Put another way, how would their legal right to exclude all others, or to discriminate among those having an interest, better serve the public? How would their opportunity–nonprofits, mind you–to align themselves with suppression of inventions (competition!) and with monopoly pricing (more money for research! and administration!) better serve the public? Nonprofits and contract research organizations could request exclusive rights, but they had to make a persuasive case for those rights.

Much of Bayh-Dole is about university patent administrators not wanting–or being able to–make a case for how the public benefits from their exclusive control of inventions made in work these same administrators petitioned the government to support as being in the public interest. So, make the case. The other bit of Bayh-Dole is about university patent administrators upset that some federal agencies–NIH, NSF–allowed (no, conditionally required) the universities to take ownership of inventions while other federal agencies did not and instead required the universities to make a case for that ownership. These conflicting requirements, claimed the university administrators, created huge uncertainty–one federal agency did not require the university to make a case that its ownership would be better for the public than open access would be, and another federal agency did. Oh, my! Continue reading →

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