Here’s an even shorter response to Brian O’Shaughnessy’s inventor-loathing, Bayh-Dole-misrepresenting puff piece, “Why Bayh-Dole?”
If individual rights are so important, then why do universities take institutional control of inventions? Locke and Madison argue for individual ownership. Universities use Bayh-Dole to strip individuals of their property rights. That’s bassackwards, and wrong, and bad for innovation.
Look at the results. Nonprofit-managed commercialization rates under Bayh-Dole are 1/10th the rates under a commons-first regime, and 1/80th the rates for non-federal invention management before Bayh-Dole and outside the IPA program. It’s just that no-one is willing to announce the fact. The word trickles out, though. 1 in 200 inventions commercialized, or maybe only 1 in 1000. For non-federal university-hosted inventions, the claimed rate was 1 in 3 to 1 in 4. Even in the SBIR program commercialization rates stink. The NSF can’t figure out how to get small businesses past repeat Phase I and Phase II grants. Wonder!
Bayh-Dole patents are limited patents, not ordinary patents. Bayh-Dole’s fundamental trade off is private rights in exchange for limited patent property rights. But the big money is made–once a decade or worse per university–by ignoring the limits. The result is that universities enable monopoly pricing for drugs–and they claim Bayh-Dole gives them a legal right to do so as an “incentive” for being involved in the transfer of technology from lab to market.
Bayh-Dole exists for pharma to get exclusive access to federally supported inventions–even if inventors do not want this result. That was the end-run at work in the IPA program. That’s what came back to life in Bayh-Dole after the IPA program scam was shut down as contrary to public policy and ineffective to boot. Bayh-Dole works to suppress any other business model for drug development. Monopoly all the way. Everything else about Bayh-Dole is to cover the tracks of the deal–making it government wide, adding small business, putting on a big show that never happens about protecting the public.
Bayh-Dole should go down, not because of the law, crappy but workable as it is, but because of the behaviors that ignore the law and hide poor performance. What a killer.