Ten Years After 25 Years After Bayh-Dole: Summary

For the next few days, Research Enterprise will run “Ten Years After 25 Years After Bayh-Dole,” a series of eight posts working through an article about Bayh-Dole from 2006 by Sara Boettiger and Alan Bennett. The authors argue for some changes in university practice under Bayh-Dole–especially with regard to supporting research and access to new technology in low-income regions. I use their article as a springboard to discuss descriptions of the Bayh-Dole Act and the problems of introducing changes in practice by accepting the proposition that the Bayh-Dole Act has been a success.

If you like to discuss, read the series. If you want the quick summary, here it is:

Bayh-Dole has been represented as a success, but there’s little support for the claim and a lot of evidence for Bayh-Dole’s failure. Bayh-Dole has never been fully implemented, university administrators routinely ignore the law and refuse to implement key provisions of the standard patent rights clause, and university administrators and others routinely misrepresent the law. Bayh-Dole metrics are made federal secrets, and AUTM metrics fail to break out subject inventions or report practical application. Bayh-Dole has failed. That’s the starting point for any discussion of what to do differently.

The actual failure has been with university patent and licensing practice–and there it is not a matter of trying harder, but rather of using a dual monopoly approach (own everything, create private monopolies). Commercialization rates are reported at 0.5%. That’s two orders of magnitude worse than the rates reported for non-federal university inventions before Bayh-Dole. University administrators have made these choices. Bayh-Dole does not require them. Bayh-Dole just made it easier for inventor-loathing folks to dominate the discussion.

Changing Bayh-Dole has to reflect both the failure of the law and the failure of university patent and licensing practice–that is, the failure of the administrators and legal counsel that has directed universities to adopt dual monopoly, running against academic values, scholarly commitments, industry collaboration, and achieving actual results. The dual monopoly model is just good enough to appear to pay its way (if practiced by “experts” with improved procedures, fewer controls, and more funding), and so it persists. Bayh-Dole doesn’t require the dual monopoly approach, but Bayh-Dole sure made it easy for the institutional monopolists to move in, take away academic freedoms, and block the open use of significant research findings. Things happened because of Bayh-Dole that repealing Bayh-Dole won’t undo. Merely repealing Bayh-Dole leaves in place the awful mess of university patent policy and licensing practices. Rebuilding an environment conducive to advancing science, addressing public welfare, and making research results available for use will take additional steps. The federal government helped to create the mess. It has a responsibility to mitigate the mess. It can start by refocusing on the principal investigators and inventors that it supports, and prevent predatory patent behaviors by institutional players.

Trying to clear space in Bayh-Dole practice for “low-income” markets misses the broader point that Bayh-Dole is aimed squarely at research the federal government chooses to support for public welfare and humanitarian reasons. The folks who have usurped university patent practice claim that Bayh-Dole legitimizes the exploitation of public needs in the name of creating commercial ventures to make commodity products for maximum profit. Arguing for pity and crumbs from these folks won’t be effective. It’s time to take them on directly–challenge their knowledge, their judgment, their integrity, and their performance.

Our authors refrain from proposing changes to Bayh-Dole. In effect, their position reflects that of the band Ten Years After:

I’d love to change the world
But I don’t know what to do
So I leave it up to you . . .

Everything in Bayh-Dole is addressed in arena rock from the 1970s, when Bayh-Dole was conceived.

We can get things back on track. The looters have had three decades. We don’t have to cut out profit motives, but we can manage how profit affects innovation and we can rid ourselves silly claims that academics won’t discovery anything new unless university administrators have a thumb in every innovation pie and monopoly speculators get first and often the only shot at exploiting patent rights. Tell me, where is sanity?

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