Optimism for a New Year

It’s a whole new year, rather than just December 32. In 2017, Research Enterprise published over 250 articles on various aspects of invention policy and innovation, with lots of attention on the Bayh-Dole Act and on universities that cannot seem to get their policy act together. We also chased down misinformation campaigns by APLU, BIO, AUTM, and others, with their faux history of Bayh-Dole and their goofball proxy statistics. We also got snarky and called Bayh-Dole the love monster of patent attorneys and pharma firms, and it is just that.

Every so often, I rebuild the Guide to Bayh-Dole. I’m in the process of doing that now. The simple version is that Bayh-Dole is the next effort by the pharma industry to capture federal research subsidies for private patent monopolies. Before that, it was the IPA program. Before that, there was the boycott. Before that, pharma offered its screening services in exchange for monopoly rights to any compound identified. The repeated theme is that no invention can benefit the public unless it is developed at great expense into mass produced commercial product. For that, inventions must be taken from their inventors and provided to entrepreneurs with the expertise and funding to develop those products. And entrepreneurs won’t participate unless they have patent monopolies. Bayh-Dole’s variation is that such monopolies are virtuous because nonprofits (and even the federal government) get a share of the monopoly pricing through exclusive licensing deals that function as assignments.

Too bad the idea doesn’t work in practice for 99% of all university inventive work. 

This does appear to be the case for pharma, though even with regard to therapeutics, history shows that patent monopolies are not needed. Everything else about Bayh-Dole is political bullshit. Even much of the law is written for appearances, is never implemented or enforced, never reported on, no one held accountable, absolutely no interest in meeting the standard of practical application, and especially the part about “benefit available to the public on reasonable terms.”

But the broader problem in university invention policy is simply one of lack of courage to permit university faculty to be free (and responsible) for the work they undertake and the discoveries they make. Bayh-Dole does not decree institutional control of all inventions. University administrators and faculty have done that to themselves, often with misrepresentations of federal regulations, silly assertions about inventions, and a gross lack of understanding of the practices available to use the patent system to advance science and applications while staying true to a university’s values. But perhaps it is all too much to ask–that universities draw strength from being areas of freedom from institutional controls and the committee-mind that seeks a single policy for all opportunities, because a single policy must be “fair.” Sure treat everyone badly because it would be unfair to treat only some people badly. That kind of fair.

For all that, I hold out hope that courageous administrators will step forward, challenge their patent policy advisors to get at the truth of things–history, for starters–and chart courses of practice that re-establish the distinctive role university work can play in research enterprise. So, here’s to a new year of work and optimism, that we can do better than Bayh-Dole, much better, and the sooner we get at it, the sooner we will see changes in practice, with benefits for all–even, perhaps, for pharma!

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