Enforce Bayh-Dole To Reform Bayh-Dole

I posted the first half of an article that lays out how Bayh-Dole, if university adminstrators complied with the law and its patent rights clause, would support the academic freedom of faculty inventors. I also pushed a related tweet thread to Twitter, and a reader there requested a white paper. Well, white papers are sort of dying, so instead I used another dying medium, the slide deck.

PDF   Enforce Bayh-Dole to Reform Bayh-Dole

Click on the link above to get a pdf version of the slides.

Here’s a link to a ppt slide show all packaged up for your use.

PPT Show Enforce Bayh-Dole to Reform Bayh-Dole

Repealing Bayh-Dole feels good because it has made such a mess of things. But it’s not all Bayh-Dole’s fault. Yes, the law is awfully drafted. Yes, the folks drafting the law and the same folks drafting the implementing regulations were determined to undermine public policy to route publicly funded inventions in health care to speculators and monopolists. Yes, the law lacks protections for inventors and third parties, which the Supreme Court was ready to find “deeply troubling.” Yes, there is a ton of misinformation and misbehavior around. Yes, university administrators simply refuse to comply and make up fake history and faux law to justify their non-compliance. Yes, Bayh-Dole has become a monster, a failure, a destroyer of opportunity and public benefit, all so that a few hundred inventions in over 50,000 patents might become lucrative for speculators and monopolists and for the university administrators who have enabled them. This is their idea of serving the public interest–serving themselves.

But for all that, Bayh-Dole has within its statutory framework the power to work for good, not evil. Bayh-Dole is our little Darth Vader of university research. Having served the evil empire, it is now time for a moral reckoning. Does our Darth-Vader law have what it takes to repent and live up to its original potential? Perhaps so. 

The reformation starts by recognizing both how bad the present situation has become and realizing that Bayh-Dole enforcement can go a great way toward changing university patent broker behaviors.

There are three pressure points to start with:

  • Enforce Bayh-Dole’s patent policy at 35 USC 200
  • Enforce Bayh-Dole’s standard patent rights clause at 37 CFR 401.14(a)(f)(2)
  • Enforce Bayh-Dole’s nonprofit standard patent rights clause at 37 CFR 401.14(a)(k)(1)

With just these three points of enforcement, Bayh-Dole rises from the darkness and might be able to serve good after all these decades of serving evil.

We might add, as a special bonus for reading this far, that if the federal government acted on the government’s license to practice and have practiced, then too Bayh-Dole would promote the free competition and enterprise that its policy establishes as a matter of federal patent law, and in doing so, the federal government (and state governments, which are included in the license) would also create the conditions under which universities and their licensees would be motivated to meet Bayh-Dole’s standard of practical application–especially “benefits available to the public on reasonable terms.” Not the terms of a patent monopoly. But the terms that are better for the public than those of a patent monopoly, because the patent monopoly has been used in the public interest to both attract private development and to prevent the use of the patent monopoly to set high prices or to limit availability and thereby jack prices.

In all, we have a law in Bayh-Dole that might provide a spark to national innovation based on faculty-led research. That spark has been extinguished by university administrators hungry for profits and federal agencies that are not motivated to enforce the standard patent rights clause. No doubt the NIH will fight like crazy on the matter, as Bayh-Dole as a patent monopoly pipeline to the pharmaceutical industry is NIH’s doing in the first place. But that doesn’t mean that we have to give up on Bayh-Dole’s reformation to become an agent of good.

This is as good a time as any for Bayh-Dole to come into the service of faculty inventors. We see what university bureaucrats can do–create a feast of institutional self-interest at the expense of academic freedom (“free play of free intellects”) and faculty judgment over what might best serve public interests–whether open publication to venture-backed startup. Faculty freedom and judgment lies at the heart of Bayh-Dole. That’s the connection of the (f)(2) clause with the inventor patent rights clause at 37 CFR 401.9. One could strip away everything else, as far as universities were concerned, and have a darned good time of it with just 35 USC 200 as a defense for failure to work an invention or use the patent system for anything other than to promote free competition and enterprise with American industry and labor.

For all that, university administrators do not have to wait for the federal government to come down on them like a ton of bricks–though that will be sweet when it happens. They can choose to comply with the law and standard patent rights clause. They can stand up to the bullies and bullshitters and boogers in their own organizations and in their lobbying organizations and at pharmaceutical companies and do not only the right thing, but the legal thing, the thing that complies with federal law, regulation, and contract–the thing that the public expects of them. Does that take courage? Resolve? Or are university administrators pretty much moral cowards in it for whatever prospects of money they can get–even when it is clear that their non-compliant approach is a dismal failure, not only for the public and for faculty inventors and industry, but for their own organizations. They waste millions of dollars chasing rainbows while shutting down collaborations and souring the public on support for faculty work. That’s more than a shame. It’s wrong.

Let’s hope that university leaders find it in their hearts to comply with Bayh-Dole, to make it into the law it could be, it ought to be. But let’s not hope for long–hope is overrated–let’s push the federal government to get off its duff and enforce Bayh-Dole, to give university research the spark it deserves, what makes for brilliant public policy, starting with faculty inventors and their commitments to public service, without the need for a Moloch class of university bureaucrats to loathe, second-guess, and co-opt their work.

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