Wipe Bayh-Dole off the books

When Congress passed Bayh-Dole, they made a giant turd. There is pretty much nothing that someone can say about Bayh-Dole that is positive, true, and substantiated. Bayh-Dole needs to be, ahem, wiped off the books. Between the IPA program and Bayh-Dole, we have had fifty years of failed federal patent policy. Can’t we have had enough already?

Bayh-Dole does not work.

The IPA approach it is based on didn’t work and was shut down as ineffective and contrary to public purposes. Universities, foundations, and institutes now hold over 120,000 US utility patents, 50,000 of which recite federal funding. Most of these inventions are unavailable behind patent paywalls, and of those inventions that have been licensed, most have not resulted in commercial products. Bayh-Dole simply does not do what has been claimed it will do. What little does become commercial product mostly does so despite Bayh-Dole.

No one complies with Bayh-Dole. 

Universities and federal agencies alike ignore Bayh-Dole’s substantive provisions and refuse to comply with the standard patent rights clause. Federal agencies refuse to enforce the standard patent rights clause and refuse to act on the federal government’s rights. Bayh-Dole’s public protections, such as march-in, are just for show. Bayh-Dole gets away with this because the law delegates to the federal agencies the enforcement of the patent rights clause but doesn’t require federal agencies to enforce anything. Bayh-Dole provides no enforcement for the law itself nor meaningful penalties for non-compliance. Advocates of Bayh-Dole call universities the “stewards” of the law. Foxes to guard the hens. Super crappy.

The high cost of drugs is in part the work of Bayh-Dole.

Bayh-Dole creates a pipeline of patent monopolies from public funding to pharmaceutical companies and their speculative biotech fronts. Those patent monopolies cover broad classes of hundreds or thousands of compounds and methods, shutting out further research and development. What should have been open standards becomes a vast private library that goes mostly unused. Bayh-Dole prevents the development of drugs on a collaborative basis and preserves the patent medicine industry’s practices. The premise behind Bayh-Dole is simple: there’s really good money for helping companies screw over people suffering from disease and injury.

University administrators can’t even accurately describe Bayh-Dole. 

Maybe federal research contracting is just too difficult for them. Maybe they don’t want to understand because not understanding is so much more convenient. Maybe Bayh-Dole’s arcane usage–“subject invention” and “funding agreement” and “first actually reduced to practice” and “preference for United States industry” and “free competition,” the difference between nonprofit licensing an invention and licensing a patent–is beyond their abilities. A law that is too complicated even for university lawyers to even represent truthfully and accurately, let alone comply with, is unethical.

Bayh-Dole is based on fake history, deception, and secrecy.

Bayh-Dole advocates tell fake history, make up statistics from thin air, and rely on Bayh-Dole’s sketchy provision to make secret all reports on the use of federally supported inventions. The government won’t report Bayh-Dole’s metrics. Universities refuse to break out metrics for federally supported inventions from the rest of their technologies. No one reports the metrics that Bayh-Dole’s policy expects–utilization of inventions, participation of small businesses in research and development, free competition and enterprise, new American manufacturing and jobs. Mostly, there are no reports because none of this is happening. Sucks.

Bayh-Dole creates monumental, wasteful, unproductive paperwork.

Bayh-Dole requires invention reporting that has no purpose on deadlines that are arbitrary. Bayh-Dole requires the issuing of paper licenses to the government that the government never uses. Bayh-Dole allows federal agencies to require reports on utilization of inventions but the federal agencies don’t do anything with these reports. Bayh-Dole requires every federal licensee to submit a plan for development of any licensed invention–even if the license is non-exclusive–but the plans apparently are only for show to comply with the requirement that licensees have plans. Contractors have to report all publications of subject inventions, including pending ones, and notify the federal government before patent bar dates–even though the federal government rarely does anything. All this bureaucracy does nothing for the use of inventions, for the American economy, or for manufacturing jobs.

Bayh-Dole’s drafting is crappy.

The law is a Frankenstein’s monster of stitched together provisions from past federal regulations, the IPA program, and hot gases from legislative posteriors. The policy doesn’t match up with requirements, the regulations add provisions excluded by the statute, the definition stack is full of ambiguity, and substantive requirements are weakened or walked back so they have no effect. The most important piece of the law–American manufacture–is so weak on the contractor side that it’s useless in practice, and on the federally owned side, the same provision is so broad it is unworkable, and for the federal employee inventors, the federal version does not have to be required, though the contractor version must be required when contractor employee inventors own. What a crapfest of confusion!

The concept of a “uniform” federal patent policy is crappy.

It is beyond belief that a federal government should have a single, arbitrary policy to cover all instances of contracting for research or development, regardless of public purpose, regardless of technology involved, regardless of the practices of a given industry, regardless of the capability of the contractor, regardless of the interests of inventors, regardless of the concerns of companies not granted federal contracts. It is crappy that such an arbitrary policy is labeled “uniform” when in practice federal agencies vary widely in what they choose to enforce.

The concept of “preemption” of public purpose is crappy.

Bayh-Dole preempts other laws passed to address specific contracting situations. No matter the rationale for public funding, if a contractor obtains ownership of an invention made in federally supported work, the contractor has the right, without accountability, to preempt the public purpose and pursue the contractor’s own purposes. For projects that seek federal funding, such preemption betrays the public trust.

The concept of the patent “monopoly meme” is crappy.

Bayh-Dole is built on the monopoly meme, which asserts that no invention will be used or developed if it is made available to everyone. History shows that the meme is untrue and worthless for federally funded projects. The monopoly meme prevents federal research results from forming cumulative technologies, from participating in standards, and from benefiting from research, professional, and industrial uses that do not require commercial product versions. By insisting on patent monopolies, Bayh-Dole forces all companies not receiving a monopoly to avoid or design around or undermine federally supported work–and wait two decades until the patents expire. Stinks!

Bayh-Dole is a crappy turd of a law. There is no saving it with amendments. A better turd is still turdly. Vannever Bush’s proposed patent policy for scientific research is much better–the federal government gets a royalty-free license. Done.

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