Faux Bayh-Dole: patent and do whatever

Sweep away the unused parts of Bayh-Dole, and it looks like this:

If a contractor acquires an invention made in work receiving federal funding, then the federal government cannot require assignment of the invention to the federal government unless the contractor does not disclose or patent the invention. 35 USC 202.

If the contractor does not acquire the invention, then Bayh-Dole does not apply and one or more other federal statutes may apply. 35 USC 210. Stanford v Roche.

The federal government may license exclusively any federally owned invention. 35 USC 207.

That’s it. Everything else is waste and distraction. We can make it even simpler–because the law clearly is much too complicated for any mere university or federal bureaucrat. Not even the NISTwits delegated to manage the implementing regulations have the capacity to comprehend the law. Scores of university lawyers tacking their ignorance onto laughable amicus briefs in the Stanford v Roche case show just how compromised–and IP incompetent–they are.

Yes, there are a bunch of administrative requirements in Bayh-Dole, but those are for show. People comply–somewhat–with the paperwork requirements, as if somehow by adding more paperwork requirements to inventions, that will be just the ticket to unleash American innovation! What fools these mortals be!

As for Bayh-Dole’s public policy and protections, no one complies, and federal agencies don’t enforce, and do not act on the rights reserved for the federal government. Most of these requirements–not complied with, easily avoided, ignored–do nothing for technological innovation or for public benefit, are written to be easily circumvented, are so stupid as to be useless, and lack any enforcement mechanism or meaningful remedy. So they may as well not be there. That goes for march-in, for US manufacturing, for nonprofit restrictions on assignment, for small business preferences, for reasonable terms. And let’s not get into the non-compliant, protections-blocking travesty of the implementing regulations.

As practiced–and practice involves breach of Bayh-Dole and its standard patent rights clause–Bayh-Dole states as a matter of federal policy that patents on inventions made in work receiving federal support are ordinary patents and can be used however any nonprofit or company chooses. The main thrust of faux Bayh-Dole’s policy is that if the contractor does not patent, then the government can (but doesn’t have to). It is as if the entire law was:

It is the policy and objective of the Congress to use the patent system. If a contractor does patent, it can do whatever. If it doesn’t patent, then a federal agency might. And if it does, it too can do whatever.

Common theme: patent and do whatever.

That’s a big friggin’ whoop for technological leadership and public benefit for the 3% of patents on inventions made in work receiving federal support. The default federal position is that patents on inventions made in work proposed to be in the public interest are just ordinary patents and those holding them can do what they want–can exclude everyone, can troll industry, can take a financial interest in price gouging the sick, can do nothing at all, can participate in pyramid schemes in which speculators attempt to sell to other speculators until someone moderately sane pays to put a stop to further speculation.

In this way, it is also federal policy that medicines should be controlled by speculators, that prices should be whatever these speculators can get away with charging, and that the public benefit is that some rake off of a tiny percentage of the money made by speculator control over these medicines goes back to more research, to keep the cycle of invention, price gouging, and rake off going. Rather than calling this out as morally compromised, Bayh-Dole–at least in its faux form–makes this out to be a federal mandate, the public benefit of the entire scheme. The public benefits when nonprofit organizations realize a rake off from speculative price gouging or a pyramid scheme involving the sale of patent rights. And that’s the only benefit that matters, apparently.

When advocates for Bayh-Dole–really, abusers of the law–argue that people should leave Bayh-Dole alone, they are referring to this implied restatement of the law–do anything you want, so long as you patent, and if you don’t patent, then the federal agency can take your invention and could hand it over to someone, and thus prevent you and the inventors from ever again practicing the invention yourselves or helping anyone else to practice it.

This is not just a problem with “only assholes get patents.” It is a problem that in this case the assholes getting patents have cloaked themselves with a mantel of moral goodness–they argue, or hint, or wink that federal law requires them to do these things, that as nonprofits, they simply must abandon any morals that would argue otherwise, and that screwing the public over access to inventions is necessary, if not the best–if not the only way–to benefit the public. The public benefit from research conducted in the public interest is the nonprofit’s financial benefit from the exploitation of patents.

Now, patent and do whatever may sound like it is a variation on “use the patent system to do whatever it is your mission to do”–for a company, that would be to make a profit; for a nonprofit, that would be to make a profit under the rubric of doing good things for the public. But patent and do whatever, taken as federal law directed at nonprofits, has been used to do a very different thing. This mantra supersedes a nonprofit’s own mission. It is as if there is a federal preemption at work, that Bayh-Dole mandates that nonprofits become involved in “commercialization,” that they align their interests with patent speculators, that they take pride in sharing a rake off from price-gouging medicines or a share of the sale of companies on the prospect of future patent-based price-gouging and suppression of competition.

Thus, technology transfer offices spout the need for universities to “change their culture” and become “entrepreneurial”–to make a secret, bureaucratic trade in patent monopolies the centerpiece of how the public must benefit from the $40 odd billion that the federal government grants to universities each year for research.

What bizarre federal policy. What immoral, ineffectual, illegal nonprofit behavior.

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