A common approach to discussions of Bayh-Dole is
(1) accept that what is happening is just what people say is happening–the law is working (as people claim), based on a politicized spun history (as people claim), based on a metrics of success (as people claim), and then
(2) misrepresent the law (or uncritically repeat misreprestations of the law) to account for why, and then
(3) go on complain about the law anyway or propose how to build on its wonderfulness.
It’s a grim way to discuss policy, what with all its trappings of academic sophistication and authority of publication. Such articles gather together, reinforcing each other and vying to move the policy discussion to be about some bit that each posits. As a result, the academic literature on anything Bayh-Dole is nigh unto useless for practice, policy, or thinking about innovation. AUTM data is also useless. Summaries of Bayh-Dole drawn from the academic literature are largely wrong–especially if written before 2011. But so are the political spin statements made about Bayh-Dole when it was debated and which have been repeated, unchallenged and unchanged, for over thirty years. Even Senator Bayh was wrong about Bayh-Dole’s fundamental operation, and the US Supreme Court ruled as much in Stanford v Roche. It’s almost like people want to get Bayh-Dole wrong, regardless of whether they love it, hate it, or just want to gussy it up.
Here’s an article by way of example: “Correcting Bayh-Dole’s Inefficiencies for the Taxpayer” by Michael Sweeney, published Northwestern Journal of Technology and Intellectual Property in 2012. Let’s work through the article’s account of Bayh-Dole. The exercise is not so much to show the defects of this work–it’s someone’s annotated opinion, so fine, and I could pick almost anything–but rather let’s use this work as a springboard to open up what Bayh-Dole actually does, were folks to comply with it, and perhaps from there we might begin to think about what ought to be done about it, if anything. So, consider that the article–forgotten perhaps by all but for the internet and a guy’s law firm bio–has a place of honor here at Research Enterprise and still has a legitimate role to play, though it is badly defective on the law and those defects render its proposals for change mostly useless.
Here’s the start of Sweeney’s article on Bayh-Dole:
By transferring ownership rights of federally funded inventions to non-government contractors and their subsequent licensees, the University and Small Business Patent Procedures Act of 1980 (Bayh-Dole Act) gives private actors unprecedented rights to intellectual property that was cultivated with public money.
I have bolded some things for consideration.
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