Some folks who claim to advocate “for” Bayh-Dole, but actually are the law’s worst enemies, argue using the line “Bayh-Dole was never intended . . . .” They leave out the part about who they mean has been doing the intending. Norman Latker? Bob Dole? Joe Allen? A bunch of university IP managers who have never read or grasped the law? Their often poorly trained in IP lawyer buddies? One would think that the intention that counts is that of Congress–Bayh-Dole is a statute, after all.
When the Supreme Court was asked to interpret Bayh-Dole in Stanford v Roche, the court set aside all those university attorneys’ opinions of what they thought “was intended”–and even set aside Senator Bayh’s argument about what he “intended.” Instead, the justices looked at the common meaning of words that carried no special definition, looked at the words that Congress had gone out of its way to define, such as “subject invention,” and then looked for Congressional intention. They did not need Sen. Bayh telling them what to think about the law. The court concluded that if Congress had intended such a sweeping change in the law as the university folks and Sen. Bayh claimed, then Congress would have gone out of its way to make that clear. Congress would have marked its intention to make a change:
It would be noteworthy enough for Congress to supplant one of the fundamental precepts of patent law and deprive inventors of rights in their own inventions. To do so under such unusual terms would be truly surprising. We are confident that if Congress had intended such a sea change in intellectual property rights it would have said so clearly—not obliquely through an ambiguous definition of “subject invention” and an idiosyncratic use of the word “retain.”
It’s clear that what the Bayh-Dole enemies mean when they assert “was never intended” is something very different from what Congress intended. They mean–though they don’t say this–that some unnamed someone never intended for the intention behind the law to be that of Congress. Senators Bayh and Dole, say, or Norman Latker, or Howard Bremer. These folks, apparently, never intended Bayh-Dole to reflect the intention of Congress, but rather, apparently, their personal intention, not expressed in the words of the law, but rather in regulatory rewriting of the law, statements they made later about the law, claims they made about the history of the law. In short, the enemies of Bayh-Dole argue that Bayh-Dole should be a law of personal caprice–a coterie of unelected officials should dictate to the executive branch and to the courts what they want the law to mean. “It was never intended that the law we claim to support should be read in the manner of standard federal law,” but rather Bayh-Dole must be interpreted according to the statements later of what people involved in drafting the law claim that they thought they were doing.
Well, poop on that, and on them. Let’s consider how all this plays out with a simple approach to a fundamental policy issue. I’ll point out that I am going to be coarsely simple, and that won’t sit well with those readers who demand nuance and qualification and sophistication. There’s a time for that, of course, but there’s also value in being, well, coarsely simple. Continue reading