The miracle of Bayh-Dole came about, so the story is told, because Senator Long, the arch-critic of Bayh-Dole (“the worst bill I’ve seen in my life”), suddenly flipped his position to give Senator Bayh a consolation gift for losing his bid for re-election, on the condition that Senator Dole promised not to amend the bill later to extend it to large companies. “Sure, sure, absolutely not, Senator Long.” Senator Long must have got something mighty tasty in return to flip his vote on a lame-duck session bill that gutted a previous bill and added language that had already failed in the Senate and now required a unanimous vote.
But what? What was worth blowing away the community of science commons that had paced the interface between science and technology development from the 1950s to the 1970s? Given that President Carter flipped his position, too (he had backed a competing bill that covered all federal contractors, sponsored by Senator Schmitt). So had Senator Nelson from Wisconsin (home of the Wisconsin Alumni Research Foundation, which was closely aligned with Norman Latker, the former patent examiner turned NIH patent counsel who drafted Bayh-Dole). Very strange, very tasty something.
So Bayh-Dole passed in 1980, got signed by President Carter, and came into effect in the summer of 1981. Now Senator Dole had promised no amendments to the law to let big company contractors have the same right to retain ownership of inventions made in federally supported work that Bayh-Dole gave to small companies and nonprofits. What then to do to complete the agenda and not go back on the promise? Ah, play dirty politics.
Norman Latker drafted for President Reagan a “Presidential Memorandum,” picking up the language of the Kennedy executive branch patent policy published in 1963. In this new Memorandum, President Reagan turned executive branch patent policy on its head. Reagan required federal agencies to use Bayh-Dole practices for large companies. Bayh-Dole wasn’t extended to large companies. Executive branch patent policy was flipped instead to require Bayh-Dole for large companies (except where executive branch policy could not preempt federal statute, and except when federal agencies decided to give large companies a better deal than they would get following Bayh-Dole practices).