[I’ve revised this a few times. I will leave it now. It’s intended to reflect passion and disbelief at the magnitude of this situation. It is not a mild difference of viewpoint couched in odd technicalities of a law most no one reads. It really is something more. It is a potential turning point, one I see involving bad policy claims and a fundamental misconstruction of what federally funded research at universities is about. It is an attack on faculty research. It is a claim for bureaucratic process over outcomes. It is a huge restriction of the ideas around US invention.]
I want to comment on this particular amicus brief in Stanford v. Roche. Signed onto by some 40+ universities, including the University of Washington. It’s really a bad piece of work. But let’s get some things out that bear repeating.
1. These folks can’t get the Bayh-Dole argument correct. What a shame. They ought to know it better than anyone. They are banking on that reputation, it’s their star thing, and they are wrong about it. There are things to worry, but then they would have to admit Bayh-Dole isn’t perfect. That would open up a debate. They don’t appear willing to do that.
2. The fact pattern in the Stanford v. Roche case doesn’t support raising the issue anyway. There are so many ways that the outcome doesn’t end up with it mattering. The MTAs with paid up licenses to Cetus/Roche, the finding that the patents are invalid, the failure to elect title within the 2 year limit, the fact that Stanford went back to get assignment after the fact. No, there’s no way it matters.
3. Even if one wanted to raise the issue, this isn’t the place. What a rotten fact set. Do it legislatively if that’s where you intend to be. Let’s have it out with some hearings. And this argument that universities do it better than inventors. No, can’t be, not this time. Yeah, they signed away something valuable. That happens. It was a choice. Sorry. Choice at one university is not the occasion to deny choice as law of the land.
4. The government interest in the case is entirely covered by what has happened. The government has its license from Stanford, the public is served with access to the benefits of the invention. This is a success. The agency has no reason to choose one organization over the other based on royalty claims. There is no more problem with this fact set than there would be with the university research team calling someone at Cetus/Roche with their problem and the invention happening in that conversation. Co-inventor. Joint title. No exclusive position, no federal title machinations for the company, no cloud on title. No government damage. All success. Done.
5. I’m sorry, but the claim of damage by a cloud on title is just ludicrous. A bunch of university administrators and attorneys arguing that because something didn’t happen but could have, somehow the decision in this case has to be reversed so that what is feared is precluded. You are three feet from the curb. OMG! If you had been just 4 feet over you would have been out in the road, and you would have been hit by a car. So now you want all traffic stopped while you sort out this near miss. Get a life, guys. There’s no damage here as a matter of public policy. You have a hypothetical that’s not material to the case at hand. Get a real case.
6. The university amicus position is anti-faculty, anti-inventor, and anti-Bayh-Dole. Whatever one wants to say, the university arguments are on the wrong side of the matter, as a matter of practice. I can see why the particular inventors in this case *might* want the universities to win. But see 2. I don’t see them getting the money. Meanwhile, welcome to universities as a processified invention monoculture. They are taking away the core distinguishing contribution of faculty-led university research, that these individuals are able to be independent agents conducting their research and making their collaborations without the same restrictions as the corporate world or even federal laboratories must follow. The readings promoted by the universities run against the objectives of Bayh-Dole, not in support of it.
Geez, I sure hope folks figure things out, and further I hope these guys rustling up this piece of amicus briefing are held accountable for doing this. It’s not an accident. It’s not an Emily Patella misunderstanding. It’s deliberate, it’s badly conceived, it hasn’t been consultative of faculty or faculty inventors, and if it succeeds, it will be destructive of the very foundations that make university faculty so important to an overall research-innovation ecosystem. There, someone has to put it forcefully. Practice voice.
So, yeah, it doesn’t get any better than this, because, I fear, there are folks who want to make sure it doesn’t. How do these folks have any credibility? It seems so baldfaced. At best it is a mass hysteria about a fear that’s not in this case. At worst, well, with friends like this…