As I reread the 40+ university amicus brief, I tried to understand what would cause such mass hysteria among such a usually undemonstrative group. Clearly, they believe something they do is under attack, or Bayh-Dole is, and they got out the tabors and pitchforks to stop it. Well, actually, just lawyers and money. But it sounds better to think of the lawyers as tabors and pitchforks.
Here is what I think is the meat of the matter: what of the personal right of a future inventor to obligate rights to his or her personal future interest before there is any federal funding?
The folks want to worry this. It’s not actually relevant to the Stanford v. Roche case, because the fact set there doesn’t support it. But the case apparently provides a platform to try to deal with this issue.
The tabors and pitchforks want to construe Bayh-Dole as an invent for hire statute and want federal funding conditions to cancel any outstanding agreements pertaining to university ownership. These are not represented as policy arguments on their own merits so much as patches for what is viewed as a dangerous gray area of Bayh-Dole. That is, they are fixes to a perceived problem. Tabors and pitchforks are not asked to evaluate the fixes on their own terms as public policy. That’s what I have been pointing out: these are bad public policy, bad university practice policy, bad implementation of patent policy. And these don’t fix the problem. And it’s not a problem. And this is the wrong place to be so wrong about it anyway. Whew.