Looks like the Solicitor General has weighed in supporting the effort to get Stanford v. Roche before the Supreme Court. All the lobbying by the universities has paid off handsomely. Now, one might hope, they will learn a powerful lesson, if the Supreme Court really wants to look at this case. From my perspective, the universities are blowing a ton of goodwill and effort on a misplaced concern. Their problem is not with Bayh-Dole or the courts; it is with their own implementation of the law, and with listening too well to people who should know the law, but don’t or won’t. Once paid counsel is on the case, however, we aren’t going to have an intellectually honest discussion as a form of deliberative rhetoric. There will be no conversion experience, no epiphany that they have construed it all wrong. Rather, we get a belabored dispute, in the form of a forensic (backward looking) rhetoric. The idea is, face the future with our backsides by seeing who can snooker the justices about issues in the past.
My hope remains that the justices prefer not to be snookered and can read law as well or better than anyone, and have something considered to say about things. What they might say is that while the issue the universities are concerned about is clearly very concerning to them, it really has nothing to do with this case, so find a better case. There is always hope! In the meantime, I will work to lay things out again, so at least there is a map to an alternative view of the law and practice from the perspective of university practice.