Bayh-Dole is a modestly complex text. Quite apart from the idea that it serves a regulatory function, and therefore one might expect its interpretants to be lawyers and judges, Bayh-Dole is also a text that establishes narrative regarding the role of research invention in a broader framework of societal innovation. For that, lawyers are not necessarily helpful guides.
I have also spent lots of time with a 14th century text called Piers Plowman. Piers Plowman is much more difficult than Bayh-Dole. And it is also focused on innovation and economics in a time of societal change. “When all treasures are tried, truth is the best”, and stuff like that. Yeah, how do you know what truth is? But it would be most odd if the authoritative readings of difficult passages could only be got at by waiting for a dispute to arise of such magnitude that parties could hire paid interpretants to take their case before a judge, who would be tasked with deciding between the two positions while attempting to maintain as much as possible the consensus intepretations of portions of the text not in dispute.
Sort of a mercenary bit of interpretation. There’s a fun debate poem in Middle English called Winner and Wastour. In it, two stock figures, one that hoards (Winner) and one that wastes (Wastour) debate who is better. Both lay out their arguments like attorneys for their positions. The fun thing is, neither is right, and at the end Reason comes in to say as much.
As we look at Bayh-Dole, my approach is shaped in part by these other texts that I have worked with. There are points in the text of Bayh-Dole that require careful reading and disciplined discourse. There are places that permit a variety of readings if one does not also look at other places. Thus, “retain” can mean “keep what one has” or “act to secure something otherwise obligated to others.” If one picks one of those meanings, then changes are forced onto the readings of other parts of the text. If one does not pay attention to those changes, then one ends up using the text to moralize an outcome one wants, but does not consider whether the text as a result becomes incoherent. That’s one thing about interpretation practice in law, that one does not assume the law is contradictory (it may be) and one does not assume parts of the law were intended not to have any purpose (they may end up that way), nor that the law uses two terms to mean the same thing (it could, but in a municipal statute regarding bus behavior, “spit” and “expectorate” don’t have to be conflated to mean the same thing).
Even with all of this, it is possible that a text has parts that simply cannot be reduced one way or another to an unambiguous, necessary, single reading. It may be, even, that it is not possible, much of the time, to do this, for many texts. That we depend on context, on shared practices of interpretation, and on common societal goals to fill in for what a text cannot do as a logical thing. We can call a text with a single, coherent, unambiguous, “true” meaning a primitive narrative. In fiction, this is possible in a way, because if there is a story about what someone thought, and that someone is, say, an animated snowman, what it thought is just what the author says it thought. There isn’t much point in debating what it “really” thought. If there is a debate, it is why the author created a narrative having the snowman think thoughts at all, and why the author constructed that set of thoughts rather than others.
So back to Bayh-Dole. In working with it, even if you will living with it, for the past year in this intensive way, I’m confident that the text has some pretty large holes in interpretation–that is, there is no primitive narrative that makes Bayh-Dole exactly true one way and not others. I’m also confident that this is not a defect of Bayh-Dole, and may not even be a limitation inherent in drafting laws and regulations, and may not be a limitation at all. There is some value in the idea that even a technical law leaves room for common interpretation. In that, each mercenary authoritative reading might close off some bit of that common interpretation, and use up some of the flexibility that otherwise allows multiple, competing, but not conflicting interpretations to flourish, so things get done, opportunities open up, and practice fills these as desired.
This isn’t an argument for picking bits and reciting them in isolation because coherence may not be possible anyway. Rather, I’m arguing that until one has worked through the text to establish its major features, one isn’t really in a position to argue about the points that don’t–and may never–work together. That is, these points of openness may be the spark of the law rather than its limitations and defects. Deciding them diminishes the law at the expense of a clarity that is demanded but not necessarily beneficial.
In this spirit, then, here are some questions raised by Bayh-Dole.
What is an “employee” in 401.14(a) (f)(2) and how does it differ from the employee / inventor in 401.9?
Why does the law use “convey” for title rather than “assign” title?
Why doesn’t the government require universities to exclude anyone from the research who won’t or can’t assign title to the government?
Why does the royalty sharing requirement in (k)(3) apply only to non-profits and not also to small businesses?
Why in 401.9 are agencies required to apply a much smaller set of conditions for inventors than those required of universities?
Why does Bayh-Dole prevent making public reports of utilization?
These are just a few of the questions that come up. If one can find the right dispute, and has money, then there is someone available to press one’s interpretation so that one forces an authoritative answer to such questions. And if one is armchair about it, one can choose answers and try to beat back anyone else, Winner and Wastour style, for the pleasure of the social win. But if one is in this to really understand the narrative of the text, to respect the composition of the text, and to consider possible interpretations against the broader challenges, even mysteries, and at least unknowns, of how a society innovates to advantage, then one has to spend the time reading and interpreting to establish what fits together well enough to be the result of authorial intention, what may fail to cohere, even if also intended, what may have been intended one way but drafted with defects that cause that intent not to be realized (even typographical errors). And one may also then look at what practices were anticipated by the text, and what practices have actually come about, and ask whether adjustments are indicated to poke practices toward more productive behaviors.
Does all of this sound complicated? Isn’t it easier just to choose something, make an assertion, and call for lawyers, guns, and money and pin it down to your advantage? Of course. But for the life of narrative, and for the respect of text, and for a check on one’s own sense of how the narratives motivate choices, the complicated way is the more valuable way, the way that revitalizes the text as a common asset, as a social institution, rather than using it up to a local advantage. This is perhaps a hard lesson. It’s not for those who like to rush the trough. The life of social text is not the life of local opportunism. Or, rather, it is that, too, but those are the behaviors that use up and foreclose rather than open up and rededicate.
It’s by working the interpretation, by applying Reason, that one comes to understand the social institutions of research invention as they are communicated by means of text that gathers up discussions and desires from fifty and one hundred years ago and transmits them through a formalism, a social institution called 35 USC 200ff and 37 CFR 401 and the stewardship of the Department of Commerce, all made 30 or so years ago. It’s not just “law”. It is not just entitlements for financial advantage. It is not just back cover to give the public the impression of outputs and importance for what’s otherwise a way to route tax money to research careers and especially to research administration careers. No. Studying Bayh-Dole is part of studying our situation, our future, with the intent that by realizing what this particular bit of social institution does, we see how it might change, how we might use it, and how doing so might get us further along toward discovering what the world has to open up for us, via research and cooperation among the various divisions of labor available to us as a society.
Is that big sounding? Is it wrong these days to be big sounding? Isn’t driving a local bottom line so much stronger as a rhetorical thing? Getting on with it rather than spending time interpreting or studying? There are no Bayh-Dole reading groups in technology transfer. I think there ought to be. I asked my folks to read Bayh-Dole. I have read it every year that I have practiced technology transfer. And every time I notice new elements that I had passed over. And those spark questions, and those shift what I have said the law does, or what I think when I hear someone take a shortcut with the law. That’s why I am impressed with Bayh-Dole. It isn’t the most straightforward thing, and that in itself is worth study. It is solving a rather difficult problem, and it does so in a remarkable way. It is a pity to see folks all but ignoring these elements in going about their daily work in dealing with creative research personnel and with the broader community. It is a pity to see folks aim to foreclose on Bayh-Dole in the same breath that they claim to be defending it.
So, does anyone want to join a Bayh-Dole reading group? Perhaps I’ll put one up as a Google group. If so, I’ll add a link here.
In the meantime, I will leave you with these questions:
If you had your choice, would you rather see a national research innovation policy driven by a social institution that made it compulsory that creative folks gave up ownership of their discoveries and inventions? If not, would you place ownership with these creative folks? Or would you replace ownership with some other social institution to carry the value of research events such as discovery and invention? The answers you give, and the reasons you give, will say a lot about where we are, as a community, with our approach to change in society catalyzed by research.