In Stanford v. Roche, the discussion for folks on the sidelines is *not* who “wins” but rather the consequences of the arguments used to “win”. If the interpretation of certain university-controlled organizations win, then the outcomes will affect *everyone*, regardless of what happens in the case–which, for all that, might end up with patents being declared invalid and Stanford not getting anything at all–and not able to license to anyone else. *And* we could all still be saddled with B-D as a vesting statute!
If that happens, there goes faculty consulting, student internships, and industry collaboration. *That’s* what’s at stake for the sideline watchers, and that’s where they could make a real contribution, asking other universities to wise up on the consequences, not just follow the heady rush of picking sides to “win”.
As we’ve said before, by following the assignments rather than voiding them, one gets to perfectly wonderful outcomes for the inventors, and for Stanford, if that’s what one wants, without any need for a vesting statute. The lessons learned would be these:
- Universities have to manage their agreements for the rights they want, even if that means being diligent;
- Companies would do well not to claim entire right, title, and interest to individual work where that may include subject inventions–unless they want the obligations that go with subject inventions;
- The sequence in Bayh-Dole is report, elect, assign, file–getting the steps out of order doesn’t help one’s case; and
- It works best to read carefully before jumping to self-interested shortcuts that make a mess of the law.
- Get the facts before you pick sides–not everything arising around federal funding is a subject invention, and not all subject inventions are subject to a standard patent rights clause.