I have a special regard for the Bayh-Dole Act from spending so much time working with it. I am impressed with the way that it balances uniform agency policy regarding federally supported inventions with the diversity of practices potentially available to promote the use of inventions in the private sector. I am fascinated by the way in which the Act advances an agent model to deal with the competition between personal and institutional interests in ownership of inventions.
Especially interesting is the way in which the Act mandates a patent rights clause that in turn, when incorporated into funding agreements, requires university administrations to release their inventors from institutional claims based on employment or use of facilities and in their place require university investigators to make an agreement with the government to protect the government’s interest, however the inventors decide to go with choice of agent. I like the way this arrangement–if it were ever practiced–would permit faculty investigators (and inventors) to establish contractual relationships with invention management agents that made the agents accountable to the inventors for the approach taken to licensing, the money made, and the outcomes. Bayh-Dole proposes a new kind of patent agreement for any invention management agent, led by faculty inventors rather than by their employers, that is to be used in the context of federally supported research.
These gestures are important ones. Whatever one might say, it makes a lot of sense to explore these approaches to dealing with the outcomes of federally supported work–uniform policy, diverse private practice, inventor-led, agent model, release from conflicting private patent agreements, and re-establishment of a patent agreement for a given subject invention reflecting a merging of the inventors’ interests with their commitments to the public through their federally supported research as accepted by willing invention management agents. As policy, this kind of thing is moxie, if not genius.
Where the genius fails, however, is where the university administrative response to Bayh-Dole begins. On the university side, quite from being an unqualified success, it has become apparent that the university implementation is a near total disaster, and that this disaster is having a profound effect on university research, university-industry collaboration, and innovation in America–but not in the way that the dull, nearly meaningless “linear model” thinking might expect.
The upshot is, it is time for Bayh-Dole to go. Like a houseguest that has overstayed its welcome with brilliant observations on murky subjects, it is now doing nothing good for university research and scholarship, has all but destroyed personal working collaborations between faculty investigators and their industry counterparts, and threatens to destroy the independence of university faculty as sources of discovery and assistance both, replaced by institutional controls, institutional self-interest, and institutional inability to act for the good of others. It is not Bayh-Dole’s fault. It is the fault of a university administrative culture that has turned Bayh-Dole opportunities to damaging purposes.
Few in the past twenty years other than university licensing officers and their cohorts have claimed that Bayh-Dole is a success. There is no widespread acclaim. There is not even independent data that can validate claims of success. When a privileged group is the only ones announcing their success, one should be very skeptical. Faculty do not champion Bayh-Dole, even though properly implemented the law would advance their leadership responsibilities in the university and in the community. Industry does not champion Bayh-Dole. For the most part, they hate it–they hate the delays, uncertainties, outrageous terms, and greasy palms. The community has no regard for Bayh-Dole. Results of $60b+ of federally supported university research are not tumbling out of universities to transform the quality of our life and practice. Rather, at best, universities have become bookies to hold the speculative bets of wealthy investors who find it recreational t0 wager on university inventions. The institutional role is to ensure investors have ample opportunity to place such bets, which apparently even the investors aren’t doing in sufficient numbers to keep the university invention casino profitable.
No-one believes Bayh-Dole is a roaring success except university administrators and others with their fingers in the pie of funds propping up technology transfer offices and a few faculty inventors duped into thinking that the royalties they receive or more often dream of receiving happen only as a result of a compulsory ownership policy tied to a monopoly office of administrators sending out template licenses. For everyone else, Bayh-Dole has led to repression of opportunity, creation of bureaucracy, stagnation in the vitality of university research, and and isolation of university faculty from the technological life of society. This repression, bureaucracy, stagnation, and isolation are not objectives of Bayh-Dole. They are consequences of university administrative responses to Bayh-Dole; but it will be Bayh-Dole that has to pay for these consequences. As the Bayh-Allen version of Bayh-Dole argues, university administrators want compulsory institutional ownership, champion the growth of university licensing offices where faculty inventions go to die, treat stagnation as entitlement to royalties, and believe that faculty public service cannot involve transactions that do not result in institutional money-making from licensing. They believe that the discussion about invention slavery is how to treat the slaves better. They do not care a whit for talk of freedom.
The Bayh-Allen belief system appears to be rampant in university licensing offices and among senior university officials. I see university officials emailing Bayh-Allen articles around with approval, as if these articles confirm what they already believe. And that belief is a will to institutional autocracy in matters of innovation, with insufficient community restraints to prevent their wholesale adoption of institutional demands to “manage” research results for profit, all under the head of “public benefit”.
Stanford v Roche represents the first substantial check on this will to autocracy, but administrators are moving quickly to replace their discredited claim that federal law vests title with institutions with compulsory assignments predicated on employment as a substitute. For this Bayh-Dole stands as the law that has permitted this transformation and now the open flaunting of institutional control over research results. Once most universities have adopted compulsory invention ownership policies, Bayh-Dole will have failed in most of its purposes and will have become irrelevant as an instrument to promote the use of federally supported discoveries. If Bayh-Dole is to remain relevant, it must be reviewed in light of the practices that have been created and expanded on its watch, and modified to re-position the role of faculty investigators and inventors with regard to the work that they, not their administrative assistants, undertake and create public value.