Gene Quinn’s opinion piece got me thinking some more about how Bayh-Dole really must go. I agree with Quinn’s analysis of some critics of Bayh-Dole. The criticisms Mr. Quinn criticizes are indeed silly. There are much more damning weaknesses in the Bayh-Dole Act and its implementation than what some critics have pointed out. The idea that a government must have a uniform policy on inventions to make it convenient for university administrators to serve the interests of speculators makes no sense. Innovation does not much happen because creative work is handed to bureaucrats to cozy up to whomever has money. Of course, this is not what Bayh-Dole declares, but this is what it was drafted–“a cleverly crafted scheme”–to allow. Bayh-Dole may have been overtly about requiring all federal agencies to permit inventions made with federal support to participate in the diverse, modestly effective, mostly voluntary, innovation ecosystem of inventors and invention management agents, but at crucial places, the law was drafted to expose inventors to bureaucratic controls, to destroy the very innovation ecosystem claimed as successful, and to relieve the bureaucrats and their speculating associates of public accountability.
Bayh-Dole does not expressly promote such things. As its advocates say, it is cleverly crafted. But a close examination of the drafting leads to the conclusion that those involved anticipated such things, left space for them to happen, and were frustrated in the end that some of their best ideas for enabling the bureaucratization of university innovation were cut out of the final version of the bill that passed Congress. Instead of admitting they did not get what they want, instead they embarked on a myth-making adventure around the country, telling happy bureaucrats and incredulous faculty that Bayh-Dole vested ownership of faculty inventions with the institutions that hosted the research, or if it did not vest ownership, then ownership transferred when an institution “elected title,” or that wasn’t it, then the law required inventors of subject inventions to assign to their employer, or something–anything. The number of variations on the story point out how the story itself lacks a grounding in the law.
It was wishful thinking, but also a deception, a fraud that has changed the landscape of university patent policies. Those policies were once diverse, narrow, mindful of institutional conflict of interest, ready to refer inventors to external invention management agents, and in a number of cases, disinterested in the use of patents by universities, especially in medicine. Now those policies present a monoculture of expansive claims to bureaucratic control of research findings, compulsory assignment of ownership, a range of administrative protections so faculty and faculty inventors alike have no say in how inventions are managed and patents are licensed or not licensed, and institutional conflict of interest is embraced as a mandate of federal law.
Bayh-Dole in its nicest form is this:
Federal agencies must allow university inventors to assign inventions made with federal funds to their universities or to invention management agents, so long as the federal government gets the rights to use such inventions.
Bayh-Dole in the form bureaucrats turned it into is different:
No invention (or non-invention) can be used without first dealing with and paying a bureaucrat, and otherwise no one can use such invention (or non-invention).
The nice form of Bayh-Dole is not threatening, at least on the surface. The bureaucratic form–adopted throughout the country–is plain stupid. But that did not stop the bureaucrats from trying to turn their interpretation of Bayh-Dole into the law of the land. But the US Supreme Court in Stanford v Roche tossed their argument. Scores of university administrators signed onto amicus briefs arguing that since Bayh-Dole had been used as the excuse to change policies, build up bureaucratic middens of patents, and make a few institutions rich, then Bayh-Dole must have also intended to hand the ownership of subject inventions directly and expeditiously and gloriously to the bureaucrats. The justices read the law–something the university bureaucrats apparently were not able to do–and rejected the bureaucrats’ argument. And, frankly, it was a stupid argument, full of non sequiturs, twisted interpretations, and throwing sticks and dirt in the air.
Bayh-Dole told federal agencies that if university inventors assigned inventions made with federal support to a qualified invention management agent, then the agency should allow the agent to keep that ownership, provided the agent behaves to protect the government’s (and the public’s) interest. The bureaucrats turned this into a federal mandate that university inventors should have no rights in their inventions, which were to be managed by bureaucrats to generate revenue any way possible. This faux version of Bayh-Dole is not only lousy policy for national innovation based on university research, but it is also lousy policy for universities to get support for their research.
Still, advocates such as Mr. Quinn and Mr. Allen labor on, arguing that Bayh-Dole–and by implication the faux bureaucratic implementation–is wildly successful. But these advocates produce no evidence for their claims, and worse–their reasoning sucks. “Bayh-Dole can’t be a failure because it is such a success.” “Because AUTM reports (what sounds like) a lot of startups (but really isn’t and they are mostly shell companies), these startups must all be the result of subject inventions (though there is no evidence for which companies benefited from subject inventions and despite the problem that universities conveniently overclaim what has been federally supported), and these startups must employ lots and lots of people (though apparently only a few have been so successful) and so Bayh-Dole is a success.” Well now. In their self-indulgent dreams, perhaps.
It’s time for the fraud to end. So F-B-D. Time for university leaders–those who can read and reason, those with courage and a sense of purpose, those not weakened by visions of dollars flowing from third-rate speculators managed by bureaucratic offices hiding behind ill-conceived and wretchedly drafted patent policies, to implement the nice form of Bayh-Dole, restore the freedom to innovation, put universities back in the role of trustee, and develop external agents to specialize in invention management when patents are involved.