Bayh-Dole, the rotten law for rotten bureaucrats

You know something has to be rotten with Bayh-Dole when:

• university administrators never cite the law even close to correctly
• the statistics used to champion the law are fake and deceptive
• all reports of invention utilization are government secrets
• university administrators refuse to comply with the law
• there’s no enforcement of the parts of the law cited for its “success”
• key implementing regulations were designed not to operate
• the ones who most like the law are bureaucrats and patent attorneys
• major organizations issue fakographics by the ton filled with the same crap

Not all bureaucrats are rotten, of course, but you can tell the rotten ones right away–they do the things in the list of things rotten with Bayh-Dole. Bayh-Dole on its own does little more than establish terms for a default patent clause, make clear that any federal agency can grant exclusive licenses to inventions it owns, and change federal patent law to delineate the patent property rights in such inventions. It’s rotten administrators that have made Bayh-Dole into a rotten mess.

We might posit that Bayh-Dole has attracted rotten administrators to university technology transfer. We might posit that this has been the primary effect of the law, to draw rottenness away from whatever had previously attracted it and brought it sniffing and stinking to university patent administration. The number of clueless, self-congratulatory, pig-headed, officious, litigious, full-on Dunning-Kruger bureaucrats who end up in university patent management is breath-taking. Sorry folks, but it is true. I’ve seen your work with policy, with negotiation, with drafting. It sucks, for the most part. Some of you are brilliant, but you are a minority. As Frankfurt has it, sincerity is just another form of bullshit if you have no regard for the truth. You have created a bozonet and use it to hide from reality, hoping that by repeating your fantasies and bogus statistics from forty years ago you can somehow make the world conform to your confusion. Hasn’t happened. Won’t ever happen.

Bayh-Dole has throttled American university research inventions. These inventions now get held back behind a bureaucratic paywall. Most go unlicensed. Of the few that are licensed, the licenses preserve a private monopoly. Most of those monopolies are merely speculative play for rounds of investors helping later investors lose money. Only a tiny handful of inventions escape this monster system, with a bureaucratic thumb in every inventive pie.

Bayh-Dole, built on fraud, representing aspirations as fact, deathly silent on what is actually happening, the only ones living large being the patent attorneys and university bureaucrats and drug companies.

Shut the thing down. Repeal Bayh-Dole. A mistake, a fraud, a waste, a monster, a clever public gift to the pharmaceutical industry. A shafting of inventors, of federal agencies with public interest at heart, of open markets for innovation.

Short of repeal, do any or all of these things:

1. Enforce the law as it is written, especially the restriction on assignments, including assignments lipsticked up as exclusive licenses. Enforce the standard patent rights clause. Make clear that the (f)(2) requirement in the standard patent rights clause takes precedence over any university claim to ownership of inventions, exactly parallel with the subcontracting requirement in (g). No change in law or regulation needed.
2. Audit university practice for innovation substantive practices–utilization, proper exclusive licenses (not assignments), use of royalty and other income, (f)(2) written agreements, small business preference in marketing inventions. No change in law or regulation needed. Make the law work if it is such a wonderful thing.
3. Require federal agencies to use the government license to practice and have practiced by authorizing sale of generic versions of subject inventions upon request. The government bargains for this right. Use it. A right not used is waste and a public donation to a private monopoly. No change in law or regulation needed.
4. Make clear in regulations that the government license to a subject invention is broader than merely the license to patents covering some part of the invention. A product based on an invention is “the invention.” It doesn’t matter what other patents a company may have in that product–the government has a license to the invention and therefore to all those subsequent patents, regardless of whether those claimed inventions were government funded. No change in law or regulation needed. The government license is directed at the invention, not the patent.
5. Make clear that utilization reports in which no utilization is reported must be public records, not exempt from FOIA–as in fact FOIA provides and Bayh-Dole gets wrong with more clever but failed language. No change in the law needed. Regulations and standard patent rights have to be modified to comply with FOIA.
6. Require federal agencies to march-in on any invention for which there is not a positive utilization report showing practical application within three years of the first patent issuing on a subject invention that has not been licensed non-exclusively, royalty free or for a reasonable royalty. No change in law or regulation needed. Change the march-in regulations to make them operable and default to the public side, as was the case with the Kennedy executive branch patent policy. Use it or lose it. No squabbling, no protracted hearings, no layer after layer of review to run up the government’s costs–and prevent public access.
7. Create a public appeal process by which utilization reports may be made public, exclusive licenses that are really assignments challenged, and agency indifference or waiver of patent rights clause requirements–reporting, small business preference, U.S. manufacturing, assignment, use of royalties–appealed. For this, change the law and add implementing regulations. The Supreme Court noted that Bayh-Dole had no protections for third parties. Time to do it, short of repeal.

Any of these would be a good start. But even better: get rid of the whole rotten, badly drafted, misguided, fraudulent mess. The Kennedy patent policy was much better. The idea that all inventions must become monopolies and the monopolies must require solitary private investment and that investment should have a right to be predatory on industry and on human suffering–this is an ugly idea and ineffective idea.

And if getting rid of the law ends the livelihoods of rotten bureaucrats who have made happy, happy deceiving the public, faculty, legislators, and government officials, so be it. Drive the scoundrels out and let them make their corrupt nests some other place.

Rotten law. Take it out.