Bayh-Dole, without the useless fluffery of public protections

The public protection apparatus in Bayh-Dole appears to be there just for show, to “reassure” the public that everything will be fine with contractors owning inventions made in projects receiving public money and the government granting exclusive licenses to its company favorites. The public protections are drafted to be weak, to be unusable, to be waived, to be ignored, to be breached without penalty, with no enforcement mechanism, and the government does not act on its license and doesn’t march-in.

The paperwork parts of Bayh-Dole do nothing to advance innovation and are just more disincentive for federal contractors to use the patent system. Contractors have to have ownership of inventions as if they paid for the work themselves. The public benefit is entirely in any commercial products that they develop based on federally supported inventions.

That’s it, that’s faux Bayh-Dole, Bayh-Dole as a please do WTF you want law, Bayh-Dole as a patent pipeline from public research to private speculators on the future value of federally supported inventions–or anything else that contractor or federal administrators want to do.

Fuss all you like about the tragedy of the public domain, and the high cost of developing new products, and the apparent inability of federal agencies to find incentives in the patent system to act in the public interest. Rationalize and spin all you want. What is left to Bayh-Dole when you are done?

Let’s see. Here it is:

Bayh-Dole as it is practiced

35 USC 200 Policy and objective

It is the policy and objective of the Congress to minimize the costs of administering policies in this area.

35 USC 202 Disposition of rights

Each contractor may retain title to any subject invention.

35 USC 209 Licensing federally owned inventions 

A Federal agency may grant an exclusive or partially exclusive license on a federally owned invention. Any licenses granted shall contain such terms and conditions as the granting agency considers appropriate.

As for the rest, most can stay because it doesn’t matter. Some stuff goes because it is just for show and to reassure the public about things that no-one has any intent to enforce or act upon. The apparatus of disclosing inventions is useless–nothing happens as a result. Same for the fussiness of electing to retain title or filing a patent application or putting a government funding notice in patent applications. Who cares? It’s waste effort and violates the fundamental purpose left in Bayh-Dole’s statement of policy, to reduce administrative bother. As for government rights in inventions, the government has all it needs with 28 USC 1498–and paying reasonable compensation to use any invention a contractor owns is only, well, reasonable, while not paying is clearly a disincentive for contractors to use the patent system at all, and we can’t have any such disincentives or the public won’t get its prescription drugs, because as we know, the only prescription drugs possible are ones that have benefited from a patent monopoly.

There’s now no reason for any addition of a patent rights clause to each funding agreement–there’s no need either for any apparatus to modify that clause or to march-in–those are just provisions for show. Nothing happens with them. Get rid of them. Let’s see things in the clear light of day and not in the shuffling madness of bureaucratic breath.  Same for confidentiality–nothing to report to the agencies now, in keeping with the prime objective of Bayh-Dole, to reduce administrative bother. There’s not much needed by way of regulations to implement what’s left. Things are pretty clear as they are, don’t you think?

35 USC 201 Definitions [keep, don’t really matter]
35 USC 203 March-in rights [eliminate, for show]
35 USC 204 Preference for United States industry [eliminate, for show]
35 USC 205 Confidentiality [eliminated, nothing to report]
35 USC 206 Uniform clauses and regulations [keep]
35 USC 207 Domestic and foreign protection of federally owned inventions [keep]
35 USC 208 Regulations governing federal licensing [keep]
35 USC 210 Precedence of chapter [keep, doesn’t matter]
35 USC 211 Relation to antitrust laws [eliminate, not enforced, redundant]
35 USC 212 Disposition of rights in educational awards [keep]


This entry was posted in Bayh-Dole and tagged , . Bookmark the permalink.