Latker Here, There, and Everywhere in Bayh-Dole

Norman J. Latker is the architect of present federal patent policy. Let’s work through his resume. It provides a remarkable tale of persistent influence leading to the unenforced, innovation-stagnating, dismal-performance (but it’s all kept secret, by law) Bayh-Dole Act.

Latker earned degrees in civil engineering and law from the University of Illinois. Worked then as a patent examiner from 1956 to 1959. Then he moved into patent work for the federal government, briefly with the Army and Air Force, before moving in 1963 to work at the NIH. He was Senior Patent and Copyright Attorney when he restarted the NIH IPA program. Latker served as the head of the Patent Branch for the Department of Health, Education, and Welfare from 1969 to 1979. He moved to the SBA from 1979-81, and then to the Department of Commerce in 1981.

What did he do during this time in the federal government?

The IPA program

Developed and implemented the institutional Patent Agreement Policy for Department of Health, Education and Welfare (DHEW), which presently involves 78 agreements with major universities and other nonprofit organizations.

Granted waivers from the Kennedy patent policy requirements for health inventions

Developed and implemented the procedures and policies involving waiver of DHEW-funded inventions.

Used agency waivers and the IPA master waiver to promote the use of exclusive licenses

Aided through the above policies in the delivery of over 75 health-related inventions to the marketplace and the licensing of other inventions still in the state of development.

Equated the outcomes of his efforts with a general approach

Identified, through the management of the above programs, the factors necessary to achieve successful technology transfer and–utilization–of government-funded inventions.

Wrote his strategy into law as Bayh-Dole

Primary architect of P. L.96-517,”The1980 amendments to the Patent Laws,” which incorporates the above factors. This. is the first major patent Act in twenty five years.

Developed the implementing regulations for Bayh-Dole

Primary architect of Office of Management and Budget (OMB) Circular A-124 and Bulletin 81-22.

And then wrote President Reagan’s 1983 Memorandum undoing the Kennedy/Nixon executive patent policies in favor of Bayh-Dole-like treatment for all contractors, but for laws that required otherwise.

Primary architect of the President’s February 18,1983 Memorandum on Government Patent Policy.

This is where Latker’s resume available at IP Mall ends. We continue with the bio written for IP Mall as an introduction to the archive collection.

Latker drafted the amendments to Bayh-Dole that weakened it in material ways, 1984

Due to Latker’s efforts, after a two year battle the implementing regulations were finally in place. Latker continued to work with Senator Dole’s office on the amendments to the law in 1982 and 1984.

Latker then drafted the Federal Technology Transfer Act of 1986

Latker was the drafter of the Federal Technology Transfer Act which was enacted in 1986 and earned him an award from Secretary of Commerce Baldridge for this achievement.

He then moved on to implementation of the Federal Technology Transfer Act

Latker established the Interagency Committee on Technology Transfer, which he initially chaired, to oversee implementation of the Federal Technology Transfer Act as well as considering related technology transfer issues.

Latker left government in 1990

He left federal service for private practice in 1990.

Latker chaired government committees on university patent policy, drafted patent rights clauses for federal contracting before Bayh-Dole, He was given awards by various federal agencies–including the SBA, OMB, and Commerce for his work.

Latker also served on the committees that drafted the codification for the Nixon patent policy (1971) that opened the door for exclusive federal licensing of inventions and pushed the actual rules for federal contracting to the CFR, where things could be more easily drafted to support the IPA program, leading to the Federal Procurement Regulation (1975), from which Latker copied whole sections into Bayh-Dole’s standard patent rights clause (though not in Bayh-Dole). Latker fought an underground action against the policies of DHEW, including a running battle with Secretary of DHEW, Joseph Califano, that saw Latker get fired for misusing department resources to pursue his own, contrary policy agenda, and reinstated on appeal. The battle was sufficiently intense and covert that Latker had the draft of Bayh-Dole typed by someone outside of government so that it would not be traced to his NIH typewriter.

According to the biography up at IP Mall,

Latker later moved to the Office of Federal Procurement Policy which was originally charged with writing the implementing regulations for the Bayh-Dole Act. When Latker subsequently moved to the Dept of Commerce, Senator Dole amended the Bayh-Dole Act so that Commerce (under Latker’s leadership) continued to over see the new law.

Latker is the man that pushed through the whole federal policy on inventions. He certainly had help–Howard Bremer at WARF (Wisconsin), clearly, and SUPA as an organization to rally university patenting folk to support his efforts, which continues in the form of AUTM. At Commerce, Betsy Ancker-Johnson played an important supporting role. And then there were the elected officials–Bayh and Dole–and especially Dole after the law was enacted, but also Thornton and Kastenmeier (Wisconsin)–whose bill it was that the failed Bayh-Dole text was tacked on to, requiring a vote without opposition in the Senate, and thus, in the end inexplicably senators Nelson (Wisconsin) and Long flipped.

In a way, calling the law “Bayh-Dole” is more political misdirection. The law is “Latker’s Law” and calling it Bayh-Dole is another way to shift attention from the work of the person that pushed it through. The persistence, the diligence, is impressive. But there’s also a concern–how does it come about that so much gets drafted and controlled by just one person, hidden away in federal agencies, working against presidential and agency policy expectations? Why?

It’s clear from his list of accomplishments in his resume that Latker was taken by the success of his patent programs, and this flush of success follows Bayh-Dole as well. The Department of Commerce embraced Bayh-Dole and has maintained the assertion of the success of the approach ever since. In its way, Bayh-Dole is the result of a rebellion by patent attorneys against governmental policy from at least 1947 that insisted that the federal government should not grant exclusive licenses without Congressional authority and that contractors lacking non-governmental markets should have to make a case for exclusive control of inventions made in federally funded research, and that all contractors should have to make that case if the federally funded research is directed at matters of public health.

It was this limitation on contractor patenting in public health research that Latker most opposed. He was a former patent examiner. His expertise was in patenting. He saw his expertise as an important adjunct to deliver federally supported research results to the public. He did not see the use of research results as published or made openly available, although federal agencies did have track records every bit as good (public health) as university-affiliated licensing and where a federal agency led the development substantially better (100%, agriculture and mining).This almost spiritual investment in the importance of patent management expertise as a means of social and economic progress continues to inform AUTM members to this day.

There’s something to be said for recognizing the role for IP expertise, to be sure. If the patent system’s purpose is to promote the progress of the useful arts, and that progress is a social good, then bringing skills to assist inventors in how they might best exploit their exclusive rights for limited times surely also must be also a social good. Two social goods in place of one–how patenting increases social good all around. There may, however, be too much of a good thing. And not only that, for all of Latker’s success, there’s a good argument that he lost something crucial along the way. What I’m interested in is whether Latker realized what he lost, and whether anyone else now cares.

It’s much like the problem Vannevar Bush faced with the national research foundation. He is said to have won, but on closer inspection, it looks like he lost to Senator Kilgore and the competitive research grant based on proposals that necessarily have to articulate the unknown in some way rather than on people with potential to explore the unknown that’s so unknown that there’s really no way to propose what to do before doing it and no way for anyone to review future activity for merit without a proposal or a keen intuition into what someone might be capable of. Perhaps this is true, too, of Latker. He won–he knew it, and he was celebrated for it–but maybe, too, he lost and we know so little of things now that we don’t realize it, or care, such is our adiaphora.

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