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Author Archives: Gerald Barnett
NIST’s Chief Counsel on Bayh-Dole, 2
As further evidence that NIST’s chief counsel does not properly describe Bayh-Dole, consider this point in his first slide of Bayh-Dole “highlights”: This point is accurate only in an obscure technical sense. Bayh-Dole does not preclude a contractor, having obtained … Continue reading
Posted in Bayh-Dole
Tagged (f)(2), Bayh-Dole, commercialization, NIST, patent rights clause, subject invention, Wixon
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NIST’s Chief Counsel on Bayh-Dole, 1
In 2011, the Supreme Court provided a clear interpretation of the Bayh-Dole Act in Stanford v Roche. Bayh-Dole applies only to subject inventions. A subject invention is a patentable invention made in work funded by the federal government and owned … Continue reading
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Tagged Bayh-Dole, NIST, patent rights clause, presumption, Stanford v Roche, subject invention, Wixon
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Guide to Bayh-Dole by the Layers, 7
Eighth layer: Outcomes We reach the eighth and final layer of Bayh-Dole: outcomes. We can consider four elements of outcomes: activity, cost, practical application, and the effects of patent monopoly exclusion on such things as research, rapid industry and professional … Continue reading
Guide to Bayh-Dole by the Layers, 6
Sixth layer: Government rights Seventh layer: Enforcement of patent rights clauses We must also consider the flip side of contractor non-compliance with Bayh-Dole’s standard patent rights clause–federal agency enforcement of the patent rights clauses, waiver of these clauses, and federal … Continue reading
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Tagged Bayh-Dole, enforcement, march-in
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Guide to Bayh-Dole by the Layers, 5
Fifth Layer: practice On to the next layer of Bayh-Dole, actual practice. We will restrict our discussion here to university practice, but things are much the same for other nonprofits. Small business practice has its own peculiarities, including the oddness … Continue reading
Posted in Bayh-Dole
Tagged Bayh-Dole, compliance, patent rights clause
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Guide to Bayh-Dole by the Layers, 4
Fourth layer: Funding agreements We have looked at Bayh-Dole the statute, the implementing regulations, and the standard patent rights clauses. These are all apparatus that are disconnected from contractors and inventors–just laws and regulations and templates. The apparatus gets connected … Continue reading
Posted in Bayh-Dole
Tagged assignment, Bayh-Dole, funding agreement, patent rights clause, subcontract
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Guide to Bayh-Dole by the Layers, 3
[The default patent rights clause authorized by Bayh-Dole is the inventor patent rights clause at 37 CFR 401.9, a subset of 37 CFR 401.14. The default is enabled when contractors comply with 37 CFR 401.14(f)(2)–except they never do. Under the … Continue reading
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Tagged 37 CFR 401.14, 37 CFR 401.9, Bayh-Dole, patent rights clause
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Guide to Bayh-Dole by the Layers, 2
Second Layer: Regulations Third Layer: Patent rights clauses The second layer of Bayh-Dole involves the implementing regulations. We will consider only those that have to do with the contracting section, 202-204. These regulations are found at 37 CFR part 401. … Continue reading
Posted in Bayh-Dole
Tagged 37 CFR 401, Bayh-Dole
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Guide to Bayh-Dole by the Layers, 1
[4/30/18: fixed an editing artifact, bringing together text on “housekeeping” into a single section where it belongs] A helpful way to look at Bayh-Dole is as a set of layers of law, regulation, contracting, enforcement, and outcomes. There are at … Continue reading
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Tagged 35 USC 200-212, Bayh-Dole, subject invention
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The Faster Cures FAQ on Bayh-Dole, 5
We are working through the Faster Cures FAQ on Bayh-Dole. This is the last bit. 7. What have the impacts of Bayh-Dole been? Bayh-Dole has both passionate supporters and detractors. Advocates argue that it has brought the results of federally … Continue reading
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Tagged Bayh-Dole, Brookings Institution, Faster Cures, impacts
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