Category Archives: Policy

The use of the patent system for federal research results, 10: the drivers that eventually produce Bayh-Dole

Posted on August 13, 2021 by Gerald Barnett

There’s the version of the theory of patent rights that asserts that exclusionary practice is at the heart of the value of a patent, and any practice that declines to assert a patent wastes that value. This theory of exclusionary … Continue reading →

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The use of the patent system for federal research results, 8: Exploiting the use of the patent system

Posted on August 5, 2021 by Gerald Barnett

FSA policy 110, the first agency attempt at making a policy to deal with inventions made in federally supported public health research, tries to establish a middle ground for the use of patents. While clearly endorsing open access, including royalty-free … Continue reading →

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The use of the patent system for federal research results, 7: Failure of FSA 110-1 to establish a middle ground

Posted on August 4, 2021 by Gerald Barnett

Let’s look more carefully at this second possibility beyond the possibility of open access–and where the “generally” in FSA 110-1 gets triggered to make at an attempted middle ground between always open access and full-on use of patents to exclude … Continue reading →

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The use of the patent system for federal research results, 6: The seeming middle ground

Posted on August 3, 2021 by Gerald Barnett

While the FSA policy makes what appears to be nice gestures–royalty-free licensing or at least licensing without unreasonable restrictions and without excessive royalties–there’s little here to provide guidance so far. The policy continues, looking at the prong in which the … Continue reading →

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The use of the patent system for federal research results, 5: Possibilities of patent use

Posted on August 2, 2021 by Gerald Barnett

We are working through and around FSA order 110-1, the first major federal executive branch policy regarding inventions made in federally funded work, issued in 1952. The Supreme Court in its 1933 decision in Dubilier said the it was up … Continue reading →

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The use of the patent system for federal research results, 4: Forman

Posted on August 1, 2021 by Gerald Barnett

We are looking slowly at FSA order 110-1, the policy that starts the administrative battle over how federal funding ought to affect company opportunities to profit on matters of public health. The FSA, having insisted that research results should be … Continue reading →

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The use of the patent system for federal research results, 3: FSA 110-1 and public interest

Posted on July 31, 2021 by Gerald Barnett

Federal policy on inventions made in federally supported research starts in a big way with Federal Security Agency Order 110-1, dated December 30, 1952. Norman Latker, patent counsel for the NIH, in 1978 testimony before Senator Nelson’s subcommittee, identified Order … Continue reading →

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The use of the patent system for federal research results, 2: Why universities patent

Posted on July 30, 2021 by Gerald Barnett

For an account that covers reasonably well the context for universities getting involved in patenting, see Elizabeth Popp Berman’s 2006 paper “Why Do Universities Patent? The Role of the Federal Government in Creating Modern Technology Transfer Practice” (draft here). What … Continue reading →

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The use of the patent system for federal research results, 1: Dubilier

Posted on July 29, 2021 by Gerald Barnett

It starts with Dubilier. In 1933, the Supreme Court decided in Dubilier that federal employees, just because they were employed, did not give up their personal–Constitutional–rights in inventions that they made. Considering the possible differences between private employment and federal … Continue reading →

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Goodyear and use of a gateway patent to control a big Invention

Posted on July 28, 2021 by Gerald Barnett

In Medical Monopoly Joseph Gabriel describes how Charles Goodyear used patents to lock out competitors from using his process for “vulcanizing” rubber without a license. We will use Gabriel’s account to consider alternatives to the prevailing university narrative about how … Continue reading →

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