Back in the day, “totalitarian” had a meaning more akin to “holistic”–the state should take care of each of its citizens. But nice gestures are often vectors for dangerous pathogens. Universities have adopted a similar set of claims with their revised intellectual property policies, claiming more than even for-profit companies are able to claim, and with less in the way of contracts to back up their assertions. Without contracts, university administrators resort to threats, disciplinary actions, litigation–where they have nearly unlimited resources available, and faculty do not.
One class of university patent policies is just plain wrong about the Bayh-Dole Act. Another class is deliberately ambiguous, reciting language closer to the actual text of the Act, but leaving the reader to come to the intended, but unfounded, conclusion that the Bayh-Dole Act somehow gives university administrators total control over title to patent rights. This class of policies use “retain” as in “retain title” to appear to mean “take” or “have the right to obtain” rather than “keep” or “resist a federal agency’s requirement that the inventors assign title to the government once the inventors have chosen to assign to the university.”
Consider, for instance, the University of Delaware’s treatment. Here’s the primary paragraph in their patent policy:
Government-funded research
Inventions or discoveries that result from efforts financed wholly or in part by Federal funds will be treated in accordance with the provisions of Public Law 96-517, “The Patent and Trademark Amendments of 1980” known as the Bayh-Dole Act. This act provides that a contractor (University of Delaware) may retain full title, right, and interest in inventions made under contract with the government, with certain exceptions for unusual circumstances. Except as specifically superseded by provisions of a specific funding agreement, inventions and discoveries covered by this section will be treated as outlined in section B, above.
A proper statement of the Bayh-Dole Act would be something like “This act provides that, other than in exceptional circumstances, if a contractor (such as the University of Delaware) obtains title to an invention made with federal support, the contractor may retain title, provided that the contractor complies with various provisions of the patent rights clause in the federal funding agreement under which the invention was made.” Or, more simply, “This act provides that if a contractor obtains title to an invention made with federal support, the contractor may choose to retain title, subject to certain requirements.”
The policy statement grows absurd with inclusion of the bolded text. Continue reading
