Bayh-Dole is a mess of a law. There’s the mess of the conception itself, the disgusting and ineffectual idea that the federal government should sue its citizens for using inventions made with public funding to advance public purposes–and should do so to protect the profit-seeking interests of favored companies chosen by unelected, not even appointed merely hired government officials to seek those profits and share some bit with the government, as if money for the government’s share of price gouging and suppression of access was the prize, rather than the public use of the results of that research work. Now repeat that again for university officials. Make it all secret, eliminate public oversight. Crass stuff.
And there’s the boring bureaucratic idea that “uniform” treatment of patent rights is somehow better for innovation based on federally supported research than treatment specific to the situations that present, or that “uniform” is a virtue for all research purposes, for all industries, and for all inventions and what most matters is the convenience of patent administrators in exploiting patent monopolies. Strangely messy too is that this idea of “uniform” treatment of patent rights has only to do only with a default ownership position offered in a patent rights clause that itself can be varied–and immediately was for nuclear propulsion and weapons research, and there are no controls on the disposition of patent rights once they are in the hands of contractors or federal agencies–then enforcement of the patent rights clause and licensing under the patent rights clause is anything goes. So much for “uniform.”
There’s the mess of the architecture, as part of patent law rather than federal procurement, taking precedence over other law rather than repealing those laws or amending them. Ignoring the Federal Procurement Regulation and the Nixon patent policy altogether. Defining subject invention to be “of the contractor” rather than just following the IPA definition of any invention made within scope of a federal contract, regardless of who might own it. There are problems with the interface with FOIA and with antitrust law. There’s the problem of a law requiring a default federal contract wording but having no requirement of enforcement, secret reporting and secret licensing terms, and no right of public appeal. Continue reading →
The draft of Dole-Bayh starts with a premise that’s not in Bayh-Dole: “a consistent policy and procedure concerning patentability of inventions made with federal assistance.”
