Now let’s turn to the Bayh-Dole Act and see how it works with the monopoly meme. Short form, if you don’t want to bother, is that Bayh-Dole doesn’t follow the monopoly meme in its gestures, but because these gestures never get used, in effect Bayh-Dole enables the monopoly meme. Here’s how.
The monopoly meme argues that the true purpose of the patent system is to enable the exploitation of patent monopolies–the right, for limited times, to exclude others from practicing an invention. Crucially, the monopoly meme argues that without such exclusion, new inventions will not be used, will not be developed, and the public will not benefit from them. If the public has to pay high prices for inventions for a period of time as a result, that is the price that must be paid. The alternative, according to the monopoly meme, is not to have any new products at all. This, then, is what university administrators mean by “commercialization.” If each invention made in university-hosted research and is not patented for the purpose of excluding all others in favor of a company willing to develop the invention into a commercial product–but only on the condition of exclusivity–then the public will not benefit from federally supported research. In this way, the monopoly meme insists that federal support of faculty research must necessarily be to create patent monopolies for companies. There’s no other point, then, to Bayh-Dole but to enable such monopolies, with their pricing and suppression of competition and suppression of research and professional use.
On the face of it, however, excluding others from practicing a university research-based invention runs counter to the public purpose of supporting research in which such inventions may be made. What’s the point, even, of publishing that research in the academic literature if the use of the results depends on the freedom to practice inventions, but that practice is nearly always excluded by a patent held by administrators looking for a single “commercialization” partner? An academic publication becomes a kind of propaganda, a nah-nah-nah about something new that’s been done that no one else can use. Perhaps the point of publishing research results that no one else can practice is so that others can quickly find ways to design around, obsolesce, undermine, block, fragment, and avoid using those research results. Otherwise, whatever the advocates assert is the “true” purpose of the patent system, in the area of research publication, the use of the patent system to exclude others from the immediate use of published research runs against pretty much everything we expect from university scholarship and the public role of the university.
All that aside, we might counter the “true purpose” of the patent system argument by pointing out that the express purpose of the patent system is to promote the progress of the useful arts–and “progress” here means “dissemination.” The grant of exclusive rights for limited times is the consideration for publishing what otherwise might remain unknown or held as a trade secret. Given that universities don’t generally hold trade secrets and university faculty gain much of their standing by publishing new results with priority, the right to exclude all others is a rather awkward right for university faculty and administrators to seek out or to be stimulated by.
The monopoly meme, however, argues that whatever the mores of the university might be, the creation of patent monopolies to stimulate profit-seeking is the primary public purpose that should displace all others–whenever an invention is owned by a federal contractor. Universities, the meme argues implicitly and many technology licensing officials argue openly, must change its mores. Porsches in the faculty parking lots should inspire other faculty to pursue inventions, desire the money that comes from patent licensing, and especially to temper these inspirations and desires to accept what a university’s technology licensing program might be able to deliver. Continue reading →
