Whatever the general case, in universities, there is already a commitment to publish, to teach, and to inform the community. A patent as a publication is about as ugly a form of publishing or teaching as one can get. But university faculty aren't "tradesmen" ready to take trade secrets to the grave. Bayh-Dole sets up to make faculty publish in a given forum (in the patent literature) so middlemen can then exploit their work for profit (or at least profit-seeking, you know, 1 in 1,000 or so).
And for all that, Bayh-Dole, part of federal patent law, requires that the patent system be used *to promote the utilization* of inventions made with federal support (35 USC 200). Not to troll industry with a threat to *prevent* utilization or to make people *design around* (and so not use) a subject invention. If trolling were perfectly acceptable, there would be no point to 35 USC 200. If the patent publication was all there was to it, again, no reason for 35 USC 200. It would just state: "use the patent system." But there *is* a point to 35 USC 200. Trolling is not a property right available for patents on subject inventions. See 35 USC 261.
Before Bayh-Dole, universities used external invention management agents. Most universities had a contract, at least, with Research Corporation (started by a faculty inventor, with a board drawn from industry). With a national agent, the size of the university or its budget for technology transfer didn't matter. There were draw-backs, of course, even then, but they did not have to do with the size of the school. Bayh-Dole was used to destroy this approach. And for all that, the idea that a small tech transfer program is necessarily incompetent or incapable is very, very wrong.
Having worked some with tech transfer orgs in the UK and France, among other places, I don't see the kind of collaboration among universities that leads to the financials and sharing of expertise needed to make much difference. Mostly, too, I don't see results. It all sounds good in theory, though. What's needed is selectivity, not more money or combined administrations. Selectivity is a tough thing, especially if folks can't let go for fear they aren't so good at selecting.
As for getting IP out the door, again, consider the alternative that one does not create the IP in the first place--that is, the patent ownership. Then one has NIPIA--non-IP intangible assets--much easier to "get out the door." And we need to get over the idea that university research done in a place must find a home in the local economy of the place. That might work for Ag extension, but not for basic science. Most local economies ought to be looking to import whatever discoveries they need from wherever those are created--often far, far away.
Okay, so I'm years late to this bit of discussion.
There is no published data that demonstrates that Bayh-Dole has been a success. Bayh-Dole exempts all use data from public disclosure. On its own terms Bayh-Dole requires practical application, not money-making. And practical application is given a definition--broadly, use so that benefits are available to the public on reasonable terms. How much a university makes is immaterial. So are a handful of "success stories." For each subject invention, what has happened? Under the old IPA system, the reported licensing rate to product was about 5%--the same as the federal government rate. Now, it appears that the university licensing rate to product is 0.1% (across all inventions, not just subject inventions). The universities (actually, their affiliated licensing agents) claimed their licensing rate for all inventions was 25% to 30% pre-Bayh-Dole. Looks to me like the rate is now off two orders of magnitude from the private network of invention management organizations that Bayh-Dole destroyed.
The article at IPWatchdog doesn't report any actual Bayh-Dole metrics. It's the same old bluster. What has been successful about Bayh-Dole is all the patent work it has generated. In that, he's spot on. As Bremer had it, Bayh-Dole is all about the middlemen. Send in the middlemen. There ought to be middlemen. Bayh-Dole was the invention of patent attorneys (Latker, Bremer), for patent attorneys. For every research discovery, a bureaucrat's thumb. No public benefit unless there is first university profit-seeking. The purpose of federal support for research is to encourage the creation of petty monopolies. Why is it again that politicians support this law?
Techdirt has not posted any stories submitted by Gerald Barnett.
Re Patents
And for all that, Bayh-Dole, part of federal patent law, requires that the patent system be used *to promote the utilization* of inventions made with federal support (35 USC 200). Not to troll industry with a threat to *prevent* utilization or to make people *design around* (and so not use) a subject invention. If trolling were perfectly acceptable, there would be no point to 35 USC 200. If the patent publication was all there was to it, again, no reason for 35 USC 200. It would just state: "use the patent system." But there *is* a point to 35 USC 200. Trolling is not a property right available for patents on subject inventions. See 35 USC 261.
Re: Collaboration
Having worked some with tech transfer orgs in the UK and France, among other places, I don't see the kind of collaboration among universities that leads to the financials and sharing of expertise needed to make much difference. Mostly, too, I don't see results. It all sounds good in theory, though. What's needed is selectivity, not more money or combined administrations. Selectivity is a tough thing, especially if folks can't let go for fear they aren't so good at selecting.
As for getting IP out the door, again, consider the alternative that one does not create the IP in the first place--that is, the patent ownership. Then one has NIPIA--non-IP intangible assets--much easier to "get out the door." And we need to get over the idea that university research done in a place must find a home in the local economy of the place. That might work for Ag extension, but not for basic science. Most local economies ought to be looking to import whatever discoveries they need from wherever those are created--often far, far away.
Bayh-Dole
There is no published data that demonstrates that Bayh-Dole has been a success. Bayh-Dole exempts all use data from public disclosure. On its own terms Bayh-Dole requires practical application, not money-making. And practical application is given a definition--broadly, use so that benefits are available to the public on reasonable terms. How much a university makes is immaterial. So are a handful of "success stories." For each subject invention, what has happened? Under the old IPA system, the reported licensing rate to product was about 5%--the same as the federal government rate. Now, it appears that the university licensing rate to product is 0.1% (across all inventions, not just subject inventions). The universities (actually, their affiliated licensing agents) claimed their licensing rate for all inventions was 25% to 30% pre-Bayh-Dole. Looks to me like the rate is now off two orders of magnitude from the private network of invention management organizations that Bayh-Dole destroyed.
The article at IPWatchdog doesn't report any actual Bayh-Dole metrics. It's the same old bluster. What has been successful about Bayh-Dole is all the patent work it has generated. In that, he's spot on. As Bremer had it, Bayh-Dole is all about the middlemen. Send in the middlemen. There ought to be middlemen. Bayh-Dole was the invention of patent attorneys (Latker, Bremer), for patent attorneys. For every research discovery, a bureaucrat's thumb. No public benefit unless there is first university profit-seeking. The purpose of federal support for research is to encourage the creation of petty monopolies. Why is it again that politicians support this law?
Techdirt has not posted any stories submitted by Gerald Barnett.
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