Bayh-Dole Act - A patent policy failure?

Fortune magazine, in its 75th Anniversary edition, recently ran a critique of the Bayh-Dole Act, the federal law that essentially grants title to inventions made with federal research dollars to universities.

The article, “The Law of Unintended Consequences,”acknowledges that the law essentially gave birth to the US biotech industry and spurred the formation of technology transfer departments across the country.  Nevertheless, its not a friendly view of the law.  Indeed, its a harshly critical one.

The author argues that the law has turned the American university into a sort-of school-corporation beast that has stifled innovation in pursuit of licensing revenue, particularly in the medical arts.  The thesis of the article, as I see it, is this:

because of Bayh-Dole (and a few other changes to patent law in the last several decades), academic scientists treat their inventions like property, protecting them from disclosure that may negatively impact their commercial value.

because of this paradigm shift in the way scientists think, the free-flow of ideas amongst academic scientists has all but stopped and has been replaced with expensive patent prosecution and litigation.

The author is right, of course.  Any academic institution worth its salt today has a technology transfer office.  Need evidence of the importance of technology licensing deals to your favorite university?  Check the alumni magazine…there’s likely to be an announcement of a recent deal.

The conclusion — Bayh-Dole has stifled biomedical innovation in the United States — is a little far-reaching if you ask me.

Here’s the money quote:  “…Bayh-Dole has served mostly as a nervous mother for a science that never needed one.  New biomedical discoveries are now coddled and kept out of the rain — and it’s hurting progress.”

There’s no doubt about it – Bayh-Dole has changed the way in which universities view scientific research and invention.

I’m just not convinced that this is a bad thing.

No matter your thoughts, the article is worth reading.