Eternal Vigilance is the Price of Bayh-Dole

Editorial Note: This month’s column from Joe Allen comes from his plenary address to the Eastern regional meeting of the Association of University Technology Managers, which took place in Baltimore, Maryland, on September 18, 2014. CLICK HERE to view his PowerPoint presentation, which includes facts and figures that support the positions taken in this article.

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They say when speaking that you should repeat your message at least three times. Here’s the first: Bayh-Dole has succeeded beyond anyone’s wildest imagination. It was not created to benefit universities but the American taxpayer. You are the stewards of a public trust and have an obligation to defend and protect the law in the same way as the Founders of AUTM protected it for you.

Research universities are now recognized drivers of our economy and your discoveries improve lives around the world, but that wasn’t always the case. The reason is the Bayh-Dole Act which gives certainty and predictability to the ownership and management of publicly funded inventions so they can move from the lab into the marketplace.

Last week I was speaking in Brazil which adopted a technology transfer law to spur university-industry partnerships. Unlike Bayh-Dole theirs is full of uncertainty which is undermining its impact. I explained that having clearly stated rules is an essential ingredient for success because companies are undertaking a tremendous risk when turning university technologies into useful products. The time and expense of development is borne by the business—not the government or the university. Companies cannot justify this effort when the bureaucracy inserts itself between a university and its industry partner. That was the situation in the US before enactment of Bayh-Dole and it caused the benefits from billions of dollars of taxpayer supported research to go right down the drain.

It’s easy to look around gatherings like this where everyone is on our side and conclude that we’ve won the philosophical debate that Bayh-Dole and the patent system are good for society. Unfortunately, there are those working diligently to undermine all that we have accomplished. That’s not meant to discourage you—we’ve been winning this fight for over 30 years. But we can only continue our winning streak if you take the time to educate policy makers and the public on what you do and why it benefits them. If we go asleep at the wheel, we’re likely to wind up in a ditch.

There’s a famous Chinese curse: may you live in interesting times and we certainly do. It seems like the world is fragmenting into ever increasing factions constantly at each other’s throats. We need to recognize that while we haven’t picked fights with anyone, we are impacted by the larger struggles broiling all around us.

Debates over economic fairness, the appropriate role of government in the economy and the value of the patent system spill over into our world. One factor that made the enactment of Bayh-Dole so difficult was the feeling in the 60’s and 70’s that patents were inherently bad. Intellectual property used to fall under the Senate Subcommittee on Antitrust and Monopolies when I joined the Judiciary Committee staff– which says much on how patents were viewed. It took the wakeup call of losing our traditional lead in innovation to Japan and Germany to start reversing this trend.

[Bio-Pharma]

Bayh-Dole was the first “pro patent” law the Committee passed in many years and it led to a reappreciation of the value of the US patent system.

One reason Bayh-Dole made such a quick impact was that shortly after its passage Congress enacted the Court of Appeals for the Federal Circuit which restored confidence in the value of an issued patent. Unfortunately, we now seem to be forgetting the hard learned lessons of the past.

There’s a cottage industry of academics and theoreticians who’ve made a career postulating that tech transfer harms the public and that you need to be reined in. They are all too glad to exploit any opportunities raised by the larger debates to make their case. And they have one significant advantage over us: they have a simple message and know how to use public emotion to push it.

They also have lots of time to devote to their cause. They typically have flawed data but are very good at quoting each other’s works to bolster their credibility.

Our critics are often published in very prestigious journals which influence the public debate. “Do university patents pay off?” which appeared in the Yale Journal of Law and Technology is one of the latest examples. The authors surveyed academic engineering and computer departments. The conclusions neatly support the overall attacks on Bayh-Dole that intellectual property is overrated as a driver of innovation and isn’t even that important in launching startups—which will come as a real surprise to the venture capital community.

Here are other favorite lines of attack:

  • Bayh-Dole contributes to high drug prices;
  • Patenting is bad for science and innovation;
  • Universities should be forced into non-exclusive licensing since it’s “more fair” than exclusivity.

Since they don’t see a likelihood of repealing Bayh-Dole outright the critics call for incremental government oversight—which is exactly what the law means to prevent. Once the camel’s nose is under the tent, the rest of the beast will soon follow.

The other side is quite good at working the media. You are cited in very prominent places as villains in larger debates like that over patent trolls. As soon as universities refused to roll over in the most recent patent reform effort they were immediately singled out in a prominent Washington Post article as allies of the trolls. As the patent reform battle is rejoined next year we can expect that once again the gloves will come off in this fight that’s being pushed by some of the best funded lobbyists in Washington who aren’t hesitant about bludgeoning anyone standing in their way.

Our opponents are very good at wrapping their attacks into easily understood sound bites like: “Why should the public pay twice for the same technology—once when government funds the research and again when a company brings it to market?” Accusations that: “Federally funded research should be freely available to all;” and “Exclusive licensing drives up drug prices;” are raised again and again.

You are hit with intellectually inconsistent charges like universities are greedy and drive up consumer costs through exploitative licensing. At the same time it’s alleged that you license inventions too cheaply so scientists should be able to shop their inventions around to maximize royalties.

While baseless, these attacks are easily understood by the media, government officials and the public. Remember that people respond much more deeply to emotional arguments than objective ones– even when they are being led over a cliff.

So with all of this confronting us, what can we do?

Well one thing we can’t do is stick our heads in the sand and hope that someone else comes along to defend us. We need to realize that some people have deeply rooted philosophical beliefs that patents are bad, government funded technologies should be freely available to all and university-industry alliances are inherently evil.

These are largely people with theoretical approaches to technology commercialization with no real world experience but that doesn’t mean they will go away. Many have built prominent academic careers touting themselves as experts. We are not going to convert these folks and they will always be buzzing around.

It’s a serious mistake to think that if we just made Bayh-Dole more “nuanced” with just a pinch more federal micro-management that we can appease the critics. Bayh-Dole is very finely tuned which is why it was worked like clockwork for more than 30 years. Agreeing to “compromises” to make the other side feel better opens the door to disaster. I mentioned that last week I spoke in Brazil. They enacted a tech transfer law but unlike Bayh-Dole it is filled with uncertainties as universities must continually go back to the government for permission. This approach simply doesn’t work. We can’t permit our system to slip backwards by thinking that agreeing to such approaches shows how “reasonable” we are.

Rather than focusing on converting the hard core opponents, we need to concentrate on educating the vast majority of public officials and taxpayers who will be on our side if they understand what the law really does and that the very future of the country is at stake.

You sell public issues around readily understandable stories. At our first press conference unveiling the Bayh-Dole bill we featured several scientists whose inventions were taken by the government under the previous government patent policies. Senators Bayh and Dole had a chart of 29 potentially important inventions including burn remedies and cancer treatments that would never be developed unless we changed the law. That resonated with the press and we quickly enlisted cosponsors all across the political spectrum.

For those of us who attended AUTM’s 30th anniversary celebration of Bayh-Dole the photo of Betsy deParry hugging Sen. Bayh captures the highlight of the event. We had impressive statements on what Bayh-Dole has done from many very good speakers. However, when Betsy de Parry looked Sen. Bayh in the eye and said: “Without your law, I would not be alive today” there wasn’t a dry eye in the house.

We need to start telling our story so we can get ahead of the critics. We are making lives better all around the world. We are one of the few bright spots in the US economy. We should be proud of what we have done and not be afraid to boldly make our case.

We have one great advantage over the other side: what we are saying is true.

While our opponents ride emotion and bend facts to make their case, we have hard evidence backing up our claims that Bayh-Dole works for the public good. We need to continue to develop and distribute big picture data like the overall impact university patent licensing makes on the US economy, the numbers of jobs created and new companies formed around university inventions, and the remarkable number of life-saving products developed every year from university research.

Even while the rest of the economy is stuck in the doldrums, like “the little engine that could” year after year you keep chugging right along.

When combined with easily understood stories this kind of data makes a powerful argument that public officials will appreciate. When you add facts and figures showing what you are doing to benefit the state and regional economy, you will have the undivided attention of your Member of Congress. They need to understand that preserving and defending Bayh-Dole and the patent system are the keys to this success. Then they will know that when someone steps on your toes, it’s their state and district which will say “ouch.”

Many of us are writing and making these arguments not to convince you, but to influence those still on the sidelines. Circulate this information to contacts on and off campus so they better understand what’s at stake in this debate.

Remember that Bayh-Dole was not enacted to benefit you. The Bayh-Dole system makes you stewards of the public interest. Stewardship is a biblical concept. It means looking out for the greater good. Taxpayers are relying on you to transform early stage research into products, jobs and companies. This is a sacred trust and there’s good reason to be optimistic that we will prevail once we fully engage in the public debate.

Realize that you are not only defending university technology transfer, but the intellectual property system which made the United States the richest country in history. But it doesn’t take long for this to slip away if we forget the hard learned lessons of the past.

Everyone in this room is the beneficiary of the leadership the founders of AUTM showed 30 years ago. They were a very small, lonely group advocating for a complete overhaul of long established government patent policies. They were true leaders and persevered over many years against long odds. They truly changed the world.

Howard Bremer was one of the founders of AUTM and a driving force behind the enactment of Bayh-Dole. His last words to me were: “Do you think they’ll continue to stand up after I’m gone?”

Well, now it’s your turn. Answer Howard. Get engaged, make your case, stand up. The time is now.

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Join the Discussion

5 comments so far.

  • [Avatar for Joe Allen]
    Joe Allen
    October 14, 2014 10:18 am

    Actually the Carter Admn. fought Bayh-
    Dole in favor of their big business oriented
    bill. Pres. Carter only signed the bill at the last
    possible minute due to the urging of Milt
    Stewart (founder of INC magazine) who was
    then in the Small Business Admn. President
    Reagan later me made B-D the centerpiece
    of Administration patent policy and ended
    attempts by the bureaucracy to undermine
    the law in the implementing regulations. I wrote
    about this in a previous column.

  • [Avatar for NWPA (Night Writer Patent Attorney)]
    NWPA (Night Writer Patent Attorney)
    October 9, 2014 05:32 pm

    I find it interesting that this was actually passed by Carter and yet I believe it was largely responsible for the motivational change of the US corporations under Reagan who took office only about month later.

  • [Avatar for NWPA (Night Writer Patent Attorney)]
    NWPA (Night Writer Patent Attorney)
    October 9, 2014 05:19 pm

    I have always thought that Bayh-Dole and the Fed. Cir. is what ended the malaise of Carter’s term.

    One thing everyone has to understand is improvement patents. They light a fire under the feet of the market leader because they don’t want someone to innovate ahead of them. That is also why so many large monopoly type companies don’t want patents. Goldman Sachs had a research report basically talking about the rise of the monopoly that has occurred over the last 30 years. Now, many markets are dominated by two players. So, big corp ended anti-trust law and now they want to end patent law. I think that is the big picture.

    And no company is more motivated to end patents than Google.

  • [Avatar for Paul Zielinski]
    Paul Zielinski
    September 29, 2014 10:27 am

    Joe

    Thanks for an excellent article. It is a great reminder of the importance of this ground breaking legislation that is often imitated by other countries.

  • [Avatar for EG]
    EG
    September 29, 2014 08:33 am

    Hey Joe,

    Thanks. An important reminder that the battle to keep Bayh-Dole in place and undiluted is never ending. We must be ever vigilant to expose the other side’s hypocrisy, sophistry, and disingenuous slanting of the facts (if they actually have any).