Perhaps the single most beneficial piece of legislation that the United States Congress has enacted during my lifetime is the Bayh-Dole Act, codified in Chapter 18 of Title 35 of the United States Code, enacted in 1980 and named after co-sponsored Senators Birch Bayh of Indiana and Robert Dole of Kansas. Everyone who knows anything about patent law, technology transfer or research and development at Universities through the United States will tell you that Bayh-Dole has been a complete and total success, probably even a success beyond the wildest dreams of anyone. As a result, other countries are copying the legislation and trying to get it past in hopes of reaping the same benefits the US has received. South Africa is considering adopting is own version of Bayh-Dole legislation, and India is also considering legislation that would lead to increased University patenting. At the same time, here in the United States I cannot help but notice that increasingly Universities, or perhaps it is better to say researchers and professors at Universities, want their cake and eat it too. They all seem to enjoy the benefits of Bayh-Dole, but increasingly there is louder and louder chatter that patents harm innovation, and particularly research. This position is pure and utter nonsense, shows a complete misunderstanding of the patent laws, demonstrates a failure to appreciate history, and is more than a little bit hypocritical if you ask me.
In essence, the United States federal government provides seed money to Universities for the purpose of conducting research, typically research into what would be referred to as “pure science.” This is important because there is no guarantee the such research and development will yield results, making such research and development speculative in the eyes of industry. When such pure science research is successful and appears promising patents are filed, obtained and licensed to business, with small businesses receiving preference. The funds that return to the Universities are then typically redirected back into further research in the lab responsible for the break through leading to the patents, sometimes dollar for dollar. Thus, what the federal government has set up is a perfect balance. Pure science is conducted where it is best suited, by highly talented and motivated scientists. Technology ultimately researches the public through the business that license granted patents. These same business then pay royalties that fund further research and development.
It is no wonder that the Economist magazine has referred to Bayh-Dole as “perhaps the most inspired piece of legislation to be enacted in America over the past half-century.” I even remember hearing Vice-President Joe Biden, back when he was just Senator Biden, remark several years ago that the U.S. does not have to presently be concerned about other countries (he was talking about China) overtaking us technology wise because other countries do not invest in technology nearly as much as the federal government does in America. Senator Biden even cited to Bayh-Dole as an enormous success, saying something to the effect that – as long as other countries do not legislate something like Bayh-Dole we have nothing to worry about.
Well Mr. Vice-President, other countries are starting to do just that. They see the tremendous benefits of Bayh-Dole, and yet many in the academic community, and those who have always had an anti-patent agenda, are combining in ways that spell disaster! In the wake of other countries starting to follow our blueprint we are actually at a place in the intellectual property debate where people are openly talking about patents being bad and impeding research and development, as if it were true and as if something needs to be done about it. What those in academia fail to understand is that they cannot accept the benefits of Bayh-Dole and then claim that what they are doing should be exempt from following the same patent laws and rules that the rest of us in the real world have to face. It is fundamentally unfair to complain that patents are preventing them from researching when what they would do is research without regard to patents and then invent, patent themselves and license out into industry. This is absurd!
What makes this worth writing about at the present moment is that there is a strange confluence of events transpiring within the United States, the likes of which we have never seen. Never before, at least in my lifetime and I think for several lifetimes, have the rules so fundamentally be tilted in favor of certain companies favored by the government. Our government is injecting trillions of dollars into the economy by way of “stimulus” and through the Federal Reserve. We now own the largest insurance company of them all, several US automakers and we control, if we do not outright own, much of the banking sector. The “we” is the people of the United States, but we might as well just be shareholders at the whim of a Board gone wild, and seemingly hell-bent on doing what they think is best for short-term gain and expediency.
Never before would I have thought it possible that rules could be put in place that would so unfairly help one group while at the same time ignoring the many who are similarly situated. While it is good news (at least in my opinion) that the United States Supreme Court ruled yesterday that discrimination against white Americans is illegal, I can’t for the life of me understand why anyone in Congress could ever think it would be acceptable to tax health care benefits for all Americans save those who are Union members. Sometimes I think I am dreaming and this nightmare will be over soon, but this is far more realistic than any dream I have ever had, so I have to believe I am awake and this is REALLY happening.
With all of this going on, and the fact that intellectual honesty seems to no longer be in vogue, I fear that it is only a matter of time before those who say patents stifle innovation and prevent research will have said it enough that people will start believing it like it is actually true. Forget that there is no proof, aside from some cooked up economists who don’t understand inventing and refuse to acknowledge that designing around happens by those who are not lazy and those who complain don’t have the energy to design around and simply want to infringe without penalty. This is vitally important and at some point those of us who really understand patent law, who really understand inventing and innovation and starting business and growing an economy, must stand up and be heard. We cannot allow ourselves to be drowned out because in the Internet Era where even TV time moves too slow, those with agendas who are willing to bend the truth and outright lie can and will steal the debate, and then it might just be too late to do anything.
Bayh-Dole is and remains wonderful legislation. It is brilliantly conceived and has worked beyond the imagination of anyone, which is why other countries are going to adopt their own similar legislation. Notwithstanding, Bayh-Dole cannot and must not come to mean there is an unfair advantage for academia over the private sector. If they are interested in playing the patent game and using patents to build up prestige, obtain grants, license technology for royalty payments, then they are no longer in the business of “pure science.” They are in the business of doing the critical foundational research that the private sector would not and could not support, all with an eye toward making a buck. This is true, we all know it to be the case, and we must not allow the pursuit of economic riches by Universities to lead to a place where they can ignore patents owned by the private sector. Simply said, they cannot have their cake and eat it too!