On October 12, 2010, I had the honor of interviewing retired United States Senator Birch Bayh at his office at Venable LLP. Senator Bayh was the primary architect of the landmark Bayh-Dole Act, which gave Universities the ability to own the patent rights to the inventions made. The 30th Anniversary of passage in Congress is rapidly approaching, which provided the backdrop for our discussion.
Those familiar with Bayh-Dole and government funded research in generaly know that the United States has for years funded research at Universities. Prior to the enactment of Bayh-Dole, however, it was virtually impossible for private enterprises to license the rights to patents obtained through federally funded research. Thus, society was funding the research and the innovations were simply being withheld from the public due to the existence of too much red tape. Bayh-Dole changed everything, and has been described as the “the most inspired piece of legislation to be enacted in America” since the end of World War II.
In part 1 of the interview we discussed some of the accomplishments of Bayh-Dole and Senator Bayh told me the story of how Bayh-Dole came to be. But for another Senator lifting a hold with an hour left in the 1980 lame duck session there would never have been a Bayh-Dole Act. In this second and final installment of my interview with Senator Bayh we will discuss the aforementioned loft praise for Bayh-Dole, which came from The Economist. We will also discuss statements of Vice President Biden (when he was a United States Senator) regarding the tremendous success of Bayh-Dole, how the United States can stay on the cutting edge of technology, and how to successfully lobby for changes in the patent system.
Without further ado, the final installment of my interview with the Honorable Birch Bayh.
QUINN: Let me throw this out at you — in a 2002 article, The Economist wrote that Bayh-Dole was “possibly the most inspired piece of legislation to be enacted in America over the past half century.” When you hear that lofty praise, what thoughts do you have?
SENATOR BAYH: Well, it makes it worthwhile putting up with all the garbage you have to put up with in public life. You know, The Economist is not known for great liberal thinking, they’re a conservative group and when I read that I had sort of lost track of where Bayh-Dole was at. I’m trying to make a living. I had started a second family — I lost my first wife and got another wonderful wife and a son come along — and when I saw that article. Then I thought about all the things that had happened and the good that had come from it. I’d never taken time, really, to summarize all that and Joe Allen tried to keep me appraised of what was going on.
The whole purpose of the expenditure of taxpayers money is to accomplish a purpose that can’t be accomplished without it and whenever you have large companies that have these massive and billion dollar research places, you don’t need to give them more money. Give it to people who otherwise wouldn’t have a chance to be involved in their laboratories so that they’ll come up, use their genius to develop ideas that wouldn’t be accomplished otherwise.
QUINN: And, it strikes me, it’s the small business that are the ones that are the most willing to take the risks because when you have an empire, you know, a large corporation, you start to get a little risk adverse a lot of times and it seems that to me that the biggest bang for our innovation buck comes from those creative minds that are willing to take a risk, to give it a try and that the federally funded research — the basic science — is a critical component to allow them to then take that to then take the next steps which are many times are highly speculative.
SENATOR BAYH: The large companies can be awfully greedy when they — I forget the name of the drug company — but they came out with this new drug that had somehow or other they had been involved with a government research. Some government research does go to companies, larger companies, and this had been developed with government research but instead of using Bayh-Dole to protect it and the cost of the product was almost, it was, you couldn’t afford it. You’re dying of cancer, forget it. Don’t have the money to buy it. That’s where you need to have some degree of control.
QUINN: Okay. Several years ago while still serving in the Senate, I heard Vice President Biden talk about U. S. research development in a television interview and he proclaimed — at the time — that the United States didn’t have anything to worry about because Bayh-Dole had given us such a tremendous head start as a result of truly cutting edge research being done at U. S. universities and that people from all around the world wanted to study in the U. S. Would you agree with that assessment from the Vice President and do you think that Bayh-Dole has given us a competitive advantage worldwide over the years?
SENATOR BAYH: I do believe that’s true but I don’t agree with the Vice President “we have nothing to worry about” because we have all these other countries, you know, I went to Italy to try to advise, they wanted me to come over and advise them about the Bayh-Dole. A couple, three years ago I talked to 400 people in the room, Chinese, happen to be my 80th birthday and they had a big cake for me. If you ever heard of Happy Birthday sung in Chinese that’s something but …
QUINN: Well, let me just stop you there because in all fairness, Vice President Biden who was then Senator Biden, did go on to say that we didn’t have anything to worry about at least until other countries started adopting our methodology, and the copycats are out, as you know. Germany, Japan, China, Brazil, India and South Africa are all trying to emulate us in various ways. Not necessarily identically, but one of the things that strikes me is, what has taken them so long to get on this bandwagon to realize that we do have this?
SENATOR BAYH: Well, you know, I’m not familiar with what the other countries have nor what Italy has now but I do remember we had a three or four day session where we had a couple of technology managers from the United States, somebody from NIH, four or five of us that went over there and I said, “Look, I know what you want to accomplish. You’d like to accomplish what we had.” There are a couple of things that you had to have here in order to succeed. You have to have a diverse university system where you have large quantities of intellect in these universities to create the ideas and then you have to have a government system that’s willing to spend a lot of money — billions of dollars — and siphon it back to these universities. Too often the Government wants to keep strings on it and I don’t know what extent these other countries are doing, but our system is a very sophisticated system and it’s worked pretty well and I think it’s continuing to work very well if you look at the figures at the last couple, three years. I don’t believe we should rest on our laurels but I don’t think we should panic and think Armageddon is on us because we’ll see where they are 30 years from now as to whether they are where we are now.
QUINN: It strikes me that some of the same factors that led folks to come to you back in 1980 or present now, with China particularly. Some people will point to India as also being a potential major competitor of ours. The Chinese are the ones that I worry about, not necessarily in any kind of military kind of way, but I used to teach at several law schools and it seemed to me that the students who were the ones that were willing to spend as much time as it took to understand everything were the Chinese students. They’re highly motivated, they’re highly intelligent and it strikes me that while they’re not nearly the democracy or representative government that we are, they’re moving in a direction toward something that will make sense for them in the future. So, it does seem to me that the same confluence of events may be happening again. So I’m wondering, what advice might you have for folks today as to how do we keep that head start? How do we keep incentivizing and continue to make strides?
SENATOR BAYH: That’s a very good question and it’s something that I’m very concerned about. I know what we need to do. I’m not sure how you go about doing it. I’m concerned about the decreasing number of young people that come out of high schools that are interested in science, mathematics and that have very sophisticated skills, technological skills that you have to have if you’re going to be a good researcher. What do we need to do to inspire these young people? What do we do so when they grow up they want to be a scientist or a researcher? That starts at a very early level and after World War II, Eisenhower, in response to Sputnik, put together a national program which plowed more back into our universities specifically for science and technology related areas. Physics, chemistry, you name it. That’s what we need to give kids big scholarships if they want to go study, if you want to study, you want to study social studies, you want to come out with a law degree, you want to be a doctor, of course, that’s a skill in it’s own set and doctors, they begin to get the basis for being able to be creative but I’d say, we’ll pay for your education. The best way to get kids into science and related fields that they wouldn’t otherwise go into is to pay their way and make it worthwhile. How do we make it glamorous?
QUINN: What do you think about the role science fiction play for children and for inspiring them? When I was a kid we grew up watching Star Trek and then everybody was talking about “Beam me up, Scottie,” or “Transport me here or there,” or traveling at light speed and all kinds of things. I wonder if that’s still the same way, I mean, it seems like the kids today are more interested in the video games than we ever were and there’s various degrees of socially acceptable video games I know. But kids are more into things that are not science fiction related. I think we’ve lost that science fiction based upbringing that really did inspire people.
SENATOR BAYH: I’d like for somebody to come out of our laboratories that figures out a way to harness sound waves or harness light waves, that’s the only way we’re ever going to have space travel if we can harness a vehicle that’s something that goes fast as the speed of light and how practical that is — I don’t know but, talk about something that would be creative. Would you like to go to Mars? How are you going to get to Mars? Well, you have to figure out how to get us there. We don’t have it now. We may get there but never get back with what we have now.
QUINN: I’ve read that researchers claim — I don’t know whether it’s true or not — but they claim that they were able to move a particle from Point A a couple of inches to Point B by transporting it. And now there are cloaking devices. You can cloak at least certain light spectrums. The first cloaking device I’m familiar with was from Star Trek, you know, the space ship, the Romulan cloaking device and the Klingon cloaking device and it seemed to me that the science fiction you grew up then becomes for many in the laboratories what they try and bring about. “Well, wouldn’t it be cool if we could do that?”
SENATOR BAYH: Well, I remember Buck Rogers and the thing that impressed me more about Buck Rogers than anything else was the tremendous highway system, I mean, the highway system was unbelievable. Now, it’s our super highway systems in any big city with all these roads go over one another, of course, I never had any penchant for space travel anyhow but that made it a lot easier to get from Point A to Point B.
QUINN: Yes, it certainly would. I don’t know that there’s any solutions here but I share your concern about math and science and it seems anymore that you pick up whatever study is the latest study and it seems as if the U. S. isn’t doing as well as certainly we could and I think as well as we should.
SENATOR BAYH: Boy, I tell you, I succumb to this temptation once in a while — I never want to go back to government but I was there at the time we passed the Elementary and Secondary Education Act, which put more emphasis on resources coming back to our elementary and secondary schools and our high schools and elementary schools to build up the quality by getting them the resources necessary to do that. What can we do to keep more of our intellectual minds in the classroom? We’re not paying teachers diddly compared to what they’re worth. Will we ever learn? I don’t know.
QUINN: I don’t know where the money goes. It seems like in so many school districts the spending per pupil is there so that you could be paying the teachers to be first class teachers — and I don’t necessarily mean to get into a discussion about that — but I do think that the education issue is one that if we’re going to stay on the cutting edge in technology and in starting new companies that create jobs and so forth, that we need to pay at least some attention to what’s going on in the elementary and high school curriculums across the Country. Would you agree with that?
SENATOR BAYH: Yes, I do and it’s complicated by a parent factor. Parents think they ought to play a role and they should. The question is, what role? And, how that is a positive role that increases the output instead of limits it and having said that, you know, some place there’s somebody smart enough to figure out what to do and you’re not talking to him right now.
QUINN: I know what you mean. I only know enough to ask about the issues, I guess, in that.
SENATOR BAYH: But I didn’t know anything about this 28,000 patents sitting over there either.
QUINN: No, but you managed.
SENATOR BAYH: There is hope for our future generations.
QUINN: Indeed. Let me ask you, would you consider the Bayh-Dole Act to be one of your signature accomplishments in your service in the Senate or service in government generally?
SENATOR BAYH: Yeah, I liked government because I thought there was a way — starting in the State Legislature — where we totally revolutionized our education system while I was Speaker of the House. We had high schools, every township had high schools, maybe there’d be 20 students. One high school had 11 kids in the whole damn high school. Now, how do they compete? Well, so we totally reorganized our school system and said, “If you want any money from the State for the education system, you have to have X number of pupils,” so we consolidated schools. Well, people might not like the consolidated schools but you’re not going to get a decent education if you don’t have enough students there that you can afford to have chemistry, you can’t afford to have geometry, you can’t afford to have a language and things like that. So, we did that and we plowed 50% more, we raised the minimum salary schedule for teachers, we plowed millions of dollars back in the universities.
To me being in government was the way to help people. That sounds maybe grandiose but I’m not looking at it with capital letters here. To help people, just plain, ordinary good people and that’s what public service is all about and some of us if we’re in maybe too long we get carried away with our own self importance. I hope I didn’t but I recognize the need to continually be careful and that’s how you answer that question.
The reason I’m taking the long way to answer it, my wife tells me I never talk in a straight line, and I know I just took a big detour there to answer your question. If that is the reason public service appeals to me — helping people — you have to say, “Amen,” to Bayh-Dole because it helped more people than we could ever mention.
QUINN: I think that that’s exactly right.
SENATOR BAYH: And, I think about my buddy, Joe Allen — who I don’t get to see much — without him we wouldn’t have Bayh-Dole.
QUINN: Well, I mean, this is the big issue in our industry. I taught at universities for several years and then I spent some time in Syracuse University teaching at the Law School and working with the Technology Transfer Department and got involved in it a little bit. I think it’s fair to say that everybody in the patent community realizes just how enormously influential Bayh-Dole has been for the positive. There is just no way that you can — at least objectively in my opinion — look at the Act and look at where we were before and then look at where we’ve come and see anything other than this was the most successful piece of legislation — certainly in my lifetime — and I suspect in 50 to 100 years, saving perhaps some of the military related pieces of legislation after World War II, which really redefined the global circumstance and our relationship with our Allies and so forth.
SENATOR BAYH: The one that I would put on a par with Bayh-Dole is Title IV of the Higher Education Act that gave women equal educational opportunities because that affects half of our population and again, it’s helping people.
QUINN: And, I understand you were pretty instrumental in that as well?
SENATOR BAYH: Yes. I introduced the first legislation. God, when I look at what that’s accomplished, I see in our sports pages where the front page of the sports section is news about a woman’s sports activity. That’s almost unbelievable given the fact that that the sports page was the last vestige of male chauvinism.
QUINN: Well it seems like you’ve had an incredible career and have been involved in a lot of tremendously positive things. I don’t know that you’re going to want to answer this but over the last several years it seems that Congress has really been unable to move any kind of patent legislation whatsoever and in the meantime, the Patent and Trademark Office continues to be over worked and under funded. What do you think should be done to solidify our patent laws and to help the Patent Office?
SENATOR BAYH: You know I have fallen out of knowledge with what’s going on in the Administration, but I do know that the Patent and Trademark Office is over worked and it doesn’t do any good to have an idea in the laboratory unless you can get it to the street and to get it to the street you got to go through a long waiting line in order to get somebody to even look at your application — the way I understand it — and so I think it makes sense to plow more money into the Patent and Trademark Office to increase the number of Examiners, just rudimentary kinds of things. You don’t need any more high priced Assistant Secretaries or Assistant Directors or anything like that. You need more worker bees at a very professional level.
QUINN: It seems like some very astute people have continued to try and move this forward and have all come up short. What kind of advice would you give to somebody who is trying to convince members of Congress that this really is as important as it really is because it certainly doesn’t make a good 15 second sound byte and it’s maybe not on the radar screen of a lot in Congress who are focused on other issues and important ones. But how do you get them to be excited about doing something to help the Patent Office?
SENATOR BAYH: How did I get them excited about Bayh-Dole?
QUINN: Universities and the constituents. I’ve talked to Chief Judge Michel about this and he is out talking and getting media interest and so forth but it’s difficult to reach the masses because it seems what’s going on in politics right now, the truth is that in America, if the people really want to be heard the politicians will listen.
SENATOR BAYH: Well, look the fact of the matter is that we didn’t have the masses interested in the idea of Bayh-Dole at the beginning and I don’t think that you needed them to get Bayh-Dole. You don’t need to get the masses interested in funding the Patent and Trademark Office. You need to concentrate on three or four key members of the House and the same on the Senate, the appropriators, Chairman of the Appropriations Committee, get the universities to talk to them. It’s just sort of simple. The politicians do what’s in their interest and if you get people to raise enough hell that they know they got to respond and now they ought to respond because it’s right.
QUINN: So, it seems like it’s basically no more complicated than figuring out who the people are that you need to convince and figure out their motivations and then present it to them in a way that will get them to be motivated.
SENATOR BAYH: You need to sit down, whoever it is. I know there’s somebody out there that I think could do this but to do what we did we need to get somebody that’s got a guy like Joe Allen that’ll work harder than he does and sit down with a small cadre of the movers and shakers in AUTM. AUTM’s a bureaucracy, too, if you’re not careful but get a small cadre of people that will understand the importance and will do something. None of this happens just voluntarily …
SENATOR BAYH: … and get those people to concentrate and now you’ve got a different formula. You take Henry Waxman, for example, you have not only the University of Southern California and Santa Barbara or whatever it might be, the universities, but you have a number of companies in his District that have benefited from Bayh-Dole. Let them beat him over the head.
QUINN: Yes, but the one problem that continues to present itself is that the patent policies that would seem to be beneficial to the majority of those in Silicone Valley probably are not patent policies that would be beneficial to the pharmaceuticals or the biotech companies and certainly wouldn’t be the same type of policies that would be friendly to independent inventors or small businesses. So you’ve got these two massive lobbies that line up and not necessarily to go after one another but with competing interests and what I’m observing from the outside is that it seems like some of the politicians are saying: “Whichever way I vote on this, whichever position I take, I’m gonna upset somebody and it’s only about patents anyway so maybe we should just punt,” and, it’s like kicking the can down the road and what that’s done is terrible. The Patent Office, for example, is being tremendously under-funded and the average wait, four or five years and in some technology areas you may have to wait six, seven, eight, nine years to get a patent.
SENATOR BAYH: There’s no excuse for that. There’s no excuse and I think whoever would undertake this mission right now has a lot more ammunition to fire at the Members of Congress than we did when we started out. We didn’t have diddly and yet we were able to get these AUTM people to help. I remember talking to Pat Leahy. He wasn’t interested until he got a call from the technology people at the University of Vermont. He got interested in it rather quickly and why should he have been interested in it before? He didn’t know anything about it. Patent law, as you point out, is not the top of everybody’s interest list, but you look at all these figures that you have there, they make a pretty good case.
QUINN: Okay, well, I really appreciate you taking the time and I can tell you that your advice to the industry about how to go about doing things will resonate again because you have had such an influential impact on innovation in general but certainly with patents and federal research and university research. It’s an honor to have had this opportunity to talk to you.
SENATOR BAYH: Well, thank you. You know I didn’t invent this wheel. People back in this time and others invented it and it’s just we’ve got a different set of circumstances and different cast of characters and the system works pretty well if you work the system right, but you have to work at it.