Today marks the 30th Anniversary of the most forward thinking patent legislation since Thomas Jefferson wrote the Patent Act in 1790, which was the third Act of Congress. Truthfully, the Bayh-Dole legislation is likely more forward thinking and inspired than even Jefferson’s work, given that the patent law written by Jefferson was merely an attempt to codify and improve upon the patent regime of Great Britain. The Bayh-Dole Act, which was enacted on December 12, 1980, was revolutionary in its outside-the-box thinking, creating an entirely new way to conceptualize the innovation to marketplace cycle. It has lead to the creation of 7,000 new businesses based on the research conducted at U.S. universities. As a direct result of the passage of Bayh-Dole countless technologies have been developed, including life saving cures and treatments for a variety of diseases and afflictions.
The Economist in 2002 called Bayh-Dole the most inspired and successful legislation over the previous half-century, and as laudatory as that is the observation still does not capture what Bayh-Dole has meant to the industry, to the lives of the people saved by the research and development that turned into products and services, which never would have happened but for one United States Senator who listened to those in the industry, agreed there was a problem and then set out to do whatever he could to provide a solution. That man is Birch Bayh, and if you ask me we need more like him at every level of leadership in government.
I have had the privilege of getting to know Senator Bayh a bit over the last several months. He graciously spent an hour speaking with me on the record, see Exclusive Interview with Senator Bayh, and I have bumped into him at a variety of events in his honor and which celebrated this 30th Anniversary of the legislation that bears his name. He never ceases to amaze with his congenial, laid back style. I have observed him as being willing to stay and chat with whoever wants a moment of his time. He also strikes me as being quite humble, which is not a trait one would ordinarily associate with a politician. Yet, as praise is heaped on him from the podium and by individuals who come up to him, he continues to deflect and makes sure that everyone knows that it was a team effort. Senator Bayh always heaps praise on Russell Davis (Purdue), Howard Bremer (Wisconsin), Norman Latker (NIH), Joseph Allen (Judiciary Committee Staffer), Senator Bob Dole and Congressman Kastenmeier, who shepherded the legislation through the House of Representatives.
On December 9, 2010, Senator Bayh was at the United States Patent and Trademark Office for yet another celebration of what is certainly one of his signature legislative accomplishments. He was joined by Congressman Kastemeier, USPTO Director David Kappos, USPTO Deputy Director Sharon Barner, Commissioner for Patents Bob Stoll and many others. The Senator began his remarks by saying that he wondered “how much of Birch Bayh can you stand.” He has been invited to reception after reception and ceremony after ceremony to discuss the Bayh-Dole legislation on this Anniversary, but he acknowledged that when he was invited to speak at the Patent and Trademark Office it seemed special. He also explained that it seemed particularly appropriate to have the last of the ceremonies at the United States Patent and Trademark Office because the agency represents the hard work of those who are true believers and who play an essential role in the innovation cycle.
Congressman Kastenmeier, who did not speak at the USPTO ceremony, told reporters:
The Bayh-Dole Act of 1980 and its subsequent amendments take advantage of a unique American cycle of innovation. With the help of federal funding, university researchers discover and create solutions that open new opportunities for technology transfer. The Act is constructed on the solid foundation of intellectual property to stimulate economic growth and job creation for the benefit of society at large. This interplay between government, institutions of higher education, and the private sector is the engine of national ingenuity that should not only be celebrated but fostered in the future as well.
Despite the great and unquestionable success of the Bayh-Dole Act, there are those who work against the Act. Some make the same arguments made at the time the Act was passed, which is that since taxpayers paid for the basic research then they should own all of the rights. While that argument does have some logic to it, and Senator Bayh acknowledges that logic, he is always quick to point out that prior to Bayh-Dole that was what the law was and under that regime virtually no federally sponsored research was reaching the market and benefiting society. So under a regime where the taxpayers own everything all that was being bestowed upon taxpayers was a bill and no benefit.
Moving forward it is easy to see an ever increasing assault on patent rights. The Supreme Court has taken Microsoft’s appeal in the i4i case presumably to strike a blow to the presumption of validity a patent enjoys. The ACLU continues to pursue Myriad Technologies despite being wrong on the law and wrong on the science, yet scientists who know better and well understand that genes extracted from a cell simply do not exist in nature pretend that they do to forward their anti-patent and anti-innovation agendas. So many people want to pretend that innovation happens and will happen without funding and without incentives and without patent protections.
Individuals who critically and fairly look at the issues, the science and history know that the anti-patent forces are simply incorrect, yet they gain steam. Perhaps the best thing we can all do on this 30th Anniversary of Bayh-Dole is to pledge to do whatever we can to make sure that ignorance does not prevail over reason and truth. Senator Bayh has as much asked this of us at virtually ever stop of his tour when he says:
Bayh-Dole shows that citizens really can change government. That doesn’t mean that the process is easy or quick. A handful of determined men and women made the law a reality and have preserved it for 30 years. Now we need new hands to help carry the message of how valuable Bayh-Dole is to the continued health and wealth of the United States.
To honor Bayh-Dole and the tremendous benefit to our society that it has brought about now is the time to stand up and be counted. We need to take the fight to those who seek to destroy the patent system, demand appropriate funding for the Patent Office and make sure that those who merely want to infringe and free ride are exposed for what they really are. Free riders do not innovate, they copy, and no copyist has ever advanced science, technology or innovation.
Three cheers for Bayh-Dole! Hip hip hooray! Hip hip hooray! Hip hip hooray!