Patent Law

Dumping on Bayh-Dole

By Lawrence B. Ebert, Esq.

Yet there is very little empirical evidence to show that the Bayh?Dole Act has had the claimed effect in the United States, let alone that it is appropriate for developing countries. Critics point out for example, that only about five per cent of US universities? income comes from licensing inventions.

Conversely, there is widespread anecdotal evidence that the act created a mind-set among many researchers that their knowledge represents a potential goldmine not to be shared with potential competitors (i.e. those working in other universities) ? at least until it has been protected by a patent application.

Similarly, the act has led to a flood of ?upstream? patents on basic scientific knowledge, leading to what some commentators describe as a virtually impenetrable ?patent thicket? blocking small-scale inventors from marketing their products. For example, restrictive software patents limit further development and commercialisation in the field of information technology.

As a group of academics recently stated, the present impetus for similar legislation in developing countries ?is fuelled by overstated and misleading claims about the economic impact of the Act in the US, which may lead developing countries to expect far more than they are likely to receive.?

The minute one sees academics linked with IP, there is a strong tendency to suspend belief. Overstated and misleading claims about the economic impact may describe Proposition 71 and CIRM, but the Bayh-Dole Act is more complicated. Lest Dickson, or anyone else, forgets, Lemley was on the pro-patentee side of Metabolite. Of course, historically, the prime motivator of Bayh-Dole, that the US was losing out to Japan, has fallen by the wayside, and probably not BECAUSE of Bayh-Dole.

Open innovation was also mentioned: More radically, governments could promote ?open innovation?, where a wide range of individuals are encouraged to work towards technological breakthroughs. This approach has already been suggested in India, for example, to design new tuberculosis treatments.

Full post as published by IPBiz on February 08, 2009 (boomark / email).