Rectifying the Missing Costs of University Patent Practices: Addressing. Bayh-Dole Criticisms Through Faculty Involvement


As an instrument of transferring technological discoveries from the university realm to the consuming public, the Patent and Trademark Law Amendment Act of 1980, commonly called the Bayh-Dole Act after its primary legislative supporters, appears to have achieved tremendous success, measured by such rubrics as number of patents sought and issued and the number of products successfully introduced to the market. Yet the central premise of Bayh-Dole - that making available to the public those products that arise out of scientific research achieves the greatest public benefit - overlooks other potential public interests. By creating a series of particular incentives, the Bayh-Dole Act may be stymieing certain kinds of basic research, blocking the flow of information in fields where open access is critical, and forcing non-commercial but important aspects of university patenting decisions out of the equation.

This Note explores how the structure of the Bayh-Dole Act may be causing these negative effects and suggests a way to correct them. Part II frame these problems as a reflection of a shift away from traditional university roles with respect to the progress of science, the purveyance of higher education, and social responsibility. Furthermore, it argues that the various Bayh-Dole criticisms considered can be understood as problems of benefits overlooked by university technology transfer offices - that is, by heavily favoring exclusive licensing agreements, TTOs often overlook the "missing" scientific, educational, and social costs of restricting access to an invention. Part III discusses from where a possible solution to these problems might come, and develops the suggestion that faculty involvement in the technology transfer decision-making process would restore the proper balance between the desire to maximize licensing revenue and traditional university values. The final section, Part IV, comments on the details of faculty involvement in the patenting and licensing decision-making processes to best improve the Bayh-Dole scheme.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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