How Patents Have Harmed University Research

from the a-travesty dept

When we talk about all the harm patents do, some people respond that even if the market can make up for cover the research costs for commercial products, without patents, basic research would never happen. Nothing can be further from the truth. In fact, there's increasing evidence that patents are harming basic research as well. The main arena for basic research has long been universities. Yet, back in 1980, what was supposed to be a "minor tweak" to the patent system, the Bayh-Dole Act, allowed universities to start patenting their research. And, patent it they did. However, as the NY Times notes, rather than foster new research and innovation, this resulted in much less collaboration, much greater secrecy and much higher costs to innovation.

As the article notes, the problem was in making the same mistake that many patent system supporters make, assuming that the invention stage is the most important part of innovation -- when it is not. Invention is just one part of the innovation process. Locking up the invention stage makes every other part of the process of innovation much more expensive, thereby limiting innovation -- and in fact, that's exactly what the Bayh-Dole Act has done:
Part of the problem has been a lingering misunderstanding about where the value lies in innovation. Patenting a new basic science technique, or platform technology, puts it out of the reach of graduate students who might have made tremendous progress using it.

Similarly, exclusive licensing of a discovery to a single company thwarts that innovation’s use in any number of other fields. R. Stanley Williams, a nanotechnologist from Hewlett-Packard, testified to Congress in 2002 that much of the academic research to which H.P. has had difficulty gaining access could be licensed to several companies without eroding its intellectual property value.
As for whether or not it's actually increased the amount of basic research, a study we wrote about earlier this year found that it had actually decreased basic research at universities. And, the story gets even worse, because it's not even as if this ability to patent university research has resulted in huge monetary windfalls for universities either. While some had hoped to hit the jackpot with patents, they failed to recognize just how costly it is to maintain patents and run a technology transfer office. A recent study found that the majority of tech transfer offices had lost money for their universities.

About the only good news in the article is the fact that the steady stream of studies and complaints from within academia about this impact is gradually waking up some to how big a problem the Bayh-Dole Act was in stifling research and innovation in the US. Unfortunately, just getting basic patent reform moving is difficult enough. And since the pharma industry likes Bayh-Dole (since it allows them to sweep in and get all the value from discoveries made at universities -- see The $800 Million Pill to learn about how pharma and biotech companies have abused the system for years), you can bet that they'll put up a huge fight to repeal this incredibly harmful bit of legislation.

Reader Comments (rss)

(Flattened / Threaded)

    Anonymous Coward, Sep 11th, 2008 @ 10:17am

    $800 million pillion...that's a lot


    reply to this | link to this | view in thread ]

    Truthbringer, Sep 11th, 2008 @ 10:21am

    Ugly Truth

    "And since the pharma industry likes Bayh-Dole"

    You will see no change in it (except maybe to strengthen) in your lifetime. You are definately a sunshine and rainbows optimist if you think otherwise.


    reply to this | link to this | view in thread ]

    Anonymous Coward, Sep 11th, 2008 @ 10:35am

    Whoa, Nellie. BD was not as many appear to think a milestone in the development of patent law. Prior to its enactement federal agencies each had their own policies that were scattered all over the place. Several had policies that closely track what BD talks about. Others said Uncle Sam owns it unless Uncle Sam deigned to let the non-federal inventors acquire title. Others said it was yours, but you could only file for a patent is you asked the agency "pretty please".

    Starting back at least as early as JFK, a series of Executive Orders were promulgated trying to get the mess under control and implet a somewhat uniform policy along the lines of BD. RMH did the same some years later, as did some of their successors. When it became clear that entrenched bureaucracies were sandbagging the Executive Orders, BD was proferred as a means to force them into compliance. Except for the DOE that seems to feel the Atomic Energy Act makes it special, the other federal agencies have now largely fallen into line because of BD. As for the DOE, even the DOJ has told it that its policy is plainly wrong and that the DOJ has no interest in ever trying to argue in favor of it before a court of law.

    The above said, I have never viewed BD as the catalyst for what we now find happening at many hitherto basic research universities and colleges. What has happened is that as finances got tight many research institutions started looking for other money making avenues, and somewhere along the line some of them latched on to the idea of inventions, patents, licensing, incubators, etc. Now that academic pursuits in some instances were being conflated with what goes on in the private sector, some of these same institutions also latched on to the idea that their R&D capabilities could also be expanded to include applied research. With this mindset, it is now not at all unusual to see some academic institutions actually pursuing R&D contracts. To some, me included, it appears that the fundamental purpose of academic being whittled away as more research is being directed to specific applied research useful to specific members of private industry.

    Taking this issue down to a local level, you may want to consider the history in Silicon Valley itself. Stanford was a major center for basic research, and a natural consequence was that such research, not tied down by patent rights, found its way into the private sector without strings attached. Personally, this is how I believe it should be. Patent laws, like them or hate them, were enacted with the interest in mind of commerce within the private sector. I daresay that if anyone thought about academia it was merely a passing thought without any serious consideration being given that academia at some day in the future might be inclined to try and mimic the private sector.

    BD may have brought some uniformity, but in my view it was hardly the reason we now see so many academic institutions jumping aboard the "let's protect our technology" bandwagon.


    reply to this | link to this | view in thread ]

    Anonymous Coward, Sep 11th, 2008 @ 10:38am

    Whoops. RMH should be RMN, aka Richard M. Nixon. Other spelling errors in the comment can only be attributed to the fact that I do not run a spell check.


    reply to this | link to this | view in thread ]

    Steve R. (profile), Sep 11th, 2008 @ 10:42am

    Belongs in the Public Domain

    Thanks for posting the reference to the Bayh-Dole Act of 1980. I have long been troubled about how Universities could privatize publicly funded research. I guess I now know. Publicly funded research belongs in the public domain.

    NY Times wrote: "The Bayh-Dole Act of 1980 started out with the best of intentions. By clearing away the thicket of conflicting rules and regulations at various federal agencies, it set out to encourage universities to patent and license results of federally financed research. For the first time, academicians were able to profit personally from the market transfer of their work. For the first time, academia could be powered as much by a profit motive as by the psychic reward of new discovery."

    What is distressing with the above quote??? The research is publicly funded and we provided the researcher a monetary incentive which is nice. But there is no mention of refunding the development expenses back to the government. This degenerates into another form of corporate welfare.


    reply to this | link to this | view in thread ]

    Anonymous Coward, Sep 11th, 2008 @ 10:58am

    BTW, and casting BD to the side, I have an abiding interest in the fact that the USG and state governments feel that they too are entitled to secure patents on work done by federal and state employees in the ordinary course of their activities as employees.

    I can understand non-federal and non-state entities having rights to work they perform under government contracts, but I will be darn if I can see any basis in law for governmental agencies to lay claim to such rights.


    reply to this | link to this | view in thread ]

    Mike (profile), Sep 11th, 2008 @ 11:05am


    $800 million pillion...that's a lot

    Oops. Typo. Fixed. Thanks.


    reply to this | link to this | view in thread ]

    matt, Sep 11th, 2008 @ 11:21am

    secrecy problems

    I think the patent thing is a huge concern.

    My equal concern is that without it, there will be no disclosure at all...because of greedy companies.

    I hope there is a way around it, maybe get rid of patents and DMCA equivalent.


    reply to this | link to this | view in thread ]

    NeoConBushSupporter, Sep 11th, 2008 @ 12:33pm

    Universities: Americas Wasteland!

    These Universities are all full of tweed jacket wearing, bearded pot smoking lefty professors infecting American youth with Marxist ideals and worship for terrorists like Chez Guevara. The science departments are the worst hotbeds of liberalism too, always denying evolution is “just a theory” and bragging about their mathematics, scientific method and other witchy non-sense. I say enough, anything that takes money away from education and science, is good for a god fearin’ America.

    VOTE: McCAIN 2008 – put a stop to education and science


    reply to this | link to this | view in thread ]

    Anonymous Coward, Sep 11th, 2008 @ 1:19pm

    Re: Ugly Truth

    "You will see no change in it (except maybe to strengthen) in your lifetime. You are definately a sunshine and rainbows optimist if you think otherwise."

    Actually, we had solid healthcare until Nixon got on the TV one day and started telling everyone we're going to have the best healthcare ever, then the Health Maintenance Organization Act of 1973 was passed. While I am not a fan of Michael Moore's style, You may want to watch "Sicko". Start it off around 10 minute mark.


    reply to this | link to this | view in thread ]

    Ben J., Sep 11th, 2008 @ 1:30pm

    another explanation

    As a current grad student with years of industry experience who has had many experiences with patents impeding my own research, I've always been interested in how this mess got started in the first place. This mostly comes from hearsay working with older researchers, but here's the story I've heard:

    Since the late 70s the federal government agencies have gradually changed the criteria for awarding research grants so that now nearly all research is being done by academic institutions. Back in the glory days of Silicon Valley, the private semiconductor companies could afford massive R&D efforts because the overhead was funded by the federal government with the understanding that the results would be shared. Most of the money came from defense spending and pseudo defense spending, like from NASA and the DOE, and at the time it was assumed that federally funded research was not patentable (since BD didn't exist yet).

    When money got tight in the 70s, for-profit government research contracts were all but discontinued, as they were seen as pork barrel fluff. Research was consolidated to academia because this was the only environment in which professional researchers could work without having to constantly worry about the financial side of things. BD and similar changes in patent law at the time were supposed to be a way to fund this new research sector. Unfortunately it's had some serious unintended consequences.

    Has anybody done serious research into exactly how we ended up with the current patent mess? It'd probably help to debunk a lot of the claims from these sociopathic IP lawyers. This is a total straw man, but a lot of the posts here seem to be of the opinion that the current patent fiasco is the result of a vast conspiracy from the corporate world. A more plausible idea is that it's an accident in economic policy aggravated by the amoral legal profession. I think presenting the case against patents this way would be a good counterpoint to the propaganda that IP laws are somehow a moral obligation.


    reply to this | link to this | view in thread ]

    Mike (profile), Sep 11th, 2008 @ 1:35pm

    Re: another explanation

    Has anybody done serious research into exactly how we ended up with the current patent mess? It'd probably help to debunk a lot of the claims from these sociopathic IP lawyers.

    This is a total straw man, but a lot of the posts here seem to be of the opinion that the current patent fiasco is the result of a vast conspiracy from the corporate world

    Really?!? I write most of the posts here and I'm not of that opinion at all. I believe the problem is politicians not understanding the economics of information, and making bad decisions (sometimes pushed along by corporate interests), but it's mostly unintended consequences of those with good intentions.


    reply to this | link to this | view in thread ]

    Iko, Sep 11th, 2008 @ 3:03pm

    Gene Patents

    One of the reasons why so few universities have genetics programs is due to gene patents (which are illegal, btw, but the patent office seems not to care) creating a prohibitively high cost to set up a research program at a university. That's why only state schools or very well-funded private schools are able to even offer genetics majors that have anything to do with the actual science of genetics. Companies selling the kits for students to do lab work charge exorbitant because they have to pay exorbitant fees themselves to the patent holders. The basic techniques are patented, too, so trying to come up with a self-designed program still costs a ridiculous sum in fees.

    Oh, and need I mention the University of Minnesota's patents on stem cell research?


    reply to this | link to this | view in thread ]

    Anonymous Coward, Sep 11th, 2008 @ 6:30pm

    Off topic, but related ....
    Do I own the copyright on my DNA ?


    reply to this | link to this | view in thread ]

    Angry dude, Sep 11th, 2008 @ 9:42pm

    *rant here*

    *Insert nonsensical ad-hominum attack here*


    reply to this | link to this | view in thread ]

    Marion E. Cavanaugh Reg No 40550, Sep 12th, 2008 @ 7:53am


    In today's world;
    1. getting elected = huge campaign funds
    2. huge campaign funds = large company contributions
    3. Congress controls the patent law
    4. huge campaign funds = selling out to large companies

    So, when we have campaign finance reform, we will have decent patent laws. Until then, we are victims of large companies.


    reply to this | link to this | view in thread ]

    dinnerbell, Sep 12th, 2008 @ 9:49am

    you need a reality check. compare the us economy with any country who has no patent rights and what do you see? if you still cant see, try an ophthalmologist.


    reply to this | link to this | view in thread ]

    Carly Fiorina, Sep 12th, 2008 @ 12:43pm

    Outsourcing if rightsourcing!

    Just outsource all the research to China or other parts of the world where IP doesn't apply. You'll save money on licensing, research salaries, and workplace safety. It's a no brainer for this bean counter!


    reply to this | link to this | view in thread ]

    Mike (profile), Sep 12th, 2008 @ 12:57pm


    you need a reality check. compare the us economy with any country who has no patent rights and what do you see?

    Yeah, as if there are no other factors, involved?

    How about we look at the actual research that compared apples to apples, instead of apples to oranges.

    Yes, lets! And what do we find? Oh darn, dinnerbell, the actual, peer reviewed research notes that when you compare apples to apples (i.e., similar countries in the same era with and without patents OR the same countries before and after a change in patent laws) it has been shown OVER and OVER and OVER again, that strengthening patent laws DOES NOT increase innovation.

    So, yup. I've looked at the research, and it says the opposite of what you want it to say.

    You should try reading it sometime. It's enlightening.


    reply to this | link to this | view in thread ]

    Robert B, Sep 15th, 2008 @ 11:43pm

    When patents are used to suppress beneficial technologies

    The worst effect of the patent system is where competing companies can buy up the patents in alternative solutions. Most significantly the energy sector, where companies can suppress energy and battery alternatives, by buying the ownership of those patents to stop them being released to maintain their immense profits and consequently stopping humanity benefiting from free energy. There should laws introduced to stop this from happening, especially now. Many know the story of the electric cars being destroyed cause their batteries infringed on patents owned by big oil.

    Something needs to be done... unless you want the Russians, who control the oil to cut your power off any time they want.


    reply to this | link to this | view in thread ]

    happy optimist, Dec 17th, 2008 @ 8:32am

    Re: Ugly Truth

    truthbringer, i like sunshine and rainbows and maybe with all the changes in this country we can start to change this.


    reply to this | link to this | view in thread ]

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