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.

Filed Under: bayh-dole, innovation, patents, universities

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  1. identicon
    Anonymous Coward, 11 Sep 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.

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