Fall 2018

Universities: The Fallen Angels of Bayh-Dole?

Rebecca S. Eisenberg and Robert Cook-Deegan

The Bayh-Dole Act of 1980 established a new default rule that allowed nonprofit organizations and small businesses to own, as a routine matter, patents on inventions resulting from research sponsored by the federal government. Although universities helped get the Bayh-Dole Act through Congress, the primary goal, as reflected in the recitals at the beginning of the new statute, was not to benefit universities but to promote the commercial development and utilization of federally funded inventions. In the years since the passage of the Bayh-Dole Act, universities seem to have lost sight of this distinction. Their behavior as patent seekers, patent enforcers, and patent policy stakeholders often seems to work against the commercialization goals of the Bayh-Dole Act and is difficult to explain or justify on any basis other than the pursuit of revenue.

REBECCA S. EISENBERG is the Robert and Barbara Luciano Professor of Law at the University of Michigan. She has published extensively in leading legal and scientific journals on patent issues in the life sciences and academic patenting.

ROBERT COOK-DEEGAN is a Professor at the School for the Future of Innovation in Society and Consortium for Science, Policy & Outcomes at Arizona State University. He is the author of The Gene Wars: Science, Politics, and the Human Genome (1996) and has published in such journals as Science, New England Journal of Medicine, and Nature Biotechnology.

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