Re: [Patents] Article Defending Bayh-Dole

[Hartmut Pilch <phm@a2e.de>]

This seems to be the core piece of the article which needs to be
scrutinised.  I'd suspect that it is a historic myth, but where's the
evidence?

> For 30 years after World War II, the United States had precisely the
> policy of nonexclusive licensing of federally funded inventions that
> Shulman advocates. The government owned the patents and would license
> them only on a nonexclusive basis. Under this system, no drug that the
> government owned rights to was ever developed and became available to
> the public.

This insinuates that drugs will only be commercialised if someone owns
exclusive rights.  I.e. once patents expire nobody will produce the drug
anymore because there is no sufficient margin.  Thus generic drugs don't
exist or are in short supply.  Is that true?

If not, the basic myth on which the universitarian patent movement is
built seems incredibly easy to falsify.

> The government did its best to prevent the commercialization
> of Gatorade.

What is Gatorade?
Was its commercialisation really prevented?
If so, was that due to lack of exclusivity?
Or was there something else in the system of the 50s which prevented it?

> As a result, scientists didn’t bother to disclose their inventions to
> the government.

Strange.
Scientists usually are subject to a system of "publish or perish".
They often complain that patents retard publication, which is why the
universitarian patent movement talks a lot about grace periods, suggesting
that they provide the magic clue to addressing this complaint (similar
to some others in the patent movement talking about prior art databases).

> In the rare instances that the government did allow the developer of the
> technology to own the patents, studies showed that the invention was 10
> times more likely to be developed than if the government owned the
> patent and applied its inflexible, nonexclusive licensing policy.

Which studies?
How can that be quantified at all?
Sounds like "how to lie with statistics", again at the service of the "no
exclusivity, no productivity" myth of the universitarian patent movement.

Note that the universitarian patent movement advocates exclusivity not for
the sake of stimulating innovation or rewarding inventors, but because it
believes in monopoly economy rather than market economy.  Sounds very much
like the world view of patent junkies.

> Howard Bremer has worked for the University of Wisconsin’s technology
> transfer arm for over 40 years and helped  shape the current paradigm.
> Reviewing the history of how policy evolved, he observed that “the
> experience of  licensing government-owned patent had without question been
> one of non-use of the technology.”

Could it be that exclusive licenses are simply more lucrative for the
concerned universities' "technology transfer arms" and generate more
business for them?

Nonexclusivity may also be more difficult to manage.  Exclusivity means
transfer of the managing burden to the outside, which makes some sense.
E.g. a university could give an exclusive license to IBM, which would then
grant non-exclusive licenses and charge every software company by going
from door to door with their lawyer team.

> It took a concerted effort by universities, small businesses, and a group of
> visionaries within the U.S. government,  led by Senators Birch Bayh and
> Robert Dole, to pass legislation that finally allowed the creators of
> technology to  control how it was developed. Academic research is too broad,
> too diverse, and too fast-moving to be micromanaged  by the government.  The
> Bayh-Dole Act of 1980—which the Economist recently dubbed “the most inspired
> piece of  legislation to be enacted in America over the last half
> century”—contributed massively to the revitalization of the U.S.  economy
> and the rise of the knowledge economy.

Sounds again like massive myth-building.

> Ashley J. Stevens is Director of the Office of Technology Transfer at Boston
> University.

-- 
Hartmut Pilch, FFII & Eurolinux Alliance              tel. +49-89-12789608
Protecting Innovation against Patent Inflation       http://swpat.ffii.org/
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