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University Patent Administrators Aim to Ruin Bayh-Dole


If the university patent administrators win in their effort to undo Bayh-Dole by snookering the Supreme Court into thinking that Bayh-Dole is about them, then the inspired part of Bayh-Dole, this third class of invention management approaches, will be the experiment that failed. What remains will be exactly the same compulsory, unproductive system that prevailed in federal agencies and which gave rise to the need for Bayh-Dole. The only differences will be that universities rather than the federal government will hold the rights, and that universities appear much more disposed to grant poorly conceived exclusive licenses, engage in patent trolling rather than promoting use, and fixate on money and process to the exclusion of getting things done and building collaborations that fuel innovation in America.

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If Bayh-Dole becomes a vesting statute, it dies as innovation policy and we are set back 30 years or more. And it will be university patent administrators that will have killed it.

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It is only by disregarding the import of agreeing with the federal government, and then failing to obtain the required (f)(2) agreement, that a university might appeal to the help of a federal law that does not apply to it. Bayh-Dole applies to federal agencies, and to inventions made under a federal funding agreement. Bayh-Dole does not apply to universities or to inventors. Bayh-Dole does not apply to title to inventions or assignment of inventions. Bayh-Dole establishes a framework under which federal agreements address these matters with willing organizations. Bayh-Dole is no shortcut for university administrator efficiency to attempt to make the federal law apply to individuals or to non-federal organizations. Doing that is a corruption of the law, and runs into a host of other problems that would make the law unconstitutional, bad innovation policy, and disruptive of alternative approaches to the disposition of subject inventions—alternative approaches that do not involve a university holding title to subject inventions.

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