University Patenting : Is Private Law Serving Public Values?

As privatization of publicly funded university research has grown, so too has the steady undercurrent of public criticism of academic patenting from both inside and outside the academy. During debates over the Bayh–Dole Act of 1980, which standardized federal policy to allow grant recipients to patent resulting inventions, Senator Russell Long called it “one of the most radical and far-reaching giveaways” he had seen. In his 2003 Universities in the Marketplace, former Harvard president Derek Bok worried that “the lure of the marketplace” might cause universities to compromise their core values. Jennifer Washburn’s 2005 University, Inc. lamented commercialization as a “foul wind [that] has blown over the campuses of our nation’s universities” since 1980 in pursuit of benefits that are “vastly overblown.” In 2019, freshman congresswoman (and Twitter sensation) Alexandria Ocasio-Cortez used her first committee hearings to question why the public is “putting tons of money in the development of drugs that then become privatized, and then they receive no return on the investment that they have made.”What return does the public receive for the tax dollars spent on R&D, primarily at universities? Does privatizing this research through patent law in fact serve public values? From this social welfare perspective, could the Bayh–Dole framework be improved? In this symposium contribution, we seek to tackle these questions, including by identifying the key empirical questions that must be resolved to answer them. In short, we conclude the benefits of university patenting may justify the costs where licensees need exclusivity to undertake the costs of commercialization. For the substantial portion of university patenting that is not necessary for commercialization, evidence of other plausible benefits is not yet sufficient to justify the costs. Much of the data needed to investigate these plausible benefits — and related costs — rests in the hands of universities and federal grant agencies. Unless defenders of university patenting develop this evidence, university patenting should be curtailed in ways discussed further below