04 Nov Landmark patent law under attack, Bayh says
Madison, Wis. – On a visit to the University of Wisconsin-Madison campus, former U.S. Senator Birch Bayh said the landmark patent law that bears his name is under attack from critics who don’t understand the context in which it was passed.
Bayh, a featured speaker at the annual Kastenmeier Lecture at the UW-Madison Law School, was in Madison to recount the 1980 passage of the Bayh-Dole Act, which gave universities the right to patent their intellectual property and license it to companies for commercial development.
The law, enacted during a lame duck session of Congress following the 1980 election, is credited with accelerating technology transfer and the development of biotechnology industries in university communities like Madison, Austin, Texas, and North Carolina’s Research Triangle Park (Raleigh, Durham, and Chapel Hill, North Carolina).
Bayh, who represented Indiana in the U.S. Senate from 1963 to 1981, referenced efforts in academia and Congress that would transfer control of intellectual property to the federal government. Now a partner in the legislative and regulatory group for the law firm Venable, LLP, Bayh dismissed several criticisms of the law, including the belief that if the government pays for the research, then government should own the patents.
On the surface, Bayh said that idea makes sense, except that it didn’t result in technology transfer that would benefit the public. “That’s the problem that existed in 1976, 1978, when we started investigating and found that we had spent $30 billions of dollars to create 29,000 patents that were just sitting there gathering dust with nobody benefiting from the expenditure of that $30 billion,” Bayh said.
He said opponents are trying to destroy any organized effort in which industry is willing to invest in ideas and bring them to the consumer. “The idea isn’t worth anything unless somebody develops it and brings it into your household or your business,” Bayh said, “and that’s not going to happen unless the university or a small business is able to gain ownership and license it out to the industry.”
Before the law was enacted, Bayh said the United States was losing its technological edge. Since then, university research has spawned thousands of inventions like the nicotine patch, three-dimensional surgery technology, and the Google search engine.
Bayh said the law’s critics represent a small clique, but it’s important to educate the public about its benefits, which he did not fully envision when crafting the bill. “I don’t think a relatively small group of ideologues, no matter how passionate they are, are going to get any place unless they are right, and they are not right,” he said. “I think our challenge is to convince more people to stand up and take on the critics so that they won’t be speaking and criticizing in a vacuum.”
Carl Gulbrandsen, managing director of the Wisconsin Alumni Research Foundation, noted that even some university professors have concerns about the current system. He cited Duke University law professor Arti Rai and University of Michigan law professor Rebecca Eisenberg.
Gulbrandsen also introduced UW-Madison professors Hector De Luca, one of WARF’s most prolific inventors, and T. Rockwell Mackie. They are the chief executives of Deltanoid Pharmaceuticals and TomoTherapy, respectively, two tech transfer success stories that would not have been launched without Bayh-Dole.
In measuring the stakes, Gulbrandsen also cited economists who estimate that one third of the NASDAQ Stock Market is comprised of companies that have arisen from university research. “He (Bayh] is right,” Gulbrandsen said. “We’re under attack, and there aren’t a lot of people who are defending it [Bayh-Dole], and frankly, there aren’t a lot of people in Congress who remember it.”
The lecture series is named for former Wisconsin congressman Robert Kastenmeier, who served in Congress from 1959 to 1991. Kastenmeier played a key role in the passage of Bayh-Dole in the House of Representatives.
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