A long, Hard Journey: From Bayh-Dole to the Federal Technology Transfer Act



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Nothing in this chapter is intended to limit the authority of agencies

to agree to the disposition of rights in inventions made in the

performance of work under funding agreements with persons

other than nonprofit organizations or small business firms in

accordance with the Statement of Government Patent Policy

issued on August 23, 1971.
Thus, even in its original “pure” form, Bayh-Dole expanded the definition of non-profit organizations beyond universities, assured large companies that they would not lose existing protections under agency administrative policies and created statutory guidelines for the management of inventions made by federal laboratories.
The Bayh-Dole Act also provided flexibility to agencies such as the Department of Energy to extend the provisions of the law to its laboratories managed by non-profit organizations. Thus, Section 202, Disposition of Rights, states that patent rights will be left with non-profit organizations, but that:
a funding agreement may (emphasis added) provide otherwise when the funding agreement is for the operation of a Government owned research or production facility.”
Note that the language leaves the door open for an agency to grant such rights if it is disposed to do so. This provision set the stage for the next Congressional action expanding patent policies to federal laboratories.
There were three basic schools of thought opposing Bayh-Dole:

(1) One was the “public interest” philosophy that Government funded technologies should be put in the public domain, freely available to all;


(2) Another was a belief that large companies were more important than universities or small companies in driving the economy and should be the real focus of any new policy;
(3) There was opposition to the decentralization of technology management out of Washington, D.C. This belief was particularly strong at the Department of Energy (DOE).
To understand the motivation of DOE, it is important to review its nature. Despite the name, the agency is home to the laboratory system that developed the atomic bomb in World War II and devotes a large percentage of its R&D to weapons related research. The resulting culture emphasized protecting national security through close control of its technology. Thus, it is easy to see why some in DOE viewed the decentralized approach of Bayh-Dole as a serious threat to its established culture.
Like most agencies, DOE had a policy of requiring case by case petitions for ownership of inventions made by its contractors or grantees. The Comptroller General of the United States, Elmer Staats, testified that it could easily take from 18- 24 months for such requests to be decided. Such delays were, of course, normally fatal to commercialization efforts.
While muted at the hearings on Bayh-Dole, as the bill gained momentum in Congress, DOE became more active behind the scenes opposing it. Eventually the resistance at DOE became a serious threat to the bill.
When the Bayh-Dole Act was finally enacted in a “lame duck” session of Congress, it was widely rumored that DOE was working behind the scenes urging President Carter not to sign it. Since Congress had adjourned its session, by simply not the signing the law it was effectively “pocket vetoed.” Frantic efforts were launched by the Small Business Administration to the White House urging the President to sign Bayh-Dole. Finally, on the last day before it would expire the bill was signed into law.
At the same time it was approving Bayh-Dole, Congress also passed additional legislation encouraging the commercialization of federally-funded R&D. The Bayh-Dole Act falls under the legislative jurisdiction of the Senate and House Judiciary Committees. The Senate Commerce Committee and the House Science and Technology Committee authored the Stevenson-Wydler Act.3 This legislation also passed in the closing days of the 96th Congress.
This bill sought to establish “Cooperative Research Centers” to encourage university-industry collaborations, required federal laboratories to establish an “Office of Research and Technology Applications” to promote technology transfer and gave Congressional recognition to the Federal Laboratory Consortium for Technology Transfer which had been established informally to help trade best practices among the agencies.
However, the Stevenson-Wydler Act did not remove many of the legal barriers preventing federal laboratory technologies from being commercialized. The incoming Reagan Administration declined to fund the “Cooperative Research Centers” authorized in the bill, preferring the Bayh-Dole decentralized technology management approach empowering universities to commercialize their own inventions.




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