biotechnology, Bayh-Dole, Academic research


Renewed efforts to bring science and technology to the center of economic revival in developing nations recognize the centrality of the university in the creation and promotion of science and innovation. Many developed nations, following the paradigmatic U.S. technology transfer system, transfer their academic innovations to industry—through licensing intellectual property—for eventual commercialization. While conventional wisdom places the Carter era Bayh-Dole legislation at the center of that successful American system, this Article argues that the U.S. biotechnology and high tech booms are more likely attributable to the confluence of unique and propitious conditions, and that Bayh-Dole played a marginal role in the commercialization of American academic ingenuity and the resulting socioeconomic prosperity. Instead, this Article suggests that Bayh-Dole’s legacy is chiefly the ubiquitous university technology transfer office, at best a drain on limited university resources, but potentially a major impediment in the innovation and commercialization process. After reviewing Bayh-Dole and similar efforts in other nations, the author advocates an alternative system for those developing (and even developed) nations seeking to grow their economies through the commercialization of academic inventions. In contrast to the inefficient local technology transfer office, this Article suggests a centralized and independent office that would have the infrastructure, informatics and incentives necessary to take advantage of economies of scale in the patenting, licensing and marketing of academic research. With recent studies now suggesting that patents woefully under-incentivize academic researchers, this system would provide a more relevant incentive to promote the commercialization of academic research. This streamlined and efficient process would allow researchers to trade their intellectual property rights, forgoing unlikely future royalty streams, for a more enticing and less risky research grant with a value tied to the expected value of the patented innovation. The innovation, once acquired and patented by the central technology office, would then be offered to industry via a flat rate non-exclusive license, relieving the current debilitating and inhibitory transaction costs, and diffusing the technology efficiently, rapidly and broadly throughout society.