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Unboxed - When Academia Puts Profit Ahead of Wonder - NYTimes.com
From: David Farber <dave () farber net>
Date: Sun, 7 Sep 2008 10:00:19 -0400
September 7, 2008
When Academia Puts Profit Ahead of Wonder
By JANET RAE-DUPREE
“It is the policy and objective of the Congress to use the patent
system to promote the utilization of inventions arising from federally
supported research or development” and “to promote collaboration
between commercial concerns and nonprofit organizations, including
— The Bayh-Dole Act, a k a the University Small Business Patent
THE law of unintended consequences is perhaps less a “law” than a
simple statement of fact: We cannot accurately predict all the results
of our actions. We may do something with the best of intentions, and
sometimes even accomplish the good toward which we aim. Yet, at the
same time, we are all too often surprised by results that didn’t occur
to us beforehand.
The Bayh-Dole Act of 1980 started out with the best of intentions. By
clearing away the thicket of conflicting rules and regulations at
various federal agencies, it set out to encourage universities to
patent and license results of federally financed research. For the
first time, academicians were able to profit personally from the
market transfer of their work. For the first time, academia could be
powered as much by a profit motive as by the psychic reward of new
University “tech transfer” offices have boomed from a couple dozen
before the law’s passage to nearly 300 today. University patents have
leapt a hundredfold. Professors are stepping away from the lab and
lecture hall to navigate the thicket of venture capital, business
regulations and commercial competition.
None of these are necessarily negative outcomes. But more than a
quarter-century after President Jimmy Carter signed it into law, the
Bayh-Dole Act, sponsored by the former Senators Birch Bayh, Democrat
of Indiana, and Robert Dole, Republican of Kansas, is under increasing
scrutiny by swelling ranks of critics. The primary concern is that its
original intent — to infuse the American marketplace with the fruits
of academic innovation — has also distorted the fundamental mission of
In the past, discovery for its own sake provided academic motivation,
but today’s universities function more like corporate research
laboratories. Rather than freely sharing techniques and results,
researchers increasingly keep new findings under wraps to maintain a
competitive edge. What used to be peer-reviewed is now proprietary.
“Share and share alike” has devolved into “every laboratory for itself.”
In trying to power the innovation economy, we have turned America’s
universities into cutthroat business competitors, zealously guarding
the very innovations we so desperately want behind a hopelessly
tangled web of patents and royalty licenses.
Of course, there is precedent for scientific secrecy, notes Daniel S.
Greenberg , author of “Science for Sale: The Perils, Rewards and
Delusions of Campus Capitalism” (University of Chicago Press, 2007).
When James Watson and Francis Crick were homing in on DNA’s double-
helix structure in the 1950s, they zealously guarded their work from
prying eyes until they could publish their findings, to be certain
that they would get the credit for making the discovery.
“They didn’t try to patent it,” Mr. Greenberg notes, “but somebody
doing the same work today would certainly take a crack at patenting
the double helix.”
In fact, it was the life sciences — in particular, biotechnology —
that started universities down the slippery commercial slope in the
first place. Even before the Bayh-Dole Act, pharmaceutical companies
were eagerly trolling campuses, looking for projects to finance. After
the law was passed, they stepped up their efforts, but now with
renewed zeal for keeping potential trade secrets from competitors.
While patients have benefited from the growing supply of new
medications, the universities have obtained patents not only for the
actual substances but also for the processes and methods used to make
them, potentially hampering discovery of even more beneficial
“Bayh-Dole tore down the taboos that existed against universities
engaging in overtly commercial activity. Universities really thought
that they were going to make it rich,” said Jennifer Washburn, author
of “University Inc.: The Corporate Corruption of Higher
Education” (Basic Books, 2005). “Each school was convinced that if
they came up with that one blockbuster invention, they could solve all
their financial problems.”
Ms. Washburn says that was “extremely wrong-headed.” Initially
reacting to the law by slapping patents on every possible innovation,
universities quickly discovered that patents were an expensive
proposition. The fees and legal costs involved in obtaining a single
patent can run upward of $15,000, and that doesn’t count the salaries
of administrative staff members. Instead of bringing home the bacon,
university tech transfer offices were throwing money into the void
with little hope of returns.
To date, Ms. Washburn says, data gathered by the Association of
University Technology Managers, a trade group, show that fewer than
half of the 300 research universities actively seeking patents have
managed to break even from technology transfer efforts. Instead, two-
thirds of the revenue tracked by the association has gone to only 13
Part of the problem has been a lingering misunderstanding about where
the value lies in innovation. Patenting a new basic science technique,
or platform technology, puts it out of the reach of graduate students
who might have made tremendous progress using it.
Similarly, exclusive licensing of a discovery to a single company
thwarts that innovation’s use in any number of other fields. R.
Stanley Williams, a nanotechnologist from Hewlett-Packard, testified
to Congress in 2002 that much of the academic research to which H.P.
has had difficulty gaining access could be licensed to several
companies without eroding its intellectual property value.
“Severe disagreements have arisen over conflicting interpretations of
the Bayh-Dole Act,” he said. “Large U.S.-based corporations have
become so disheartened and disgusted with the situation, they are now
working with foreign universities, especially the elite institutions
in France, Russia and China.”
THE issue is further clouded by “reach through” licenses, complex
arrangements used by many tech transfer offices. A reach-through lets
the patent holder claim a share of any profits that result from using,
say, an enabling technology, even if those profits come several steps
down the market transfer line. Several universities are already
embroiled in messy lawsuits trying to sort out who is entitled to what.
Perhaps the most troublesome aspect of campus commercialization is
that research decisions are now being based on possible profits, not
on the inherent value of knowledge. “Blue sky” research — the kind of
basic experimentation that leads to a greater understanding of how the
world works — has largely been set aside in favor of projects
considered to have more immediate market potential.
In academia’s continuing pursuit of profit, the wonder of simple
serendipitous discovery has been left on the curb.
Janet Rae-Dupree writes about science and emerging technology in
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- Unboxed - When Academia Puts Profit Ahead of Wonder - NYTimes.com David Farber (Sep 07)