Software Patents as a Barrier to Scientific Transparency: An Unexpected Consequence of Bayh-Dole

Abstract

Computing has taken a central role in the practice of science. From the ability to capture data, methods, create simulations, and provide dissemination mechanisms, science has gone digital. In this paper we examine the interaction between the digitization of science and Intellectual Property Law, specifically the incentives created by the Bayh-Dole Act to patent inventions associated with university-based research. We show that the number of software patents granted to faculty researchers has more than doubled over the last ten years among top patenting universities and colleges. In a traditional scientific setting methods are usually openly shared in the methods section of a scientific publication, but due to increased levels of complexity it is now the case that deep intellectual contributions to science are being captured only in the software and codes that generate published computational results. In computational science reproducibility of results can typically only be effected with knowledge of the underlying code and data – the traditional methods section is insufficient for computational science. Incentives to patent academic code are now at odds with scientific norms of transparency and reproducibility.