88 Pages Posted: 14 Feb 2013 Last revised: 1 Oct 2013
Date Written: February 14, 2013
This Article advances two novel claims about the internalization of academic science within patent law and the concomitant evolution of “academic exceptionalism.” Historically, relations between patent law and the university were characterized by mutual exclusion, based in part on normative conflicts between academia and exclusive rights. These normative distinctions informed “academic exceptionalism” — the notion that the patent system should exclude the fruits of academic science or treat academic entities differently than other actors — in patent doctrine. As universities began to embrace patents, however, academic science has become internalized within the traditional commercial narrative of patent protection. Contemporary courts frequently invoke universities’ commercial nature to reject exceptional treatment for such institutions. The twin trends of internalization and exceptionalism have evolved again in recent legislative patent reform. On one hand, the interests of academic science have become completely internalized within the patent system to the extent that they inform general rules of patentability applying to all inventions. On the other hand, academic exceptionalism has been resurrected in the form of special statutory carve-outs for universities. Turning from the descriptive to the normative, this Article concludes with recommendations for improving the patent system’s regulation of academic science.
Keywords: patents, intellectual property, technology transfer, universities, academic science, law and science, licensing, Federal Circuit, patent reform, America Invents Act, university patenting, law and norms
Suggested Citation: Suggested Citation
Lee, Peter, Patents and the University (February 14, 2013). Duke Law Journal, Vol. 63, 2013, Forthcoming; UC Davis Legal Studies Research Paper No. 324. Available at SSRN: https://ssrn.com/abstract=2217719 or http://dx.doi.org/10.2139/ssrn.2217719