Bayh-Dole Reform and the Progress of Biomedicine

Abstract

As proprietary claims have proliferated in biomedical research, the costs that such claims impose on R&D have become more salient. At the same time, patents on biomedical research plainly offer important social benefits in the form of motivating private investment in invention and product development. The presumption that patent incentives are necessary to promote research and development has less force, however, for inventions arising from government-sponsored research than for inventions arising from purely private funding. It is therefore important that decisions about patenting the results of government-sponsored research be made on the basis of a careful balancing of the costs and benefits that such patenting will entail for future R&D. Current law entrusts these decisions to the unbridled discretion of institutions, such as universities, that receive federal funds. But universities may be inadequately motivated to take the social costs of their proprietary claims into account in deciding what to patent. A more sensible approach would give research sponsors, such as NIH, more authority to restrict proprietary claims on publicly-funded research when such proprietary claims are more likely to retard than promote subsequent R&D.