Y - Bayhdolecentral

Academia, Industry, and the Bayh-Dole Act: An Implied Duty to Commercialize _
Henderson, Smith
community service mission implicitly supports the
broadest possible application ofnew medical
technology so as to benefit broader society,
something only possible through an active
collaboration between the academic medical
conununity and industry.
Associations between individuals and entities entail
risks as well as benefits, though it is important to
realize that the risk involved in the academia-industry
collaboration established by Bayh-Dole is, in effect, a
product ofthe Act's implied duty to commercialize.
The inevitable existence ofsuch risks, such as
financial conflict-of-interest, should not distract
society from the larger benefit derived from
academia-industry collaboration, nor should it be
allowed to defeat the strong societal statement made
by Bayh-Dole. Rather, their existence should serve
as a reminder to academia, government and industry
to identify and mitigate risks associated with
commercialization ofacademic research, so as to
maximize the benefit to society from governmentfunded
research. By doing so, academia and industry
will continue to fulfill the vision that is Bayh-Dole,
and continue the impressive record ofachievement
that has provided so much benefit to society.
References
1 Bayh-Dole University and Small Business Patent
Procedures Act ofDec. 12, 1980, Pnb. L. No. 96-517,
94 Stat. 3015-3028 (codified as amended at 35
U.S.C. § § 200-211, 301-307 (1994)).
2 See Rebecca S. Eisenberg, Public Research and
Private Development: Patents and Technology
Transfer in Government-Sponsored Research, 82 VA.
L. REv. 1663 (1996), at footnote 2 (listing federal
legislation encouraging or requiring federal agencies
to make federally-supported research available to the
fublic through govermnent ownership).
United States Government Accounting Office
(GAO) Report to Congressional Committees entitled
"Technology Transfer, Administration ofthe Bayh­
Dole Act by Research Universities" dated May 7,
1998 at 3.
4 National Patent Planning Commission,
Government-Owned Patents and Inventions of
Government Employees and Contractors, reprinted
in, 2 Subcommittee on Domestic and Int'l Scientific
Planning and Analysis ofthe House Conun. on
Science and Tech., 94 th Cong., Background Materials
on Government Patent Policies: Reports of
8
October 2002
Committees, Commissions, and Major Studies xi
(Conun. Print 1976) at 1-12 (1945).
5 Attorney General ofthe United States, Investigation
ofGovernment Patent Practices and Policies: Report
and Reconunendations ofthe Attorney General to the
President, partially reprinted in, 2 Subcommittee on
Domestic and Int'! Scientific Planning and Analysis
ofthe House Comm. on Science and Tech., 94 th
Cong., Background Materials on Government Patent
Policies: Reports ofCommittees, Commissions, and
Major Studies xi (Conun. Print 1976), at 15,17-21
(1947).
6 See generally Eisenberg, supra note 2 at 1674-1675.
7 See id.
S See generally Eisenberg, supra note 2, at 1676­
1690.
9 See id.
10 Commission on Government Procurement, 1972
Report, partially reprinted in 2 Subconunittee on
Domestic and Int'I Scientific Planning and Analysis
ofthe House Comm. on Science and Tech., 94 th
Cong., Background Materials on Government Patent
Policies: Reports ofCommittees, Commissions, and
Major Studies xi (Conun. Print 1976), at 185, 192.
11 See id.
12 Industrial Innovation Initiatives: Message to the
Congress on Administration Actions and Proposals,
Pub. Papers 2070, 2071 (Oct. 31, 1979).
13 See Eisenberg, supra note 2, at 1691.
14 See 35 U.S.c. § § 200-211, at § 201(b).
15 See id. at § 202.
16 See id.
17 See td.
18 See id.
19 See td.
20 See 35 U.S.C. § 203.
21 See Memorandum to the Heads ofExecutive
Departments and Agencies: Government Patent
Policy, Pnb. Papers 248 (Feb. 18, 1983).
2Z See S. Rep. No. 98-662, at 2 (1984), reprinted in
1984 u.S.C.C.A.N. 5799, 5800.
23 See 35 U.S.C. § 200.
24 See id.
2S See id.
26 See id. at § 202.
27 See id. at §202(a).
28 See id. at §201(e).
29 See id. at § 201(b).
30 See id. at § 202(c)(3).
31 See id. at § 202(c)(5).
32 See id. at § 203.
33 See id. at § 203(1)(a).
34 See id. at § 201(!).
35 See id. at § 203(1).
36 See id. at § 209.