Uncoupling Scientific Progress From Human Progress -The Loss of Checks and Balances: Part II – The Bayh-Dole Act

Posted on | December 25, 2016 | 2 Comments

 The Bayh-Dole Act from Nature.com

Mike Magee

Since Vannevar Bush presented his “Science the Endless Frontier” to President Truman, and the President had insisted on strong government control of federally sponsored research, there had been a prohibition on private ownership of patents that emerged from research discoveries supported by federal grant dollars.(1) As the thinking went, such discoveries, supported by public dollars, should be available to all, without the patent restrictions of a private company. But in reality, the lack of ownership of the intellectual property, and any market products or applications that would derive from it, frightened away private investors.

So the federally funded discoveries and their patents sat in the government vaults, largely unused and undeveloped. In fact, by 1978, with the economy still lagging, 28,000 scientific patents had accumulated. Over the years, fewer than 5% had been commercialized. (2) At that time, Indiana’s Purdue University was sitting on a number of new health related discoveries that had emerged from their research departments, supported by NIH grants. In face of the country’s “economic doldrums”, they decided to invest a bit of money on lobbyists to see if they might somehow wrest control of the patents, and future profitability tied to their inventions. They approached their senator, Birch Bayh (D-IN), and were delighted to see that he was receptive.(3)

At about the same time, the lobbyists discovered that Bob Dole had been exploring the same legislative territory.(4 Having been the unique recipient of life-saving health applications, and with a well established bias toward private investment and individual entrepreneurship over government management, Bob was delighted to conspire with Bayh on a possible fix for the problem. Together they fashioned a solution that would allow individual, small businesses and academic institutions to maintain ownership of their own intellectual property, even if it derived from government grant money. These liberalizations of the long standing restrictions on government funded discoveries would be justified on the basis of stimulating a rather moribund local economy and eliminating “bureaucratic regulatory waste”.(5) With Dole’s support, the technology transfer legislation swept through the Senate Judiciary Committee with unanimous support, and passed the Senate 91 to 4 on April 23, 1980.(6) Bayh then negotiated the Bill’s inclusion in the House’s version. But before merger of the two versions could be accomplished, the 1980 Presidential elections intervened. Ronald Reagan’s election displaced Jimmy Carter, and 12 Democratic senators as well, including Bayh.(7)

Not willing to give up, Bayh and Dole huddled, and seized on one remaining strategy to move the bill to closure before opposition could coalesce. Those opposed were mainly concerned that the bill, which was written to free up individuals and academics, would somehow be co-opted by large, profit-seeking corporations.(8) Dole quickly saw an opening in the fact that Congress had failed to pass the budget that year which forced the need for a lame-duck session. Even though Bayh was on his way out, he would remain in place until Reagan was inaugurated. Bayh was well loved by his colleagues, and those in opposition to the bill agreed at least to allow the bill to come to a vote as a “farewell present.”(9) But when Senate Majority Leader Robert Byrd (D-WV) called for a vote and placed a 15 minute time limit on it, Bayh was caught by surprise, and was off site.(10) If they missed their time slot, the bill was lost. Bayh’s chief aide crossed the aisle to Dole, explaining the problem. Dole informed the leadership that he would be presenting their case. With bipartisan support, and with Dole having cleared all obstacles ahead of time, the bill was unanimously approved and sent on to the president.(11)

President Carter dragged his feet on the measure, and the lame duck session of Congress ended. Inaction by law would result in a pocket veto. Carter’s indecision on the bill had to do with his competing notions of what needed to be done. A notorious micro-manager, his preference was for a more comprehensive solution that cut across a range of intellectual property issues that plagued multiple sectors of the government. But with just a few days to spare, on December 12, 1980, he decided that “perfect was the enemy of the good” and signed the bill.(12) What were the results? I will address that in Part III of this three part series.

(References on Request)

Part I: Uncoupling Scientific Progress from Human Progress.

Comments

2 Responses to “Uncoupling Scientific Progress From Human Progress -The Loss of Checks and Balances: Part II – The Bayh-Dole Act”

Michelle Gross
December 26th, 2016 @ 3:57 pm

Thank you for this excellent series, which explores an issue with no easy solutions. I look forward to part III.
Mike Magee
December 27th, 2016 @ 9:02 am

Thanks, Michelle!