The New Model of Interest Group Representation in Patent Law

B. Present But Disorganized: The Bayh-Dole Act Around the same time that Congress and the executive branch were embroiled in debates about appropriate reforms to the federal judiciary, there was also an ongoing debate about the ability of institutions receiving federal funds for research to patent any discoveries resulting from that research. The Bayh-Dole Act of 1980 generally permitted "non-profit organization[s]" (including universities) and "small business firm[s]" to "retain title to any subject invention," permitting those organizations to file for patents on their subject inventions, except in a few specialized circumstances regarding gove rnment-owned facilities, national security, or "exceptional circumstances." (130) Subsequently, the number of universities with dedicated technology transfer offices (TTOs) skyrocketed, (131) and today the Association of University Technology Managers, which brings together university TTOs for various data-gathering, organizational, and political reasons, (132) is a powerful force for change in this area. Unlike in the case of the creation of the Federal Circuit, the regulated interest group here--university TTOs, essentially--did exist in some form prior to the passage of the Bayh-Dole Act. Yet evidence suggests that TTOs in general had little involvement in the passage of the statute, although public choice theory would predict otherwise. Further, the lobbying activities of industry (which may in some sense be viewed as the real party in interest here) do not clearly provide an alternate explanation for the Act's passage. Before the Bayh-Dole Act, the situation facing university technology managers who wanted to patent and commercialize the results of their faculty members' innovation could be described in one word: chaos. In general, the federal government was presumed to have the right to take title to patents stemming from federally funded research at universities. And the government had long recognized that the question of which organization should take title to patents resulting from federally-funded research (the government as grantor or the university as grantee) was complex. (133) By 1979, there were "at least 24 different patent policies in effect in the Federal agencies." (134) Ultimately, the fate of grantees hoping to take title to patents resulting from research was highly dependent on the identity of the agency from which the grant came. (135) Further, these policies were "frequently contradictory from agency to agency (and even sometimes within the same agency) and [] prove[d] to be formidable barriers to organizations interested in participation in Government work." (136) The complexity of the situation had not gone unnoticed, however. As early as 1963, President Kennedy had issued an executive order intending to bring some uniformity to the situation, recognizing the "need for greater consistency in agency practices in order to further the governmental and public interest in promoting the utilization of federally financed inventions and to avoid difficulties caused by different approaches by the agencies when dealing with the same class of organizations in comparable patent situations." (137) Essentially, though, President Kennedy's order imposed only a superstructural uniformity in which each of the federal grantor agencies placed default ownership of such patents with the federal government, allowing grantees to take title only where "the contractor or grantee successfully completes lengthy waiver procedures justifying why patent rights should be left to the inventor." (138) These waiver procedures (which continued to differ among agencies) were "difficult," and only "in rare cases" did petitions survive the process. (139) It is unsurprising that the system continued to engender discontent. In December 1965, the Federal Council for Science and Technology established the Committee on Government Patent Policy to examine the impact of President Kennedy's policy statement and to gather additional information about the situation. …