Reconsidering the Bayh-Dole Act and the Current University Invention Ownership Model

The Bayh-Dole Act of 1980 provided U.S. universities with the right to commercialize employees' inventions made while engaged in government-funded research. This paper argues that the current university invention ownership model, in which universities maintain de jure ownership of inventions, is not optimal either in terms of economic efficiency or for advancing the social interest of rapidly commercializing technology and encouraging entrepreneurship. We argue that this model is plagued by ineffective incentives, information asymmetries, and contradictory motivations for the university, the inventors, potential licensees, and university technology licensing offices (TLOs). These structural uncertainties can lead to delays in licensing, misaligned incentives among parties, and obstacles to the flow of scientific information and the materials necessary for scientific progress. The institutional arrangements within which TLOs are embedded have encouraged some of them to become revenue maximizers, rather than facilitators of technology dissemination for the good of the entire society. We suggest two alternative invention commercialization models as superior alternatives. The first alternative is to vest ownership with the inventor, who could choose the commercialization path for the invention. For this privilege the inventor would provide the university an ownership stake in any returns to the invention. The inventor would be free to contract with the university TLO or any other entity that might assist in commercialization. The second alternative is to make all inventions immediately publicly available through a public domain strategy or, through a requirement that all inventions be licensed non-exclusively. Both alternatives would address the current dysfunctional arrangements in university technology commercialization.