13 October 2010

Does Australia Need its Own Bayh-Dole Style Legislation?

It has been thirty years since US federal policy in relation to the commercialisation of publicly-funded research underwent a major change through the Bayh-Dole Act of 1980.  Bayh-Dole fostered greater uniformity in the way research agencies treat inventions arising from the work they sponsor.  Before the Act, if government agencies funded university research, the funding agency retained ownership of the knowledge and technologies that resulted.  However, very little federally funded research was actually commercialised.

As a result of the Act, which provides for the universities to take title to the IP in most circumstances, patenting and licensing activity from such research has accelerated.

Although the system created by Bayh-Dole has remained stable, concerns have sometimes arisen that it might impede other forms of knowledge transfer, or that universities might prioritize commercialization at the expense of their traditional mission to pursue fundamental knowledge.

The US National Research Council therefore convened a committee of experts from universities, industry, foundations, and similar organizations, as well as scholars of the subject, to review experience and evidence of the technology transfer system's effects and to recommend improvements.  The result of this review is a report, published by National Academies Press (NAP), entitled Managing University Intellectual Property in the Public Interest

A prepublication proof of the report is now available online (or access via the widget below)..

In brief, the report's key findings are:
  1. The first goal of university technology transfer involving IP is the expeditious and wide dissemination of university-generated technology for the public good.
  2. The transition of knowledge into practice takes place through a variety of mechanisms, and not only patenting and licensing activity.
  3. The system under Bayh-Dole has been much more effective than its predecessor in making research advances available to the public
  4. The Bayh-Dole legal framework and the practices of universities have not seriously undermined academic norms.
  5. A persuasive case has not been made for converting to a system in which inventors are able to dispose their inventions without university administration approval.
  6. There is a feeling in some quarters that in the current system of university management, inventor initiative is not sufficiently valued and encouraged, particularly in view of the important role often played by inventors in successful commercialisation of technology.
The report includes fifteen recommendations for improving the system of university IP management, but almost all of these comprise proposals for effective practices to be adopted within the relevant institutions.  No substantive regulatory or legislative change is recommended, which would seem to be a fairly strong endorsement of the framework provided by the Bayh-Dole system.

Given the success of the Bayh-Dole regime in the US, we wonder if it is time for Australia to give serious consideration to adopting similar legislation?


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