Copyright (c) 2006 PTC Research Foundation of Franklin Pierce Law Center
IDEA: The Intellectual Property Law Review
ARTICLE: THE BAYH-DOLE ACT: IMPLICATIONS FOR DEVELOPING COUNTRIES
46 IDEA 261
SARA BOETTIGER * and ALAN BENNETT **
The Bayh-Dole Act 1 of 1980 was intended to facilitate the commercialization of inventions resulting from U.S. federally-funded research. By designing incentives for universities, faculty inventors, and private industry to engage in the commercialization process, the Act's proponents hoped to foster the creation of new products and services from research that might otherwise remain early-stage and undeveloped. Clear ownership of intellectual property, and the ability to negotiate exclusive licenses, were seen as necessary elements in a policy striving to stimulate private sector investment in the development of government-funded innovations. 2
The Bayh-Dole Act created default ownership of patent rights for universities 3 and allowed for exclusive licensing. In addition, the Act contained requirements for universities to favor licensing contracts with domestic and small businesses and to take reasonable steps to ensure commercialization of their inventions. Under very limited circumstances, the Act also allowed for "march-in" rights, under which the government can require the compulsory licensing of a patent.
Twenty-five years after becoming law, the effects of the Bayh-Dole Act in the U.S. remain controversial. Some regard it as a catalyst for economic growth, fundamental to the transfer of technology from university to industry. Others argue that the legislation has the potential for unintended and deleterious consequences for the innovation system. Even though the debate involves issues of particular relevance to developing countries, remarkably little has been written about the Bayh-Dole Act in relation to the needs of the poor and underserved. ...
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