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[Published originally in the January 2004 edition of Computing Research News, Vol. 16/No. 1, pp. 4, 7.]

Bayh-Dole Act Bad for Computing Research?

By Jim Foley, CRA Board Chair

The Bayh-Dole Act of 1980 assigns to the university ownership of intellectual property resulting from federally funded research. The act is widely credited with increasing university IP revenues, which have risen dramatically since 1980, mostly in the life sciences.

At the same time, the pressure on university licensing offices to create still more revenues can have a chilling effect on industry-university cooperation in computing research, even as it reinforces cooperation in the life sciences. This effect, now widely acknowledged, comes at the same time as calls for increased research productivity to bolster North American competitiveness in the world. There is a disconnect here.

Three recent reports highlight the issues involved:

1. A recommendation from the President’s Council of Advisors on Science and Technology report Technology Transfer (http://www.ostp.gov/PCAST/pcast2003rpt.html) acknowledges that licensing practices and expectations in the life sciences are not appropriate in other fields: “Industry differences need to be recognized and practiced by institutions licensing government-sponsored technology, but made consistent with individual disciplines . . .The value of intellectual property in . . . software, communications, semiconductors . . . is highly variable, ranging from entirely unimportant to moderately important. In these cases, the time to market is much shorter (measured in months to years, rather than many years as in pharmaceuticals), and the international competition for manufacturing, as well as other factors, are much more important drivers of commercial success than for life sciences transactions.”
2. Our CRA Best Practices Memo, University-Industry Sponsored Research Agreements (http://archive.cra.org/reports/ip/bestpractices.html), observes: “Mindful that some IP such as gene splicing and human growth hormone have produced ‘IP goldmines,’ many university administrators (and some students and faculty) are eager to establish strong safeguards to protect their rights to intellectual property. While such safeguards are perhaps essential in biomedical, pharmaceutical, and agricultural research, they are not appropriate in Information Technology (IT). They can be difficult and time-consuming to negotiate, and because considerations such as time-to-market are so important in IT, the delay can frustrate beneficial cooperation. Moreover, patent safeguards are unnecessary because of the role of IP in IT products and the complications involved in deploying IT IP.”
3. At the first Industry-University Congress in August, a disturbing observation was made: US companies sometimes support research at overseas universities simply because of faster and more flexible IP negotiations. CRA submitted our Best Practices Memo for consideration, and CRA board member, Jim Horning, attended the meeting. It was sponsored by the National Council of University Research Administrators (NCURA), the National Academy of Sciences, and the Industrial Research Institute.

So what to do? The Bayh-Dole Act is not likely to change. The PCAST report is generally supportive, while acknowledging the need for discipline-specific practices—even as it acknowledges that other factors have played an important role in the increased licensing activities.

If you are at a university and are experiencing slow or burdensome IP negotiations, meet with your IP licensing director to understand their philosophies, and review with them the CRA Best Practices Memo and the PCAST Technology Transfer report.

If you are at an industry lab, you too can help with this educational process. At the same time, consider the IP alternative a very large corporation used in supporting some of my own work: we put the work in the public domain. The reasoning was simple—the company was working closely with us, and decided that their competitive edge would come from the time-to-market advantage of being able to quickly move research results into their products, not from patent protection. By having the results in the public domain, they would be able to better defend against IP claims from others working in the same general area at the same time. Not a bad strategy when the first-mover advantage of fast time-to-market is the key.

But what of the broader issue—how to increase North American competitiveness in the face of high-tech knowledge work out-sourcing to China and India? Many steps are needed, going beyond that of IP relations between industry and academia. The percentage of US GNP invested in R&D is lower than in 1990. The support is again on the uptick, but mostly in life sciences via NIH and not very much in NSF-sponsored areas. Congress has authorized an NSF five-year doubling bill, and did exceed the administration’s recommendation in this year’s appropriation, but the level is nowhere near what is needed to achieve the doubling.

At the same time, three factors are working against us: 1) increased overseas IT R&D opportunities may draw more of our international workforce back to their native country, 2) homeland security issues make it more difficult for international students to study in the United States, and 3) the number of US citizens and permanent residents earning the Ph.D. is lower than in 1993 and has been decreasing since 1995.

We all have our work cut out for us—with streamlining industry-university collaborations and tech transfer, and with these broader issues. CRA is actively working on these issues, and invites your ideas and participation. Contact me— foley [at] cc.gatech.edu.

Jim Foley is Professor and Stephen Fleming Chair in Telecommunications at Georgia Tech, and chair of CRA’s board of directors.