Brian Love had an op-ed on patent reform published in the Wall Street Journal. Read the full op-ed below.
Patent Reform Won’t Hurt Professors
University patent programs lock up publicly funded research–and don’t motivate faculty.
By BRIAN J. LOVE
This could be the year that Congress finally passes patent reform. Last week, a bipartisan group of senators introduced the Patent Act, a bill designed to reduce the number of patent lawsuits filed to collect nuisance settlements. The bill’s companion in the House, the Innovation Act, passed that chamber in 2013 with White House support but stalled in the Senate; it was reintroduced in February by Rep. Bob Goodlatte (R., Va.).
The substance of these bills has drawn strong opposition from an unlikely group: university administrators. A steady stream of statements and op-eds decry the bill as likely to, in the words of a recent letter to congressional leaders signed by 145 universities, “weaken our overall patent system and hinder the flow of groundbreaking advances from university research to the private sector.”
Given the strident tone of these appeals, it might surprise you to learn that university professors—those actually conducting the allegedly threatened research—disagree. Surveys of academic researchers suggest that professors in both life sciences and high tech generally oppose their universities’ efforts to patent the fruits of their research.
In a survey of electrical engineering and computer science professors that I published last year, respondents said that patenting efforts stymie their ability to attract funding, impede collaboration across institutions, slow the dissemination of discoveries, and provide at best a modest benefit to their efforts to commercialize their inventions. Only about 10% of professors said that patent rights motivate them to carry out more or better research.
Indeed, university patents often stifle, rather than promote, innovation and commercialization. In biotech, for example, patents held by Myriad Genetics, a spin off of the University of Utah, reduced the availability of diagnostic tests for hereditary breast cancer before those rights were effectively eliminated by the Supreme Court in 2013.
Many also believe that patent rights held by the University of Wisconsin slowed the development of human embryonic stem-cell therapies by requiring large royalties for virtually any commercial research in that field.
In high tech, a number of universities and their spin offs have filed lawsuits en masse against tech companies that didn’t copy university research, but rather independently developed similar technology and brought it to market–thereby achieving precisely the outcome universities say they want to facilitate with their patents. In 2013 Boston University filed lawsuits against 39 consumer-electronics manufacturers including Apple, Samsung,Hewlett-Packard, Amazon and Microsoft, alleging infringement of a patent filed way back in 1997 for a method of producing blue LEDs.
Actions like these suggest that administrators’ core concerns are about money, not the dissemination of research. The public might be able to stomach this, particularly given the lack of funding for higher ed, if patenting made money for universities. But multiple studies have concluded that though a few elite institutions turn profit on patents, most do not. A 2013 report by the Brookings Institution estimated that tech licensing programs at 130 of the 155 universities studied failed to break even.
The fact that most university research is publicly funded adds an additional ethical quandary. In addition to being unprofitable and unpopular, university patent programs routinely take technological know-how resulting from taxpayer-financed research and lock that knowledge away for up to 20 years from the public that paid for its creation.
The debate worth having isn’t about whether university patent rights are strong enough to suit the wishes of those running the existing system. What would be more productive is a discussion about when, and perhaps whether, it makes sense for universities to seek patents at all.
