Patenting by universities: Weighing costs and benefits

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Dr Akriti Jain

“Patents are irrelevant for academic research”, said one of the top scientists in India, who previously served briefly as the principal scientific adviser to the government of India as scientific consultant. These words were said in one of the most prestigious gatherings of country’s leading scientists, engineers and policymakers in India in a conference on “Science Diplomacy”. Not only him but many other academic scientists, who are working in prestigious research and educational institutes in India, whom I interviewed or talked to, opined that “patents hinder science and also it’s the noble cause of knowledge dissemination”. On the similar line, one professor in computer science department of one of India’s premier higher academic technical institution said, “Why would I care about patenting my invention which makes me wait for the publication of my research results until the patent grant, if I can get it published right away in a scientific journal and get peer recognition, promotion and all other benefits coming with it?”

Researchers in India believe that, as scientists their job is to put their inventions in public domain and allow companies to use it freely so as to develop products for their commercial application. While believing this, they largely ignore the other side of the story that says that companies would not invest or put their time, efforts and money to develop a scientific invention which is still at the prototype stage, until they get exclusive propriety right over such inventions against their competitors. This fact encourages many academic inventors to patent their inventions so that they can attract industrial investment to convert your prototype inventions into commercially developed products and application.

In countries like the U.S. and Europe, legislative reforms took place to cater to the need of industry-academia partnership and to develop innovative products by transferring inventions from universities to organizations. One of the landmark legislation was the Bayh Dole Act – 1980 (BDA – 1980) in the U.S., that was later emulated by many European and other advanced nations to stimulate patenting by universities. Despite these efforts, still, there are questions hovering around the minds of academic scientists like: Why is it important for academic scientists to patent their research? What broad social objectives are fulfilled by patents in the modern era? Are private gains from patents more prominent than social good?

In India, more than half of academic scientists are either ignorant/unaware or are against the idea of academic patenting. This article brings forward the arguments from the two sides i.e. proponents and opponents of academic patents, to objectively analyze each side to let the researchers take an informed decision regarding whether to file or not to file for patent protection for their invention.

Opponents of academic patenting

Many researchers and experts have expressed their concerns over the issue of: Impact of patenting on university’s traditional mission of knowledge dissemination, on the direction of research that is applied or basic research, and on the diffusion of and access to public-funded research results. The opponents of academic patenting argue that the patent protection in the university system imposes a heavy social cost in terms of restricted use of technology along with monopoly prices of technology. Jim Farmer at the Georgetown University criticized academic patenting by saying that mere pumping up “patenting” and “technology transfer offices” in universities is not really about the commercialization of technology. In fact a better way of commercialization is to make tax-payers funded research results widely accessible. Nobel laureate, Sir Kenneth J. Arrow, in his analysis of scientific returns to research stressed that scientific knowledge is “non-rivalrous” in consumption as the use of that good by additional party impose no real economic cost. It implies that those policies that hinder access to scientific discovery are placing a cost on society as a whole. In the US many experts are of the view that universities are becoming “patent- troll” – piling up patents and file suits against firms who use them without their permission.

Proponents of academic patents:

It is argued that the passage of BDA- 1980 led to increase in innovation, number of invention disclosures and patent applications from the universities in the US. Many experts are strongly towards the proposition that broad patent rights are conducive to economic progress. Patenting facilitates the technology transfer i.e. making abstract knowledge available to the general public. Moreover, it also makes universities and technology institutions, self-sufficient to fund their or to conduct basic research.

There are two significant components of the innovation process: knowledge creation and its successful application as new products or services. Inventions made in universities and research institutes must be turned into successful products for offering to consumers. Thus, there is a need for technology to be transferred to organizations with implementation power, capacity, manufacturing ability, technology, adequate marketing experience, and global presence to extend the sales beyond domestic boundaries. Prof. Rebecca S. Eisenberg, the Robert and Barbara Luciano Professor of Law at the University of Michigan Law School argued in her research paper that “inventions” out of public money serve no economic purpose unless and until they are developed to a point where they are commercial. Only companies have the capability to undertake such developments and they will not get involved in the commercialization unless they have proprietary rights. Among many others who supported this view, two researchers i.e. Prof. Richard Jenson, Gilbert F. Schaefer Professor at the University of Notre Dame and Prof. Marie Thursby, Regents’ Professor Emeritus at the Georgia Institute of Technology showed through their joint research paper that university inventions are embryonic in nature and need inventor’s cooperation in the commercialization process.

It is strongly recommended that universities should be encouraged not only to disclose inventions with commercial potential but also be involved in the process when the license is executed. The university that improves its research system creates local innovation, by attracting local R&D and augmenting its productivity. It is clear that had the universities in the US taken no steps at all and continued to abide by the old tradition of open publication, the scientific fields would have been left open for “vultures” to descend upon university labs in search of free and useful knowledge which could be patented for their own financial benefits.

DISCLAIMER : Views expressed above are the author’s own.

via TOI Blog

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