time and resources expended on, or potential conflicts of interest created by, seeking commercial applications divert faculty from their core mission of conducting curiosity-driven “fundamental” research? Does the potential of financial sponsorship and compensation influence research results or decisions about which results are made public and in what time frame? Does overemphasis on exclusive licensing result in higher costs or diminished access to products for consumers (a concern that is especially pertinent to the fields of drug development and clinical diagnostics) or to research materials for other academic scientists? Are institutions misusing or misinterpreting the Bayh-Dole Act in an attempt to increase revenues and protect their own investments in infrastructure and personnel?

Some critics have remarked on the privatization of the scientific commons associated with aggressive university commercialization efforts. These concerns center on whether the norm of open science that has traditionally dominated academic research would be threatened by restrictions on or delays of publication and limits on access to discoveries, data, instruments, tools, and other research inputs. Some assert “Bayh-Dole contributed to the creation of an ‘anti-commons’ by establishing incentives for universities to develop independent technology transfer programs and to manage IP in a highly individualized and even competitive framework.”52

Researchers have tended to examine each of these propositions independently. A few have acknowledged that one of the difficulties is disentangling the effects of the acquisition and exercise of IP rights from other trends that may be influencing faculty and institutional behavior in the same direction—in particular, the intensification of reputational competition among research scientists. Cohen and Walsh have written, for example, that even before Bayh-Dole, “there was an earlier concern over the extent to which the drive for recognition among scientists and competition for priority and associated rewards also limited contributions to the scientific commons.”53 In their survey of biomedical researchers, they found that “excludability” can be a real concern with regards to materials, but patent protection per se is rarely used as a means of exclusion. Indeed, patenting requires disclosures, even if delayed.

Mowery, R.R. Nelson, B.N. Sampat, and A.A. Ziedonis. 2004. Ivory Tower and Industrial Innovation: University-Industry Technology Transfer Before and After the Bayh-Dole Act. Palo Alto, CA: Stanford University Press; R.R. Nelson. 2004. The market economy and the scientific commons. Research Policy 33:455-471; D. Bok. 2003. Universities in the Marketplace: The Commercialization of Higher Education. Princeton NJ: Princeton University Press; J. Washburn. 2005. University, Inc.: The Corporate Corruption of Higher Education. New York: Basic Books; E. Press and J. Washburn. 2000. The Kept University. The Atlantic Monthly 285(3):39-54.

52

S. Boettiger and A.B. Bennett. 2006. Bayh-Dole: If we knew then what we know now. Nature Biotechnology 24(3):320-323.

53

W.M. Cohen and J.P. Walsh. 2008. Real impediments to academic biomedical research. Innovation policy and the economy. National Bureau of Economic Research 8:1-30. P. 1.



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