inventions to research-sponsoring agencies. In a progressive step, the data depository developed by NIH, iEdison, was made available to other agencies as a central depository for such data. However, GAO has found that institutional reporting is often incomplete and inaccurate, although the most recent review of the database occurred in 2003. Moreover, federal officials, who by regulation are the only parties allowed access to the data, are restricted to data or research supported by their agencies. These circumstances mean that even once there is a functioning oversight entity, it would be seriously handicapped in carrying out its charge.

Recommendation 15: Federal research agencies should reinvigorate the requirement that institutions reliably and consistently provide data to iEdison on the utilization of federally funded inventions, including licensing agreements and efforts to obtain such utilization. Such data should be available for analysis by qualified researchers who agree not to disclose the parties to or terms of particular agreements.

As a practical matter, government officials will have limited capacity to analyze the data required to be submitted; consequently, institutions’ incentive to make sure that the data are complete is attenuated. Access should therefore not be limited to the Commerce Secretary’s agents or other federal agency officials alone. To advance general understanding and public accountability of the university technology transfer system, qualified researchers should be allowed access to the data for analysis provided that the data are not publicly identified by institution, investigator, licensee, or other affected individual or entity. It does not appear that such access is barred by the Bayh-Dole Act,138 but will likely require a change in the Commerce Department-issued regulation restricting access to the data to anyone other than a government employee without the permission of the grantee or contracting institution. This limitation, instituted to prevent disclosure of proprietary information, overshot its mark, hampering use and interpretation of the data to improve the system’s functioning, including our own review. Approved researchers have for decades had access to equally sensitive government-held data—for example, personal and business proprietary information contained in Census records—without a serious breach of the non-disclosure conditions.

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The Bayh-Dole Act in 35 U.S.C. Sec. 202(C)(5)(2009) protecting from disclosure information from grantees and contractors tracks closely the language of the Freedom of Information Act (FOIA), 5 U.S.C. (b)(3) and (4), which the Supreme Court has ruled did not remove an agency’s discretion to disclose information especially in de-identified form. Chrysler v. Brown, 441 U.S. 281 (1979). Further, case law suggest that information that is exempted from disclosure under FOIA exemption 4 and that therefore is governed by the Trade Secrets Act can be disclosed if release would not (1) damage the competitive position of the entity from which the information was obtained or (2) impair the agency’s ability to collect the information in the future. Access to iEdison data by qualified researchers agreeing not to release information identifying a university, firm, or individual is not likely to have either of these effects.



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