favor of granting exclusive rights on these research tools, even publicly-funded research tools, to encourage their further development and commercialization. Indeed, this was in large part the intuition underlying the enactment of the Bayh-Dole Act, which allows federal grant recipients to take title to patents arising from taxpayer-funded research.
Consequently, we do not want to categorically commit research tools to the public domain. Rather, it would be preferable to create a mediated semicommons where such resources are subject to context-specific access and exclusivity. Unfortunately, traditional policy levers such as legislation, judge-made common law, and regulation have proven inadequate in this regard. In large part, these instruments are too blunt and cumbersome to facilitate mediated access to research resources on a case-by-case basis.
However, where the law fails to provide for optimal resource management, interested parties often resort to private ordering. We see this in the real property context where communal management of environmental resources, such as fisheries, has proven highly efficient. We also see this in the intellectual property context. In the copyright sphere, for example, collective-rights organizations such as ASCAP and BMI have created pools of licenses that allow interested parties to access performance rights for proprietary musical works.
In the technology sector, private ordering has taken the form of massive cross-licensing and patent pools in patent-intensive industries, such as software and telecommunications. In addition, we see similar attempts to use private law mechanisms to enhance access to protected content in the emergence of open-source licensing, such as the General Public License for software and Creative Commons licenses for a variety of copyrighted works. In all of these contexts, norms and contracts are driving enhanced access to proprietary material. Furthermore, “private ordering” is not simply the domain of private institutions; public institutions are also fruitfully engaged in private regulation. This is particularly apparent in the life sciences sector, a field in which public institutions enjoy enormous leverage.
Take, for example, the National Institutes of Health (NIH), which provides about $30 billion per year in funds for biomedical research. As noted, under the Bayh-Dole Act, federal grantees can take title to patents arising from taxpayer-financed research. Some have criticized this law as providing a “double subsidy” to grantees, who receive both taxpayer funds as well as patent rights. That being said, these public funds come with certain strings and expectations attached.
Along these lines, in 1999, NIH issued principles and guidelines for obtaining and disseminating NIH-funded biological resources. There are two principles in particular that I think are very relevant. First, the NIH guidelines advocated the wide availability of NIH-funded, grantee-patented research tools for noncommercial uses. At the same time, however, these guidelines allowed for targeted exclusivity of such resources for commercial development. While the Bayh-Dole Act complicates and arguably prohibits direct enforcement of these guidelines, NIH considers compliance with its principles and guidelines in reviewing grant proposals and awarding research funds.
The model that arises is one where NIH provides some sort of consideration, in this case money, to a downstream resource developer, and in return that downstream developer is expected to provide qualified access to proprietary resources for research purposes. That access applies not only to NIH scientists, but extends on behalf of NIH to the wider research community as well.
Of course, NIH is not the only game in town. I teach in California, and there the California Institute for Regenerative Medicine (CIRM) will provide about $3 billion over