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[Gerald, “Inventors would own more, were it not for noncompliant Bayh-Dole practice,” Research Enterprise, 3/10/23, https://researchenterprise.org/2023/03/10/inventors-would-own-more-were-it-not-for-noncompliant-bayh-dole-practice/, accessed 7/17/24, GDI-JCR]

University ownership and assertion of patent rights drives apart academic collaborators. Why help out that research at university X when all the new things end up owned by X? It’s even worse for company interactions. Some companies tell their scientists not to read the academic literature–doing so just poisons their well, setting up a claim of willful infringement if the company scientists happen to use something that appears in a publication but which the university–without any notice–has gone off and obtained a patent on. In one case, a major Bay Area company pulled its financial support from a university’s school of engineering. “Why are you pulling out?” the dean complained. “Well you just designated our main competitor as your preferred company partner–why shouldn’t we pull out?” Pipelining IP to just one company is a sure way to turn all the others in the same field against you, or at least have them be wary. If they aren’t wary, that’s a good sign that they don’t think your research is worth a bean and they are involved only to compete from rescuing the best and the brightest from your swamp. But no one talks much about whether university research is relevant to anything technical, let alone innovative, that might be of value to companies or professionals. A few studies, such as those by Stanford’s John Ioannidis, argue that most academic clinical studies are flawed, and even when they are not flawed, they are mostly not clinically useful. That’s a big elephant for this room, too. University ownership of inventions and patents, tied to a default practice of offering (or at least hoping to offer) exclusive licenses creates a stand-off with the company world and a strange relationship with other research organizations. Look at CRISPR–a multi-million dollar battle between UC and MIT over patent rights. What a waste–more like gangs fighting for territory than an effort to create a platform for, er, broad use.

[Christos and Merle, “University ownership and information about the entrepreneurial opportunity in commercialisation: a systematic review and realist synthesis of the literature,” The Journal of Technology Transfer volume 46, 01/04/2020, p. 1487–1513, Springer, accessed 07/17/2024, BKM GDI]

Going back to the 1980s a new consensus emerged within policy and research communities: namely that publicly funded research at universities can stimulate innovation and economic growth (for a review see Mowery et al. 2004). This, in turn, led to a radical review of the role of universities in society and prompted the introduction of a set of policy reforms aimed at facilitating the exploitation of the research outcomes generated by academics. Foremost amongst these was the Bayh–Dole Act (variants of which were subsequently adopted across most developed countries) that conferred to universities ownership of the outcomes of academic research, replacing legislation that (1) made them widely available to the public through dedication to the public domain (more recently revived in the form of commons type of solutions) or (2) inventor ownership. Both of these were viewed as sub-optimal, arguably, resulting in the under-exploitation of large numbers of patents on account of insecurity regarding their ownership (Mowery et al. 2004). The new arrangements were believed to provide the appropriate incentive structure for universities to ‘harvest’ research outcomes produced by academics, invest in commercialisation, and act as engines of innovative activity (Colyvas et al. 2002; Siegel et al. 2003). Inherently positivist theoretical models developed in the mid-2000s, discussed in more detail in the following section, provided an ex-post justifcation for the new property rights regime. These contend that the attainment of a critical mass of protected research outcomes is important in allowing universities to bear the cost of accessing information about the entrepreneurial opportunity and to invest in acquiring the expertise, embodied in technology transfer ofcers (hereafter TTOs), needed for commercialisation (Hoppe and Ozdenoren 2005; Hellmann 2005). However, to date research revolving around information regarding the entrepreneurial opportunity has remained in the shadows. This is because the commercialisation of university IP is viewed fundamentally as a challenge of mobilising new technical information (the term is used interchangeably with that of the research outcome) produced through academic research (Baldini 2009; Wu et al. 2015; Halilem et al. 2017; Kalantaridis 2019). We believe that there is merit in bringing the disparate body of research on information regarding the entrepreneurial opportunity together through the conduct of systematic review of the literature as a new wave of scepticism about the efectiveness of the now dominant property rights regime emerges. This is because, despite considerable success in mobilising research outcomes—manifested in a profound growth in the number of disclosures and patents granted (Siegel et al. 2007; Lemley 2008; Siegel and Wright 2015), returns to university commercialisation, viewed here as a proxy for the value of the innovations introduced, remain modest (Abrams et al. 2009; Swamidass and Vulasa 2009; Valdivia 2013). Thus, ‘only about 5% of patents are licensed at most universities … [t]he rest are a drain on office resources … because of required maintenance and legal fees’ (Ledford 2013, 472). This constitutes a potentially sub-optimal situation, one of under-exploitation of patents that impact adversely on economic growth, not greatly dissimilar to that that prompted the introduction of reform in property rights through the Bayh–Dole Act. It also relates to current debates about the evolving contribution of universities, the recipients of public funding for the purposes of research, in society (Maassen et al. 2019).

[Christopher J. Jr., et al. "The Hidden Cost of University Patents." Berkeley Business Law Journal, vol. 21, no. 1, 2024, pp. 203-249. HeinOnline -tm]

Most university patents never make it to market for public consumption, and many university-produced and university-held patents have no real practical application that would make them commercially successful. 65 Recent estimates peg commercially-licensed patents around 5 percent of the typical university patent portfolio.66 If this is true, the American university patent portfolio is wildly under-commercialized and presents an opportunity for universities to pursue other strategies to extract profit from their patents that lack value.

[John E., III, 2013 Volume 38, Journal Technology Transfer, “Redeploying Bayh-Dole: beyond Merely doing good to optimizing the potential in results of taxpayer-funded research”, Springer - DOI 10.1007/s10961-011-9231-x, accessed on 7-16-2024, GDI-ALG]

Conclusions that university technology transfer efforts are not optimizing potential have been attacked as flawed and misguided because there is no supporting data. In other words, because there are no definitive statements of potential, there can be no way to determine whether that potential is being achieved or not. It therefore follows, the argument continues, that criticisms grounded in pursuing potential lack merit and the status quo should be complacently maintained. Stated differently, the attack argues that barriers to doing better and impediments to advancing economic growth and human welfare should be sustained because an ideal or even improved state cannot be objectively declared or realized with certainty.

[Gerald, “Inventors would own more, were it not for noncompliant Bayh-Dole practice,” Research Enterprise, 3/10/23, https://researchenterprise.org/2023/03/10/inventors-would-own-more-were-it-not-for-noncompliant-bayh-dole-practice/, accessed 7/17/24, GDI-JCR]

No one asks whether all the tech transfer effort has resulted in timely practical application–use with benefits available to the public on reasonable (competitive) terms. No one asks whether product improvement and applications in various fields have taken place in a reasonable (competitive) time. No–companies with patent monopolies seem to wait a decade or more before working on the roll out of some new patented improvement to replace the expiring patent bits still left in a once-new product. No one asks whether supply meets public needs. Dates of first commercial sale or use. Nope. Is the pricing of product reasonable? Nope. Is the university properly using income earned with respect to subject inventions? Nope. Has a university flowed down the nonprofit patent rights clause (with its restrictions on the use of income earned) in exclusive licenses that grant all substantial rights in a subject invention? Nope. No one advises universities to get these things right. No one even audits university reports of subject invention utilization to see that they are even accurate and backed by documentation.

[Gerald, “Inventors would own more, were it not for noncompliant Bayh-Dole practice,” Research Enterprise, 3/10/23, https://researchenterprise.org/2023/03/10/inventors-would-own-more-were-it-not-for-noncompliant-bayh-dole-practice/, accessed 7/17/24, GDI-JCR]

In my over 20 years in tech transfer, inventions of any use don’t go “into a black hole” if a university fails to demand ownership. Sure, they may not get used–but 95% of patented inventions don’t get used anyway. One should not have a shocked face. But even in this context, the university demand to own everything is an even bigger, blacker black hole.

[Patricia E., “University Inventions Reconsidered: Debunking the Myth of University Ownership,” 11 WM. & MARY BUS. L. REV. 77 November 2019 acc. 7-17, GDI-LI]

The great majority of IP policies reviewed for this Article affirmatively state that the university "owns" all intellectual property created by members of the university community, at least to the extent that the IP was created in the course of employment or with the use of university resources. 28 Many of these policies then include an irrevocable assignment by the inventor to the university of all right, title, and interest in inventions that he or she may create. 29 For example, the Intellectual Property Policy of the University of Texas System states that "the Board of Regents automatically owns the intellectual property created by individuals subject to this Rule."3 0 Similarly, Rice University's policy states, "[r]ights to inventions developed by members of the University shall vest in the University when there was support of the inventor(s) efforts through use of University funds, facilities, personnel or other resources. "31 However, Columbia University's policy is something of an anomaly. Its introductory comments stress the need for balance between faculty privilege and university rights and needs with respect to inventions and associated technology, and it further states that "faculty members must take the ultimate moral responsibility for the development and commercial exploitation of the fruits of their intellectual activities." 32 Ultimately, however, Columbia lays claim, "as it may fairly and rightly do," to the commercial rights in inventions resulting from use of its facilities or from activities of faculty members engaged in university service.33

[Patricia E., “University Inventions Reconsidered: Debunking the Myth of University Ownership,” 11 WM. & MARY BUS. L. REV. 77 November 2019 acc. 7-17, GDI-LI]

I have observed that many members of the university community, as well as outside commentators, assume that universities have always claimed title to inventions created by their employees and students.62 Others believe that university ownership of inventions came about due to the passage of the Bayh-Dole Act in 1980.63 However, a review of the history of technology transfer reveals that neither assumption is accurate.64 University technology transfer practices evolved gradually over the course of the last 100 years, often in response to economic conditions that forced universities to look for alternative sources of funding.65 Well before 1980, universities were routinely claiming ownership of faculty and staff inventions and engaged in efforts to commercialize them.66 As the following history shows, Bayh-Dole merely provided a final justification for the model and an opportunity to expand it even further.67

[Thorsten, Albert, “The Globalization of the Bayh-Dole Act,” Annals of Science and Technology Policy 5.1, GDI-JCR]

As the title of this monograph suggests, the Bayh–Dole Act has been embraced (i.e., imitated) globally. This apparent influence of the Act raises questions about how one should view the Act. Specifically: Was the Bayh–Dole Act simply a timely piece of legislation that serendipitously captured global attention at a time when productivity growth was slowing down in many industrialized nations? Or: Was the Act something else? Did the Bayh–Dole Act represent a new way of viewing technology policy—that is, a new lens through which to view technology policy— within the United States and in other countries?9 Leyden and Link (2015) and Hayter et al. (2019) have offered such a new lens through which to view not only the Bayh–Dole Act of 1980 but also the other technology policies that were promulgated in the United States in the early 1980s. Perhaps this public sector entrepreneurship lens has a broader appeal to understanding the adoption of technology policy initiatives than simply saying that a country imitated a particular U.S. technology policy initiative.10 Many scholars have offered definitions about who an entrepreneur is and what he/she does. Accordingly, a so-called entrepreneurial lens merits a definition, from a public sector perspective, of what makes such a lens or perspective entrepreneurial.11 Leyden and Link (2015, p. 46) define the concept of public sector entrepreneurship in the following way:12 Public sector entrepreneurship . . .refers to innovative public policy initiatives that generate greater economic prosperity by transforming a status quo economic environment into one that is more conducive to economic units engaging in creative activities in the face of uncertainty. Leyden and Link (2015) go on to make a case that the passage of the Bayh–Dole Act is an example of public sector entrepreneurship.13 The Act redirects property rights that brings about the transfer of existing knowledge from a university to the private sector for commercial exploitation. Hayter et al. (2019) elaborate on the fact that the Bayh–Dole Act is an example of public sector entrepreneurship by characterizing the Act through various entrepreneurial dimensions as we have summarized in Table 1.1. One aspect of the Leyden and Link (2015) definition of the concept of public sector entrepreneurship as a lens through which to view public policies to be emphasized in the case of the Bayh–Dole Act is their phrase “engaging in creative activities in the face of uncertainty.” As shown in Table 1.2, data from the European Commission show that, even at the time of the publication of these data in 2017, many universities infrequently collaborate with industry in the commercialization of their R&D results, where collaboration refers to licensing activity or patenting activity. As will be discussed below, Spain was the first country to adopt a Bayh–Dole like university technology policy, and that occurred in 1983. As of the European Commission’s (2017) publication, 83.1 percent of the Spanish academic and higher education institution (HEI) representatives surveyed by the Commission responded that they have no [our emphasis] such collaboration with industry. Austria, at the other end of the distribution with the highest collaboration rate among the countries surveyed, is characterized by 48.4 percent of the respondents having no licensing or patenting activity collaboration with industry. Austria adopted a Bayh–Dole like university technology policy in 2007, as we will also discuss below. There is, of course, a market for licensable or patentable technology from a university.14 Table 1.2 describes participation in this market from the perspective of the university. Table 1.3 presents, to the best of our knowledge, a complete list of countries that have adopted Bayh–Dole like university technology transfer legislation. The data in the table approximate, or so we contend, participation in this market from the perspective of the firm. In the table are the percentage of firms that cooperate in innovation (a concept that UNESCO, 2015 did not clearly define) with universities and HEI as well as with government or public research institutes. Across the countries listed, the mean percentage of firms that cooperate with universities and HEIs is 15.3, the mean percentage of firms that cooperate with government or public research institutes is 13.9. As a final across-country example of the “uncertainty” (a public sector entrepreneurship characteristic; see Table 1.1) about the effectiveness of Bayh–Dole like legislation, consider the data in Table 1.4. Across countries, universities, HEIs, or government or public research institutes are not noted to be “highly important” sources of information for firms. The legislators in the countries listed in Tables 1.3 and 1.4 must have perceived or recognized an opportunity for “transforming a status quo economic environment” (see Table 1.1) as evidenced by the passage of Bayh–Dole like legislation in the face of uncertainty. Perhaps the most frequently asked question about the Bayh–Dole Act has been: How did the Bayh–Dole Act affect university patenting? Many scholars have carefully investigated this question—and it is indeed an important question in the relevant academic research literature from a policy evaluation perspective—as evidenced through the application of various econometric models by various researchers from different disciplines. Specifically, scholars have estimated time series of patent application data either at a specific university, or among selected universities, or in the aggregate using a dichotomous variable to define the year when the Bayh–Dole Act became active (either in 1980 or in 1981 to account for a lag). Drawing on individual publications as well as on the excellent syntheses of this literature by, among others, Berman (2008, 2012) and Grimaldi et al. (2011), the empirical evidence about the patenting effect of the Bayh–Dole Act remains mixed. Few scholars doubt that after the passage of the Bayh–Dole Act, university patenting increased, and it increased substantially at some universities, but many scholars also note that there were other events occurring just before and just after the passage of the Act that are also covariates with an increase in university patenting. We have summarized a portion of this important body of literature in Appendix A to provide background context for the remaining sections in this monograph.15 The most recent, and perhaps a more salient, argument about the economic impact of the Bayh–Dole Act has been offered by Link and van Hasselt (2019).16 They argue, and they show empirically, that the Bayh– Dole Act had a measurable impact on universities forming and opening technology transfer offices (TTOs), which are a prerequisite infrastructure for university in-house patent applications. More specifically, Link and van Hasselt (2019, p. 478) conclude: Whereas the literature has focused on university patenting activity as the relevant metric for assessing the technology impact of the Act, we suggest that the establishment date of TTOs relative to the passage of the Act is also an appropriate metric, and in fact it might be a more appropriate one. Our argument is that formal university patenting generally begins after the establishment of a TTO. . . . [Our empirical findings give] support for the argument that the Act provided an incentive for universities to establish a TTO and thus to position themselves for formally transferring faculty inventions through patent licensing. Perhaps the effect of the Bayh–Dole Act on the institutionalization of university research is what was meant in The Economist article by the statement:17 “More than anything, this single policy measure [known as the Bayh–Dole Act] helped to reverse American’s precipitous slide into industrial irrelevance.” We suggest that one would be hard pressed to argue against the point of view that the establishment of TTO infrastructure at U.S. universities did transform a status quo academic as well as economic environment into one that is more conducive for dealing with the uncertainty of research and that transformation can eventually lead to economic growth and social wellbeing. Our thesis in this monograph is that, in addition to the formation of university technology transfer offices and the university patent applications that followed, an overlooked metric associated with the Bayh–Dole Act is its effect on influencing university-based technology transfer policies in other countries; we refer to this phenomenon by the phrase The Globalization of the Bayh–Dole Act (which is also the title of this monograph).18 To substantiate this thesis, we review related university technology transfer policies in 20 other countries in Section 2 of this monograph. Of course, the scope of these related policies varies from country to country, but one cannot help but notice that there are seeds from the Bayh–Dole Act present in all of them. We discuss these country policies below in chronological order based on the year of the initiating legislation. We conclude this monograph in Section 3 with summary remarks and suggestions for future policy related research. Our attempted tone throughout this monograph is descriptive, that is we have attempted to report in a non-assessing or non-evaluative manner the pattern of globalization of the Bayh–Dole Act.19 However, we do note in Section 3 some correlative patterns. We do so to help to motivate our proffered research agenda.

[Gerald, “How Bayh-Dole failed to protect faculty inventors (from university administrators),” Research Enterprise, 09/28/15, https://researchenterprise.org/2015/09/28/how-bayh-dole-failed-to-protect-faculty-inventors-from-university-administrators/, accessed 7/17/24, GDI-JCR]

There is no going back. The lost city is lost. But there is going forward, and not in the direction suggested by present policy and practice. We can open up faculty discovery and invention. Freedom to innovate will look like administrative disorder rather than protection of inventor rights. Freedom to innovate will appear to allow mistakes and missteps–and it will. Freedom to innovate will appear to leave things “sitting”–and it will, but those things will be free things. Freedom to innovate also greatly reduces university costs, administrative overhead, institutional conflicts of interest, institutional liability, and public dissonance over the role of the university. The university need not play the huckster, nor monopolist, nor speculator, nor bully to industry, nor play favorites, nor be process-bound, nor appear the untrustworthy self-promoter, nor get caught in bed with sketchy business partners.

[Shashwat, Krishnamurthy, “Does Strengthening the Property Rights of Employee-Inventors Spur Innovation? Empirical Evidence on Freedom-to-Create Laws Passed by US States,” Journal of Law and Economics 66, GDI-JCR]

Overall, these results lead us to infer that pathbreaking, albeit riskier, innovation increased following a change in law. Our tests also help mitigate the concern that a change may not increase innovation activity per se but result in an increase in patenting activity if firms file patents mainly to increase the hurdles for their employees to pursue their inventions after leaving. Such strategic behavior by firms also implies an increase in patents, albeit of inferior quality. Given our findings showing an increase in the quality of innovation, the aggregate effects we document are unlikely to be explained by an increase in strategic patenting by firms. To explore the underlying mechanisms, we study the effects on firm-specific versus generic innovation. Recall that we find an increase in both explorative and exploitative patents. As exploitative patents build on a firm's preexisting innovation, they are more likely to represent firm-specific innovation. In contrast, explorative innovation does not build on preexisting innovation by a firm and is likely to be generic or pathbreaking. Prior research documents that novel and explorative innovation is more likely to be pursued outside the boundaries of incumbent firms (Acemoglu and Cao 2015; Bernstein 2015; Akcigit and Kerr 2018). Even when explorative innovation is pursued inside the boundaries of an incumbent firm, it is more likely to be pathbreaking innovation that resulted from generic innovation. Admittedly, exploitative innovation does not correlate perfectly with firm-specific innovation, nor does explorative innovation correlate well with generic or pathbreaking innovation. However, the increase in both explorative and exploitative innovation suggests an increase in both generic and firm-specific innovation.4 To cleanly investigate if a change in law led to innovation within and/or outside the boundaries of the incumbent firms, we examine the effect on patenting activity by incumbent and new innovator firms, defined as those filing patents for the first time. The rate of increase in patents by both new firms and incumbent firms is the same at 18 percent. To cleanly distinguish firm-specific innovations from generic innovations, we define blue-sky innovation as patents attributed to firms that file a patent for the first time and to employees who either were employed at another firm (not the firm filing the patent) or filed a patent shortly after leaving an employer. The idea underlying this measure is to capture innovations by employee-inventors that were clearly pursued outside the boundaries of their existing employers and are thus likely to be generic. We find a 22 percent increase in blue-sky innovation by new firms. Furthermore, the effect manifests only for first-time innovators and not for existing firms. We conclude that these results collectively support the thesis that the change in law led to an increase in both firm-specific and generic innovation.5 Overall, our study provides evidence supporting the idea that in an environment where firms have more power to hold up their employees than employees have to leverage, firm-level innovation can be fostered by allocating property rights over innovations to employees. Our study supports the arguments of some legal scholars that the policy of employers' ownership of most innovations drains individual creativity and stifles employees' will to innovate (Bartow 1996; Phillips 1981). As described above, a large body of theoretical literature studies the optimal allocation of property rights in traditional settings (Grossman and Hart 1986; Hart and Moore 1990; Hart 1995) and innovative environments (Aghion and Tirole 1994). However, to the best of our knowledge, ours is the first empirical paper to study the causal impact of the allocation of property rights to innovation between firms and their employees

[Martin, Donald, “Reconsidering the Bayh-Dole Act and the Current University Invention Ownership Model,” Research Policy 38, GDI-JCR]

The inventor ownership model decentralizes the invention dissemination decision to those closest to the knowledge creation process and to the one most likely to have the best information. This model already exists as a default practiced in cases in which universities decline to exploit the invention and the inventor petitions the federal sponsor for the rights (Chew, 1992).30 If inventors owned the rights, then they could choose to use the university TLO or any other organization to commercialize the technology, commercialize the technology themselves, or place the invention in the public domain. In an inventor-ownership model, they would be the principals, and they could secure an agent. There are benefits beyond efficiency. In fields such as computer science software inventors often wish to place their programs into the public domain, but many TLOs demand that these programs be protected and licensed. In the inventor ownership model, the inventor would make the decision unfettered by institutional constraints. An inventor ownership model would relieve researchers of the affirmative obligation to assist in the patenting of inventions made in their laboratory, and to assist the university in prosecuting patents. Inventions could be dedicated to the public without violating employment contracts. This is important because often, a public domain arrangement would best serve the public good by rapidly diffusing the technology. Beyond the efficiencies, the institution of an inventor-owned patent model would remove the temptation to judge faculty members based on the financial return they can provide the university. Transferring the property rights to the inventor raises normative questions regarding the propriety of allowing individuals to capture the entire benefit from inventions developed with public monies in the social space of the university commons. This could be addressed through employment contracts providing that the university receive a tithe from its inventors of, for illustration purposes, five percent of the equity or licensing proceeds of any invention university researchers make in their fields of expertise. The tithe should be sufficiently small so as not to discourage inventor commercialization. This pre-arrangement would shrink the burgeoning graymarket vexing the currentmodel. Addressing normative issues is not precluded in an inventor ownership model. Inventor ownership is not a panacea, but it would not worsen existing problems. In cases in which an invention has multiple inventors, regardless of the ownership model, priority and ownership must be determined. One argument for TLO ownership is that, if there are multiple inventions with multiple and differing authors, the TLO as the owner can aggregate these inventions. This becomes more difficult in the inventor ownership scenario, as there is no central “sovereign.” Whether a TLO can do this aggregation more effectively than the parties or, if necessary, the civil courts, is not clear. If the TLO decides unfavorably to certain claimants, the decision is likely to be challenged in the courts. If inventors are at separate institutions, the ownership determination process will be more complicated since not only the inventors, but also their respective TLOs, are involved. Given the greater number of parties with interests involved, arriving at a settlement is likely to be more difficult. The university administration’s role in an inventor ownership model would change in that it would not be responsible for technology licensing. It would return to its earlier and more important charge—ensuring that faculty members discharge their institutional duties. Inventor ownership might result in the exploitation of students, but there is no evident reason that this exploitation would be more prevalent than it is today—and the administration would not have the appearance of conflicts of interest. If such problems were a concern, then faculty members could be required to report efforts to exploit university-related (or even all) inventions they were commercializing. This would create greater transparency. Inventor ownership should not generate serious new problems, while alleviating some of the current difficulties and inefficiencies. Another valid concern regarding the inventor ownership model is whether it would be more likely to stifle the flow of information and materials. There is no definitive answer to this concern, but our suspicion is that faculty inventors may be more sensitive to pressure from their peers than TLOs may be. Nonetheless, if university researchers have their own firm staffed with professional managers, their willingness to provide information and materials is likely to be reduced—but this would also be true if the professor has a firm licensing university technology. No model can eliminate all of the tensions that, almost by definition, exist when an invention is transferred from the non-profit world of the university to the for-profit world of business. The inventor ownership model would remove research commercialization from the control and mission of the university administration and would decentralize it to the inventors. We have shown the efficiency reasons for such a model and have argued that in terms of the speed and effectiveness of technology transfer the inventor ownership model would result in superior outcomes. In terms of information and material flow and good governance within the university, there is little reason for inventor ownership to be socially inferior.

[Andrew, “Why do some people call climate change an “existential threat”?,” 11-7-23, Climate Portal, https://climate.mit.edu/ask-mit/why-do-some-people-call-climate-change-existential-threat#:~:text=Climate%20change%20could%20worsen%20worrying,threaten%20freshwater%20supplies%2C%20for%20example, Acc. 7-15-24, GDI – AG]

In recent years, not only climate scientists but also major world leaders—including the U.S. Secretary of Defense, major American presidential candidates, and the United Nations secretary general—have labeled climate change an “existential threat.” But what does an “existential threat” really mean, and why are so many people in positions of responsibility now echoing this phrase? Kieran Setiya, an MIT professor of philosophy who co-teaches a course on the ethics of climate change, offers a basic and a more nuanced definition. First: In the worst-case scenarios in scientists’ climate models, human-caused climate change is a threat to the continued existence of many species and to human society as we know it. If humans do nothing to slow climate change, then global temperatures may increase by 4.5 degrees Celsius or more by the year 2100.1 This may not sound like much, Setiya says, but “it is quite cataclysmic.” Earth has not been that warm in millions of years, and such temperature spikes in our planet’s history are connected to mass extinction events that killed off a large percentage of species that existed at the time.2 That more literal-minded reading of the phrase “existential threat” may not be the best reflection of the risks of climate change, however. “Even under our most dire predictions, human society is still around,” says Adam Schlosser, the Deputy Director of the MIT Joint Program on the Science and Policy of Global Change and a climate scientist who studies future climate change and its impact on human societies. “I do not personally view this as an extinction issue. But there are going to be unavoidable consequences, and disasters especially for coastal communities, coastal cities, and island nations.” Which brings us to Setiya’s second definition of an “existential threat.” Even if humanity does reduce greenhouse gas emissions enough to stave off the worst effects of climate change—and learn to adapt to some warming that is already inevitable—Setiya says that climate change still threatens to eradicate a host of human cultures, traditions, and languages. One example he gives is the Inuit peoples who are indigenous to Arctic regions, and whose cold-weather culture is under threat as the amount of ice in polar regions continues to decline. Residents of low-lying islands face an immediate, existential threat to their cultures as rising sea levels could submerge their homelands. “Their entire way of life is going to be changed,” Setiya says. “And that is going to happen whether or not we get close to the kinds of temperature changes that threaten human extinction. Ways of life that have been stable for hundreds of years or longer will start collapsing.” To a philosopher like Setiya, the term “existential” has another meaning. It refers to big questions about the meaning of life or humanity’s place in the cosmos, which are often the domain of religion and spirituality. “There's a kind of emotional reaction people have when they think about the totality of human history and our place in our little corner of the universe,” he says. “And I think that sense is brought into play in a disturbing way by climate change.” Already today, human-caused climate change has changed our relationship with the planet we live and depend on, which Setiya says will forever alter the way we feel about human existence. How the human species responds to this crisis, Setiya says, will not only guide our future but also reveal much about our nature. Climate change could worsen worrying trends such as anti-democracy uprisings and migrant crises as people flee areas that are increasingly hit by natural disasters that will be exacerbated by climate change—rising sea levels, more frequent powerful hurricanes, and droughts that threaten freshwater supplies, for example. “The question of what happens to the human species,” he says, “is, do we make progress toward a more just and egalitarian future? Or do we end up descending into conflict and sectarianism and nationalism? That is at stake in our reaction to climate change. At stake, in turn, is how we should feel about our own existence as a species. The answer depends very much on whether we respond to crises like this with grace and compassion and justice, or not.”

[Addison S. "No Need to Reinvent the Wheel: The Positive Relationship between Green Technology and Patent Enforcement." Villanova Environmental Law Journal, vol. 35, no. 1, 2024, pp. 125-152. HeinOnline. 7/16-ACC]

I. NECESSITY, MOTHER OF INVENTION: THE ISSUE OF CLIMATE CHANGE AND THE CRUCIAL ROLE OF TECHNOLOGY TO CONFRONT IT The climate change phenomenon presents an enormous chal- lenge to human civilization.1 Within Earth's biosphere, carbon emissions threaten the health of the natural ecosystems upon which societies rely.2 Abrupt changes to ecological systems, impacts on biodiversity, and disruptions to food production are all serious mal- adies that trace their roots back to the changing climate and carbon emissions.3 Climate change displaces populations and adversely impacts human health, infrastructure, and economic performance. 4 In 2018, Congress identified climate change as a "direct threat" to United States national security.5 Moreover, from a sociopolitical standpoint, researchers have observed an association between the threat of climate change and increased authoritarian tendencies among populations. 6 While many factors impact climate fluctuations, human green- house gas production, namely through carbon dioxide emissions, heavily contributes to rising temperatures. 7 Greenhouse gases, such as carbon dioxide, methane, and nitrous oxide, raise the tempera- ture of the Earth's atmosphere by capturing solar energy reflected from the Earth's surface and emitting it as heat.8 The concentration of atmospheric carbon dioxide has risen by more than forty percent since the Industrial Revolution - over half of which has accumulated since 1970.9 Given humanity's continued reliance on fossil fuel energy and other activities that produce greenhouse gasses, the continued warming of the Earth can be projected with high certainty.10 Innovation within a wide range of technological areas will be a crucial aspect of addressing climate change because of the breadth and scope of the problem." The Inter-Governmental Panel on Climate Change (IPCC) is looking in part to technological progress to help facilitate climate change mitigation and foster sustainable economic development.12 Innovations in both efficient energy production and consumption will be necessary to reduce emissions.13 The IPCC's faith in innovation appears well-founded, as global studies reveal that changes in levels of carbon emissions are predictive of a higher propensity toward green innovation in response.1 4 Moreover, researchers have demonstrated that the uptake of renewable energy technological innovations creates a "significant" reduction in carbon emissions.15 Encouragingly, on the energy production front, one report on the costs of electricity generation by source shows that renewable sources are globally becoming more cost-competitive with tradi- tional fossil fuels.16 The United States, however, continues to extract a majority of its energy consumption from fossil fuels.17 Technological innovation has historically been and continues to be crucial in transitioning to cleaner, more efficient forms of energy. 18 A system that fosters both innovation and widespread diffusion of technology will be essential to harness the environmental benefits of green technology.1 9 Such a system requires a well-functioning legal regime of intellectual property (IP) that incentivizes innovation without creating undue obstacles to technological uptake.20 IP protections are indispensable to technological advancement because they attract necessary investment and facilitate both specialization and competition.21 This specialization enables efficient use of resources, which breeds invention and ensuing innovation.22

[Adam, “Spinning Out Greentech Start-ups,” Chimia 77.12, GDI-JCR] *HEI = Higher Education Institution

The Paris Agreement provides an international framework to limit greenhouse gas emissions to contain global warming, emphasizing the role of technology development and transfer to meet such goals.[1] The incentivization of research and innovation is a key pillar of the strategy, which in turn represents a unique opportunity for job creation and economic development.[2,3]

[Jayne, "Diffusion of Green Technology: Patents, Licenses, and Incentives.", Texas Environmental Law Journal, vol. 52, no. 1, Spring 2022, pp. 40-43. HeinOnline, https://heinonline.org/HOL/P?h=hein.journals/txenvlw52&i=45, Accessed 7-18-2024, GDI-SS.]

In addition to financial gain, patents can signal value to investors and potential partners, such as government collaborators. Patent activity of new green technology startup companies increases by over 73% every time there is a collaboration with a government agency towards green technology development, compared with startups not engaged in such collaborations.1 6 When patent applications are published, entities can signal to other companies that the claimed technology is worth pursuing. Thus, recompilations of patents become "a library with the most innovative and strong information regarding the newest technologies" that "can be used by other entities in the regionalization of technologies, as, for example, technology developed in the U.K. related to solar energy that can be adapted to solar energy-fluent countries like Egypt and Libya."" For instance, WIPO GREEN stakeholders agree that the "dissemination of green technology contributes to fostering innovation"1s and that patents have an "important relationship" with green technology dissemination.19

[Christopher J. Jr., et al. "The Hidden Cost of University Patents." Berkeley Business Law Journal, vol. 21, no. 1, 2024, pp. 203-249. HeinOnline -tm]

The Bayh-Dole Act has been successful in encouraging universities to pursue patents. However, it has also carried unintended consequences. It has encouraged universities, and university researchers, to over-invest in the kind of research that is likely to produce an innovation that could yield a patent at the expense of research that does not result in the same outcome but still pushes the frontiers of innovation. Moreover, universities are not commercial entities with specialized knowledge of what kinds of patents are more valuable to actual commercial firms. As such, they continue to pursue patents for their research regardless of its commercial value. Although a few university-produced patents hold considerable commercial value, most are effectively worthless. This, of course, adds to patent thickets and makes university patents a gamble, not always a worthwhile investment.

[Gerald, “Inventors would own more, were it not for noncompliant Bayh-Dole practice,” Research Enterprise, 3/10/23, https://researchenterprise.org/2023/03/10/inventors-would-own-more-were-it-not-for-noncompliant-bayh-dole-practice/, accessed 7/17/24, GDI-JCR]

As for startups, university practice is mostly parasitic, not catalytic. Universities make inventors assign to the university and then make them beg–through proxies for “ethics” appearances–for rights back. In these cases, nothing *transferred*. The inventors know their inventions. They are not transferring anything to themselves. What they lack is a bureaucrats’ approval to practice what they have invented in any context other than at the university. Seems like a restraint of trade, or a non-compete requirement disguised as a patent policy. The university takes ownership so that it can use that ownership to demand a piece of whatever pie the startup might get, and in demanding ownership, and insisting that the startup take an exclusive license, the university makes it all that much more difficult for the startup to start.

[Scott, February 17, previously served at the U.S. Department of State, where he worked on the Paris Agreement, “In Biotech, the Industry of the Future, the U.S. Is Way Ahead of China,” LAWFARE, https://link.springer.com/content/pdf/10.1007/978-94-024-2086-9.pdf]

Biotech is such a critical area for technological competition between the U.S. and China because it is transforming fields from medicine to military power. The great advances of the 19th century, like chemical fertilizers, resulted from mastering chemistry. In the 20th century, mastery of physics led to nuclear energy—and, more ominously, nuclear weapons. In the 21st century, biology offers a similar mix of peril and promise. This was illustrated dramatically by the award of the 2020 Nobel Prize for the discovery of an enzyme system known as CRISPR-Cas9, which allows an organism’s genomes to be edited with high precision. It is a transformational breakthrough. But while CRISPR shows great promise in the development of new cures for long-untreatable diseases, it could also lead to a whole new generation of deadly bioweapons.

[Rebecca, Robert, “Universities: The Fallen Angels of Bayh-Dole?” Daedalus 147.4, GDI-JCR]

Universities have, in many cases, pursued patents that they could enforce against product-developing firms for the evident purpose of getting a piece of the action in lucrative technologies that were already being actively developed without the need for university patents. They have sometimes worn their academic halos to court, seeking to adapt patent doctrine to privilege the interests of universities over the competing interests of product-developing firms. This agenda has met with considerable skepticism from the Federal Circuit, which has sometimes explicitly questioned whether university patents are promoting or impeding commercial product development. An early sign that universities were pursuing patents that were unnecessary for commercial development was the involvement of universities in interference proceedings–administrative proceedings within the U.S. Patent and Trademark Office to determine priority of invention–in which the university claimed to have made the invention before a commercial inventor. When a university competes with a near-simultaneous commercial inventor seeking patent rights on the same invention, it is difficult to argue that the university is just trying to preserve incentives for commercialization of an invention that would otherwise fail to attract commercial interest. Interferences are only available to establish priority for patent applications filed before March 16, 2013, when U.S. law changed to award priority to the first inventor to file a patent application rather than to the first to make the invention.20 But before that date, interferences were especially common in biotechnology, a field in which multiple research teams often compete intensely to reach the same goals (such as cloning an obviously important gene). Health policy scholars Jonathan Merz and Michelle Henry found that interferences in biotechnology and organic chemistry were six times more frequent than for patents on average, and that most of the highly competitive “races” the authors cited involved academic research institutions.21 Having to litigate a costly interference against a university can only increase the costs and risks facing a product-developing firm. Yet universities persisted in these costly battles, appealing to the Federal Circuit when they lost in the Patent Office. In a priority dispute between academic patent applicants and a pharmaceutical firm over an assay to identify anticancer compounds, for example, the University of Texas Southwestern Medical School pursued repeated appeals to the Federal Circuit, although presumably the firm’s commercialization incentives would have been adequately protected by its own already-issued patent on the same invention.22 Another strategy for universities more interested in revenues than in promoting product development is to seek broad patent rights on the basis of preliminary academic research that would allow them to sue private firms that later develop products not disclosed in the university patent applications. The Federal Circuit has been consistently hostile to these efforts, invalidating university patents in a series of decisions that fortified the patent law requirement that a patent application must include a “written description” of the invention.2