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[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]

Such lawsuits represent considerable monetary outlays borne by universities-in terms of attorneys' fees and other costs associated with litigation-all in the pursuit of revenue generation. Of course, this is not to say that all infringement lawsuits are illegitimate, but many are motivated by the pursuit of revenue to recoup the cost of research and development investment. And whether or not universities win these suits, they impose costs in terms of time. On average, patent assertion lawsuits involving production companies take 443 days until termination.83 Yet, patent assertion lawsuits involving universities or the government take an average of 604 days to terminate-the longest time to termination for any litigant group studied.84

[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]

University patent litigation is on the rise.70 Estimates vary, but university­ filed patent lawsuits appear to have increased substantially in the last two decades.

[Brenda M. "Preserving the Fruits of Labor: Impediments to University Inventor Mobility," Tennessee Law Review 89, no. 1 (Fall 2021): 1-66 heinonline gdi-tm]

Some commentators have noted that amendments to Bayh-Dole have been rather difficult to obtain in practice. 358 Lobbying by universities and industry would be expected, as they have strong interests in retaining the status quo with regard to patent protection. 359 For example,' over three dozen universities spent millions of dollars in their attempts to influence recent patent reform legislation. 360 As a result, the America Invents Act (AIA) includes provisions that provide special treatment for academic institutions, such as reduced fees and immunity from a prior use defense. 361 Nonetheless, a narrow amendment such as the one proposed might not raise as many concerns.

Lastly, concerns around timing need to be addressed. If Congress does not codify this proposal and leaves any developments to the courts, expansions of green technology will not accelerate at a necessary rate. Instead, a judicially created fair use doctrine for patent law may merely provide incremental change to green patents at best as it would only develop case-by-case through individual lawsuits.225 Regardless of whether federal institutions will initiate this proposal, industries at large should still strive to advance green technology at a rapid pace. Although inventors and entrepreneurs risk becoming defendants to patent infringement suits, eBay remains a shield for their technologies’ continued development.226 Eventually, the climate crisis’s growing threat will pressure the U.S. to tolerate transfers of patented green technology so that such technologies receive their highest and best use at the lowest cost to the patent holders and other users.

[Brenda M. "Preserving the Fruits of Labor: Impediments to University Inventor Mobility," Tennessee Law Review 89, no. 1 (Fall 2021): 1-66 heinonline gdi-tm]

Conditions on Governmental Incentives are a Promising Alternative

As stated earlier, many people and institutions have recognized the unequal technology transfer framework for climate change and energy innovation. To address these concerns, numerous changes, some highly controversial, have been proposed to the global patent regime.130 These include: broad, categorical exclusions of environmentally sound or climate friendly technologies from the patent system; and regulation of licensing and market behaviors, including compulsory licensing, antitrust scrutiny, and price controls.131 These direct means of regulating prices and competition will remain legally available to governments that hope to induce – but may be forced to compel – more favorable licensing and pricing practices than would voluntarily occur.132

***Begin Note 132***

[Brenda M. "Preserving the Fruits of Labor: Impediments to University Inventor Mobility," Tennessee Law Review 89, no. 1 (Fall 2021): 1-66 heinonline gdi-tm]

Broad Compulsory Licensing Should Not be Adopted

[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]

Our findings that universities receiving more federal funds are increasingly likely to bring patent infringement lawsuits raise concerns about the efficient use of taxpayer dollars. Research grants are intended to benefit the public through generating and disseminating new knowledge. While our research does not address to what extent these goals are being served by the current situation, we must wonder about potential public harm arising from university filed lawsuits, and how this litigation is funded.

[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]

Universities are engaged in a public-facing enterprise: the creation and dissemination of new knowledge. Clearly, they do this through their educational mission; they educate and credential students for success in the workforce-an example of a public good through human capital creation. And because of their organization as charitable corporations, universities rely on altruism, a nod to the fact that they produce a public good, in recognition of their educational mission. But they also, theoretically, create public good in pursuit of patents via disclosure. Yet, where universities rely on altruism as charitable corporations, their technology transfer model also relies on profits from their patent portfolio. This juxtaposition makes technology transfer offices the corporate beachhead embedded within the university, while also tangentially aligned with a university's mission of encouraging innovation.

The policy balance around extending fair use to patent law is clear and reflects that of copyright: while there is a strong societal need to break the exclusive control over patented products, the incentives of the inventor should not be diminished.194 This notion holds especially true in the context of green patents because disincentivizing entrepreneurs to further advance green technology is as harmful as a patent holder sitting on the patent rights for that technology. In either scenario, the market will not have an optimal supply of sustainable technology. Therefore, a specialized application of the fair use doctrine can help promote the expansion of green technology while preserving the business interests of patent holders and inventors.

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

A requirement that all inventions generated through federal support be placed in the public domain or, in a less radical variant, only licensed on a non-exclusive basis has been suggested (Eisenberg, 1996; Nelson, 2004). Since non-exclusive licensing is a “tax,” and shifts the invention rents from one actor to another, this variant would “socialize” a part of the value of the inventions (Rhoten and Powell, 2007). For basic process innovations, even in biology, an “open” strategy is as effective as, or even more effective than, either exclusive or non-exclusive licensing in encouraging technological transfer and progress. In many engineering-based technologies, patents are not normally considered to be of great significance except to ensure cross licensing (Cohen et al., 2000; Mansfield, 1986). The greatest concern in a non-patenting model would be for proprietary pharmaceutical compounds that might not be developed due to a lack of exclusive patent protection (Levin et al., 1987; Mansfield et al., 1981).43 There have been successful commercializations of compounds without exclusivity. For example, there were no patents on the anti-cancer drug Taxol, and yet it was successfully commercialized (U.S. General Accounting Office, 2003; Goodman and Walsh, 2001).44 The case of penicillin – which was not itself patented (although methods of producing it were) – suggests that the Taxol case might not be as exceptional as many believe (Kingston, 1994; Neushul, 1993). Without patent rights, it is possible that small biotechnology firms might not be able to compete with the large established pharmaceutical firms that have many complementary assets, thereby limiting entrepreneurial startups based upon university biological science.45 Possibly, a small firm could be established to commercialize non-patented university findings, and, as it operates, to create commercially valuable proprietary knowledge. Alternatively, once the knowledge is in the commons, entrepreneurs may capitalize on the knowledge and form yet other firms. Such dynamics operate in open source software where low costs have allowed entrepreneurs to use the software to create new firms. Whether the IT model would work equally well in pharmaceuticals is uncertain.

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

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.

Walking through the CLD at a high-level, we can see how population growth and lifestyle emissions, influenced by institutional/demographic factors (e.g. emission reduction incen- tives), combine to directly drive climate change. Similarly, they indirectly drive climate change via consumer demand on food production, which produces emissions directly (e.g. ruminant livestock) and indirectly via industrial capital/output (e.g. processing factories). The environmental risk factors (e.g. extreme weather events) of climate change may cause losses of food production either directly (e.g. plant disease) or indirectly via agricultural input availability (e.g. loss of water source for irrigation). A country’s food availability is influenced by domestic food production and international food trade. Food accessibility is influenced by its food price, which responds to domestic (e.g. cost of food production and distribution) and international (e.g. international food price) markets, and institutional/demographic factors (e.g. food subsidies). Food utilization is influenced by infrastructure/services (e.g. education) and institutional/demographic factors (e.g. cultural traditions). Food insecurity is underpinned by these three pillars of food availability, food accessibility and food utilization. For a given country, food insecurity can drive natural mortality (i.e. starvation), conflict and migration, contributing to population loss, as well as economic shocks and socio-political instability, contributing to institutional breakdown, which exacerbates the risk of societal collapse.∂ Beyond a given country suffering increased natural mortality, famines (i.e. food insecurity) can place pressure on international humanitarian efforts (i.e. institutional risk factors). Conflict may occur domestically or internationally and can feedback to exacerbate food insecurity and institutional fragility (i.e. institutional risk factors). Potential mass emigration can increase pressure on food availability, natural resources and infrastructure/services in the destination nation, which can lead to socio-cultural tensions (i.e. institutional risk factors) that fuel conflict. Food insecurity can also directly contribute to institutional risk factors such as social unrest, political instability and economic inequality, which increase the risk of societal collapse due to institutional breakdown, that may also cascade internationally. While already fragile states are expected to be hit the worst directly, these insights reveal the indirect ramifications of climate change on our globalised society (Kemp 2020), with serious conse- quences for humanity’s ‘existential security’ (Sears 2020).

(Joseph Opoku Gakpo, broadcast and online journalist on environmental issues with the Multimedia Group Limited in Ghana, master’s degree in communications studies from the University of Ghana, and is a member of the Ghana Association of Agricultural and Rural Development Journalists and the Ghana Journalists Association, “UN Food Systems Summit: Biotechnology key to meeting zero hunger goals” Alliance for Science, July 29th 2021, https://allianceforscience.cornell.edu/blog/2021/07/un-food-systems-summit-biotechnology-key-to-meeting-zero-hunger-goals/#:~:text=Agricultural%20biotechnology%20is%20a%20crucial,academics%20and%20civil%20society%20representatives, access 7/8/2022, GDI- TMK)

Agricultural biotechnology is a crucial tool for transforming global food systems to meet the United Nation’s goal of ensuring zero hunger by 2030, say some scientists, academics and civil society representatives. Evidence abounds that biotechnology has had a positive overall impact on agriculture in the areas where it has been employed, they say. If adopted more widely across the globe, it could be instrumental in meeting the UN’s Sustainable Development Goal (SDG) 2, which aims to end world hunger, boost nutrition and support agricultural sustainability within the next nine years. “GMO technology is working for farmers,” observed Arif Hossain, CEO of Farming Future Bangladesh. He cited the six-fold increase in income that farmers in Bangladesh have earned as a result of growing Bt eggplant, an important food crop genetically modified to resist the destructive fruit and shoot borer pest without the application of insecticides. More opportunities must be created for farmers to access crop biotechnology if the world’s food systems are to be transformed to meet the challenge of feeding the more than 811 million people who suffer hunger across the globe, he said. “The nutritional content and the beneficial element of staple foods like rice enriched with vitamins and minerals need to be emphasized and allowed to be grown so smallholder farmers can have access to that,” Hossain said. “We need to take immediate action and create enabling environments for people to have access.” It is high time for us all to come forward and allow people to innovate and use GM technology for food security and sustainability, he added. Given the world’s high population growth, limited land for agricultural production and ongoing COVID-19 pandemic, it will be more challenging to achieve the SDG on hunger, Hossain said, adding that all options that can help deal with food insecurity should be explored. Hossain made his comments during a Food Systems Summit independent dialogue organized by the Alliance for Science. The dialogue was one of thousands being held across the world ahead of the UN’s extraordinary global Food Systems Summit in September, where the future of the world’s food systems will be deliberated. The meeting was deemed necessary because the world currently is not on track to meet the zero-hunger target and other SDGs by 2030 unless drastic actions are taken. Participants will deliberate on and launch bold, new actions to help deliver progress on all 17 SDGs, each of which relies to some degree on the goal of achieving zero hunger. “There is a big role ag biotech can play in food systems transformation, especially the role of ag biotech in value addition to be able to get the best out of the crops,” Vitumbiko Chinoko, project manager of the Open Forum on Agricultural Biotechnology (OFAB), told the dialogue. He urged governments to invest more in the technology. “I’m looking at a future where we will invest our own money as African governments into ag biotechnology so we can own the technology,” Chinoko said. Agricultural economist Dr. Graham Brookes, director of PG Economics in the United Kingdom, told the dialogue that the adoption of GM crops between 1996 and 2018 produced an additional 824 million tonnes of food, feed and fiber worldwide. He said farmers earned an extra US$225 billion in income by growing GM crops during that same period, while reducing the use of agricultural pesticides by 8.6 percent, resulting in a 19 percent cut in associated environmental impacts. The technology also helped reduce carbon emissions equal to taking 15.3 million cars off the road. Because GM crops increase yields, if they had not been available during that time some 24.2 million extra hectares of land would have been destroyed to make way for the same amount of crop production, he noted. “The evidence after 23 years of widespread use is fairly consistent in showing there are socio-economic and environmental benefits of using the technology,” Brookes told the dialogue. André Tomas Vilela Hermann, founder of the Synthetic Biology Club in Brazil, told the dialogue that biotechnology helped move his country from the status of a net importer of food to net exporter. He said several ag biotechnologies are still under development which the world should accept if zero hunger is to be achieved by 2030.

[Jean, “The proteomics contribution to the counter- bioterrorism toolbox in the post-COVID-19 era”, Expert Review of Proteomics, VOL. 17, published 2020, 507-511, https://www.tandfonline.com/doi/full/10.1080/14789450.2020.1822745?scroll=top&needAccess=true]

The CBRNE acronym – for Chemical, Biological, Radiological, Nuclear, and high-yield Explosive weapons [1] – was proposed to designate the different types of threats counter-terrorism respon- ders could be faced with. These unconventional weapons have the capacity to create devastating casualties among soldiers and civi- lians, and significant disruption of societal services, while also destroying the very cohesion of States. Rapid and efficient detec- tion, and appropriate counter-measures, are essential if we are to mitigate these threats. Indeed, the consequences of an attack can only be significantly reduced by mounting an immediate and optimal response, which must be planned in advance. Unfortunately, the current world context of local and international conflicts, but also the trends in evolution of societies and human behavior, represent fertile ground for the development of higher- level risks. Among the C threats, priorities include biological toxins such as ricin and abrin, alongside chemical nerve agents and cyanide derivatives. The B threat corresponds to bacteria and viruses, living agents that can cause high mortality, are easily propagated, and are relatively resistant to classical antimicrobials or antivirals. The spore-forming bacterium Bacillus anthracis, responsible for acute infectious anthrax; the variola virus from the Orthopoxvirus genus, causing smallpox; and the Ebola Filovirus, which induces hemorrhagic fever, are just some exam- ples of the most awkward known biological agents (see https:// emergency.cdc.gov/agent/agentlist-category.asp for an updated list of high-priority agents by the US Centers for Disease Control and Prevention). The Black Swan Theory formalized by Taleb [2] in the statistics field considers a rare, hard-to-predict event with such a disproportionate impact that it could significantly re-route human history. Compared to CRNE threats, the B threat could be considered to fall within the Black Swan Theory because of the potential for extensive amplification of some living agents and the disastrous consequences that a wide release scenario with a more infectious, pernicious variant would entail.

[Kavita, Associate Director of the Center for Science, Technology, and Security Policy at the American Association for the Advancement of Science, "Emerging and Enabling Technologies in Biodefense", National Library of Medicine, 3/31/19, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7123622/, accessed 7/8/22, GDI-cc]

Biotechnologies provide critical capabilities in the defense against natural and man-made threats. In health, new scientific discoveries and platforms contribute to the development of vaccines and medicines against pathogens, such as influenza A virus or Bacillus anthracis. Researchers’ ability to understand the relationship between pathogens and their hosts provide the information needed to create targeted vaccines and medicines. Similarly, scientists have begun applying synthetic biology tools and concepts to vaccine development, hoping to reduce the time involved in creating a vaccine against an emerging infectious disease and enabling rapid response efforts. More recently, investments in additive bio-manufacturing have provided new opportunities to print human tissues and organs, which in some laboratories, are being used to study the effects of pharmaceutical candidates before testing in animals or people. In addition, advances in knowledge gained from neuroscience and behavioral sciences provides new opportunities to understand and identify clinical interventions to prevent or treat various psychological disorders, such as post-traumatic stress disorder after return from military conflict.

[Kavita, Associate Director of the Center for Science, Technology, and Security Policy at the American Association for the Advancement of Science, "Emerging and Enabling Technologies in Biodefense", National Library of Medicine, 3/31/19, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7123622/, accessed 7/8/22, GDI-cc]

*MCM = medical countermeasures

[Brenda M. "Preserving the Fruits of Labor: Impediments to University Inventor Mobility," Tennessee Law Review 89, no. 1 (Fall 2021): 1-66 heinonline gdi-tm]

While not all technology licensees require the transmission of tacit knowledge for commercialization to be successful, the benefits of inventor involvement have been shown across a variety of technological fields, especially in the context of developing nascent research. 128 For example, Stanley Cohen and Herbert Boyer's discovery of recombinant DNA in 1973 was a fundamental breakthrough in biotechnology. 129 Any scientist who sought to understand the invention that would eventually launch the biotechnology industry would need to acquire significant experience with it. 130 Not surprisingly, both scientists were instrumental in translating the invention into practice, participating in the founding of two leading biotechnology firms.131 In the biotechnology realm, academic scientists helped contribute to the success of many firms through close, ongoing relationships that allowed for the transfer of their tacit knowledge.132 University inventors often conduct basic research and work on technology in its embryonic state, so a patent disclosure by itself is unlikely to adequately transfer the tacit knowledge necessary to facilitate development. 133 The groundbreaking discoveries from universities often allow for "natural excludability," meaning that any entity wanting to use these technologies will need to gain familiarity with the inventor's tacit knowledge related to them.134Much of the information about these paradigm-shifting inventions is never documented-it is within the mind of the inventor.135To facilitate the transfer of tacit knowledge, university inventors often form startups to commercialize their inventions. 136 After an academic scientist invents the technology, the university obtains a patent and then often licenses the technology to the startup for commercialization.137 By engaging the inventor directly, startups ensure that the tacit knowledge necessary for development can be conveyed in an ongoing relationship. 138 Both universities and the firms they work with recognize that ongoing inventor involvement is essential to commercialize technology evolving from basic university research.139

The text of the Paris Agreement says that warming should be constrained to well below two degrees Celsius. 1.5 degrees is an aspiration. It’s good to understand where that demand comes from; it has been a standing call from the folks in climate-vulnerable countries in the Global South, for whom the difference between 1.5 and 2 degrees is huge. The folks talking about 1.5 degrees have been marching through the halls of UN climate talks, chanting “1.5 to survive,” because for low-lying island states, warming of 1.5 degrees represents an existential threat. Currently we are on track for about 1.1 degrees Celsius of warming. That gives us a punishingly short window in which to meet even two degrees, which is a bit of a fabrication; there’s some debate about where the two-degree target came from. Some people credit that to the economist William Nordhaus, who is not the most reliable source on a lot of these things. But there’s something comforting about a target. There’s something comforting about saying that this thing that is happening is far-off, and that we can potentially avoid it. We have a bit of time, and two degrees gives us more time than 1.5 degrees. Reaching targets has been the popular goal. That’s what you see in the fossil fuel industry assessments. But the conversation about targets can sometimes obscure what’s actually happening. It’s not as if somebody who is living through a hurricane or a natural disaster will say, “Oh no, we’ve hit two degrees Celsius.” The climate crisis is playing out all around us. There’s not a point at which we cross the boundary toward a disastrous future. Every tenth of a degree of warming that we avoid makes an enormous amount of difference, saving on the order of tens of thousands of lives. If we cross 1.5 or even two degrees of warming, it’s not that we should all pack up, go home, and wait to die. There are still millions of lives that can be saved by preventing each additional tenth of a degree of warming.

A final consideration around feasibility is that the thresholds are not immutable laws—indeed, some historical cases prove that the chosen thresholds can be overcome. Two examples are the surge of gas-fired power in the Netherlands and nuclear power in France, which respectively surged from 5% to 80% and 25% to 75% of the power mix in one decade, surpassing the applied feasibility threshold in this study over tenfold. Since such historical examples of fast transitions are typically driven by public policy and support48, the feasibility analysis can also be interpreted as a mapping exercise of where policy support is strongly needed to overcome existing constraints, which is crucial for achieving stated climate targets as all models and scenarios in this study surpass several feasibility thresholds. Nevertheless, as the results show, this mapping strongly depends on the applied model: deep structural differences between models lead to a wide variety of pathways reaching the same climate targets and, hence, different policy interventions are necessary from different modelling perspectives to make these pathways feasible.

Discussion