Amending Bayh-Dole including right to rebut presumption solve mobility and development

[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]

The amendment proposed in this Article is narrowly crafted to address the specific effects of unduly limiting university inventor mobility. Although amending the Bayh-Dole Act to provide a presumptive right to practice for university inventors would address situations involving federally-funded patented technology, it would not require universities to allow access to all innovation-essential components, such as data or materials. As such, the proposed amendment would still require universities to act in accordance with their mission statements, which typically state that universities will act to further public benefit. 369 By restricting the amendment to address university inventors, the proposal recognizes the importance of tacit knowledge in developing nascent inventions, and any injurious effects on innovation incentives will be minimized. The ability to rebut the presumptive right to practice recognizes that exclusivity may be necessary to support not only commercialization of the invention in question, but also for the research and development of inventions that do not succeed but are necessary for innovation. As will be discussed in the next section, other proposals to amend Bayh-Dole that have not been adopted have been far more extensive.370