Bayh-Dole enables corporate hijacking of universities, undermining their ability to serve the public good

[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]

Additionally, there are concerns about the effect of the Bayh-Dole Act's incentive structure on consumers. Before the passage of the Bayh-Dole Act, the government often ceded its patent rights in publicly-funded research to the public domain, allowing any inventor to use the innovation produced from publicly­ funded research to create commercially valuable products. After the passage of the Bayh-Dole Act, the public has had to pay for innovation twice: first, when the government funds research at universities; and second, when-upon universities licensing their patents to commercial entities-the commercial entity with the university patent license charges monopolistic prices to consumers to generate profit from their license.

This practice is concerning when considering that universities are charitable corporations with public-facing missions that are charged with generating public goods, like education and innovation. 94 This raises a difficult question: should universities, as charitable organizations, utilize public funds to acquire patents that ultimately result in their, and commercial entities', private benefit?9s It appears that the effect of the Bayh-Dole Act was to enable private firms to pass off research and development costs onto universities, which in tum have been subsidized by the public. Therein lies the rub; it seems that the Bayh-Dole Act's goal has, in effect, been hijacked by private industry without producing greater public benefit. In other words, the social contract on which public subsidy of university research relies is frustrated by a patent-trade triad-from state subsidy to university and from university to patent licensee (or worse, asserter), where the university is the nexus between public support and private benefit. But are these actions and actors independent, or are they coordinated, as they would be in a firm?