Awhile back, I wrote a paper on how the differing models that the federal government has taken to develop new technology from universities versus government laboratories provide helpful comparisons for developing countries as they draft their intellectual-property laws. The paper was published as The American Models of Technology Transfer: Contextualized Emulation by Developing Countries, 6 Buff. Intell. Prop. L.J. 104 (2009), available here. The introduction reads as follows:
The patenting of innovative technology has become an essential part of the U.S. economy, promoted by groundbreaking legislation that allows ownership of technology resulting from research funded by the federal government. Prior to legislation, less than four percent of the tens of thousands of government-funded inventions were licensed to industry, resulting in many technologies failing to reach practical application. Currently, multiple types of research institutions in the United States negotiate an increasing number of licenses every year, resulting in the issuance of more patents and the disclosure of more inventions to technology transfer offices. Even scholars who believe this growth would have occurred eventually without the Bayh-Dole Act (Bayh-Dole) agree that the legislation was important because it “accelerated this growth by clarifying ownership rules, by making these activities bureaucratically easier to administer, and by changing norms toward patenting and licensing at universities.”
Clarification of intellectual property ownership has had a substantially beneficial effect on the U.S. economy; many developed and developing countries are considering adopting or have already adopted the U.S. model. Many countries have adopted similar provisions, including a majority of European countries, China, Korea, South Africa, Brazil, and Malaysia. Many developing countries have special concerns relating to Bayh-Dole, specifically, as critics mention, varying degrees of low resources devoted to research funding, lack of “practically oriented universities,” and less established patent systems than the United States.
Granting permission to research institutions to take title and sell technologies to private industry, with a mandate to bring to practical application, was the creative solution Bayh-Dole introduced to fix the problem of government funded technologies sitting on a shelf and not finding practical application. Considering many in research institutions or industry do not have sufficient resources to fund projects and bring the technologies to practical application, it is questionable whether many countries even have the prerequisite problem Bayh-Dole sought to fix. However, many developed countries are beginning to use government funds for research and to prevent the problems Bayh-Dole addressed, attempting “to achieve similar economic success through effectively utilizing the outputs of publicly funded research.”
While some critics feel that instituting Bayh-Dole would create a greater burden due to over-patenting and high costs, others scholars feel that the base strategy of clarification of ownership is important for developing countries who seek to increase government funding to research institutions and want the technology produced to be brought to practical application by industry. However, even proponents agree that if Bayh- Dole is to be adopted in developing countries, it must “move beyond” just clarification of ownership to provide a more socially beneficial national innovation policy. Despite criticism, developing countries are likely to continue to attempt and emulate the success of U.S. legislation, especially as countries progress to a point where they are considering federal funding of research. For this reason, it is important to study U.S. legislation to understand how developing countries might realize its positive effects of accelerating practical application of government funded research by utilizing industry. Even more important perhaps is the study of potential safeguards, contextualized to the particular developing country, which could be built into legislation without sacrificing the positive benefits of the Bayh-Dole legislation.
In looking at American technology transfer, it is important to note that different legislation has stimulated technology transfer in universities than technology transfer in government laboratories, and accordingly, the practice of technology transfer in these two entities differs. As foreign governments look to the United States as a model system, it is important for them to understand these differences and enact legislation that will be the most beneficial for their country’s unique history, structure, and goals. The differences in the regulations for the two types of U.S. institutions should encourage developing countries to focus on the specifics of their unique institutions and create legislation appropriate for their unique needs. A few commentators have examined the regulations of university and small business technology transfer and have drawn conclusions on which aspects are beneficial for developing countries, but no commentator has thoroughly examined the successful aspects of the more highly regulated government agency laboratories to evaluate their potential if adopted by developing countries. Perhaps commentators have overlooked this model of American technology transfer because developing countries have a low percentage of research funded by government and accordingly a low number of government funded laboratories. Some of the distinct provisions warrant closer examination, especially since some developing countries are characterized by an increased level of regulations. Furthermore, no commentary has emphasized how the need for different legislation for different types of institutions within the United States is an example of how developing countries must similarly tailor their legislation to the distinct organization of their research institution and their country’s unique objectives.