Changing the Bayh-Dole Act to end the deadlock over green technology patents.

News and commentary about environmental issues.
April 21 2010 7:06 AM

License To Green

Can we have clean energy and patents, too?

Also from the Climate Desk: Michael Shellenberger and Ted Nordhaus argue that patents won't matter in the clean-energy revolution.

(Continued from Page 1)

Under Bayh-Dole, the agencies that distribute research grants (like the National Science Foundation and Department of Energy) can only limit patent rights under "exceptional circumstances," as determined through procedures so elaborate that they have only been satisfied once. What if this burden were reversed, so that it took exceptional circumstances for an exclusive patent license to be allowed in the first place? New drug development, for example, might meet the requirement, since it takes a huge investment of resources to bring a pharmaceutical product to market. But other technologies—like a new battery design or better solar cell materials—wouldn't get the special patent rights.

The people who run the university technology transfer offices—that is to say, the people who actually do the patenting—are strongly in favor of keeping the law the way it is. They argue that Bayh-Dole helps get university inventions out of the lab so that people can actually use them. But a huge number of technologies have been commercialized out of federally funded research without the need of patents. Think of the computer—or search engines. Furthermore, the licensing deals negotiated by university staff are focused on raising revenue, not increasing public access: a recent study by professor Jay Kesan found that "university technology transfer activities continue to be predominantly patent-centric and revenue-driven with a single-minded focus on generating licensing income and obtaining reimbursement for legal expenses." While each university hopes to be among the lucky few who hit the jackpot with a blockbuster patent, few actually succeed in generating more income than they pay out in legal fees, so current Bayh-Dole practices seem to benefit neither universities nor the public.

Amending Bayh-Dole would be the best way to show developing countries that the United States is serious about helping them go green. But agencies like the National Science Foundation and Department of Energy don't have to wait for Congress. They can begin to make a partial fix on their own. Although they do not have authority to declare certain technologies off-limits to patenting, agencies can nudge universities toward change by making patent practices one of the factors considered when they distribute grant money.


For example, researchers who want National Science Foundation grants must already show how their work will benefit society. The list of examples (PDF) of how to satisfy this requirement includes sharing data publicly or presenting research results to nonscientists; it would be easy to add examples of access-oriented licensing to this list. Agencies could also ask universities to set up "responsible patenting policies" in addition to the conflict-of-interest policies that are already required. Forcing universities to put their policies on paper—and giving students, alums, and the public the opportunity to evaluate them—could go far toward aligning university practices with the goals of the Bayh-Dole Act.

The researchers who are developing groundbreaking green technologies spend much of their time writing grant applications. If their success in winning a grant depends in part on their willingness to forgo a patent, they would care a lot more about what their technology transfer offices actually do. Researchers would have an incentive not only to invent fabulous new things, but also to serve the public interest by opening up access to developing countries. And wouldn't that make China and India happy?

This story was produced by Slate for the Climate Desk collaboration.

Become a fan of  Slate on Facebook. Follow us on  Twitter.



Blacks Don’t Have a Corporal Punishment Problem

Americans do. But when blacks exhibit the same behaviors as others, it becomes part of a greater black pathology. 

I Bought the Huge iPhone. I’m Already Thinking of Returning It.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Lifetime Didn’t Think the Steubenville Rape Case Was Dramatic Enough

So they added a little self-immolation.

Two Damn Good, Very Different Movies About Soldiers Returning From War

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Students Aren’t Going to College Football Games as Much Anymore, and Schools Are Getting Worried

The Good Wife Is Cynical, Thrilling, and Grown-Up. It’s Also TV’s Best Drama.

  News & Politics
Sept. 19 2014 9:15 PM Chris Christie, Better Than Ever
Business Insider
Sept. 20 2014 6:30 AM The Man Making Bill Gates Richer
Sept. 20 2014 7:27 AM How Do Plants Grow Aboard the International Space Station?
  Double X
The XX Factor
Sept. 19 2014 4:58 PM Steubenville Gets the Lifetime Treatment (And a Cheerleader Erupts Into Flames)
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
Brow Beat
Sept. 19 2014 4:48 PM You Should Be Listening to Sbtrkt
Future Tense
Sept. 19 2014 6:31 PM The One Big Problem With the Enormous New iPhone
  Health & Science
Bad Astronomy
Sept. 20 2014 7:00 AM The Shaggy Sun
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.