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.

Developing new green technologies—like cheaper solar panels or methods of extracting energy from ocean tides—is a top priority for combating climate change, because global carbon emissions cannot be stabilized with existing technologies. In rich countries, where most tech development takes place, patents create incentives for innovation. But these new technologies will do little good if they are unaffordable in most of the world.

The tension between promoting new inventions and enabling access to them has created a global deadlock over patent law that's a stumbling block for an international climate treaty. In the run-up to last year's Copenhagen summit, countries like China and India demanded special patent exemptions for green technologies, so they might use these technologies without paying high licensing fees. For example, Chinese car manufacturers are unable to produce low-cost hybrid cars because a small number of companies have patented key components. American companies, however, worry that patent law changes will cut into their profits, and last June, the House unanimously voted to prevent any weakening of international patent rights.

There's a way out of this impasse: The United States could appease its global critics without changing international patent laws—while simultaneously making green technologies cheaper for Americans. Our government can do this simply by changing the way in which federally funded inventions are patented.

Taxpayer dollars fund 60 percent (PDF) of this country's basic research, most of which occurs at universities. And that pool of money is only growing. Last year's stimulus package added $5 billion to the basic research budgets of the National Science Foundation and Department of Energy in what President Obama called the biggest increase in basic research funding in American history. Game-changing green technologies—such as a method to store solar energy as fuel—will probably emerge in the coming years from government-funded university labs or research centers.

But a 1980 federal law designed to get inventions out of university labs and to consumers will end up limiting worldwide access to these technologies. The Bayh-Dole Act allows universities to grant exclusive rights to private companies; MIT, for example, has more than 30 patented green technologies available for licensing, and Cleveland State University has granted one company a worldwide exclusive license for a new wind-turbine design. These patents do provide companies with an added incentive to commercialize new technologies, but they stifle competition, too. In the end, the public pays twice for new inventions: once for the initial research and again for the high prices of the patented products. Universities do not benefit from this system very much, either—very few earn significant revenue from their licenses, and most fail even to recoup their legal fees.

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The theory behind the Bayh-Dole Act is that companies need the incentive of exclusive patent rights (and the high prices they can then charge) to turn basic research into new consumer products. This may well be true for pharmaceuticals, given the high cost of running clinical trials and getting the necessary FDA approval. For most technologies, however, companies don't need this added incentive to bring a good idea to market. On the contrary, a thicket of patents on basic research findings can make it harder to synthesize the latest knowledge and create a useful, new product. These patent thickets have arisen for fuel cells, wind energy, and carbon sequestration.

So what's the fix? Patents on federally funded inventions should be the exception, not the rule. Fewer patents would mean cheaper green products, both abroad and here in the United States, which would help reduce global carbon emissions. And it wouldn't be too much of a burden to U.S. business interests, since companies that perform their own research, rather than just commercializing federally funded inventions, would still be able to patent their technologies.

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.

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