The Bayh-Dole Act, which allows patenting of federally funded research, has been praised for driving growth but also criticized for creating unnecessary deadweight loss and contributing to a patent "anticommons." Much of the controversy stems from Bayh-Dole's differing effects on different inventions. The dominant Justification for Bayh-Dole patents is commercialization theory: the idea that exclusive rights are necessary to bring inventions to market. This theory is convincing for inventions like pharmaceuticals with high regulatory barriers and low imitation costs, but not when exclusivity is unnecessary for commercialization, such as for Stanford's widely licensed patents on early recombinant DNA technology. The problem is that for many government-funded inventions it is difficult to determine whether exclusive patent grants are necessary to incentivize commercialization.
Date of Authorship for this Version
Ayres, Ian and Ouellette, Lisa Larrimore, "A Market Test for Bayh-Dole Patents" (2017). Faculty Scholarship Series. 5129.