Previously in Spicy IP, we have covered various aspects of the Bayh-Dole Act and the Indian Bill modeled along similar lines, titled Protection and Utilisation of Public Funded Intellectual Property Bill (see here). Many of the thoughts of the different stakeholders regarding this matter had also been voiced in the report of the conference that was held last September. This post, however, intends to draw attention towards a really fascinating argument that had been made a few years back against the continuing existence of the Bayh-Dole Act itself, by none other than the renowned science-fiction author, Michael Crichton!
In 2006, Crichton had come up with a novel titled ‘Next’ that belonged to the so-called techno-thriller version and sought to portray the contours of a conflict between science and nature. The plot consisted of corporate bodies, universities and venture capitalists being engaged in a race to create bizarre genetic anomalies for profit-based ventures and to manipulate the legal system to suit their own needs.
Jorge L. Contreras, in his review of ‘Next’, (available here) has concentrated on the non-fictional policy recommendations that Crichton had made as a sort of postscript to this fictional backdrop. After having painted quite a few scary possibilities in the mind of the readers about the turn that the future could take, Crichton had posited a set of 5 recommendations. According to him, implementation of these could go a long way in ensuring the future would not assume such a bleak hue. The recommendations include:
(a) prohibition of gene patenting;
(b) establishment of a clear set of guidelines for the usage of human tissue;
(c) legislations providing for mandatory disclosure of data on gene tasting;
(d) avoiding bans on research activities; and
(e) rescinding the Bayh-Dole Act of 1980.
According to Contreras, however, the fact that Crichton had used imaginary scenarios, having little resemblance to the reality, to support these policy recommendations has done more harm than good. If anything, it has diluted the strength of reasonable and realistic arguments that have been made in favour of similar recommendatory measures and has also misrepresented the difficulties that said measures seek to address. Moreover, Crichton’s use of fictitious background material and policy guidelines garbed in the cloak of apparently legitimate sources such news-articles from Science, Wall Street Journal etc. has lent undue credence to the doomsday scenario that he had sought to portrait, thereby blurring the line between fact and fiction, especially for the general populace unfamiliar with the intricacies of scientific principles and policies.
With regard to the Bayh-Dole Act, Crichton had identified it as a piece of legislation allowing recipients of federal research funding to obtain patents on resulting inventions and to commercialize those inventions for the benefit of the U.S. economy. He went on to opine that the Bayh-Dole Act has, in various ways, tainted academic research and that some U.S. universities may now value patents and licensing revenue more than the pursuit of knowledge. According to him, “[s]cientists who once felt a humanitarian calling have become businessmen concerned with profit and loss. The life of the mind is a notion as quaint as the whalebone corset.”
An obvious and logical corollary to the suggestion of repealing a legislation that has been instrumental in providing scientific research funding in the U.S. for the past 3 decades is the question as to what can be a possible, suitable and viable alternative to the Bayh-Dole Act. One possible outcome of such repeal may be a regression of the U.S. to the pre-1980 position, with each federal agency employing its own independent and mutually-inconsistent policies regarding ownership of federally funded inventions. As per Contreras, Next also seems to imply that innovation will be promoted in the long-run if patents on federally funded inventions are abolished altogether as an alternative to the Bayh-Dole Act. Unfortunately, Crichton’s work seems to be devoid of any constructive recommendation of significance regarding the nature of a post-Bayh-Dole landscape, thereby robbing his suggestion of gravity and even making it potentially misleading.
Again, as Contreras puts it, even if the Act suffers from certain limitations in the context of genetic discoveries, it may not necessarily follow that the same will hold true in all other fields of scientific research. Indeed, Next makes no such case in favour of such an over-arching adverse consequence of the existence of the Act ranging across all scientific dimensions. Contreras has concluded his review by saying that the scientific, logical and legal fallacies that may be present in Crichton’s work can very well be excused by its fictional label. However, the fact remains that unlike its other counterparts such as Mary Shelley’s Frankenstein, which does not hide its fictional nature in the veil of apparently-true scientific theories, principles and guidelines, Next may pose as an adverse influence to the uninformed readers by diluting the actual reality that may or may not demand such broad and sweeping policy changes and recommendations in the field of innovation.