You may remember the battle that raged between pharmaceutical companies who wanted to hold on to their patents and African nations who couldn’t afford the non-generic price tag on the AIDS drugs that would help their dying populations. A similar problem is brewing over green energy technologies: developing countries are demanding that the U.S. waive its patents on clean energy technologies so they can afford to cut their carbon emissions, and the U.S. is saying no way. According to a forthcoming article in The Yale Law Review, the situation benefits no one and is easily remedied.
The problem, writes Lisa Larrimore Ouellete, dates back to 1980’s Bayh-Dole act, which allows universities to license their research to private companies. They do the work, and then a company agrees to pay them to market the technology. The idea is to generate revenue, but it doesn’t often work that way because it’s rare that a project results in enough profits to offset the legal fees universities pay to negotiate the deals.
And it definitely doesn’t help the taxpayer, who ends up paying for the research twice: “once for the initial research and again for the high prices of the patented products.” And the number of patents generated this way makes it more difficult for businesses — particularly those that do their own research — to develop new technologies, when each twist and turn is under a patent held by somebody else.
If Congress rewrote the law so that research conducted with federal funds could only be patented in very special circumstances, everybody — including developing countries — would benefit. But Congress is hardly a hotbed of activity right now, so Larrimore Ouellette proposes a next-best alternative: How about if government grant-making institutions like the National Academy of Sciences simply gave priority to universities that would forego a patent on the work?
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