Friday, February 14, 2003

Fuck tort reform -- we have to do something about intellectual property [Science]
The recent rejection by the Court of Appeals for the Federal Circuit of an "experimental use defense" to a patent infringement lawsuit against Duke University (1) comes as no surprise to those who follow U.S. patent law, but it is an alarming wake-up call to the academic community. Ever since Congress affirmed the right of universities to patent the results of government-sponsored research in the Bayh-Dole Act of 1980 (2), academic researchers and university administrators have blithely assumed that they may enforce patents on their own inventions while avoiding liability for using the patented inventions of others. This rests on a belief, widespread in the scientific community, that patent infringement requires use for commercial purposes, and does not arise in "pure" academic research.

Today, universities have become players in the patent system in a way that could hardly have been imagined before the Bayh-Dole Act. Universities owned 1.1% of U.S. corporate-owned patents issued between 1969 and 1986; by 1999 that number had risen to 4.8% (11). As their patent portfolios have grown, universities have become more aggressive about enforcing their patents in court. The University of California's $200 million settlement with Genentech (12) and the University of Minnesota's $300 million settlement with Glaxo-Wellcome (13) have emboldened others to follow with their own lawsuits, including Baylor College of Medicine, Cornell University, Columbia University, University of Rochester, and the Massachusetts Institute of Technology (14). Columbia University has further emulated commercial patent holders by petitioning Congress to extend the term of its patents (15). As universities shed their noncommercial innocence to reach deeper into the pockets of commercial firms, one might expect to see firms strike back with their own infringement claims, urging courts to reject the experimental use defense as a nostalgic fantasy.

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