Why Do Universities Patent? The Role of the Federal Government in Creating Modern Technology Transfer Practice

Academic science, once relatively insulated from market forces, has seen the Mertonian ideal of communistic science partially displaced by an argument that science, in order to be fully applied, must often be privately owned. In keeping with this logic, universities have been patenting faculty inventions in increasing numbers for the last several decades. Much of this increase has traditionally been attributed to the Bayh-Dole Act of 1980, which gave universities an explicit legal mandate to commercialize federally-funded research through patenting. But recent research shows that university patenting was on the rise well before the Bayh-Dole Act and argues that the Act’s impact was not as large as has generally been assumed. This paper claims that state actors were nonetheless critical in creating modern technology transfer practice in universities. I suggest we see the Bayh-Dole Act as the culmination of a larger project of patent policy liberalization that was driven by federal administrators. This project played a significant role in encouraging university patenting through innovative administrative mechanisms and the support of an emerging community of university patent administrators in the late 1960s and early 1970s. Once established, that community in turn allied itself with federal proponents of legislation in the late 1970s in a successful effort to pass BayhDole. Thus the passage of the Act can be seen not as creating modern technology transfer, but as institutionalizing an already-established university patenting community, itself partially a government creation