Funding Fairness: Public Investment, Proprietary Rights and Access to Health Care Technology

In her accompanying Article, Public Research and Private Development: Patents and Technology Transfer in Government-Sponsored Research, Professor Rebecca Eisenberg suggests that federal technology transfer policies should be reexamined in light of actual experience with patented technologies. Indeed, the relationship among federal research funding, patent law, and medical innovation has become more complicated in the years since the passage of the Bayh-Dole Act. Rising health care spending despite slowing overall economic growth has fostered the development of private sector managed care, has led to cutbacks in government support for both research and clinical services, and has increased the percentage of uninsured Americans with marginal access to health care. In response to cost concerns in the private sector, dramatic changes are occurring in the way that health care is financed and delivered. Managed care is forcing the industry to integrate, consolidate, and otherwise restructure services to improve efficiency. Managed care health plans and the employers and individuals who pay their premiums are increasingly resistant to research and service expenditures that do not immediately and directly benefit them. Moreover, because expefisive technology is a perceived barrier to sustained savings, these companies are beginning to insist on evidence of effectiveness proportionate to cost as a condition of offering particular services. At the same time, government resources seem in short supply. Public contempt for bureaucracy limits revenues (particularly in a fragile econ- omy) while deficit politics restricts borrowing. Demographics alone portend poorly for long-term cost containment. As most clearly illustrated by projections for the Medicare trust fund, the aging of America means increasing demand for expensive health care services supported by a shrinking pool of younger, working individuals. As a result of these trends, our nation finds itself in a highly unstable climate for biomedical research and the applied technologies it generates. If the cost of the United States health care system continues to increase, a consensus may emerge that national resources available for health care are limited-and that those resources should be distributed fairly. In that case, the conventional wisdom underlying the Bayh-Dole Act-that the proliferation of new technology developed at public expense is an unqualified good -must be reassessed as well