Haris Durrani (Harvard University) has posted "Industrial Patent Law," which is forthcoming in Volume 104 of the Washington University Law Review. The abstract:
History is absent from the rigorous debate on government patent policy. Scholarship has focused on the Bayh-Dole Act of 1980, where the government relinquished control over patents on inventions developed with federal funding. The act’s critics advocate the exercise of its key exception: government rights to “march in” to require that contractors license patents to third parties, a carveout never used until last year, when the Trump Administration threatened to exercise it against universities. Meanwhile, the act’s defenders argue that marching in and other “public patent powers”—e.g., government rights to title or liability shields for contractors—stymy innovation and commercialization and are not designed to serve the public interest. But these debates have hardly examined the world before Bayh-Dole, when government control of patents was the norm. Scholars instead study the act’s effects, such as “anticommons” problems, or engage in counterfactuals, asking what might have transpired if the government had ever marched in or exercised similar powers. Yet history supplies an economic experiment for testing the effects of powers like march-in before Bayh-Dole. The most influential and striking uses of these powers involved one of the consequential technologies of the Cold War, the communications satellite.
To that end, this Essay is a targeted account of industrial patent law, the post-World War II framework for government patent policy. Carefully reading archival records, administrative proceedings, and case law on patents and contracts during the Cold War, the Essay uncovers the history of industrial patent law and bolsters the argument for its restoration. The Essay focuses on disputes over communications satellites, which shaped industrial patent law writ large.
The Essay draws three takeaways from this history. First, industrial patent law was designed and worked to spur innovation and commercialization and protect the public interest, contrary to the narrative spun by skeptics of march-in rights. Second, industrial patent law’s demise was due not merely to Bayh-Dole, but, more profoundly, to the government’s longstanding belief in unsubstantiated claims from company representatives that public patent powers are anathema to technological and commercial growth—claims recited by skeptics of march-in rights to this day. Third, the history supports two modern uses of industrial patent law: (1) marching in as an antimonopoly tool to control price; and (2) retaining title or marching in to regulate spacecraft as public utilities, an application highly pertinent to SpaceX. The Essay also suggests that, contrary to scholarly outcry, the Trump Administration’s threat to march in on universities is an opportunity to course correct decades of unchecked privatization of U.S. research.
Read on here.
-- Karen Tani
