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Durrani, "Industrial Patent Law"
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
