I hear there's a celebration of Bayh-Dole at 40 yrs. I have opted out. I feel sorry for Bob Dole. It's not the law he thought it would be, but folks keep up appearances for him.

Bayh-Dole has never operated but for the bit that forces federal agencies to use a default patent rights clause for nonprofits and small companies to keep ownership of public health inventions without having to make a case how doing so better serves the public than open access.

The rest of Bayh-Dole--the public protections for especially those health inventions--have been ignored, as if by design. That's where the NIH was with Latker for the IPA program and the failed Thornton bill and then for Bayh-Dole.

From bench to in bed with pharma.

Should public health research be a matter for profit-seeking speculation, as if health were only another market, or is public health a "war" analog, as Vannevar Bush had it, properly directed by the government, with companies contracting to do some of the development?

Is that a fair dichotomy? Vannevar Bush certainly banked the proposed National Research Foundation on the war premise. Public health research should not be dedicated to profit-speculation, any more than war should be--despite the folks who like the thought of perpetual wars.

Bayh-Dole says profit-seekers should be free to exploit suffering using patent monopolies without government oversight, and federal funding should subsidize the profit-seeking and swamp out nonprofit and public and grassroots efforts to meet public health needs.

Public health, then, is just another profit-seeking opportunity. Patents make the profits greater. Government subsidies for research and development make the profits greater. There's your "success" metrics. Not what Bayh-Dole states as objectives. But what's happened.

Under Bayh-Dole, independent development gets screwed. Competition gets screwed. Patients get screwed. Innovation--especially for prevention and cures--gets screwed.

How can federal agencies focus on prevention and cure when so much money is in making acute conditions chronic?

There can be profit-seeking in health care--fine--but the federal government does not have to subsidize it, does not have to give it patent monopolies, and does not have to ignore its responsibilities under Bayh-Dole and instead enable profit-seeking at monopoly rates.

So this is my celebration of Bayh-Dole. After 40 years, enforce the law.

Make Bayh-Dole operate as signed into law. March-in at 3 yrs past patent issuance for all nonuse and on everything not meeting def of practical application. March-in often, open it all up. 50,000 patents.

Make federal contractors use the patent system to *promote use* of inventions, not exclude use. Challenge litigation for infringement of subject inventions. Make subject invention owners prove that suing to prevent use ("infringement") promotes use.

Make federal contractors show how their holding exclusive patent rights promotes free competition and enterprise. Focus on universities, especially.

Audit all nonprofit exclusive licenses that really are assignments for compliance with 35 USC 202(c)(7)(A)--federal agency approval and flow down of the nonprofit patent rights clause.

When for-profits see 35 USC 202(c)(7)(B) and (C), they will insist on non-exclusive licenses!

And while the agencies are at it, they should audit all nonprofits for use of income earned with respect to subject inventions for compliance--deductions only for expenses incidental to the administration of subject inventions. No stock investing. No 15% off the top for the OTL.

And especially, free the inventors from institutional predators misrepresenting Bayh-Dole. Audit compliance with 37 CFR 401.14(f)(2)--not the sham agreements universities claim exist by policy, but the written agreement requirement as (f)(2) has it--even with NIST's botch job.

With (f)(2) compliance, inventors become contractors. They have independent standing under 35 USC 202(a) to elect to retain title in their inventions. They have a patent rights clause at 37 CFR 401.9. They are protected from university claims to ownership under 37 CFR 401.14(g).

Under 401.9, inventors are not forced to assign their inventions to their universities, or forced to use the patent system, or forced to give up their inventions to the federal government unless they do file patent applications and then don't pursue them. Stanford v Roche.

Enough of universities being invention predators that misstate Bayh-Dole to institutionalize researchers' work for profit-speculation, and going all moralizing while they do it. Denying rights under the color of law--isn't that a federal offense? https://www.justice.gov/crt/deprivation-rights-under-color-law

There. I'll celebrate Bayh-Dole--skunk of a law that it is--when it gets enforced and the rats that have exploited it against the public, inventors, industry, and the research community have jumped ship.