Before anything, I want to thank Michael and the others contributors for inviting me join in this creative collaboration.
For my first post to Madisonian.net, I’m focused on culture and norms and how they affect intellectual property policy. No doubt, this is prompted by being in Kolkata, India, where I was invited by a good friend, Shamnad Basheer, Ministry of HRD Professor in IP Law at the National University of Juridical Sciences and the founder of the SpicyIP blog, to join a conference on Publicly Funded Patents & Technology Transfer: A Review of the Indian “Bayh Dole” Bill. I had been asked to present on lessons learned from the U.S. Bayh-Dole Act experience that might be relevant to India’s consideration of a pending bill on government-funded innovation policy. What became immediately apparent from a brief discussion before the conference – at a dinner with Shamnad over the local West Bengali specialty, the Hilsa fish – was how much initial conditions and normative context and responses matter. Before the conference, I had planned to focus on the empirical disputes over the effects of the U.S. Bayh-Dole act, the policy levers that exist within the act, and the choices that the U.S. experience illustrates are available for for Indian consideration. But I quickly realized that I needed to say more about why the U.S. act was created, the context for its enactment of the American culture of open science, the history of academic-industrial collaborations (including universities acting as low cost centers of basic research for industrial product development), and the effects of the act in changing norms and practices.
During the conference, various presenters noted that In India, unlike in the U.S., few universities place their employees under invention assignment contracts, and few funding agencies take title to the inventions they fund. Thus, India is not facing the same situation that motivated enactment of the Bayh-Dole act in the U.S. Rather, the problem (if it is one) has to do more with the culture of professorial incentives and the lack of any governmental policy (to date) regulating patenting and commercial development of government funded research.
One particular presentation made this point forcefully. Professor Amit Shovon Ray of Jawaharlal Nehru University discussed his recent research, in which he found substantial heterogeneity of practices, awareness, and understanding of the value of patenting and of commercializing research through industrial partnerships. In particular, Professor Ray noted that Indian professors are more likely to respond to calls for patenting and commercialization activity by appeals to the “intrinsic” social benefits of commercialization than by “extrinsic” private rewards that they may gain (whether they are money, advancement, or prestige).
Comparing the U.S. Bayh-Dole Act experience with the potential Indian Bayh Dole experiences that may develop in the future thus raises important questions of whether and how quickly norms can be changed by legal structures, how best to structure extrinsic and intrinsic incentives, what approaches will most effectively promote various kinds of innovation behaviors for basic research, research tools, and commercial products at various levels of industrial development, and the relative competencies of governmental and non-governmental administration. These questions are related to the questions of the choice of theoretical models of patent law, incentive models versus disclosure models versus prospect theory models, etc. For a good recent treatment of some of these issues, see Kathy Strandburg’s terrific recent paper Evolving Innovation Paradigms and the Global Intellectual Property Regime, which addresses differences between seller-innovators and user-innovators and their incentives and motivations.
So, take this as a call for more cultural anthropologists and empirical economists to join the IP endeavor.