New Cures to Highest Bidders
UCLA-professor-turned-venture-capitalist Nir Kossovsky recently talked about how profits, once considered an almost shameful motive for academic research, have increasingly become its driving force. As he summed it up, “Faculty who drive Porsches are not necessarily embarrassed anymore.”
The hope of commercial reward helped drive scientists to a wealth of promising discoveries in 2001, from cancer-fighting “smart bombs” targeted on genetically based biochemical defects to “nanocircuits,” just a few dozen atoms that may soon outperform computer chips thousands of times their size. But as a recent controversy among scientists over an obscure, two-decade-old law illustrates, commercialization does not inevitably breed good science.
Entrepreneurially adept scientists credit the so-called Bayh-Dole Act of 1980, which surrendered federal rights to intellectual property developed with taxpayer money, for the spike in corporate giving to public universities. The total went from $850 million in 1985 to $4.25 billion in 1995. These scientists argue that the law, by motivating researchers to make the investment to turn an idea into a product, inspired thousands of scientists to market research that had been gathering dust.
In an editorial in Science magazine last week, however, former Stanford University President Donald Kennedy suggests that the Bayh-Dole Act is actually a mixed blessing, with the potential to both destroy and inspire good science. Kennedy provocatively compares Bayh-Dole with the law that gave rise to the modern American West: the Homestead Act of 1862, which handed out 160 acres of public land to settlers willing to improve the lots. The Homestead Act inspired plenty of development, but its ambiguity led to conflicting claims that kept good land fallow. It also aggravated the West’s present water shortages by doing little to prevent overdevelopment on arid land.
Congress is not about to turn off Bayh-Dole’s revenue spigot. However, university leaders should do more to ensure that the law’s public trust provisions are not shunted aside. The act requires that universities promptly let public officials know about any invention they create with taxpayer funds. Yet earlier this year, the National Institutes of Health admitted that information about how taxpayer dollars were used to develop lucrative drugs and other technologies is “neither systematically nor consistently” reported. As the NIH also documented, publicly funded researchers often violate another obligation under the Bayh-Dole Act: to “promote utilization, not to maximize financial returns.”
Consider the case of Steven Rosenberg of the National Cancer Institute. A few years ago he wanted information on safe dosages for a chemical, developed with aid from the government, that might help patients survive an experimental cancer treatment. But the patent owner told Rosenberg to sign a confidentiality agreement first. When Rosenberg refused, the owner denied him the information. “One of the most basic tenets of science is that we share information in an open way,” says Rosenberg. “A shift toward confidentiality ... is severely inhibiting the interchange of information. This is the real dark side of science.”
Entrepreneurship built the United States and, in a gentler form, can benefit universities as well. But legislators and regulators should not walk away from seeing that public property is used for the common good. Without a sharp eye on them, publicly funded scientists could hide a new cancer cure as if they were prospectors concealing a Gold Rush mine.
