In the article When Academia Puts Profit Ahead of Wonder” (New York Times September 7, 2008 ), Janet Rae-Dupree reports that in the wake of the passage of the Bayh-Dole Act (also known as the University Small Business Patent Procedures Act), universities have ramped up their tech-transfer offices and focused on patenting more of the intellectual knowledge that is produced through university research. According to the act,
“It is the policy and objective of the Congress to use the patent system to promote the utilization of inventions arising from federally supported research or development” and “to promote collaboration between commercial concerns and nonprofit organizations, including universities.”
While the act was meant “to infuse the American marketplace with the fruits of academic innovation,” critics claim that it has “distorted the fundamental mission of universities.” Instead of openly sharing their research and making their findings open to others who might want to expand on it, universities “increasingly keep new finding under wraps” through the pursuit of patents and patent litigation. From the perspective of critics, the patenting of scientific technique and technologies “puts it out of the reach” of other universities who might otherwise have been able to engage in further research (in the case of a scientific finding) or create further innovations that build on a former invention (in the case of a technological innovation).
While Rae-Dupree is suggesting that the missions of the university are being distorted by the university’s pursuit of patents it’s worth pointing out that this may not be the only initiative that is jeopardizing the university mission and the enlightenment ideal of expanding the public store of knowledge. If universities are truly interested in contributing to the marketplace of ideas, we may not only be interested in revisiting patent activities within the university (although a balanced revisit must also look more closely at the positive contributions our technology transfer offices are making), we may also be interested in making sure that universities collaborate and partner with organizations outside the university that are committed to the vision of expanding rather than contracting the intellectual commons.
For example, for many years, universities have been weighing the relative merits of different learning management systems ( the huge and often very expensive software systems that allow schools to teach classes online). But while universities choose these systems on the basis of a myriad of criteria, many don’t give weight to whether the LMS is eroding the same intellectual commons (and open sharing of scientific technique and technology) that the critics of the Bayh-Dole Act are trying to preserve. In order to promote better LMS decision-making we should make this consideration more apparent. On the one hand, open source LMS solutions like Moodle and Sakai are very much intent on preserving this commons and it’s written into the licensing of the software. On the other hand, LMS companies like Blackboard are engaging in patent suits which are perceived by many in higher education to jeopardize open and collaborative technology sharing among universities.
Of course, whether or not an LMS organization is helping to expand or contract the intellectual commons can’t be the most important criteria guiding what LMS organization a university chooses to partner with. The more fundamental
concerns driving LMS choices need to be driven by the capacity of the technology to deliver quality instruction online. But that doesn’t mean that these issues can completely eclipse the question of the intellectual commons. Good LMS decision-making depends on weighing and considering the fundamental missions of the university including it’s abiding commitment to sharing and disseminating research findings and technological innovations. If particular LMS choices erode this commitment while other ones forward it, these considerations should be factored into university strategic planning in the same way that Rae-Dupree says that critics are reconsidering the way that universities should pursue the intents underlying the Bayh-Dole act.