Lessons from Bayh-Dole: Reflections on the Intellectual Property Rights from Publicly Financed Research and Development Act

Abstract

The Intellectual Property Rights from Publicly Financed Research and Development Act 51 of 2008 promotes patenting and commercialisation of state-funded science. The Act is similar in scope and objective to the American Bayh-Dole Act. This article explores some of the problems created or exacerbated by the Bayh-Dole Act. Traditionally, American innovation was based on a philosophy of open science. Universities conducted basic foundational research which was freely available to others who wanted to commercialise and build on it, or use it for further scientific research. The Bayh-Dole Act changed the model of science to a proprietary model. One of the problems this created was increased patenting of foundational research tools such as genes and cell-lines, which follow-on researchers require for their own research. Sometimes, research has been blocked or impeded by an inability to obtain research licences to patented research on reasonable terms. The Act has also had a negative effect on scientific collaboration and publishing. The article examines whether South Africa’s Intellectual Property Rights from Publicly Financed Research and Development Act has been able to avoid the most serious of the Bayh-Dole pitfalls.