What Africa Can Learn from Bayh-Dole Act

Last year, the Intellectual Property Rights from Publicly Financed Research and Development Act enacted by the government of South Africa, went into effect. The Act regulates how private institutions access university research when public funding is also involved.  It strives to eliminate perceived exploitation of public funded university research by making sure that taxpayers are adequately compensated. The implication is that companies must not just fund research, but also ensure that no public funding is used, if they intend to become sole beneficiaries.

The proponents of this legislation have argued that they are helping the citizens by safeguarding the public funds. And across the continent, other countries are likely to follow South Africa and enact similar legislations to forestall profit-seeking institutions from ‘exploiting’ taxpayers.  The Act is a welcome development in a continent where IPR remains weak and developing the structure will surely help in the long-term competitiveness of Africa. The nation has the right to seek for companies to properly license or pay for research.

Yet, the challenge in Africa is not necessarily university licensing of technology, but actually developing an environment that can sustain quality research. In this case, following South Africa that has the best university research network in Africa to enact a similar Act will be a misplaced priority for the other nations. Any sign that involvement of public funds in universities that are predominantly owned by the public will limit access to research outcomes could alienate the few companies that support the schools. The relationship between the university network and the industry is weak and increasingly schools still destroy research outcomes, simply to make space to store new ones. Products there were nurtured in the university labs are not common. So any more legislation that can scare companies could dampen any prospect to enliven the academic-industry partnership in the continent.

Indeed, Africa can learn from the Bayh-Dole Act especially now the nations are trying to emerge from the most devastating global recession since the Second World War, with policymakers, business communities, academia, and governments looking at ways to accelerate growth and competitiveness.  Governments matter and a single legislation could have impacts that can redesign a nation’s economic destiny. Globalization makes it necessary that nations must compete not just on technologies, but on policies upon which those technologies are developed and commercialized. It is the policy that makes it possible that two universities in two separate countries can develop similar technologies with one creating Fortune 500 companies within a decade and another having the idea locked up in a cabinet. So the policies or legislations made by our parliaments on what happens to inventions funded with public money matter.

In 1980, a United States legislation dealing with intellectual property emanating from federal government-funded research was implemented. The legislature called Bayh-Dole Act gave US universities, small businesses and non-profits intellectual property rights and control of their inventions, even though they were funded by government. Through this Act, these entities could pursue ownership of inventions in preference to the government. Though there are mixed records on the Act, at least, it provides clarity on many issues that could derail the process of taking ideas to market. Small businesses can nurture ideas and later get acquired by the big ones. Such ideas might have been overlooked by the MNCs.

Bayh-Dole Act is arguably the most important business legislation of the last few decades in the United States. It delivered through legislation and transformed the pace of innovation by providing a fluidic system that enhances U.S competitiveness.  Many entrepreneurial companies, such as Google and Akamai which licensed their technologies, respectively from Stanford University and MIT, might not have been possible without this Act.

The South African Act shows how the nation has progressed economically than most other African nations. Yet, the requirement that a company loses sole rights to research when public funding is included could be difficult to manage. For a nation of about 100 patent attorneys, having this Act could possibly slow the pace by which research goes to the market. Layers of bureaucracies have been created in the university technology transfer offices to isolate who funded what. If all the works end up in shelves than products, that will not serve the taxpayers. It is important to realize that citizens do not have to reap benefits of funding research by being paid money by companies, at least, at this stage of our development.

If firms develop good products and employ the citizens, they should be considered as paying the public. We cannot scare firms from visiting university labs. Governments must be ready to give, freely, university works to the few companies that can use them and create products, irrespective of the funding source. If they want sole rights and can justify why, despite partial public contribution, we need to give them.  Our governments do not instill confidence that they can do anything useful with these works if companies that want them are denied access to them. Africa needs more products than extra file cabinets to store university research.

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