Academic Discourse and Proprietary Rights: Putting Patents in Their Proper Place

Abstract

This Article provides a fresh perspective on the Bayh-Dole debate by focusing on the impact of patent novelty rules on academic discourse. The Article proposes that to begin to reverse an observed deterioration in disclosure norms, flexibilities must be built into the patent system so that patents can be facilitators of the academic knowledge dissemination enterprise. In particular, the Article advocates creation of an opt-in extended grace period that would provide more time for academic researchers to publish and present early-stage research before having to file a patent application. Such an extension, coupled with early application publication, would both address third-party needs for notice of proprietary claims and allow researchers to engage in traditional academic discourse while they retain the ability to obtain proprietary rights useful for commercialization of their inventions.