Abstract Academic research in the US came of age as a national political force in the 1920s, largely as a consequence of its contributions to economic growth, beginning in the late nineteenth century, and its contributions to WW I. With this development there emerged prospects for the industrial support and commercialization of academic research that had not existed only a decade or two before. Simultaneously there also emerged an ethical dilemma that has been pondered by university researchers and policy makers off and on ever since. As an intellectual activity, in part supported by public funds and carried out in public institutions, academic research arguably should serve general, not special, interests. However, it can also be argued that the public interest is best served by encouraging academic researchers to seek ownership of and to undertake the commercialization of their ideas, even if supported by public funds.

This paper traces the debate on the ownership and commercialization of academic research from the end of WW I, through the peak period of private funding for academic research (1920-40), the subsequent era of generous government support (1940-1980), and finally the modern era of renewed private/industrial support, partially ushered in by the 1980 Bayh-Dole Amendment. Based on this historical analysis, it will be argued that Bayh-Dole has inappropriately narrowed the debate over the ethics of owning and commercializing academic research to economic considerations and that universities would benefit from looking at these issues from other, broader perspectives.

1. 1920-40

2. 1940-80

3. 1980-Present

Bibliography

Academic research in the US came of age as a national political force and a key to economic development during WW I. To be sure, academic researchers were active politically before and engaged in join projects with industry, but just as WW II crystallized government support for research, WW I brought to the fore for discussion the role academic research could play in national life (Angell 1919). With this change there opened prospects for increased industrial support and commercialization that had not existed only a decade or two before. The change also posed an ethical dilemma for many academic researchers who had been raised to believe that theirs was a service profession that should not be sullied by special interests and thoughts of personal gain.

For some of the Nation’s more technically inclined academic leaders, the opportunity to commercialize academic research was welcomed without reservations. In 1920, Elihu Thomas, President of MIT, answered in response to the question whether "an invention [should] be patented or donated to the public freely?":

Others were less certain of this position. Beginning in the later nineteenth century, patents were increasingly used as tools for the restraint of economic development and progress (Vaughan 1919; see also: Vaughan 1925; Morrow 1945), thereby raising questions about whether patenting and ownership really were in the public interest. This, plus the widely accepted belief that scholars should not seek to own or profit from research (Flexner 1933), produced a clash in views over the ethics of owning and commercializing academic research.

As a practical way through this clash in views, beginning in the mid-1920s major research universities formed or became associated with institutes established specifically for the purpose of managing research profits and simultaneously established policies on research ownership (Committee on Patents 1934; Palmer 1934; Palmer 1948; and Palmer 1952). As a consequence, by the early 1930s, it became "increasingly common for investigators in various fields to apply for patents on materials, processes or apparatus which have resulted from their work" (Sevringhuas 1933, p. 233). Through these developments, researchers were by and large protected from the stigma of private ownership and private profit while allowing the funds to be "made available to many investigators in the institutions where such organized control has been provided" (Ibid.).

As might be expected with any compromise, not everyone was satisfied with the new ways of funding academic research. Foreshadowing a laissez faire approach to research policy that has often been expressed in the more recent debates over misconduct policy, Yale researcher Yandell Henderson reasoned that any attempt to regulate research would raise suspicions and thereby undermine its ethics. Or as he summarized his argument: "Regulations impair ethics" (Henderson 1933, p. 325). On the other side, some wondered whether royalties, however regulated, would "not quench the disinterestedness that is the very essence of pure research" (anon. 1933, p. 452). One biting attack on the new research patterns, while allegedly disavowing any interest in the "ethics or morality of the matter," suggested that "the way it is working out is proving dangerous (Gregg 1933, p. 259)."

Such criticisms and debate notwithstanding, at the start of WW II approximately two dozen major research universities had established research foundations and adopted patent policies. By the early 1950s, when the era of private support gave way to the era of government funding for research, the number of research foundations had doubled and many more had adopted patent policies (Palmer 1952). Predictions made at the end of WW I that universities would not be able to adapt to the demands and constraints of commercial research (Hale 1921) proved to be unfounded. Universities did adapt and were fully prepared to move forward with plans to develop profitable research enterprises when WW II broke out, even if there was no agreement on the ethics of doing so.

WW II dramatically changed the organization of academic research in the US. Prior to the War, most academic research was privately supported; by the late 1950s, most was funded by the federal government, with DOD, AEC, and NASA leading the way. With this change, the focus of discussions on the benefits and problems of specific funding patterns shifted from concern with profit motives and commercialization to concern over government control. In 1932, University of Wisconsin physician Elmer Sevringhaus observed that "[w]hen informal groups of men gather at the various conventions of American scientific investigators, the advisability of the patent method of control is being debated with considerable frequence" (Sevringhuas 1932, p. 233). In 1967, when the American Council on Education Committee on Sponsored Projects reported on academic research, their major concern was the influence and administration of government funding ( for an earlier report, see: Policy 1954; Strickland 1967).

As a consequence of this change, neither the government nor universities paid much attention to the problems associated with ownership and commercialization during the years of major growth in federal research (1950s through the early 1970s). One last report on university patent policies by the National Research Council Committee on Patent Policy was issued in 1952 (Palmer 1952), ending the period of careful tracking that had begun in the 1930s. The Federal government’s own patent policies developed during this period were often vague and uncoordinated (Rudolph 1995). Universities and the Federal government were at the time pre-occupied with working out the details of the new government-university partnership in research. The debate over the ethics of ownership and commercialization thus changed very little from the end of WW II through the opening years of the Reagan administration, at which time two factors intervened to rekindle interest and spark new debate

The first factor was internal to science itself. New tools for biomedical research developed early in the 1970s, particularly recombinant DNA technology, held out the promise of unprecedented economic rewards. Therefore, as soon as the 1976 Asilomar Conference and subsequent NIH regulations resolved key safety issues, which initially fueled anti-RDNA movements, researchers and research universities took steps to jump on what came to be called the "technology transfer" bandwagon. Universities and the government pumped funding into the establishment of new biotechnology laboratories, soon followed by the announcement of the first joint university-industry partnerships. With these changes, questions about ownership and commercialization that had been so widely discussed in the 1920s and 1930s, without any resolution, once again appeared in both popular and professional publications. And the debate might have continued in much the same way it had a half century before, had not a second factor intervened--the adoption of the federal Bayh-Dole Amendment on December 12, 1980.

Bayh-Dole clearly and decisively answered the question whether academic researchers can own and commercialize government-sponsored research. Accordingly to Bayh-Dole, they not only can but in fact are obligated to do so. The Amendment, which took shape during the late Carter administration, requires researchers to report ideas that have potential for development to university administrators, who are in turn required to develop these ideas in ways that will stimulate economic development, with a strong preference for local businesses (Managers 1997) The justification for the Amendment is equally as straightforward, economically based, and essentially repeats the views MIT’’s Elihu Thomas expressed sixty years earlier (as quoted above): "Publish an invention freely, and it will almost surely die from lack of interest in its development. . . . Patent it, and if valuable, it will be taken up and developed into a business" (Thomas 1920). The evidence collected to support Bayh-Dole strongly suggested that government-funded ideas were not making their way into the market place, which further suggested the need for incentives. At a time when "trickle-down Reaganomics" was beginning to take hold, providing incentives through ownership and commercialization provided an ideal solution.

Developments following the adoption of Bayh-Dole provide tentative support for the notion that allowing researchers and universities to profit from intellectual discoveries is one way to ensure that intellectual discoveries are put to work for the good of society. Between 1980 and 1997, the number of patents issued to universities annually jump from less than 250 to more than 1500. Before 1980, only about 25 universities had active technology transfer programs--probably less than in 1940; by 1997 this number had jumped to more than 200. By 1997 the economic spin-offs from university-based technology transfer was estimated to be more than $21B, supporting 180,000 jobs (AUTM, 1997). In sum, Bayh-Dole has apparently succeeded in putting academic research to work for the larger public good, as its proponents claimed would be the case.

However, Bayh-Dole has has had other effects. The facts that owning and commericializing research is both officially encouraged and apparently fosters the development of academic ideas for beneficial purposes has, I would agrue, narrowed the debate over the ethics of owning and commercializing academic research, especially on campuses that stand to profit from such research. At a time when federal support for research is predicted to decline and the profits from technology transfer agreements are growing, how can anyone argue against such agreements? We seemingly have a classic, "win-win" situation in which all sides gain and no one is the looser. If there are no losers, then there is no longer any need for a consideration of the ethics of ownership and commercialization in an of themselves, which is for the most part how the literature on industry supported research and technology transfer has evolved since being reinvigorated in the late 1970s. Major emphasis is now placed on managing conflicts of interest (e.g. Palca 1989; Palca 1990; Anderson 1993; Hilts 1994; Mervis 1995), not avoiding them, and on the few visible examples of ownership and commercialization getting out of hand (e.g. Eliot 1990; Hamilton 1992; Anderson 1993; Djerassi 1993; Zolla-Pazner 1994; Hilts 1996). Much less attention is currently being paid to the underlying ethical consequences, especially of the Bayh-Dole Ammendment (Blevins and Ewer 1988).

This approach to thinking about the ethics of ownership and commercialization follows logically if one views the topic through the eyes of and with the values that typically dominate research universities. Given the assumptions that universities should serve society at large and that one of the ways universities serve society is through advancing knowledge and putting ideas to work, then it is reasonable to believe that ownership and commercialization are acceptable, provided they do help put ideas to work and do thereby benefit the public as a whole. But what happens if we approach the subject of ownership and commercialization through different eyes and with different values, as for example those of Emory President James Laney, who recently argued in an essay on the ethics of universities that: ". . .the essence of moral responsibility and professional accountability is to remain unbeholden." In so arguing, Laney specifically justaposed academic and corporate values, noting that:

If universities began with the assumption that the need to remain "unbeholden" was at least as important if not more important than the need to expand research programs, would they plan and act differently? What questions might be raised? Let me offer the following as some of the question that might then appropriately be addressed:

• If "interest" and "aggrandizement" are antithetical to the core values of universities, then should ownership and commercialization simply be monitored for conflicts of interest or should they be discouraged? Conflict of interest rules on most campuses could be written much more strictly and outside employment could easily be curtailed. Should steps be taken to move in this direction, even if it means reducing profits from research?
• If research funding falls short due to cuts in government funding, should we seek to generate profit from our research by encouraging ownership and fostering commercialization or should we reduce the size of our research programs? In other words, could it be the amount of research universities attempt to do that is the problem today and not the supply of research funds? Is there such a thing as "too much research"? as "more research than the Nation can afford"?
• Do universities that rely more on research profits for research funding serve the same "public" as universities that rely more on public funds? If the source of funding does make a difference in the public served, is this difference ethically acceptable?

In raising these questions, it is not my intent to argue necessarily against the ownership and commercialization of academic research. It is my intent to suggest that the simple resolution of ownership and commercialization issues offered by Bayh-Dole provides neither a balanced nor ethically compelling solution to a key problem that universities have faced in the past and are going to face in the years ahead.

If this sounds like an out-of-date suggestion, in an age when the need to commercialize research and encourage ownership is so widely accepted, keep in mind that as recent as the beginning of World War II, the American Medical Association assumed that:

Harvard University’s patent policy stipulated that:

Yale University was on record as holding that:

If universities and academic researchers could come to believe that patenting and profiting from medical discoveries is not unprofessional or unethical, then perhaps with a little coaxing and encouragement they could come to believe that thinking seriously about the ethical consequences of the current push for ownership and commercialization is also not unprofessional and unethical and might even result in balanced research policies that protect key academic values such as independence, service to the public as a whole, and yes, even teaching.

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