Study On University Patents From The Perspective Of Public Interest

University, as an important carrier of knowledge generation and transmission, is the backbone of the national innovation and technological progress. In the era of knowledge economy, academic and market combined closely, academic research has been deeply marked by capitalization, monetization imprint. At present, patent application, license, and litigation activities in university is becoming more and more frequent. University as a public service organization in the traditional sense, whether and to which extent should be involved in the patent activities, has become the urgent problem facing university. At the same time, In the process of co-evolution of academic research and the patent system, how to coordinate the relationship between the traditional scientific norms and the patent system to promote the sharing of knowledge, scientific and technological progress and economic development, becomes the topic that the current reform of the patent system can’t avoid. Based on this, this paper concentrates on “problems of university patents” from the perspective of public interest, trying to check and correct the present sitituation of university patent activities deviating from public interest mission.Apart from the introduction, the paper is divided into five chapters, a total of one hundred and seventeen thousand words.The first chapter discusses the problem of co-evolution of the idea of university and patent system, which mainly expounds how university walked out of the “ivory tower” and integrated with utilitarian patent system. In the early days, the traditional university pursued classical rationalism idea represented by Newman and Humboldt University, which believes that university is a place in which explores the profound knowledge and the universal truth driven by pure reasons and disinterested. Corresponding to the University ideas of rationalism, academic community has shown "universality, openness, selfless and organized skepticism" of the scientific ethos in traditional academic study, university researchers are required to publish their achievements as soon as possible and carry out academic sharing. However, the patent system is justified by utilitarianism, aiming to promote the inventor recovery of investment costs and thus encourage inventions by means of giving the inventor a certain period of exclusive monopoly right. In this sense, the traditional universities are essentially different from commercial entities pursuing profit-maximization in norms and value. Therefore, academic inventions were not included in patent system at that time. However, with the development of economic society, especially in the era of knowledge economy, the university functions began to change. Universities have played an increasingly prominent role in the market economy. An increasing number of universities, teachers and researching staffs actively make use of their academic capitals involved into market. Patent system and other relevant national policies of intellectual property management about science and technology, as government regulatory tools, strengthen the academic capitalization activities. Especially influenced by the promulgation and implementation of the U.S “University and Small Business Patent Procedures Act”, commonly called "the Bayh-Dole Act", patent application, license and entrepreneurial activities have become a general trend in most universities all over the world.The second chapter expounds the justification to grant university patents, namely why academic inventions should be regulated by patent law even in the case that they are funded by public finance. Base on the Property Intervention theory, academic inventions are public goods with positive externalities, which can’t avoid market failure resulting from "free-rider" and "common tragedy" problems, so it is necessary to grant university patent right for the purpose of encouraging invention investment and innovation. Moreover, even if academic inventions are funded by public finance, the rationalities still exist. Compared to government patent rights, university enjoys patent rights have the following advantages: First, as a research and development unit, university knows the potential commercial values of the invention much better than the funded government, and highly motivated to look for potential commercial licensees for subsequent investments. Furthermore, companies can interact directly with the university inventors, facilitating the effective transfer of inventions. Second, University usually grants private companies exclusive licenses to ensure their competitive advantages and corporate profit margins, so the companies are more willing to make commercial investment in university patents. Third, as a licensor, university does not impose bureaucratic or institutional barriers that may hinder the development of products commercialization on any enterprise, making sure that corporations more equally and friendly reach licensing agreements with universities. Fourth, the University reserving the patent rights of government funded inventions, can attract more business investment, and strengthen cooperation between universities and enterprises. Compared to employee inventor patent right, university patent right also has the following advantages: First, as a non-profit public institution, university undertakes the mission of serving the society. In this sense, relative to employee inventor, university patent activities will take more much account of public interest. Second, academic inventions are generally researched in team resulting that there are multiple inventors, for which it is difficult to assign the rights among the employee inventors reasonably and carry out technology transfer efficiently. Compared to traditional academic norms, patent system is not incompatible with them that can not reconcile at all. Although the role of patent system is mainly in the field of applied research, basic research of university is largely affected by science award system and traditional scientific norms, both of them give rewards to inventor for the priority at the expense of disclosure and promote the production and dissemination of new knowledge. The patent system appropriately expanding into upstream inventions can more fully and effectively achieve the reward of the academic community and disclosure of invention.The third chapter demonstrates the rationality and necessity of limitations of university patent rights depending of public interest. Although granting university patent rights are justified, based on the legal nature of university and the possibility of right abuse, public interest must be the instrumental value of the outer limit of the university patent right. We should never beyond this limit in the process of distribution and execution of patent right, otherwise the public will suffer serious damage. The reasons that public interest can be the criteria of right limitation, are mainly based on the scarcity of resources, the necessity of balancing of interests and the justice orientation value. As a human creation mode of private right, patent right itself have strong public interest attribution. Therefore, we must try to balance the relationship between the private right and public interest in the process of right distribution. The public law person’ legal status of universities determines that their patent rights shall be limited to the public interest for surely. Universities especially public research universities, their public service purpose and mission are particularly bright, for which the core business is to offer general education, the cultivation of talents and continuously explore and spread new knowledge. In a word, the existences of universities are for public interest. While universities themselves are public institutions, it does not mean that all transactions are public affairs. In the face of rich returns from patent right, universities’ patent activities are likely to deviate from the mission to serve the public interests. Limitations on university patent rights are arising from public interest and also stopping here.The fourth chapter argues the current university patenting and practices of patent rights is deviating from the mission of public interest based on some dates from empirical analysis. Viewing from university patent application practices, public interest is violated in two aspects: First, the problem of “tragedy of the commons”. Although the University patents are granted legitimately, basic research is always the main scientific research subject of university. If given too many patents for these upstream researches, it’s bound to significantly increase the transaction costs of further research and commercialization, seriously inhibit downstream research and commercial development, causing insufficient use of resources. Myriad case has become a negative model of excessive patent applications. In addition, confined to the academic missions of knowledge production and dissemination, university patent application behavior will inevitably make some negative effects to traditional academic openness and sharing norms, including the speed, form and range of the academic openness, and even the direction of the research itself. Looking from the enforcement of university patents, there are two performances run counter to public interest: First, the low patented technology commercialization rate. While with a large number of university patent applications and patent grants, the average lifetime and industrialization rate are very low. This situation is not only against the original purpose of granting university patent right, at the same time, so many patents leaving unused will cause the waste of public resource. Second, the social cost of exclusive license model. University usually transfers their patent technologies to enterprises with an exclusive license in practice. Exclusive license model will cause harm to the follow-up research and scientific and technological progress on one hand, in some special fields such as pharmaceutical industry will affect the human health and development on the other hand. At present, some universities technology transfer activities are aiming at pursuing the wealth maximization, which go against the public mission of knowledge production and technology dissemination. From empirical data of involvement in patent litigations, the number of universities participating in the patent litigations is in a rising trend, some of them even got huge damages relying on patent infringement litigations. If universities file law suits against productive enterprises only based on financial motives, the social overall evaluations of universities and commercial uses of university patents will both be adversely affectedIn view of public interest deviation of the current university patent activities, the fifth chapter puts forward some proposals to solve the problems. In the era of knowledge economy, privatization and commercialization of academic inventions are good for public interest as same as knowledge publication and sharing behaviors. In this sense, the appropriate university patent applications, patent license and litigation activities are allowed, and should not be overly judgmental or ban all patent activities. The key is how a university can both seize business opportunities and abide by and fulfill the public service functions. On one hand, we should depend on “hard law” with a core of patent system on one hand, and “soft law” with a core of university statutes on the other hand. In terms of “hard law” system: First, we should improve utility requirement, requiring inventor to build a prototype of invention before patent application, which can improve the quality of patents from the source. Second, reshape the patent incentive mechanism, improving the incentive level of patent commercialization. The current patent incentive mechanism is mainly “incentive to invent”, pay little attention to commercialization. Patentees are not willing to and have no obligations to commercialize the patented invention at expense of high risk, which creates conditions for patent rent-seeking behaviors. Therefore, we should explicitly incorporate the commercialization into the scope of patentee’s obligations, requiring patent owners with commercial implementation capacity and conditions to practice the patented invention in a certain period. Third, it is necessary for us to appropriately expand the application of novelty grace period to better coordinate the relationship between financial missions and academic missions of universities. Fourth, we should perfect the relevant scientific and technological legislation, financial and taxation polities and so on. For example, because university funding mainly comes from the state, we can make full use of this financial leverage to encourage the patentee to make patenting and licensing decision more beneficial to society in the contracts. In terms of “soft law”, giving full play to the self-regulating mechanism with the core of university statutes will really make sense. The orientation of university’s core mission and the patent policies construction guided of it can direct universities and academic community to conduct more society beneficial decisions.