Universities and Technology Transfer in Japan: Recent Reforms in Historical Perspective

The Japanese government has embarked on a series of reforms aimed at stimulating technology transfer from universities to industry. As a result, technology licensing offices are springing up at many national universities. Advocates hope that these reforms will increase the level of university patenting and licensing, which historically has not been a common mode of technology transfer in Japan. Their model is the technology licensing process in the United States, which acquired its present form after passage of the Bayh-Dole Technology Transfer Act of 1980. Such changes face serious historical and institutional barriers. Academic researchers, especially in engineering and physical science, have a long record of collaborative research with industry. Decisions about patenting, however, were usually left to the corporate partner; universities rarely filed for patents under their own name, nor have they, until recently, encouraged or assisted faculty researchers in doing so. Consequently, we believe that current reforms, by going against the grain of past practices, will take time to achieve the hoped for results.     

The Bayh-Dole Act of 1980 and University–Industry Technology Transfer: A Model for Other OECD Governments?

Recent initiatives by a number of OECD governments suggest considerable interest in emulating the Bayh-Dole Act of 1980, a piece of legislation that is widely credited with stimulating significant growth in university--industry technology transfer and research collaboration in theUS. We examine the effects of Bayh-Dole on university--industry collaboration and technology transfer in the US, emphasizing the lengthy history of both activities prior to 1980 and noting the extent to which these activities are rooted in the incentives created by the unusual scale and structure (by comparison with Western Europe or Japan) of the US higher education system. Efforts at “emulation” of the Bayh-Dole policy elsewhere in the OECD are likely to have modest success at best without greater attention to the underlying structural differences among the higher education systems of these nations.     

System architecture practices to facilitate Department of Defense technology transfer

This paper explores the possibilities of combining DOD technology transfer mechanisms to systems architecture techniques as a means to shorten program acquisition timelines while still providing high technology, robust tools to the women and men serving in the United States military. A literature search demonstrates that few articles have been published on the relationship between systems architecture and technology transfer. However, any DOD laboratory that employs more than 200 scientists and engineers is required by law to have a full time Office of technology transfer, so why has so little research been performed on the synergies between the two DOD disciplines? This paper will describe the ways that the systems architecture tools and practices, and technology transfer transactional mechanisms available to all DOD laboratories, can be utilized to increase knowledge sharing with small business and industry partners to shorten acquisition cycles.

     

“拜一杜规则”与中国《科技进步法》和《专利法》的修订

如何促进政府投资所生之科研成果尽快向产业界转移,充分实现公共投资的经济和社会价值,一直是各国政府所面临的一个挑战。美国于1980年制定的《拜—杜法案》通过将政府资助所作之发明获得专利的权利划归完成单位,以产权激励的方式刺激此类创新成果的实施,并为此构建了被称为拜—杜规则的一整套颇为完备的制度,其实施取得了举世瞩目的效果。中国为提高政府资助科研所获得成果的产业化实施率,借鉴美国经验,在《科技进步法》中引入了拜—杜规则的核心内容。但是,仅有科技基本法原则性的规定是不够的,为充分发挥拜—杜规则的积极作用,《专利法》或者《专利法实施细则》中有必要充实这一规则的具体制度设计。     

CLOUD act agreements from an EU perspective

For many years, transatlantic cooperation between the EU and the US in the area of personal data exchange has been a subject of special interest on the part of lawmakers, courts – including supranational ones – NGOs and the public. When implementing recent reform of data protection law, the European Union decided to further strengthen guarantees of the protection of privacy in cyberspace. At the same time, however, it faced the practical problem of how to ensure compliance with these principles in relation to third countries. The approach proposed in the GDPR, which is based on a newly-defined territorial scope of application, clearly indicates an attempt to apply EU rules extraterritorially in relation to data processors in third countries.Irrespective of EU activity, the United States has also introduced its own regulations addressing the same problem. An example is the federal law adopted in 2018, specifying how to execute national court orders for the transfer of electronic data. The CLOUD Act was established in response to legal doubts raised in the Microsoft v United States case regarding the transfer of electronic data stored in the cloud by US obliged entities to law enforcement authorities, as well as in cases where this data is physically located in another country and its transfer could result in violating the legal norms of a foreign jurisdiction. The CLOUD Act also facilitates bilateral international agreements that enable the cross-border transfer of e-evidence for the purposes of ongoing criminal proceedings. Both the content of the new regulations and the model proposed by the US legislature for future agreements concluded on the basis of the CLOUD Act can be seen as an alternative to regulations arising from EU law.The purpose of this paper is to analyse the CLOUD Act and CLOUD Act Agreements from the perspective of EU law and, in particular, attempt to answer the question as to whether this new legal mechanism brings the EU and the USA closer to finding common ground with regard to a coherent model of exchange and protection of personal data.     

The reform of academic tenure in the United Kingdom

In this paper, we examine the reform of academic tenure in the United Kingdom (UK) after the 1988 Education Reform Act.¹ We test the hypothesis that softening tenure encourages incumbent academics to consolidate their hold on academic life [ Carmichael (1988)]. We also assess the economic significance of the English and American case law on tenure, because an understanding of the legal aspects of tenure is required to identify the possible effects of tenure reform. The years after passage of the Act provide an interesting natural experiment, as the broad effect of the legislation was to soften, though not to remove, tenure in British universities. ² We can find support for the Carmichael hypothesis prereform but do not believe that the Act caused incumbent academics to consolidate their hold on senior posts after the reform.Tenure implies that the holder of a post cannot be removed from it except for good cause, usually based on gross moral turpitude or gross incompetence. Such removal is historically characterized by a costly procedure governed by organizational statutes, as shown in Hines v. Birkbeck College.³ In the United Kingdom, academic tenure has been associated with open-ended contracts of employment and often had a particularly hard form before 1988. In the United States, where it has often been possible to dismiss academics for financial reasons by abolishing whole departments, tenure has taken a softer form (although often harder to obtain) and can still be held to exist even when an employment contract is of a fixed term as long as it is renewable. ⁴ The details of universities’ tenure statutes have always varied between institutions, in both the United Kingdom and United States, which is often overlooked.

Abstract

“Before 1988, could your university make academics redundant by giving notice and paying statutory redundancy pay, or was it extremely hard to sack academics—having to buy them out or use arguments based on gross moral turpitude or incompetence?”     

The Effects of University Patenting and Licensing on Downstream R&D Investment and Social Welfare

A central argument behind the Bayh-Dole Act presumed that firms had no incentives to invest in downstream R&D aimed at developing university inventions committed to the public domain. The empirical evidence on university patenting and licensing is partly at odds with the premises of this argument. Non-exclusive licensing of university patents has been common and lucrative, and in the area of biomedical technologies university patents and licensing restrictions may be a hindrance to downstream R&D, rather than a stimulus. The paper presents a model of R&D competition based on a university invention where appropriability conditions are defined by the patentability of downstream innovations and imitation opportunities. A comparison of equilibria under “open access” to university inventions and under “university patenting” shows that only under restrictive conditions the latter regime results in increased R&D investment and social welfare. In general, university licensing royalties are therefore a poor gauge of social welfare gains from university patenting. This is an extensive revision of the paper “University Patents, R&D Competition, and Social Welfare” presented at the conference on University Spin-Offs at the Université du Québec à Montréal on February 27th, 2004. I would like to thank the conference participants and a referee from the journal for useful comments and suggestions.     

Redeploying Bayh-Dole: beyond Merely doing good to optimizing the potential in results of taxpayer-funded research

Opinions about the Bayh-Dole Act of 1980 and its implementation by US universities can depend on whether one views the Act as a series of tactics that are ends in themselves or as a policy declaration designed to protect the public against nonuse of taxpayer-funded discoveries and encourage their commercialization, utilization, and public availability. Those views appear to influence how universities and their leaders measure performance and define success, identify and allocate resources, approach transfer strategies, and negotiate terms and apportion risks relative to those terms. Those who view the Act as tactical tend to obscure the broader policy objectives which can result in substantial amounts of university research that is “never commercialized” (President’s Council of Advisors 2003), “restrained” (Schacht 2010b), and “left unused and unapplied” (Seipman in Univ Dayt Law Rev 30:209–243, 2004). Society then is deprived of the new products, services, approaches and experiences that can stimulate economic growth and advance human welfare. These and other consequences demand evaluations and assessments of university practices and behaviors and the extent to which they narrowly serve the Act’s tactics or more broadly serve its purposes of pursuing and maximizing the potential usefulness of the results of taxpayer-funded research. Too frequently, there seems to be a disconnect between federal policy and practices adopted or tolerated by universities and their leaders to implement that policy.     

Institut Pasteur v. United States: the AIDS patent dispute, the Contract Disputes Act and the international exchange of scientific data

In the case of Institut Pasteur v. United States, the Institut Pasteur (Pasteur) claimed that the National Cancer Institute (NCI) had breached express and implied contracts to share research on AIDS virus samples provided to NCI by Pasteur. NCI scientists allegedly used the samples to acquire information which allowed NCI to file patent applications for an AIDS blood test kit. The United States Claims Court dismissed the complaint by holding that the Institut Pasteur had not complied with certain administrative procedures required by the Contract Disputes Act before bringing its suit. The United States Court of Appeals for the Federal Circuit reversed the decision of the Claims Court by holding that the disputed contracts did not fit within the scope of the Contract Disputes Act. Soon after the Court of Appeals decision, President Reagan and Prime Minister Chirac announced a settlement agreement whereby the lawsuit was to be dropped, American and French scientists were to share credit for having discovered the AIDS virus, and both parties to the suit were to share the patent rights for the AIDS blood test kit. This settlement suggest that international legal disputes involving urgent scientific and medical matters may require dispute resolution techniques that serve as alternatives to national courts.     

论美国进出口银行的宗旨与经营原则——兼及中国进出口银行制度的完善

经过70多年的历史演变,美国进出口银行不但具有法定的经营宗旨,而且还具有用以支持这一法定宗旨的经济理论依据.围绕其法定宗旨的实现,美国国会还通过立法确立了美国进出口银行的一系列经营原则、如竞争性原则、补充性原则、经营性原则等.相对于美国进出口银行完善的法律制度,我国有关中国进出口银行的制度无论在立法的形式上还是在内容上都有许多不足之处.因此有必要借鉴美国的管理经验,完善我国的进出口银行制度.     

The beginning of university entrepreneurship in Japan: TLOs and bioventures lead the way

Following reforms between 1998 and 2004, Japan’s technology transfer system closely resembles the U.S. Bayh-Dole system. Numbers of TLO patents and licenses and numbers of startups are respectable compared to U.S. numbers shortly after enactment of Bayh-Dole. However, capabilities of TLOs vary, average royalties are low, and business prospects for most startups seem limited. In contrast, joint research with companies is increasing rapidly. Most joint research inventions are jointly owned giving the companies an automatic de facto, non-transferable, royalty-free and license. Data from one university show a large proportion of engineering and materials/chemistry inventions are attributed to joint research with large companies, thus limiting opportunities for startup formation and licensing to other small companies. (In biomedicine, pre-emption of discoveries by joint research is less.) Pre-emption of university discoveries (often publicly funded) under joint research agreements recreates the pre-reform system, where corporate donations also enabled pre-emption of discoveries. Like the old system, the new system is advantageous to established companies. Strengthening the formal system (including programs to assist startups) may redress this balance and give Japan the benefits of both types of technology transfer systems.

我国基因专利保护范围界定的思考

基因专利保护范围边界的确定是当前生物科技专利领域中争论的焦点之一。专利保护范围决定着专利垄断权的实际价值，基因专利保护范围直接影响着生物技术产业的发展。主要梳理美国、德国、瑞士和日本在基因专利保护范围上的发展变迁趋势，同时初步探讨对我国基因专利保护范围界定方面给予的启示。     

论我国医疗损害技术鉴定制度构建

《侵权责任法》仍未解决我国医疗鉴定体制的二元化问题。医学会医疗事故技术鉴定和法医医疗损害司法鉴定两种模式各有利弊,法医鉴定模式并不比医学会鉴定模式优越。在专业技术问题的判断上,日本、德国、荷兰、美国的医疗损害鉴定模式都采同行评价的原则。构建我国医疗损害技术鉴定制度应坚持充分利用现有鉴定资源、尽可能融合当前两种鉴定的优点、法律问题与技术问题分离的宏观理念,并坚持公开、救济、辩论、鉴定专家半职业化、鉴定方法科学和法律指导的基本原则。在制度的具体构建上,鉴定名称应选择医疗损害鉴定或医疗损害技术鉴定;新的鉴定机构应在现有医学会医疗事故技术鉴定机构的基础上组建,并要求法医专家参与,调整鉴定专家来源、专家鉴定组和鉴定专家库组成,完善鉴定程序,确定鉴定理论、鉴定方法,明确鉴定原则,扩充医疗损害技术鉴定的内容;也可以借鉴日本的鉴定模式,由医学会建立专家库,由法院启动、组织鉴定。     

Human-nonhuman chimeras: a regulatory proposal on the blurring of species lines

The chimera of modern biotechnology is defined broadly as a single organism composed of a mixture of materials from two or more organisms possessing distinct genetic backgrounds. Unlike the United States, which does not regulate chimeras directly, Canada has responded to the unregulated pursuit of chimera technology by banning certain chimeras as part of comprehensive legislation designed to regulate human reproductive technologies. In 2004, the Canadian Parliament passed the Assisted Human Reproduction Act despite criticism urging greater legislative justification for the Act's provisions and modification to it statutory definitions. Because current regulatory mechanisms in the United States, including patent law and administrative oversight, fail to regulate chimera technology, the United States should enact new legislation, using Canada's legislation as a model, to prohibit embryonic chimeras and to regulate other human-nonhuman combinations. Unregulated biotechnology threatens to disrupt legal and social institutions; therefore, the United States must make a balanced effort now to protect the public interest.     

Transfer of academic research: uncovering the grey zone

In this study, we respond to calls for further investigation on why and how scientists choose to commercialize their research. Mowery (University entrepreneurship and technology transfer: process design, and intellectual property, Elsevier, Oxford 2005), in his criticism of the US-system, emphasizes the need for multiple channels between university and industry. His argument makes the case of Sweden interesting, where the researchers own the intellectual property of their research. Sweden thus constitutes a unique case where data can be found on which choices researchers make in a setting where a variety of channels for transfer are available. Our empirical data, collected through case studies, allowed for the expansion of the typology for mechanisms for transfer of academic research as well as the development of a typology for determinants for researchers’ choice to engage in transfer of research. Apart from those contributions to the theoretic discussion, the data also provided policy implications.     

Performance of technology transfer offices in Germany

The aim of this study is to empirically analyze the performance of technology transfer offices (TTO) in Germany. Although being one of the largest and innovative economies in the world, there is only scarce evidence about the role and performance of TTO in university–industry technology transfer. While policy makers and university managers are often quite optimistic about the impact of TTO in fostering technology transfer into the region, consulting firms and research institutes report such institutions in Germany as superfluous and counterproductive. Using the number of invention disclosures as a performance measure, we analyze how variance in performance can be explained by different organizational structures and variables of TTO. Controlling for regional endowment and university specific effects, our results reveal that TTO performance is mainly a function of the kind of labor division within the TTO and the research intensity of the university. Knowing the drivers of TTO performance may help policy makers and university managers to reflect their strategies, mitigate weak points and thus foster performance.     

Capturing Technological Opportunity Via Japan's Star Scientists: Evidence from Japanese Firms' Biotech Patents and Products

Using detailed data on biotechnology in Japan, we find that identifiable collaborations between particular university star scientists and firms have a large positive impact on firms' research productivity, increasing the average firm's biotech patents by 34 percent, products in development by 27 percent, and products on the market by 8 percent as of 1989–1990. However, there is little evidence of geographically localized knowledge spillovers. In early industry formation, star scientists holding tacit knowledge required to practice recombinant DNA (genetic engineering) were of great economic value, leading to incentives motivating their participation in technology transfer. In Japan, the legal and institutional context implies that firm scientists work in the stars' university laboratories in contrast to America where the stars are more likely to work in the firm's labs. As a result, star collaborations in Japan are less localized around their research universities so that the universities' local economic development impact is lessened. Stars' scientific productivity is increased less during collaborations with firms in Japan as compared to the U.S.     

How national security considerations affect technology transfer

The transfer of United States high technology to the Soviet Union shows that, contrary to many assumptions, international transfer of technology can heighten national rivalries and increase military tensions. Many advanced technologies have important military applications. The Soviet Union has acquired much such technology from the west and then has used it to strengthen Soviet military capabilities vis-a-vis the west. This approach to international technology transfer supports general Soviet priorities in science and technology, which emphasize military power rather than international commercial competitiveness or domestic social welfare. The United States and its allies have responded by sharing militarily applicable technology among themselves while denying its export to the Soviet bloc. As of September 1988, neither the Soviet policy of glasnost nor progress in the US-USSR arms control negotiations seems to have changed the primarily military bent of Soviet policy on technology transfer. Sumnner Benson, Ph. D. deputy director for Technology Cooperation and Security in the Office of the Secretary of Defense and is senior assistant to the director of the Defense Technology Security Administration     

Recovering fraudulent claims for Australian federal expenditure on pharmaceuticals and medical devices

The Australian Federal Government expends increasingly large amounts of money on pharmaceuticals and medical devices. It is likely, given government experience in other jurisdictions, that a significant proportion of this expenditure is paid as a result of fraudulent claims presented by corporations. In the United States, legislation such as the False Claims Act 1986 (US), the Fraud Enforcement and Recovery Act 2009 (US), the Stark (Physician Self-Referral) Statute 1995 (US), the Anti-Kickback Statute 1972 (US), the Food, Drug and Cosmetic Act 1938 (US), the Social Security Act 1965 (US), and the Patient Protection and Affordable Care Act 2010 (US) has created systematic processes allowing the United States Federal Government to recover billions of dollars in fraudulently made claims in the health and procurement areas. The crucial component involves the creation of financial incentives for information about fraud to be revealed from within the corporate sector to the appropriate state officials. This article explores the opportunities for creating a similar system in Australia in the health care setting.     

Technology transfer at land-grant universities

Improvement in the ability of universities in the United States to transfer technology to the private sector is seen as a factor in strengthening American competitiveness. To better understand the university's role in this process, a survey of formal university programs in technology transfer was performed through personal interviews at four midwestern land-grant universities. There are six basic types of programs in place: technical assistance, affiliate, licensing, business development, incubators and research parks, and information networks. For purposes of classifying these programs, we used the model developed by Janis et al. (1) It was found that, of the six modes of technology transfer, two could be considered active, three semi-active and one passive.