Document Type

Working Paper

Publication Date

8-22-2009

Abstract

As publicly funded institutions have increasingly embraced the goal of commercializing scientific research concerns about private appropriation have become familiar refrain One commonly suggested remedy is to create some kind of recoupment provision whereby the State on behalf of the public receives a certain percentage of profits realized The BayhDole Act originally included a recoupment provision but it was deleted by a legislative committee Countries around the globe attempting to emulate BayhDole have whether by design or default reinforced the underlying logic against recoupment which is essentially as follows obligations to provide direct financial returns undermine the commercialization process and therefore threaten what the public cares about most ie the production of new goods Despite regular controversies over alleged windfalls to industry this logic has continued to prevail until now The California Institute of Regenerative Medicine CIRM has recently issued two intellectual property policies applicable to nonprofit and forprofit grant recipients respectively each of which contains mechanisms to recoup a portion of the public's tax dollar investment Why This Article aims to explore that question by one further explaining the curious history in which the wisdom against recoupment came to prevail two probing the details of CIRM's intellectual property policies and examining the arguments for and against the recoupment formulae they establish and three revealing the limits of what is actually known about whether such mechanisms exert a chilling effect on the commercialization process and whether or not a direct financial return is what the public values most In the end the value of recoupment may be best conceived of in democratic terms as one means of attempting to balance a host of conflicting views and preserving public trust as the many promises of biotechnology become increasingly integral to nationbuilding strategies and our lives

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