Duke Law Journal

Patents and the University

Abstract

This Article examines the intersection of patent law and academic science. It advances two novel claims about the internalization of academic science within the patent system and the concomitant evolution of “academic exceptionalism.” Historically, relations between patent law and the university were characterized by mutual exclusion, based in part on perceived normative conflicts between academic culture and exclusive rights. These normative distinctions helped inform academic exceptionalism—the notion that the patent system should exclude the fruits of academic science or treat academic entities differently than other actors—in patent doctrine. As universities began to embrace patents and the nature of scientific research evolved, however, academic science has become internalized within the traditional commercial narrative of patent protection.

Nowadays, courts frequently invoke universities’ commercial nature to reject exceptional treatment for academic institutions. The twin trends of internalization and exceptionalism have evolved again in recent legislative patent reform. On the one hand, the interests of academic science have become completely internalized within the patent system to the extent that they inform general rules of patentability applying to all inventions. On the other hand, academic exceptionalism (which courts have rejected as a doctrinal matter) has been resurrected in the form of special statutory carve-outs for universities. Turning from the descriptive to the normative, this Article concludes with recommendations for improving the patent system’s regulation of academic science in multiple contexts.