Patents and the University

Abstract

This Article advances two novel claims about the internalization of academic science within patent law and the concomitant evolution of “academic exceptionalism.” Historically, relations between patent law and the university were characterized by mutual exclusion, based in part on normative conflicts between academia and exclusive rights. These normative distinctions informed “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, however, academic science has become internalized within the traditional commercial narrative of patent protection. Contemporary courts frequently invoke universities’ commercial nature to reject exceptional treatment for such institutions. The twin trends of internalization and exceptionalism have evolved again in recent legislative patent reform. On 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 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.