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13 Harv. J. L. & Tech. 375 (1999-2000)
Hopkins v. CellPro: An Illustration That Patenting and Exclusive Licensing of Fundamental Science Is Not Always in the Public Interest

handle is hein.journals/hjlt13 and id is 381 raw text is: Harvard Journal ofLaw & Technology Volume 13, Number 2 Winter 2000 HOPKINS V. CELLPRO: AN ILLUSTRATION THAT PATENTING AND EXCLUSIVE LICENSING OF FUNDAMENTAL SCIENCE IS NOT ALWAYS IN THE PUBLIC INTEREST Peter Mikhail* I. INTRODUCTION Publish an invention freely and it will almost surely die from lack of interest in its development. It will not be developed and the world will not be benefited. Patent it and it will be taken up and developed into a business.' This admonition, attributed to Elihu Thomson in 1920, underlies the logic of today's government technology transfer program. Publication, by itself, is becoming an insufficient reward for scientific achievement. Instead, the patent race has taken its place, and the great halls of America's research universities are now the inventor's track. The concept of the university as a haven for development and dissemination of basic scientific research has changed greatly since the arrival of the Bayh-Dole Act in 1980.2 The Bayh-Dole Act's use of patents to stimulate technology transfer of federally funded research has had a profound impact on fundamental early stage research and its subsequent usage. Because the prestige and royalties associated with patents have replaced the traditional reward of publication and recognition in the furtherance of science, the university is starting to resemble commercial research laboratory, like a corporation engaged * J.D., 2000, Georgetown University Law Center; B.S., 1993, Johns Hopkins University (plaintiff in Hopkins v. CellPro); Summer Associate, 1999, Lyon & Lyon LLP (special patent counsel for the defendant in Hopkins v. CellPro). This Note was originally written for the Law & Science Seminar at the Georgetown University Law Center. The author thanks Professor Karen Goldman; the author also thanks Reid Adler, a partner in the Washington, D.C. office of Morgan, Lewis & Bockius LLP, for recommending and discussing the subject of this Note. This Note is dedicated to my uncle Moufid Ragheb, who died of cancer after spending his life treating others, and to my friend and classmate Dan Desevo, who died of cancer at a very young age. May those of us versed in science and the law endeavor to make the law work for the advancement of technology and humankind. 1. Lynne J. Bowers & Vickie Leon, Patent Policies of 65 Educational Institutions: A Comparison, Soc. RES. ADMIN. J., Spring 1994, at 7, 7. 2. See Bayh-Dole Act of 1980, Pub. L. No. 96-517, 94 Stat. 3015 (codified as amended at 35 U.S.C. §§ 200-11,301-07 (1994)).

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