I think that this brief is premised on some incorrect assumptions about both the marketplace and the law. First, bestowing the right on inventors to select their TTO would probably not be a simple amendment. Bayh-Dole applies to more than just universities and professors. It applies to entities receiving federal funds.

Second, inventors do not usually make the best business people or decision makers. Complicating the transfer process by introducing more choices does not seem like the road to efficiency.

Third, decentralizing a university’s control over federally-funded inventions seems ripe for dispute. Joint inventorship, equity reviews, co-mingling of funds, and other “difficult” endeavors would only be more complicated.

Finally, I think it would remain to be seen whether a choice of TTOs would work at all. Under what circumstances must a TTO take a disclosure? If most disclosures are a value-losing proposition for TTOs, then such a system would only be accessible by the “best” invention disclosures which are the same disclosures that would likely see success even at the worst of TTOs. But the result is that internal TTOs would have fewer funds to pick up the less-than-the-best disclosures.

In Sweden we have the professors privilege which means that the university inventors own their inventions and has the responsibility for commercialization. This is by far the best way to prevent commercialization of inventions. In my opinion the suggested change would probably add very little to technology transfer as is suggested by the Swedish example.