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Universities Undermine Supreme Court Ruling

October, 10, 2013
For more information, please contact Cary Nelson, AAUP past president

New AAUP report describes attempt by university administrators to claim ownership of faculty intellectual property; educational campaign to inform faculty about their rights

Defending the Freedom to Innovate: Faculty Intellectual Property (IP) Rights After Stanford v. Roche, a draft report released today by the American Association of University Professors (AAUP), documents the year-long effort by many of our most distinguished research universities to nullify the US Supreme Court’s 2011 Stanford v. Roche ruling. Spearheaded by the University of California system and joined by public and private universities including the University of Chicago and the University of Illinois, this multicampus effort aims to take away the faculty patent rights established by two hundred years of patent law and reinforced by the nation’s highest court in 2011.

In Stanford v. Roche, the Court ruled against a coalition of universities that had asserted that the 1980 Bayh-Dole Act not only gave institutions the right to own faculty inventions but also mandated they do so. Faced with a firm rejection of this claim, many institutions responded by trying to nullify the decision. Some made all faculty sign a new form giving away all present and future patent rights; others simply declared university ownership on a campus website.

The inventions at stake include patents and other products. For example, the MOOC revolution is leading some institutions to demand ownership of online instructional materials. As the AAUP’s draft report points out, all a university needs is a license to distribute an online course, but many are pressing unnecessarily for ownership as well.

Interestingly, the dispute is not about money. For decades most universities recognized that faculty members owned their inventions and had the right to decide whether they should be commercialized. If they were, a faculty inventor and the institution would usually share any profits, and that is still the case. But faculty are losing the power to decide whether and how their inventions should be disseminated—a right that is covered by academic freedom. Faculty are beginning to protest, but many are afraid of retaliation.

The AAUP is launching an educational campaign to inform faculty about their rights and to encourage faculty senates and contract negotiating teams to secure the rights the Supreme Court has confirmed. There is no evidence that university administrators understand inventions better than faculty members do. The AAUP believes the public good is better served by those who know these scholarly products best deciding whether to give them away for free or seek commercialization.

The draft report—and supporting documentation—is available at It will be followed by a January 2014 book to be published by the AAUP Foundation and distributed by the University of Illinois Press, Recommended Principles to Guide Academy-Industry Relationships.

The mission of the American Association of University Professors (AAUP) is to advance academic freedom and shared governance, to define fundamental professional values and standards for higher education, and to ensure higher education’s contribution to the common good. Founded in 1915, the AAUP has helped to shape American higher education by developing the standards and procedures that maintain quality in education and academic freedom in this country’s colleges and universities. The AAUP is a nonprofit professional association headquartered in Washington, DC.

Media Contact: 
Cary Nelson
Publication Date: 
Wednesday, October 9, 2013