Nine months after the U.S. Supreme Court's decision not to consider an appeal of a key lawsuit verdict against the University, the "devastating" effects on research many predicted have not come to pass. However, administrators said they remain concerned about possible constraints on University research and the specter of costly legal battles in the future.
The lawsuit came from a former Duke physics professor, John Madey, who claimed that the University was violating patent law by continuing to run his patent-protected Free Electron Laser Laboratory after he was dismissed in 1997. The University countered that it could legally use the lab and its contents under the "research exception," which allows scientists and others conducting experiments to use devices, research tools or procedures that are covered by patents held by other parties, as long as those researchers are using the patented objects or technologies for non-business purposes. A federal district court in Greensboro sided with Duke, but that verdict was overturned by a Washington, D.C., appeals court and remained when the Supreme Court did not consider the case.
Administrators fear that the pro-Madey ruling will make research more expensive as scholars have to confirm that none of their research tools are being used in violation of patents. Worse still for the University is the possibility that a patent holder could file suit against Duke for such a violation.
So far, Provost Peter Lange said the University has only received a few letters regarding the possibly inappropriate use of protected technologies, but that nothing has come of the inquiries. He said he nevertheless has some concerns.
"It's hovering out there," he said about the possibility of legal action against the University. "We talked about what might be appropriate ways to approach or remedy the situation.... Everybody's kind of looking and thinking."
Discussions about the issue have taken place on the issue at every level of the University, with University and Duke University Medical Center representatives meeting in August to chart a course, a letter being sent to the faculty warning them about the change in the law and much internal discussion among administrators and faculty members. Despite the buzz, there has been no change in research activity or official policy so far, since to some extent, there is little the University can practically do to get within the presumed realm of legality.
"Almost everything--at least in the biological sciences--every lab in the University is probably infringing," said Vice Provost for Research James Siedow. "If suddenly the floodgates are open, I don't know how you handle it. If everybody's basically saying, 'You need to pay a fee for my technology,' there wouldn't be enough money to pay all the fees."
The apparent death of the research exception for universities could have a national reach far beyond Duke. Last year, more than two dozen universities and academic organizations signed amicus briefs supporting Duke and asking the Supreme Court to take the Madey case.
Other universities, such as the University of California, have received letters similar to those received at Duke, but Lange said he had not heard of other universities changing policies so far.
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