Coalition of Academics Sends Letter Opposing Biden Administration’s March-In Rights Proposal

“History indicates that increased risks to the property rights that drive private investment and small business growth will unreasonably limit availability of the invention to the public by eliminating incentives to innovate.” – Coalition of 14 Academics

AcademicsToday, a letter signed by a coalition of top academics opposing the Biden Administration’s efforts to exercise march-in rights under the Bayh-Dole Act of 1980 was sent to the White House. Signed by academics in fields including law, economic policy and sciences, the letter warns the Biden Administration that its efforts to drive down drug pricing by seizing patent rights will “undermine fundamental principles that have made the American IP system the golden standard for supporting domestic innovation.”

A growing topic during recent Congressional debates, march-in rights under Bayh-Dole took on a new focus in early December when the National Institutes of Standards and Technology (NIST) and the U.S. Department of Commerce released a draft framework of factors that federal agencies should consider for the exercise of authority codified at 35 U.S.C. § 203 that would compel patent owners holding rights to federally-funded inventions to license those rights to “responsible applicants.”

Academics Add to Concerns Voiced by Senator Tillis, GIPC, Bayh-Dole Coalition

Opposition to the Biden Administration’s march-in rights policies has grown more earnest due to the likely impact on the commercialization of federally-funded inventions. Two weeks after the draft framework on march-in rights was published, U.S. Senator Thom Tillis (R-NC) sent a letter to the White House asking the Biden Administration to consider the negative impacts of march-in rights on the certainty required for further private investment in federally-funded research. This month, the Bayh-Dole Coalition formally asked NIST to withdraw its draft framework, while the Global Innovation Policy Center at the U.S. Chamber of Commerce filed Freedom of Information Act (FOIA) requests to obtain communications from the interagency working group drafting the framework.

As the undersigned academics in today’s letter point out, the innovation-chilling impacts of compulsory licensing under march-in rights will not be limited to the pharmaceutical industry, where the Biden Administration expects its efforts to have the most impact. Instead, the march-in rights framework would impact patent rights to any federally-funded invention, which could impact downstream licensing in information technology or other tech sectors that rely heavily on federal funding for research & development.

“Many critical sectors of the United States’ supply chain will be threatened if patent owners are compelled to license IP rights on federally funded inventions. History indicates that increased risks to the property rights that drive private investment and small business growth will unreasonably limit availability of the invention to the public by eliminating incentives to innovate.”

Patent and intellectual property (IP) rights play important roles in the innovation economy, these academics acknowledge, and they benefit good faith actors “who have faith in, but no proof of, their product’s value in the marketplace.” Misguided attempts to control drug pricing by compelling patent licenses will not just threaten a vital component of the U.S. economy but will also enable bad faith actors to petition the government to use march-in rights on their competitors. The academics argue that this could allow unscrupulous companies to “price-gouge in unprecedented ways,” stagnating the U.S. economy while failing to achieve the cost reductions in drug pricing expected by the Biden Administration.

Today’s letter is signed by 14 experts in fields from IP to health care to economic policy. The undersigned academics include Richard Epstein, Laurence A. Tisch Professor of Law, New York University School of Law; Adam Mossoff, Professor of Law, Antonin Scalia Law School, George Mason University; Michael C. Munger, Director of Philosophy, Politics and Economic Program, Duke University; Marc L. Busch, Karl F. Landegger Professor of International Business Diplomacy, Georgetown University; Reza Moradinezhad, Professor of Computer Science, Drexel University; and Gail Clifford, Assistant Clinical Professor, City of Hope.

Image Source: Deposit Photos
Image ID:11492323
Copyright:damedeeso

Share

Warning & Disclaimer: The pages, articles and comments on IPWatchdog.com do not constitute legal advice, nor do they create any attorney-client relationship. The articles published express the personal opinion and views of the author as of the time of publication and should not be attributed to the author’s employer, clients or the sponsors of IPWatchdog.com.

Join the Discussion

10 comments so far.

  • [Avatar for Anon]
    Anon
    January 27, 2024 11:25 am

    AnonToo,

    The White House “fighting inflation” is a joke and nothing more than gaslighting.

    Just as their narrative in regards to a lower rate OF INCREASE is spun as a drop in inflation – it is NOT. To have a drop in inflation, you would need a NEGATIVE number. That the inflation is STILL climbing, albeit not at its prior rocket pace does NOT mean what the White House tries to tell the public.

    NO ONE is better off now than they were four years ago.

  • [Avatar for Anon]
    Anon
    January 27, 2024 08:33 am

    Moocow,

    I cannot help you if you continue to refuse to understand the situation.

    The AIM of the current administration may well be “no matter how dumb” but you cannot discount WHAT that aim actually is just because IT IS ‘dumb.’

    You are apparently confusing yourself by thinking that because it IS inane, it cannot be real.

    It IS real AND it is inane.

    The point of MY post is that MANY of the Sprint Left folk who would normally EMBRACE the inanity of ‘Equity’ show their hypocrisy (in the best of the Martha Vineyards manner) when THAT Equity reaches out and touches their own pocketbooks FOR the impact on Big Pharma.

  • [Avatar for AnonToo]
    AnonToo
    January 26, 2024 11:25 pm

    Many foreign countries have compelled licensing of inventions. In some cases it may require lack of use.
    You have to give the White House some credit for trying to lower drug prices and fight inflation.
    If the US government was instrumental in the drug development, then I logically think the people deserve some break when they have to buy it.

  • [Avatar for Moocow]
    Moocow
    January 26, 2024 08:06 pm

    Anon – uh, so the White House saying something, no matter how dumb, and the biopharma industry calling them out for it… proves that the WH is right? I’m sure I misunderstood you again, so please enlighten us when you find your crayons.

  • [Avatar for Anon]
    Anon
    January 26, 2024 09:03 am

    The White House “saying so” AND the parties fighting that effort proves my point.

    Your not understanding this is, apologies for being blunt, a “YOU” problem that I do not have the time nor the crayons to rectify.

  • [Avatar for Moocow]
    Moocow
    January 25, 2024 09:08 pm

    Anon, I don’t understand half of what you’re saying, but the part I do understand I disagree with. How is this a pharma issue, other than the White House saying so? The published draft guidance itself talks about any technology and goes to pains to offer illustrations having nothing to do with drugs. The statute is equally technology-neutral. And empirically, there are very few drugs subject to march-in authority, and even fewer where march-in might make any difference. There’s just no way on earth it’s going to do what the White House would have people believe.

    Now, to the extent you’re saying there’s empty virtue-signaling going on, I correct myself, I would agree.

  • [Avatar for Anon]
    Anon
    January 25, 2024 11:24 am

    Moocow,

    Absolutely not being facetious as it is expressly the Pharma industry (writ large) that is the subject of the March In rights.

    Not seeing why you are disconnected from this – especially given that your ‘rebuttal’ of “if legal” is in fact most forcibly being sounded BY the Pharma industry.

    Whether or not the March In is successful/legal or not is NOT the point that I present; rather, it is the very Martha Vineyards type of “Equity” virtual signaling EXCEPT when it the pocketbooks of the signalers that are affected.

  • [Avatar for Moocow]
    Moocow
    January 25, 2024 08:23 am

    @Anon, you’re being facetious when calling this a “pharma issue,” right? Just making sure.
    Of course this is not a pharma issue, because there are almost no drugs that could be reached under march-in authority, even if its use were legal. Even the anti-corporate pressure groups acknowledge that the Biden march-in guidance wouldn’t remotely do what the White House says it does.

  • [Avatar for Pro Say]
    Pro Say
    January 24, 2024 04:55 pm

    “will ‘undermine fundamental principles that have made the American IP system the golden standard for supporting domestic innovation.’”

    Sorry, but thanks to SCOTUS, the CAFC, the PTAB, and Congressional inaction, America’s IP system hasn’t been the gold standard for more than 10 years.

    Indeed, Biden’s march-in proposal would drop it from it’s current tin standard to a lead standard.

    The last innovator out of the room, please turn off the lights.

  • [Avatar for Anon]
    Anon
    January 24, 2024 04:48 pm

    Where are these academics in view of patent eligibility? Except perhaps Mossof, the rest of the group have been nowhere to be found.

    Also, I have to wonder just how many — outside of this particular “Pharma Issue” cheer on President Biden’s widespread Equity Agenda?

    Don’t you all know that THIS must be considered a natural part of THAT agenda?

Varsity Sponsors

IPWatchdog Events

Patent Portfolio Management Masters™ 2024
June 24 @ 1:00 pm - June 26 @ 2:00 pm EDT
Webinar – Sponsored by LexisNexis
August 22 @ 12:00 pm - 1:00 pm EDT
Women’s IP Forum
August 26 @ 11:00 am - August 27 @ 5:00 pm EDT
IP Solutions, Services & Platforms Expo
September 9 @ 1:00 pm - September 10 @ 2:00 pm EDT

Industry Events

Bayh-Dole Act March In Webinar
May 31 @ 1:00 pm - 2:00 pm EDT

From IPWatchdog