Chamber Appeals Decision to Deny Expedited FOIA Request on March-In Proposal

The U.S. Chamber of Commerce’s Global Innovation Policy Center (GIPC) has filed an appeal with the U.S. Department of Commerce, which denied the GIPC’s January 2024 Freedom of Information Act (FOIA) request seeking more detail about the working group behind the Biden Administration’s draft framework for considering the exercise of march-in rights.

The proposed framework was published in the Federal Register in December 2023 by the Department of Commerce and the National Institutes for Standards and Technology (NIST) and included suggestions on whether and when to exercise “march-in rights” under the Bayh-Dole Act that would arguably significantly broaden the criteria for compulsory licensing of patented technology developed with federal funding.

The Chamber’s January request focused on obtaining information about the Interagency Working Group for Bayh-Dole referenced in the December Federal Register Notice (FRN) and, in particular, all communications between the Working Group and the Office of Senator Elizabeth Warren or the Office of Senator Bernie Sanders, as well as “any staff member, employee, or representative of Knowledge Economy International (KEI), the Initiative for Medicines, Access, and Knowledge (I-MAK), the Center for American Progress, Patients for Affordable Drugs, or Public Citizen.” The Working Group was formed in March 2023.

GIPC Vice President of Innovation Policy, Brad Watts, said at the time that Warren, Sanders and the named organizations are on record as having pushed price controls or administrative actions against pharmaceutical companies and that there is a concern about the Working Group’s potential interactions with such entities. The FOIA letters indicated that this information would benefit the public’s understanding of the composition of the Working Group and should also be expedited because “[t]he impact of these actions is far-reaching, requiring the urgent release of records in order to understand the Working Group’s activities and their potential impact on the Chamber’s members.”

But the request to expedite was denied on January 18, 2024, by the Freedom of Information Act Officer, who, according to the Chamber’s appeal letter, said that the request didn’t qualify for expedited processing because “there is no ‘urgency’ to inform the public of the information you requested.”

The Chamber’s April 17 letter said that determination should be reversed “due to the demonstrated and admitted urgent need to inform the public about the Executive Branch’s plans to assert march-in rights and confiscate the intellectual property of American businesses under the Bayh-Dole Act.”

A final proposal on the march-in framework could be published soon, sources have told IPWatchdog. The proposal has drawn criticism across a range of stakeholders, from generics companies to bipartisan members of congress, and has also been widely covered in the media, further underscoring that it is a matter of public importance, the Chamber’s letter added.

The letter argued:

“The importance of the prospective exercise of march-in is matched only by the immediacy of the concern…. [T]he Working Group is already presumably finalizing the framework for the exercise of march-in, even as the public has no access to information about the continued operations or considerations of the Working Group. The relevance of information about the Working Group is at its height right now, while the public still has a chance to influence those operations and considerations. If, for example, the requested records reveal communications that undermine the legitimacy of the Working Group’s operations, it will become only harder to cure such problems once the Working Group has finished the final march-in framework. The Department should want this information made public as soon as possible, and the private sector and general public need this information made public as soon as possible.”

The Chamber also noted that the White House itself has deemed the march-in proposal a matter of urgent importance and that “it would be inconsistent for the executive branch to conclude now that the public has no urgent need for information regarding those anticipated actions. If President Biden claims to be using march-in to ‘beat Big Pharma,’ the administration cannot now disclaim that pronouncement.”

Image rights acquired by AdobeStock