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Breaking the Law That Led to 7,739 Patents and 1,000 Startups in 2022

The Biden administration is out to break the law. “The Interagency Working Group for Bayh-Dole will develop a framework for implementation of the march-in provision that clearly articulates guiding criteria and processes for making determinations where different factors, including price, may be a consideration in agencies’ assessments.”

The wildly successful, innovation-fostering Bayh-Dole Act contains no reference to the price of eventual products in connection with the law’s march-in provision—or in reference to anything else, for that matter.

March-in focuses on ensuring an invention’s commercialization, adequate supply in public health crises and domestic manufacturing of these new products when possible. The law’s authors, Senators Birch Bayh (D-Ind.) and Bob Dole (R-Kan.), chose to omit eventual products’ price from this very narrow set of extraordinary circumstances for which march-in is lawfully permissible.

But the Biden Departments of Commerce and of Health and Human Services are colluding. They’re intent upon shoehorning eventual product price as rationalization for the government to “march in” on patents that underlie certain products. That will violate this statute’s plain language.

This isn’t the Biden administration’s first attempt to violate the Bayh-Dole law by injecting product price into march-in. Political appointees in this administration’s National Institute of Standards and Technology pursued the same thing when they twisted the previous administration’s Return on Investment initiative into an excuse for government to march in on patents on the grounds of product price.

American voters disagree—strongly—with politicians messing up the landmark Bayh-Dole Act. A survey by Morning Consult found:

  • 77% of voters fear the use of the Bayh-Dole Act as a price control could lower their access to innovative treatments for diseases like cancer, Alzheimer’s and rare diseases;

  • 85% view it as important that policymakers protect Bayh-Dole—54% considering it “very important;”

  • 91% of Democrats say it’s important to protect this law;

  • Voters are twice as likely to support a candidate who’ll protect Bayh-Dole, over a candidate who’d significantly change it;

  • Voters widely agree that government-private sector collaboration in bringing cutting-edge medicines to market and when those inventions are protected from government theft foster American scientific leadership.

The Bayh-Dole Coalition, of which Conservatives for Property Rights is a member organization, tweeted (or, as Twitter is now named X, etched, maybe) some of the harmful consequences that misuse of march-in will cause: “If the @CommerceGov @HHSGov Bayh-Dole working group suggests that price can be a factor in march-in decisions, investments in next-gen R&D across all economic industries will plummet and we'll see fewer treatments/cures. Get the facts on march-in here:“

Bayh-Dole has yielded four decades of practical benefit from otherwise wasted government grants. As the B-D Coalition tweeted, “Since 1980, #BayhDole has created...

$1,300,000,000+ in economic growth

4,200,000+ jobs

11,000+ startup companies.”

Before 1980, the zillions of taxpayer dollars poured into research grants merely advanced theoretical knowledge. Less than 5% of the inventions that came out of that spending was commercialized.

If HHS and Commerce violate Bayh-Dole, turning it into a government price control, they will return America to wasting taxpayer money on new knowledge that nobody gets anything useful out of. Expropriation of patents is the key to failure and loss of our innovative edge.

Bless his heart, President Biden needs to get himself and his people on the right side of the Bayh-Dole Act and innovation-fostering patent rights and patent policy.

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