For years we’ve talked in regards to the critical issues of the Bayh-Dole Act, which inspired universities to patent each rattling concept that anybody related to the college got here up with within the hopes of “commercializing” it. In observe this has been a complete catastrophe. Universities locked up a ton of (usually publicly funded) analysis behind “patents” and arrange “tech switch workplaces” anticipating to get wealthy.
It didn’t work out that manner. College analysis suffered as a result of professors had been a lot much less keen to share data that may get wrapped up into another person’s patents. In the meantime, exterior of a really, very small variety of prime universities nearly all college tech switch workplaces misplaced cash. They anticipated that the patents had been helpful, however that misreads the truth of how innovation works the place execution tends to matter far more than the thought, and easily promoting patent licenses is successfully nugatory.
The one main “innovation” that Bayh-Dole then created was enabling patent trolls. One of many largest patent trolling operations ever, Mental Ventures, principally primarily based its whole enterprise mannequin on shopping for up a ton of college patents that had been successfully nugatory (however permitting tech switch workplaces to lastly present some income), after which shaking down precise corporations by saying “now we have so many patents, we’re certain you infringe some, so simply pay us a blanket license charge.”
When Bayh-Dole was first written there have been some (correct!) considerations that this may enable for the privatization and locking up of publicly funded analysis. To cope with this risk, the regulation included what’s referred to as “march-in rights” that will enable the federal authorities to require the patent holder of a patent primarily based on federally funded analysis to license that patent to others if particular situations are met (e.g., failure to realize “sensible software,” unmet well being or security wants, failure to satisfy public use necessities, or lack of US manufacturing for US use).
Within the 45 years because the regulation has handed, these march-in rights have by no means been used. Any time it’s even thought of, similar to to decrease drug costs, Massive Pharma throws an absolute shitfit and laughingly claims it might destroy innovation within the pharma world. This ignores simply how a lot Massive Pharma really is predicated on enclosing and getting monopoly rents from federally funded analysis. A number of high-profile petitions (usually round outrageously priced medicine) have been denied regardless of ticking apparent “alleviate well being or security wants” bins.
Even throughout COVID, when the idea of march-in rights was talked about as a manner to assist restrict the unfold of the pandemic, the pharma trade closed ranks and insisted that utilizing march-in rights to assist in opposition to the pandemic would destroy the trade.
So it’s fairly one thing, now, to see that the Trump administration is trying to make use of march-in rights in opposition to Harvard as a part of its stress marketing campaign to get the college to capitulate to the Trump administration’s plan to reshape American training to be extra white and MAGA.
The Trump administration on Friday launched an investigation into Harvard’s patents derived from federally funded analysis, threatening mental property probably price lots of of tens of millions of {dollars} and as soon as once more escalating a monthslong standoff between the College and the White Home.
In a two-page letter to Harvard President Alan M. Garber ’76 — which was posted publicly on X — United States Commerce Secretary Howard W. Lutnick introduced an “fast complete evaluate” of Harvard’s compliance with the Bayh-Dole Act, a 1980 regulation governing innovations developed with federal analysis grants.
[….]
Lutnick particularly cited the federal authorities’s “march-in rights,” a provision of the Bayh-Dole Act that permits federal businesses to imagine possession of an entity’s mental property if it fails to satisfy the regulation’s necessities. No federal company has ever exercised march-in rights — and the Friday transfer marks the primary time patents have been used as a supply of leverage within the White Home’s campaign in opposition to increased training.
Fast actuality examine on the mechanics: “march‑in” beneath Bayh‑Dole (had it ever been used) compels licensing; it doesn’t by itself “assume possession” of a patent because the Harvard Crimson article suggests. Lutnick additionally threatens to “take title” over sure patents, implying he can do that beneath march-in rights, however that’s additionally improper. Title could be threatened or reverted for sure compliance failures beneath totally different provisions, however march‑in is a licensing treatment, and it’s the funding company (NIH, DoD, DoE, and many others.) that truly marches in. Commerce, which Lutnick runs, (through NIST) units steerage and might posture with “compliance critiques,” but it surely doesn’t unilaterally seize college IP irrespective of how a lot Lutnick implies in any other case.
Once more, I wish to make it fairly clear how extremely unprecedented that is. I feel the Bayh-Dole Act has been an unmitigated catastrophe for innovation, and the one redeeming facet of the regulation was the march-in rights to be sure that federally funded analysis couldn’t be locked up completely away from innovation. However these rights have by no means been asserted, resulting in the huge closing off of such taxpayer-funded analysis, enabling large personal corporations to revenue off taxpayer cash for no direct return.
That’s the inform right here: for many years businesses refused to make use of march‑in even the place the statute explicitly contemplates it (lack of “sensible software,” unmet well being/security wants). Now the White Home is dangling a Commerce‑run “evaluate” aimed not at unlocking life‑saving tech, however at punishing a disfavored college. In the event you wished one more case examine in weaponizing an unused public-interest instrument for uncooked political leverage, effectively, right here you go.
In 45 years, the federal authorities has by no means—not as soon as—been keen to make use of these rights to do issues like decrease drug pricing or to assist individuals survive a worldwide pandemic. And now Trump is exploring doing it solely as a technique of punishing Harvard for no rattling cause in any respect past being scared that the individuals there are too sensible and too various for him.
What a pathetic travesty.
Trump Threatens Bayh‑Dole March‑In To Punish Harvard—After Refusing It For COVID
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