For
years
we’ve
talked
about
the
serious
problems
of
the Bayh-Dole
Act,
which
encouraged
universities
to
patent
every
damn
idea
that
anyone
associated
with
the
university
came
up
with
in
the
hopes
of
“commercializing”
it.
In
practice
this
has been
a
total
disaster.
Universities
locked
up
a
ton
of
(often
publicly
funded)
research
behind
“patents”
and
set
up
“tech
transfer
offices”
expecting
to
get
rich.
It
didn’t
work
out
that
way.
University research
suffered because
professors
were
much
less
willing
to share
information that
might
get
wrapped
up
into
someone
else’s
patents.
Meanwhile,
outside
of
a
very,
very
small
number
of
top
universities
almost
all
university
tech
transfer
offices
lost
money.
They
expected
that
the
patents
were
valuable,
but
that
misreads
the
reality
of
how
innovation
works
where
execution
tends
to
matter
much
more
than
the
idea,
and
simply
selling
patent
licenses
is
effectively
worthless.
The
only
major
“innovation”
that
Bayh-Dole
then
created
was
enabling
patent
trolls.
One
of
the
largest
patent
trolling
operations
ever, Intellectual
Ventures,
basically
based
its
entire
business
model
on buying
up
a
ton
of
university
patents that
were
effectively
worthless
(but
allowing
tech
transfer
offices
to
finally
show some revenue),
and
then
shaking
down
actual
companies
by
saying
“we
have
so
many
patents,
we’re
sure
you
infringe
some,
so
just
pay
us
a
blanket
license
fee.”
When
Bayh-Dole
was
first
written
there
were
some
(accurate!)
concerns
that
this
would
allow
for
the
privatization
and
locking
up
of
publicly
funded
research.
To
deal
with
this
possibility,
the
law
included
what’s
known
as
“march-in
rights”
that
would
allow
the
federal
government
to
require
the
patent
holder
of
a
patent
based
on
federally
funded
research
to
license
that
patent
to
others
if
specific
conditions
are
met
(e.g.,
failure
to
achieve
“practical
application,”
unmet
health
or
safety
needs,
failure
to
meet
public
use
requirements,
or
lack
of
US
manufacturing
for
US
use).
In
the
45
years
since
the
law
has
passed,
those
march-in
rights
have never been
used.
Any
time
it’s
even
considered,
such
as
to
lower
drug
prices,
Big
Pharma
throws
an
absolute
shitfit
and laughingly
claims it
would
destroy
innovation
in
the
pharma
world.
This
ignores
just
how
much
Big
Pharma
actually
is
based
on
enclosing
and
getting
monopoly
rents
from
federally
funded
research.
Multiple
high-profile
petitions
(often
around
outrageously
priced
drugs)
have
been
denied
despite
ticking
obvious
“alleviate
health
or
safety
needs”
boxes.
Even during
COVID,
when
the
concept
of
march-in
rights
was
mentioned
as
a
way
to
help
limit
the
spread
of
the
pandemic,
the
pharma
industry
closed
ranks
and
insisted
that
using
march-in
rights
to
help
against
the
pandemic
would
destroy
the
industry.
So
it’s
quite
something,
now,
to
see
that
the
Trump
administration
is looking
to
use
march-in
rights
against
Harvard as
part
of its
pressure
campaign to
get
the
university
to
capitulate
to
the
Trump
administration’s
plan
to
reshape
American
education
to
be
more
white
and
MAGA.
The
Trump
administration
on
Friday
launched
an
investigation
into
Harvard’s
patents
derived
from
federally
funded
research,
threatening
intellectual
property
potentially
worth
hundreds
of
millions
of
dollars
and
once
again
escalating
a
monthslong
standoff
between
the
University
and
the
White
House.
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
announced
an
“immediate
comprehensive
review”
of
Harvard’s
compliance
with
the
Bayh-Dole
Act,
a
1980
law
governing
inventions
developed
with
federal
research
grants.
[….]
Lutnick
specifically
cited
the
federal
government’s
“march-in
rights,”
a
provision
of
the
Bayh-Dole
Act
that
allows
federal
agencies
to
assume
ownership
of
an
entity’s
intellectual
property
if
it
fails
to
meet
the
law’s
requirements.
No
federal
agency
has
ever
exercised
march-in
rights
—
and
the
Friday
move
marks
the
first
time
patents
have
been
used
as
a
source
of
leverage
in
the
White
House’s
crusade
against
higher
education.
Quick
reality
check
on
the
mechanics:
“march‑in”
under
Bayh‑Dole
(had
it
ever
been
used)
compels
licensing;
it
does
not
by
itself
“assume
ownership”
of
a
patent
as
the
Harvard
Crimson
article
suggests.
Lutnick
also
threatens
to
“take
title”
over
certain
patents,
implying
he
can
do
this
under
march-in
rights,
but
that’s
also
wrong.
Title
can
be
threatened
or
reverted
for
certain
compliance
failures
under
different
provisions,
but
march‑in
is
a
licensing
remedy,
and
it’s
the
funding
agency
(NIH,
DoD,
DoE,
etc.)
that
actually
marches
in.
Commerce,
which
Lutnick
runs,
(via
NIST)
sets
guidance
and
can
posture
with
“compliance
reviews,”
but
it
doesn’t
unilaterally
seize
university
IP
no
matter
how
much
Lutnick
implies
otherwise.
Again,
I
want
to
make
it
quite
clear
how
incredibly
unprecedented
this
is.
I
think
the
Bayh-Dole
Act
has
been
an
unmitigated
disaster
for
innovation,
and
the
only
redeeming
aspect
of
the
law
was
the
march-in
rights
to
make
sure
that
federally
funded
research
couldn’t
be
locked
up
entirely
away
from
innovation.
But
those
rights
have
never
been
asserted,
leading
to
the
massive
closing
off
of
such
taxpayer-funded
research,
enabling
giant
private
companies
to
profit
off
taxpayer
money
for
no
direct
return.
That’s
the
tell
here:
for
decades
agencies
refused
to
use
march‑in
even
where
the
statute
explicitly
contemplates
it
(lack
of
“practical
application,”
unmet
health/safety
needs).
Now
the
White
House
is
dangling
a
Commerce‑run
“review”
aimed
not
at
unlocking
life‑saving
tech,
but
at
punishing
a
disfavored
university.
If
you
wanted
yet
another
case
study
in
weaponizing
an
unused
public-interest
tool
for
raw
political
leverage,
well,
here
you
go.
In
45
years,
the
federal
government
has
never—not
once—been
willing
to
use
those
rights
to
do
things
like
lower
drug
pricing
or
to
help
people
survive
a
global
pandemic.
And now Trump
is
exploring
doing
it only as
a
method
of
punishing
Harvard
for
no
damn
reason
at
all
beyond
being
scared
that
the
people
there
are
too
smart
and
too
diverse
for
him.
What
a
pathetic
travesty.
Trump
Threatens
Bayh‑Dole
March‑In
To
Punish
Harvard—After
Refusing
It
For
COVID
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