Move On from Marching-In Based on Price
By Howard Dean
When it's time to come out swinging in partisan political battles, everybody knows which side I'm on. But that doesn't mean we should overlook the successes we've delivered by working across the aisle. That's how we unleashed American innovation in 1980 after a decade of torpor.
Now, however, the threat to innovation is gathering again -- at a time when breakthroughs in tech like artificial intelligence are poised to take us to unprecedented levels of well-being, health, and prosperity. We need Democrats and Republicans to come together again to protect our culture of innovation from those whose policy priorities lie elsewhere.
Back in the 1970s, federal mismanagement was stifling American R&D. By the latter part of that decade, taxpayer-funded research had led to around 30,000 patents. But because the government retained the patents and licensing rights to those discoveries, companies were hesitant to take on the burdens of trying to license them and develop them into commercial products. Less than 5% of these federally backed discoveries and inventions were ever licensed for development.
In 1980, a bipartisan duo of senators -- Democrat Birch Bayh of Indiana and Republican Bob Dole of Kansas -- devised a legislative solution. The Bayh-Dole Act delicately balanced the interests of the federal government, industry, and academia by decentralizing the licensing of federally-funded R&D to universities and research nonprofits, rather than overworked federal administrators.
This simple fix ignited the fire of American innovation. Scientists, engineers, entrepreneurs, and investors collaborated to create everything from once-a-day HIV meds to Google's search engine and electronic funds transfers.
But while bipartisan support for Bayh-Dole's unlocking of innovation was strong, some advocates seem to believe we can undermine its foundations without serious consequences. These advocates are urging the government to make use of Bayh-Dole's once-obscure, but now notorious, "March In" provision to seize and relicense the patents of drugs they deem too expensive.
If their theory held, then the government could march in at any point on any product that benefitted from federal R&D funding. There's no surer way to kill off investment in tech development than the constant threat of taking away exclusive patent rights.
This erroneous reading of march-in authority has been resoundingly and repeatedly rejected by both Republican and Democratic administrations, which have recognized -- correctly -- that Congress never intended price to be a valid criterion for triggering march-in.
And while Biden administration officials rightly rejected the latest petition earlier this year, the administration concurrently announced that it's standing up a new government working group to further study march-in criteria. So rather than putting the matter to rest, the administration is prolonging the debate and uncertainty.
To be blunt, American innovators can't afford more ambiguity on the status of their intellectual property. With the knowledge that this working group will run through the whole of 2023, the equilibrium of industry, academia, and the public sector that's powered American technological dominance for the past four decades still faces an existential threat.
As Commerce Secretary Gina Raimondo correctly noted, the Bayh-Dole Act is a "cornerstone" of American innovation. The Biden administration should stand up decisively for research and entrepreneurship.
The debate around misusing march-in has gone on long enough.
Howard Dean is the former chair of the Democratic National Committee and former governor of Vermont.
