A recent proposal by the Biden administration poses risks to U.S. competitiveness and global leadership in technological innovation, according to U.S. Reps. Vern Buchanan (R-FL) and Adrian Smith (R-NE) and U.S. Sens. Marsha Blackburn (R-TN) and Thom Tillis (R-NC).
The lawmakers are concerned about the National Institute of Standards and Technology’s (NIST’s) Draft Interagency Guidance Framework for Considering the Exercise of March-in Rights, which reviews the factors that an agency may consider when deciding whether to exercise march-in rights.
The Biden administration is attempting to reinterpret the law and utilize so-called march-in rights, which would allow the federal government to step in and force a patent holder to share the intellectual property of their invention if they do not agree with the price of a product, according to a May 29 letter the lawmakers sent to Laurie Locascio, NIST director and the Undersecretary of Commerce for Standards and Technology at the U.S. Department of Commerce.
The draft framework would enable the use of march-in as “a misguided tactic to control the prices of a broad range of products derived from government funded research,” according to the letter, and also would defeat the purpose of the authorizing statute, which was to promote the transfer of technology from the lab to the market.
“Aside from the draft framework’s radical departure from agency precedent under both Republican and Democratic presidents, upending the marketplace for federally supported inventions will send the U.S. back to a time when private enterprise refused to license government-funded research for practical application, leaving valuable research undeveloped, while nonetheless divulging it for other countries and foreign enterprise to develop,” the Republicans wrote.
For the first time since enactment of the Bayh-Dole Act in 1980, the proposal also would overturn decades of precedent under both Republican and Democratic administrations and significantly undermine the Bayh-Dole Act, which is internationally recognized as one of the most innovative pieces of legislation ever passed, according to their letter.
“The Bayh-Dole Act has been a cornerstone of American innovation, and the Biden administration’s proposal undermines U.S. competitiveness and America’s technology leadership,” said Sen. Blackburn. “The administration must withdraw this proposal to ensure the U.S. can continue fostering groundbreaking research and development through public-private collaboration, a proven model that has served our nation well.”
“The Bayh-Dole Act was a major step forward and has been an unquestionable success,” added Sen. Tillis. “March-in was never intended to serve as a mechanism for regulating the pricing of any products, and this has been stated by the very authors of the bill. The draft framework is a mistake — it will make the U.S. less competitive, less attractive to investment, and less conducive to promoting scientific progress.”
Rep. Buchanan also said he is “deeply concerned” about the unintended consequences the Biden administration’s new proposal would have on startups and innovative new products in this country.
“As a businessman and entrepreneur myself for many years before coming to Congress, I know firsthand the stifling effect and disincentive this would have on American innovators if they knew the heavy hand of the federal government could come in and seize their intellectual property at a moment’s notice,” said Rep. Buchanan.
Rep. Smith agreed, saying that American innovation has changed the course of history for the better in countless ways, but unfortunately, the U.S. Commerce Department’s proposed guidance threatens to undermine stability for the nation’s leading researchers and developers.
“Instead of damaging our competitiveness in the global marketplace, we should be doing everything we can to protect intellectual property rights and incentivize productivity,” said the congressman.
The Bayh-Dole Coalition supports the letter.