from the priorities dept
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.
Filed Under: bayh dole, bayh-dole act, donald trump, howard lutnick, intimidation, licensing, march-in rights, patents, public interest
Companies: harvard
