<
https://www.techdirt.com/2025/08/14/trump-threatens-bayh%e2%80%91dole-march%e2%80%91in-to-punish-harvard-after-refusing-it-for-covid/>
"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."
Cheers,
*** Xanni ***
--
mailto:xanni@xanadu.net Andrew Pam
http://xanadu.com.au/ Chief Scientist, Xanadu
https://glasswings.com.au/ Partner, Glass Wings
https://sericyb.com.au/ Manager, Serious Cybernetics
