Will the federal government open the gateway to confiscating the property of inventors and innovators in the US by giving itself the power to invalidate federally-funded patents upon a whim?

Small Business & Entrepreneurship Council (SBE Council) president & CEO Karen Kerrigan, commented, “President Biden’s proposed framework for march-in use under the Bayh-Dole Act amounts to an announcement that the U.S. government can invalidate patents and other intellectual property whenever it pleases. Make no mistake, the framework is not just about drugs, which is bad enough. It will chill innovation across the economy, dealing a major blow to small businesses and startups in particular, and across sectors.”

 “The 1980 Bayh-Dole Act was designed to ensure that federally-backed basic research wouldn’t just languish in laboratory archives, as much of it did before 1980. Thanks to the bipartisan law, businesses can license promising early-stage discoveries and develop them into revolutionary commercial products. Since Bayh-Dole’s passage, around 68% of licenses have gone to small businesses or start-ups.

 “The system created by Bayh-Dole has worked exactly as planned. The law has supported the creation of more than 15,000 new start-ups – many of them small businesses – while contributing an estimated $1.3 trillion to the US economy.

 “Until yesterday, the so-called march-in rights created under Bayh-Dole were conceived as an emergency provision. In cases where a company was either unable or unwilling to turn a licensed patent into a practical product, the government could revoke that license and reissue it to another firm better equipped to do the job. The circumstances justifying march-in are so limited that the government has never exercised the power in the more than 40 years Bayh-Dole has been on the books.

“Yesterday’s announcement is a sharp departure from decades of precedent businesses have come to rely on.

“If the Biden Administration finalizes this ill-conceived plan, the economic incentive to translate federally-funded science into commercial technologies will evaporate. Start-ups and investors won’t waste their time and money developing state-of-the-art products if federal officials can cancel their IP rights at will and without legal justification.

 “This proposal must be scrapped.”