{"id":130567,"date":"2025-08-15T10:28:31","date_gmt":"2025-08-15T18:28:31","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/08\/15\/trump-threatens-bayh%e2%80%91dole-march%e2%80%91in-to-punish-harvard-after-refusing-it-for-covid\/"},"modified":"2025-08-15T10:28:31","modified_gmt":"2025-08-15T18:28:31","slug":"trump-threatens-bayh%e2%80%91dole-march%e2%80%91in-to-punish-harvard-after-refusing-it-for-covid","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/08\/15\/trump-threatens-bayh%e2%80%91dole-march%e2%80%91in-to-punish-harvard-after-refusing-it-for-covid\/","title":{"rendered":"Trump Threatens Bayh\u2011Dole March\u2011In To Punish Harvard\u2014After Refusing It For COVID"},"content":{"rendered":"
\"\"
<\/figcaption><\/figure>\n

For years we\u2019ve talked about the serious problems of the\u00a0Bayh-Dole Act<\/a>, which encouraged universities to patent every damn idea that anyone associated with the university came up with in the hopes of \u201ccommercializing\u201d it. In practice this has\u00a0been a total disaster<\/a>. Universities locked up a ton of (often publicly funded) research behind \u201cpatents\u201d and set up \u201ctech transfer offices\u201d expecting to get rich.<\/p>\n

It didn\u2019t work out that way. University\u00a0research suffered<\/a>\u00a0because professors were much less willing to\u00a0share information<\/a>\u00a0that might get wrapped up into someone else\u2019s 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.<\/p>\n

The only major \u201cinnovation\u201d that Bayh-Dole then created was enabling patent trolls. One of the largest patent trolling operations ever,\u00a0Intellectual Ventures<\/a>, basically based its entire business model on\u00a0buying up a ton of university patents<\/a>\u00a0that were effectively worthless (but allowing tech transfer offices to finally show\u00a0some<\/em>\u00a0revenue), and then shaking down actual companies by saying \u201cwe have so many patents, we\u2019re sure you infringe some, so just pay us a blanket license fee.\u201d<\/p>\n

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\u2019s known as \u201cmarch-in rights\u201d 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 \u201cpractical application,\u201d unmet health or safety needs, failure to meet public use requirements, or lack of US manufacturing for US use).<\/p>\n

In the 45 years since the law has passed, those march-in rights have\u00a0never<\/em>\u00a0been used. Any time it\u2019s even considered, such as to lower drug prices, Big Pharma throws an absolute shitfit and\u00a0laughingly claims<\/a>\u00a0it 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 \u201calleviate health or safety needs\u201d boxes.<\/p>\n

Even\u00a0during COVID<\/a>, 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.<\/p>\n

So it\u2019s quite something, now, to see that the Trump administration is\u00a0looking to use march-in rights against Harvard<\/a>\u00a0as part of\u00a0its pressure campaign<\/a>\u00a0to get the university to capitulate to the Trump administration\u2019s plan to reshape American education to be more white and MAGA.<\/p>\n

\n

The Trump administration on Friday launched an investigation into Harvard\u2019s 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.<\/em><\/p>\n

In a two-page letter to Harvard President Alan M. Garber \u201976 \u2014 which was posted publicly on X \u2014 United States Commerce Secretary Howard W. Lutnick announced an \u201cimmediate comprehensive review\u201d of Harvard\u2019s compliance with the Bayh-Dole Act, a 1980 law governing inventions developed with federal research grants.<\/em><\/p>\n

[\u2026.]<\/em><\/p>\n

Lutnick specifically cited the federal government\u2019s \u201cmarch-in rights,\u201d a provision of the Bayh-Dole Act that allows federal agencies to assume ownership of an entity\u2019s intellectual property if it fails to meet the law\u2019s requirements. No federal agency has ever exercised march-in rights \u2014 and the Friday move marks the first time patents have been used as a source of leverage in the White House\u2019s crusade against higher education.<\/em><\/p>\n<\/blockquote>\n

Quick reality check on the mechanics: \u201cmarch\u2011in\u201d under Bayh\u2011Dole (had it ever been used) compels licensing; it does not by itself \u201cassume ownership\u201d of a patent as the Harvard Crimson article suggests. Lutnick also threatens to \u201ctake title\u201d over certain patents, implying he can do this under march-in rights, but that\u2019s also wrong. Title can be threatened or reverted for certain compliance failures under different provisions, but march\u2011in is a licensing remedy, and it\u2019s the funding agency (NIH, DoD, DoE, etc.) that actually marches in. Commerce, which Lutnick runs, (via NIST) sets guidance and can posture with \u201ccompliance reviews,\u201d but it doesn\u2019t unilaterally seize university IP no matter how much Lutnick implies otherwise.<\/p>\n

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\u2019t 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.<\/p>\n

That\u2019s the tell here: for decades agencies refused to use march\u2011in even where the statute explicitly contemplates it (lack of \u201cpractical application,\u201d unmet health\/safety needs). Now the White House is dangling a Commerce\u2011run \u201creview\u201d aimed not at unlocking life\u2011saving 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.<\/p>\n

In 45 years, the federal government has never\u2014not once\u2014been willing to use those rights to do things like lower drug pricing or to help people survive a global pandemic. And\u00a0now<\/em>\u00a0Trump is exploring doing it\u00a0only<\/em>\u00a0as 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.<\/p>\n

What a pathetic travesty.<\/p>\n<\/p>\n

Trump Threatens Bayh\u2011Dole March\u2011In To Punish Harvard\u2014After Refusing It For COVID<\/a><\/p>\n

More Law-Related Stories From Techdirt:<\/strong><\/p>\n

Trump Destroys Whatever Was Left Of U.S. Corporate Oversight, Calls It \u201cAmerica First Antitrust\u201d<\/a>
Lamar Jackson, Troy Aikmen Settle Dumb Trademark Dispute Over The Word \u2018EIGHT\u2019<\/a>
Judge Not Buying DOJ\u2019s Claim That Elon Wasn\u2019t Running DOGE<\/a><\/p>\n

The post Trump Threatens Bayh\u2011Dole March\u2011In To Punish Harvard\u2014After Refusing It For COVID<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

For years we\u2019ve talked about the serious problems of the\u00a0Bayh-Dole Act<\/a>, which encouraged universities to patent every damn idea that anyone associated with the university came up with in the hopes of \u201ccommercializing\u201d it. In practice this has\u00a0been a total disaster<\/a>. Universities locked up a ton of (often publicly funded) research behind \u201cpatents\u201d and set up \u201ctech transfer offices\u201d expecting to get rich.<\/p>\n

It didn\u2019t work out that way. University\u00a0research suffered<\/a>\u00a0because professors were much less willing to\u00a0share information<\/a>\u00a0that might get wrapped up into someone else\u2019s 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.<\/p>\n

The only major \u201cinnovation\u201d that Bayh-Dole then created was enabling patent trolls. One of the largest patent trolling operations ever,\u00a0Intellectual Ventures<\/a>, basically based its entire business model on\u00a0buying up a ton of university patents<\/a>\u00a0that were effectively worthless (but allowing tech transfer offices to finally show\u00a0some<\/em>\u00a0revenue), and then shaking down actual companies by saying \u201cwe have so many patents, we\u2019re sure you infringe some, so just pay us a blanket license fee.\u201d<\/p>\n

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\u2019s known as \u201cmarch-in rights\u201d 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 \u201cpractical application,\u201d unmet health or safety needs, failure to meet public use requirements, or lack of US manufacturing for US use).<\/p>\n

In the 45 years since the law has passed, those march-in rights have\u00a0never<\/em>\u00a0been used. Any time it\u2019s even considered, such as to lower drug prices, Big Pharma throws an absolute shitfit and\u00a0laughingly claims<\/a>\u00a0it 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 \u201calleviate health or safety needs\u201d boxes.<\/p>\n

Even\u00a0during COVID<\/a>, 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.<\/p>\n

So it\u2019s quite something, now, to see that the Trump administration is\u00a0looking to use march-in rights against Harvard<\/a>\u00a0as part of\u00a0its pressure campaign<\/a>\u00a0to get the university to capitulate to the Trump administration\u2019s plan to reshape American education to be more white and MAGA.<\/p>\n

\n

The Trump administration on Friday launched an investigation into Harvard\u2019s 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.<\/em><\/p>\n

In a two-page letter to Harvard President Alan M. Garber \u201976 \u2014 which was posted publicly on X \u2014 United States Commerce Secretary Howard W. Lutnick announced an \u201cimmediate comprehensive review\u201d of Harvard\u2019s compliance with the Bayh-Dole Act, a 1980 law governing inventions developed with federal research grants.<\/em><\/p>\n

[\u2026.]<\/em><\/p>\n

Lutnick specifically cited the federal government\u2019s \u201cmarch-in rights,\u201d a provision of the Bayh-Dole Act that allows federal agencies to assume ownership of an entity\u2019s intellectual property if it fails to meet the law\u2019s requirements. No federal agency has ever exercised march-in rights \u2014 and the Friday move marks the first time patents have been used as a source of leverage in the White House\u2019s crusade against higher education.<\/em><\/p>\n<\/blockquote>\n

Quick reality check on the mechanics: \u201cmarch\u2011in\u201d under Bayh\u2011Dole (had it ever been used) compels licensing; it does not by itself \u201cassume ownership\u201d of a patent as the Harvard Crimson article suggests. Lutnick also threatens to \u201ctake title\u201d over certain patents, implying he can do this under march-in rights, but that\u2019s also wrong. Title can be threatened or reverted for certain compliance failures under different provisions, but march\u2011in is a licensing remedy, and it\u2019s the funding agency (NIH, DoD, DoE, etc.) that actually marches in. Commerce, which Lutnick runs, (via NIST) sets guidance and can posture with \u201ccompliance reviews,\u201d but it doesn\u2019t unilaterally seize university IP no matter how much Lutnick implies otherwise.<\/p>\n

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\u2019t 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.<\/p>\n

That\u2019s the tell here: for decades agencies refused to use march\u2011in even where the statute explicitly contemplates it (lack of \u201cpractical application,\u201d unmet health\/safety needs). Now the White House is dangling a Commerce\u2011run \u201creview\u201d aimed not at unlocking life\u2011saving 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.<\/p>\n

In 45 years, the federal government has never\u2014not once\u2014been willing to use those rights to do things like lower drug pricing or to help people survive a global pandemic. And\u00a0now<\/em>\u00a0Trump is exploring doing it\u00a0only<\/em>\u00a0as 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.<\/p>\n

What a pathetic travesty.<\/p>\n

Trump Threatens Bayh\u2011Dole March\u2011In To Punish Harvard\u2014After Refusing It For COVID<\/a><\/p>\n

More Law-Related Stories From Techdirt:<\/strong><\/p>\n

Trump Destroys Whatever Was Left Of U.S. Corporate Oversight, Calls It \u201cAmerica First Antitrust\u201d<\/a>
Lamar Jackson, Troy Aikmen Settle Dumb Trademark Dispute Over The Word \u2018EIGHT\u2019<\/a>
Judge Not Buying DOJ\u2019s Claim That Elon Wasn\u2019t Running DOGE<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

For years we\u2019ve talked about the serious problems of the\u00a0Bayh-Dole Act, which encouraged universities to patent every damn idea that anyone associated with the university came up with in the hopes of \u201ccommercializing\u201d it. In practice this has\u00a0been a total disaster. Universities locked up a ton of (often publicly funded) research behind \u201cpatents\u201d and set […]<\/p>\n","protected":false},"author":3,"featured_media":130513,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-130567","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/08\/patent-law-gavel-book-620x413-ajNRrG.jpg?fit=620%2C413&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/130567","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=130567"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/130567\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/130513"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=130567"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=130567"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=130567"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}