OPINION:
President Biden’s Commerce Department proposed on Dec. 7 a mechanism to invoke the so-called march-in clause of the bipartisan Bayh-Dole Act. This would empower Uncle Sam to capture and control patents fully or partially funded with federal research grants if bureaucrats disliked the prices or rollout speeds of their ensuing technologies.
Perfect: jackbooted thugs stamping on private property and seizing it for big government.
As usual, Mr. Biden hopes to capsize the efficient, productive status quo. Ever since Sens. Birch Bayh, Indiana Democrat, and Bob Dole, Kansas Republican, secured this legislation in 1980, universities and other institutions have owned the patents that emerged from federally funded research. Many then license these patents to entrepreneurs and companies that nurture them into goods and services.
“Since its passage more than 40 years ago, the Act has spurred nearly 300 new drugs and discoveries that have driven the innovation economy — contributing $1.7 trillion to the U.S. gross industrial output and adding more than 5.9 million jobs,” according to Laura Savatski, former chair of AUTM, an intellectual property licensing group.
Before Bayh-Dole, less than 5% of federally supported patents were licensed. By 2022, AUTM figures show, 9,884 licenses and options arose among that year’s 16,857 U.S. patent applications. By that measure, 58.6% of patents typically are licensed each year, nearly 12 times the pre-Bayh-Dole number.
The resulting embarrassment of riches has improved lives from Kansas to Kazakhstan, including:
• Google’s pioneering search algorithm.
• Firefighting drones.
• High-definition televisions.
• Honeycrisp apples.
• Nicotine patches.
• Rotavirus vaccines.
• Taxol cancer therapy.
• Touch screens.
• Microsoft’s Windows software.
• The anti-AIDS drug stavudine.
Imagine life with few new amusements, business tools or medical treatments. The ever-meddlesome president now wants new powers to reassign or simply nationalize patent licenses if his pests decide that these items are not marketed quickly or cheaply enough.
“Bayh-Dole did not intend that government set prices on resulting products,” its authors explained in The Washington Post. “The law makes no reference to a reasonable price that should be dictated by the government. This omission was intentional.”
Such big government caprice would karate-chop private investment. Why would venture capitalists license new patents if federal busybodies could march in, expropriate, and award them to politically connected competitors?
Even worse, anti-capitalist bureaucrats could snatch licenses and sit on them while chanting, “Equity!” “Social justice!” or “Climate!”
As it happens, no administration — Democratic or Republican — has marched in on a patent since Bayh-Dole blossomed. While screaming “democracy,” Mr. Biden lusts for a nightstick to bash to bits this precedent.
The Biden administration argues that when the state goes marching in, cheaper medicines will flow like the mighty Mississippi. This will prove to be yet another Marxist mirage, as drug companies avoid licensing patents for fear of being fleeced by the “everything for all” crowd.
Taxpayers will also suffer if these patents cannot be harnessed. They will never taste the fruits of scientific developments that stay theoretical. They also will not collect the corporate taxes that commercialization now yields. Assuming today’s 21% rate, Bayh-Dole’s $1.7 trillion in blessings would have already rendered unto Caesar potentially $357 billion.
Bayh-Dole was “possibly the most inspired piece of legislation to be enacted in America over the past half-century,” The Economist swooned in 2002. “More than anything, this single policy measure helped to reverse America’s precipitous slide into industrial irrelevance.”
Twenty-two years later, Mr. Biden is not amused. As he bans gas stoves and incandescent bulbs, mandates electric vehicles, censors his critics, and labors to imprison the leader of the opposition, he increasingly resembles the late, not great Venezuelan dictator Hugo Chavez.
Giving Mr. Biden and his comrades the power to smash patents and grab them for “better uses” would imperil property rights and endanger innovation. This could cripple the conveyor belt that speeds modern marvels from university laboratories to Best Buys, Walgreens and Whole Foods stores across America.
Mr. Biden should peel his sticky fingers off Bayh-Dole and shove them somewhere else.
• Deroy Murdock is a Manhattan-based Fox News contributor.
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