Brad Watts
Vice President, Patents and Innovation Policy, Global Innovation Policy Center (GIPC), U.S. Chamber of Commerce
Published
April 19, 2024
Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. Transparency is essential to democracy because Americans deserve to know what their government is doing.
So, why hasn’t the federal government responded to the U.S. Chamber’s request for records relating to the Biden Administration’s plans to assert march-in rights under the Bayh-Dole Act and seize the intellectual property of American businesses?
The Biden Administration’s march-in plans, which ignore the plain text of the law and more than 40 years of precedent from Democratic and Republican Administrations alike, threaten the entire American innovation ecosystem.
The public must understand who made this decision, how it was made, and what pressures were placed on career bureaucrats to reach this determination. That’s why we’re challenging the Administration’s decision denying the Chamber’s request for expedited processing of our FOIA requests.
Why it’s important: The Biden administration’s prospective use of march-in rights to impose price controls would allow the government to override the intellectual property rights of American businesses and seize innovators’ patents, which are at the heart of technologies that make America and the world a better place.
Not only would this action devastate thousands of American businesses, but it would also discourage future innovators from pursuing new avenues of research and development. Every American business with an idea for a new product or cure should have a say when the stakes are this high.
Time is of the essence: It is difficult to accept the Administration’s claims that “there is no ‘urgency’ to inform the public” about the Executive Branch’s plans to assert march-in rights under the Bayh-Dole Act when the president himself has said it's of the highest importance.
President Biden has characterized the plans to assert march-in rights under the Bayh-Dole Act as “good for competition,” “good for the economy,” and “good for … millions of Americans.” It’s clear President Biden believes his plans will have a tremendous impact on our country; given that, he should allow Americans to draw their own conclusions with all the facts at their disposal instead of hiding behind legal gobbledygook.
Timely and relevant: Based on what we know, the Working Group in charge of the plans is already finalizing the framework for execution, even though the public has no knowledge about its operations. In effect, the public has no chance to address the plan before finalization.
There’s no question that it’s easier to fix a plan beforeit’s put into action, not after. If, for example, the contents of the FOIA revealed communications that undermine the legitimacy of the Working Group, but are released after the guidance’s implementation, it will be much more difficult to address the problems.
Bottom line: It is clear that the Biden Administration’s plans to assert march-in rights under the Bayh-Dole Act and confiscate the property of American businesses will have serious, wide-reaching ramifications on the ability of Americans to innovate. It is vital that the American people get insight into how those plans were made. If we can’t shine a light on what’s really going on, it’s going to be a dark day for the ability of Americans to develop the next generation of technologies and products that will make the world a better place.
About the authors
Brad Watts
Brad Watts is the Vice President for Patents and Innovation Policy at the U.S. Chamber of Commerce's Global Innovation Policy Center (GIPC). He works with U.S. Chamber members to foster a political, legal, and economic environment where innovators and creators can invest in the next big thing for the benefit of Americans and the world.
