Joe Allen writes this: “Price was not something march-in rights were ever meant to control, and wielding them this way would be a misuse of the law and it would kill Bayh-Dole.”
This is nonsense. Allen provides no evidence for his claim, and there isn’t any. But we do have evidence–and plain meaning–for what Congress did intend. 35 USC 200 sets out Congress’s “policy and objectives” for Bayh-Dole.
Congress intended federal agencies to protect the public from nonuse and unreasonable use, to promote free competition and enterprise (35 USC 200), and to require licensing–via march-in–when terms offered to the public are unreasonable (201(f), 203(a)(1)).
Here is it then:
Price is often the *primary* “term” in any offering of benefit to the public.
March-in does not “control” price–but unreasonable price is a trigger for march-in.
March-in introduces competition (“free competition” 35 USC 200).
Competition addresses price.
If not, then antitrust (35 USC 211).
Bayh-Dole does not call out “price” because Congress uses the more general “terms.” Price is within the set of “terms.” If there is a price on offer for the benefit of utilizing a subject invention, then price necessarily is a term of that offer. Bayh-Dole does not “control” price. But if price is a term on offer to the public (and it is), and that price is unreasonable, then it is an unreasonable term. March-in.
In Bayh-Dole’s logic march-in requires licensing which introduces competition and expands supply and utilization.
“Reasonable terms” then includes a price that would be reasonably offered if there were competition, even if, by patent allowed to a federal contractor, there isn’t.
It’s pretty simple, even in a stupid law like Bayh-Dole. If using Bayh-Dole for its stated purposes, including protecting the public from unreasonable use of subject inventions such as offering benefits of utilization at unreasonable prices–unreasonable terms–is unacceptable, then Bayh-Dole must be repealed. If federal agencies refuse to recognize unreasonable pricing, then they have no business doing exclusive patent deals and taking a financial interest in the results of those deals. And they should be relieved of their authority to decide on march-in. If not that, repeal this stupid law and get the price-gougers, speculators, pyramid schemers, and trolls out of federal research directed at public health.
Yes, “kill” Bayh-Dole, especially this faux version of Bayh-Dole.