Biden White House Executive Order opposes change in Bayh-Dole March-In regulations

On July 9, 2021, the Biden White House has issued an Executive Order on competition which includes opposition to the Trump effort to narrow Bayh-Dole march-in rights over pricing concerns. This is the first time since 1995 there has been any White House support to address the reasonable pricing obligations in the Bayh-Dole Act.

KEI has spent a lot of effort opposing the NIST proposals, including the submission of several technical comments and ongoing conversations with the Biden appointees. Other groups have also rallied to oppose the proposals by NIST.

The grassroots efforts, lead by groups such as Social Security Watch, generated more than 80,000 comments in opposition to the effort to limit march-in rights There is also a big corporate/University lobby pushing for this, and other issues in the proposed regulations, such as narrowing the cases where government rights apply.

More background on the NIST proposals, and comments by many of the groups who opposed (the number of thoughtful comments by groups, academics and others was quite impressive) or supported the NIST proposals here:

Below is the relevant section from the new Biden Executive Order on competition.

Executive Order on Promoting Competition in the American Economy
JULY 09, 2021

(r) The Secretary of Commerce shall:
(i) acting through the Director of the National Institute of Standards and Technology (NIST), consider initiating a rulemaking to require agencies to report to NIST, on an annual basis, their contractors’ utilization activities, as reported to the agencies under 35 U.S.C. 202(c)(5);
(ii) acting through the Director of NIST, consistent with the policies set forth in section 1 of this order, consider not finalizing any provisions on march-in rights and product pricing in the proposed rule “Rights to Federally Funded Inventions and Licensing of Government Owned Inventions,” 86 Fed. Reg. 35 (Jan. 4, 2021); and