When politicians get involved in patent law, things usually get messy — and the latest spat between the Trump Administration and Harvard over the Bayh-Dole Act is no exception.
A Little Bayh-Dole Background
Back in the 1970s, the U.S. government had a problem: it was sitting on a mountain of patents — roughly 28,000 of them — generated from taxpayer-funded research. Fewer than 5% of those patents were ever licensed, let alone commercialized. Why? Because government ownership meant non-exclusive licenses, bureaucratic hurdles, and no incentive for anyone to put serious money into development.
Enter the Bayh-Dole Act of 1980. Congress flipped the script: universities, nonprofits, and small businesses could now keep the patents from federally funded research, provided they played by certain rules. It was a win-win: researchers got the chance to commercialize, investors got certainty, and the public (in theory) got products instead of dusty patent files.
But Congress also built in a big stick — the “march-in” rights. If an institution wasn’t doing its job, the government could “march in” and force licensing of the invention. The statute lists four triggers:
- No practical application.
- Health or safety needs not being met.
- Public use requirements not satisfied.
- Failure to substantially manufacture in the U.S.
Sounds dramatic, right? Except here’s the kicker: in over forty years, no administration has ever actually marched in. Plenty of petitions, lots of noise — zero follow-through.
Harvard in the Crosshairs
According to reports, the Trump Administration dusted off those march-in provisions and pointed them at Harvard. Commerce sent a letter accusing the university of failing to comply with Bayh-Dole. Harvard fired back, calling the move political payback for its defense of academic freedom.
Now, whether you buy Harvard’s explanation or the Administration’s, the bigger point is this: a march-in threat is almost always more about leverage than law. It’s the sword hanging on the wall. Agencies wave it around when they want to pressure a university or company to fall in line.
Here’s the practical takeaway for innovators: if you’re working with federal funding, Bayh-Dole compliance isn’t optional. You need to file invention disclosures on time, elect title properly, and make sure your commercialization plans check the right boxes. Screw up the paperwork, and you give an agency an opening — political or not — to come knocking.
And while Harvard can weather a march-in threat, a startup or small university spin-out might not. Investors don’t like uncertainty, and nothing says “uncertain” like the government hinting it could hand your patent to someone else.
The Trump–Harvard drama is a reminder that Bayh-Dole’s march-in rights are the patent world’s version of Bigfoot: everyone talks about them, nobody’s seen them in the wild, but the threat alone can be enough to change behavior.