The Biden-Harris administration will be remembered for its historic progress in supporting historically black colleges and universities. Since taking office, President Biden has invested more than $7 billion in HBCUs.
Unfortunately, a proposal put forward by the Department of Commerce risks undermining these efforts by decimating research and innovation at HBCUs.
During the current session of Congress, it’s critical that the president intervenes before this misguided proposal — on which HBCUs were not consulted — is finalized. Otherwise, brilliant researchers and students at HBCUs could struggle to bring their ideas to fruition, and HBCUs could lose out on millions of dollars in revenue as a result.
At issue is a consequential bipartisan law known as the Bayh-Dole Act. Passed in 1980, Bayh-Dole allows universities to patent discoveries made with the help of federal funding. University “technology transfer” offices can then license these patented discoveries to private firms that can turn them into usable commercial products. The ingenious system created by Bayh-Dole has supported more than 6.5 million jobs and contributed $1 trillion to GDP since 1996.
The Bayh-Dole system benefits all Americans, including those in historically marginalized communities. Thanks to Bayh-Dole, HBCU students and researchers who make groundbreaking discoveries with the support of federal dollars can partner with private firms to commercialize those discoveries. When these partnerships succeed, HBCUs receive licensing revenue that they reinvest into research.
HBCUs have worked hard to grow their innovation footprint in recent years. The number of patents granted to HBCUs has risen considerably since 2010. Inventions to come out of HBCUs include a cancer treatment, various medical devices, a biohazard cleanup technology, and new varieties of fruit.
Still, disparities remain. HBCUs have received close to 400 patents over the last four decades. While this is undoubtedly progress worth celebrating, consider that just one non-HBCU — the Massachusetts Institute of Technology — was granted close to 400 patents last year.
Sadly, the new proposal will make it harder for HBCUs to bring their discoveries to market. That’s because the plan twists Bayh-Dole’s “march-in” provision, allowing the government to relicense patents in rare circumstances, such as when a private company is simply sitting on a federally funded discovery.
March-in rights were never meant to be used to exert centralized control over the price of successfully commercialized products that are widely available. Despite this, the new Department of Commerce proposal encourages federal agencies to revoke exclusive patent licenses if it determines that the price of an invention is not “reasonable.”
The misguided proposal, if finalized, would undermine HBCUs’ efforts to translate their research into practical solutions. HBCUs that make discoveries with federal dollars rely on private firms’ willingness to license and develop these early stage advances. Private-sector partners will hesitate to invest in emerging technologies from HBCUs — or any universities, for that matter — if they do not have confidence in the underlying patent rights.
Any invention associated with federal funding would become toxic overnight.
This wouldn’t hurt HBCUs directly. It could also have ripple effects across the predominantly minority communities where many HBCUs are located. Universities often license their technologies to start-ups based in their community or state.
HBCUs deserve an opportunity to provide input regarding any policies affecting their future. In the past, HBCUs have too often been denied a “seat at the table” with decision-makers.
Yet, the process by which the march-in proposal came to be was anything but inclusive. For one, HBCUs were not meaningfully consulted before this rule was developed. Additionally, the administration has not published research investigating how the new guidance might affect HBCUs. If officials had sought input from diverse stakeholders, we believe they would have heard the same concerns we’re hearing every day: HBCU leaders are worried that the proposal could threaten their ability to continue accepting federal dollars and would make it much harder for HBCU technology transfer offices to locate private partners willing to risk their capital to commercialize patented discoveries.
The Bayh-Dole Act uplifts brilliant scientists at HBCUs nationwide. If the administration is serious about using its final months in power to support research and innovation at HBCUs, it should withdraw its misguided march-in proposal without delay.
