Senator Warren: Drop Your Assault on Medical Innovation

U.S. Senator and presidential candidate Elizabeth Warren recently released a statement on her 2020 healthcare plan. She wants to allow the government to hijack the Bayh-Dole Act’s March-in provision to revoke patent protections from pharmaceutical innovators in an attempt to artificially lower drug prices.

March-in authority is a concept that was written into the 1980 Bayh-Dole Act. The Bayh-Dole Act created a framework for encouraging universities that receive government funding for basic research to patent their discoveries and then license them to companies to help fuel the development of innovative products. March-in rights allow the government to “march in” to ensure a federally funded discovery is moved into the marketplace.

Over the past two decades, through the encouragement injected by the Bayh-Dole Act, hundreds of billions of dollars has been contributed to the American Gross Domestic Product. The Bayh-Dole Act has helped propel the United States to the forefront of medical innovation. (No drugs were created from federally funded inventions before Bayh-Dole passed; since then, dozens of new drugs have been brought to market through the public-private partnerships that the Act encourage.)

Senator Warren would demand that the U.S. government exercise march-in authority in a completely different way—ostensibly to drive down drug prices. This policy idea is based on the faulty belief that the government could control drug prices by asserting march-in authority by “marching in” and breaking a company’s patent to allow a cheaper version of a patented drug to be made by another company.

Yet, if march-in authority were to be asserted in this way, there would be no impact on domestic drug prices; the impact would be merely to curtail future innovation. After all, without strong IP protections, scientists would have a disincentive to engage in the kind of research that would lead to the discovery of new drugs and therapies. In other words, Warren’s plan would be a throwback to the pre-Bayh-Dole era, when Americans were receiving no return on their tax-dollar investments in research.

Fortunately, the Bayh-Dole Act has been so successful in spurring innovation that march-in rights have never been exercised in the way that Warren is advocating. When activist extremists like Warren have called for applying the law, policymakers and the courts have rejected the notion. Indeed, Senators Bayh and Dole themselves have responded that their law contains no such a provision.

Asserting march-in authority the way Warren is advocating is a wrongheaded idea and a fruitless approach to addressing drug prices.

We call on Senator Warren to drop her assault on our innovation economy and encourage policymakers to preserve the medical research-and-development collaboration that the Bayh-Dole Act encourages.