Former Officials, Scholars Call Out Twisting of Patent Laws to Push Policy Agenda

WASHINGTON, Sept. 28, 2023 /PRNewswire/ -- In an effort organized by Adam Mossoff of the Hudson Institute's Forum for Intellectual Property, 25 of the nation's leading scholars, former judges, and former senior government officials sent a letter to U.S. senators correcting false claims that the federal government can use two patent laws, the Bayh-Dole Act and 28 U.S.C. § 1498, to impose price controls on prescription drugs.

"The Bayh-Dole Act and 28 U.S.C. § 1498 are not price-control laws," said Adam Mossoff, professor of law at the Antonin Scalia Law School at George Mason University. "Unfortunately, some academics and activists are attempting to distort the plain text of these laws to impose drug price controls. These efforts undermine the function of both statutes, which is to secure the patent protections critical to U.S. technological leadership and national security."

The 1980 Bayh-Dole Act gave universities and other research institutions the right to own and patent promising inventions made with the help of federal funding. The law has helped transform hundreds of university discoveries into life-improving products while supporting countless startups ranging from Google to biotech firms. As its namesake authors -- Senators Birch Bayh (D-Ind.) and Bob Dole (R-Kan.) -- have said, the law was never envisioned as a tool to set prices.

Congress passed 28 U.S.C. § 1498 over a century ago to resolve confusion in the courts concerning government use of patented inventions. The law says patent owners have a right to fair compensation if the government or a contractor violates their patent. Certain activists claim the law authorizes the government to direct any private company to infringe a patent. This blatantly contradicts the plain meaning of § 1498 and its interpretation by judges and government officials for over a century.

"Elected officials should not give airtime to these partisan theories, which have no basis in law or judicial precedent," said Mossoff. "A series of court decisions and policy missteps have significantly eroded the U.S. patent system in recent years, prompting much-needed reform efforts in Congress. It would be a mistake to further weaken the innovation incentives that drive the U.S. economy." 

The letter signatories include: 

• Jonathan M. Barnett, Gould School of Law, University of Southern California
• Honorable Susan G. Braden, U.S. Court of Federal Claims (Retired)
• Daniel R. Cahoy, Pennsylvania State University
• Honorable Ronald A. Cass, United States International Trade Commission (Former)
• Honorable Walter G. Copan, Former Undersecretary of Commerce for Intellectual Property and Director National Institute of Standards and Technology
• Richard A. Epstein, New York University School of Law
• Stephen Ezell, Information Technology & Innovation Foundation
• Bowman Heiden, University of California, Berkeley
• Chris Holman, UMKC School of Law
• Keith N. Hylton, Boston University School of Law
• Justin (Gus) Hurwitz, University of Pennsylvania Carey Law School
• Honorable Andrei Iancu, United States Patent & Trademark Office (Former)
• Layne Keele, Samford University Cumberland School of Law
• Adam MacLeod, St. Mary's University School of Law
• Geoffrey A. Manne, International Center for Law & Economics
• Damon C. Matteo, United States Patent & Trademark Office (Former)
• Honorable Paul R. Michel, United States Court of Appeals for the Federal Circuit (Retired)
• Emily Michiko Morris, University of Akron School of Law
• Adam Mossoff, George Mason University
• Honorable Kathleen M. O'Malley, United States Court of Appeals for the Federal Circuit (Retired)
• Peter Pitts, Center for Medicine in the Public Interest
• Aurelien Portuese, George Washington University
• Kristen Osenga, University of Richmond School of Law
• Honorable Randall R. Rader, United States Court of Appeals for the Federal Circuit (Retired)
• Ted Sichelman, University of San Diego School of Law.

Read the full letter here.

The Forum for Intellectual Property supports data-driven research and evidence-based policy discussions on the key role of IP in innovation economies.

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SOURCE Forum for IP at the Hudson Institute