Winning the Narrative Battle

Joe Allen
Guest Columnist

 The latest attack on Bayh-Dole is a request to Medicare and Medicaid that they use the government’s royalty free license to authorize copiers to make Xtandi with no compensation to the University of California or their licensee which developed the prostate cancer drug.

This battle, like most political fights, will be shaped by who controls the narrative. That’s why we created the “Digital Library” of the foundational documents laying out the true story of Bayh-Dole. The attack on Xtandi may seem reasonable unless you know that the government’s license is limited to meeting an agency’s own needs of funding research or mission related procurement as stated in a 2003 report by the Government Accountability Office.

Those determined to overthrow the Bayh-Dole system have spent decades sowing the seeds that the public is being exploited when academic inventions are commercialized. They claim the government is underwriting R&D, that patents and exclusive licenses inflate prices and cause shortages of important products and the public interest is not served when technology management is decentralized from Washington to those making inventions with government funding.

This isn’t new. These debates go back to the waning days of World War II, when it was decided that funding basic research would be part of the government’s mission. The question of how to handle resulting inventions resulted in a heated battle when Congress was considering creating the National Science Foundation. The original legislation said that patents would not be filed. Rather, the government would be in charge of commercialization. 

That idea was opposed by Vannevar Bush, author of Science the Endless Frontier which persuaded President Roosevelt that the government should support scientific research. Bush countered that decisions on managing inventions should be left to those making the discoveries. Splitting the difference, patent rights were left with the government although inventing organizations could petition for patent rights on a case by case basis.

That fight continued. Those opposing patenting  fought the passage of Bayh-Dole and never stopped. They developed their own “legislative history” claiming the government has the right to set prices on resulting discoveries if they are not “reasonable.”

The other side knows that whoever controls the narrative wins the battle. So why haven’t they won?

The reason is pretty simple: we have always had a handful of defenders from Senators Bayh and Dole to the founders of the academic licensing profession like Howard Bremer and Niels Reimers, to dedicated public servants like Norman Latker, the patent counsel at NIH who realized potentially important discoveries that could save lives were wasting away under the pre Bayh-Dole policies.

They created a counter narrative that without patent rights providing authorities and incentives for the private sector to take the considerable risk and expense of commercial development, federally funded discoveries were doomed to waste away as research papers, not products.  They supported their arguments with data and case histories proving the point. And they had one key advantage: what they said was true.

We now face the most serious challenge since Bayh-Dole was enacted. The Administration is considering a march in framework based on the narrative of our opponents that allows federal agencies to force universities to license copiers if someone feels a price isn’t “reasonable” —a completely undefined term.

Knowing our history isn’t a luxury—it’s a necessity. We have a great story to tell, but you have to know it. We also cannot expect that someone else will step into the breach. The consequences are too serious for the well being of our citizens and those around the world if we fail. Now’s the time to speak out with confidence.