ALEXANDRIA, VA – This week, a group of state attorneys general issued a joint letter to the United States Department of Health and Human Services (HHS), National Institutes of Health (NIH) and Food and Drug Administration (FDA) demanding that the federal government employ so-called “march-in” rights under the Bayh-Dole Act of 1980 to disregard Gilead Sciences, Inc.’s patent rights on its antiviral drug Remdesivir, or allow their states to do so.  The Center for Individual Freedom (CFIF) strongly opposes their demand.  

“If you seek to bring pharmaceutical innovation to a grinding halt, and deprive Americans of lifesaving drugs, the best way to do it is to flagrantly disregard patent protections for pharmaceutical innovators,” said Timothy Lee, CFIF’s Senior Vice President of Legal and Public Affairs.  “Unfortunately, that’s precisely the path that a misguided group of state attorneys general have decided to pursue.  Violating innovators’ patent rights won’t make drugs cheaper, it will only deprive consumers of potentially beneficial drugs entirely.  America currently produces two-thirds of all new drugs worldwide, and that’s because our nation honors and protects patent rights, it doesn’t violate them,” Lee added.    

“It’s particularly galling that the attorneys’ general seek to leverage the Bayh-Dole Act of 1980 to facilitate their scheme, and as we celebrate the law’s 40th anniversary to boot,” Lee continued.  “The Bayh-Dole Act was passed in order to extend patent rights to universities and nonprofit research entities whose research was assisted by federal funds, not weaken them.”  

Prior to Bayh-Dole, very few innovations partially funded by federal dollars were ever commercially pursued – only 390 in the year prior to its passage.  Forty years later, however, that number approaches 7,500, with over 420,000 inventions and 13,000 new startup enterprises formed.  

In the case of Remdesivir, Gilead Sciences has invested billions of dollars in research, development, testing and now manufacturing of the antiviral drug, including over $1 billion this year alone to expand manufacturing capacity both domestically and abroad.  Moreover, Remdesivir’s patents are held by Gilead Sciences, not other researchers or entities that received federal funding at various points in the drug’s creation and production.  Accordingly, Bayh-Dole doesn’t offer the legal means by which the attorneys general seek to achieve their counterproductive ends.  

Fortunately, HHS officials have expressed strict opposition to this scheme.  “CFIF strongly encourages the Trump Administration, HHS, NIH and FDA to maintain their rejection, and instead strengthen rather than limit patent rights for America’s world-leading pharmaceutical innovators, particularly in this time of critical societal need,” Lee concluded.  

CFIF is a constitutional and free market advocacy organization with over 300,000 supporters and activists nationwide.  

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