A New Era of Intellectual Eminent Domain

Throughout history the government has often meddled in the business efforts of its citizens; a notable example of this was during WWII when Congress passed the War Powers Act, which directed companies to produce specific goods needed for the war effort. Now called the Defense Production Act, the original WPA had morphed into The Defense Production Act of 1950 and then again in 1973 as another version was re-activated during recent Covid-19 crisis.

Too often the government will demonize corporate America when it serves a political purpose, but elected officials are quick to call on these same businesses to provide when the nation needs them.

Never, however, has the United States government, in a vain attempt to score points with the international community, sought to take the intellectual property of these companies and give it away to the world at large, yet this is something the Biden administration is not only considering but has openly stated it is in favor of doing. It is disgusting, and it is antithetical to the ethos of achievement that the U.S. has long represented.

It is vital to recognize the sheer scale of the consequences that Joe Biden’s administration is proposing. The government requires companies to follow strict protocols on their IP, which is often the result of billions in R&D, time, energy, and effort, to be afforded patent protection. And while it sounds unconscionable and certainly un-American to take it away, it may be constitutional.

Article 1, Section 8, Clause 8 grants Congress the power to create certain laws for the benefit of inventors by granting patents, but it also allows the government the authority to effectively seize those patents if deemed necessary. There are two mediums for this effective seizure.

The Bayh-Dole Act of 1980 was passed to promote the utilization of patents developed by federally funded sources. In short, if Uncle Sam paid to have something developed, he did not want that money going to waste in the event the developer holding the patent failed to utilize the patented product by way of production and access.

As part of Bayh-Dole, the government is provided “march-in” rights which gives it the ability to require the patent holder to license the invention to a “responsible applicant.” (35 U.S.C. 203).

While the U.S. Government did help fund, in some cases, the development of the vaccine, there are two primary issues with the assertion that Bayh-Dole could lend to seizing IP.

First, not all pharmaceutical companies received federal funding to develop the vaccine, and second, Bayh-Dole was meant to keep patent holders from not utilizing that which was funded by the government which is not happening in this case.

Regardless, even if Bayh-Dole were a hard sell in the courts, another constitutional avenue may prove to be a more effective way for the Biden Administration to enact their intellectual property thievery. 28.U.S.C. SS 1498(a) more broadly allows the government to use or manufacture a patented invention for “reasonable compensation."

In laymen’s terms, the Biden Administration could seize and distribute the intellectual property by deciding a “fair price” for the vaccine IP and provide this compensation to the pharmaceutical developers. Intellectual eminent domain if you will. And while the Government has never utilized its ability to invoke this, they’ve threatened to do so in the past.

This time may be different.

The Biden Administration very well may use its constitutionally provided broad reach to seize and share intellectual property, but without a legitimate reason for doing so.

More pharmaceutical companies having this IP is not why more vaccines aren’t readily available, rather, production challenges due to lack of manufacturing ingredients are the primary reason.

It seems as though the Biden Administration is more concerned with kowtowing to the international community and specifically the W.H.O. than it is protecting the assets developed by American innovators.

U.S. pharmaceutical companies have invested significant resources in developing specifically mRNA technology, something that began long before the COVID-19 pandemic. This innovative technology is revolutionary and a pharmaceutical game-changer, countries like China want it.

The U.S. is a leader in medical innovation, providing many of the life-saving advances utilized throughout the world, and it is our capitalistic system that encourages this.

If President Biden erodes the confidence in our system, innovation will be forever compromised and so too will be medical outcomes our system provides.

Certainly, if the U.S. government takes the IP from these companies that answered the call when the world needed them the most, we need not expect them to take the call the next time a crisis arises.