NIST Comments: Price Controls (via “March-In”) and the Bayh-Dole Act

By at 5 April, 2021, 6:22 pm

Comments to the National Institutes of Standards and Technology

Proposed Rule:

“Rights to Federally Funded Inventions and Licensing of Government Owned Inventions”

Doc # 2020-27581


Submitted by:

Karen Kerrigan, president & CEO, Small Business & Entrepreneurship Council

April 5, 2021


The Small Business & Entrepreneurship Council (SBE Council) is pleased to submit the following comments on the National Institutes of Standards and Technology (NIST) proposed rule, “Rights to Federally Funded Inventions and Licensing of Government Owned Inventions.” Small innovative firms in particular have benefited from the public-private sector collaboration facilitated by the Bayh-Dole Act, which has vastly boosted U.S. innovation and technological leadership since its passage. Maintaining the principles – and congressional intent – behind Bayh-Dole is critical to America’s innovative future and our global leadership.

SBE Council is an advocacy, research and education organization dedicated to protecting small business and promoting entrepreneurship. For 26 years, our team and small business leaders have worked on a range of legislative and private-sector initiatives to strengthen the ecosystem for strong startup activity and small business growth.

Policies that strengthen investment and intellectual property (IP) rights are foundational to the development of innovative economies that generate quality job creation, robust entrepreneurship and inclusive wealth creation. SBE Council has worked relentlessly over the years to advance such policies at both the domestic and international level.

Bayh-Dole has had an extraordinary impact on America’s innovative activity, as this unique and successful public-private partnership effectively incentivized – through IP protections – the commercialization of breakthrough technologies that have made the lives of millions of Americans, and people around the world, much better. As a result of Bayh-Dole, approximately 14,000 new startups have been formed, 5.9 million jobs created, and U.S. economic output has increased by more than $1.7 trillion from its founding through 2017, according to the Association of University Technology Managers.

Especially as our nation emerges from the ravages of COVID-19, smart policies need to be strengthened and supported that encourage greater startup activity and the innovative activity that is working to solve today’s most pressing challenges. The policies and principles set forth by Bayh-Dole are timeless and proven, and are needed at this time of massive transformation in our economy, an acceleration to the digital economy, and as America’s fiercest global competitors are ramping up government efforts to lead in the area of cutting-edge technologies across all sectors.

To that end, SBE Council believes the changes and clarifications made by NIST’s proposed rule continue to support the entrepreneur’s participation in federal funding projects and work – through streamlining, improved accountability, and through re-affirmation around the issue of march-in rights – that is, the government’s march-in authority is not intended to set prices on resulting products.  These clear rules of the road regarding Bayh-Dole’s intent have been essential to its success, remain vital to its ongoing success, and will lead to enduring and positive outcomes for our economy and innovation for years to come. To fortify its intent, SBE Council supports removing the words “exclusively” and “of the contractor” from the current language so that the intent is clearer.

SBE Council’s is grateful for the opportunity to comment on the proposed rule, as we remain grateful for the power of Bayh-Dole in strengthening the U.S. ecosystem for innovation, investment, entrepreneurship and strong economic growth and leadership.


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