The administration’s criticisms of academic institutions have been met with claims that any interruption of funding by the federal government will result in a catastrophic decline in medical research–as if that were the only thing that universities do, or that the government funds. But the universities’ defense is wisely chosen, as voters are very much in favor of medical research and inclined to give universities and researchers the benefit of the doubt.
On Friday, the administration upped the ante with a letter by Secretary of Commerce Howard Lutnick to the President of Harvard University:
Taxpayers deserve the benefit of the bargain. If Harvard won’t honor the Bayh-Dole Act, then we will find someone who will. pic.twitter.com/8U7yJtYacS
— Howard Lutnick (@howardlutnick) August 8, 2025
Lutnick’s letter accuses Harvard of defaulting on its obligations under the Bayh-Dole Act. Specifically, it alleges:
* Failures to comply with the requirements for timely disclosure and election of title under 35 U.S.C. § 202(c)(1) and 37 C.F.R. § 401.14(d)(1)(i);
* Failures to comply with the preference for United States industry as required by 35
U.S.C. 204 and 37 C.F.R. § 401.14(i); and* Failures to take effective steps to achieve practical application of subject inventions as
required by 35 U.S.C. § 203(a)(1) and 37 C.F.R. § 401.14()(1).
Lutnick’s letter requests specified information about all patents that Harvard has obtained as a result of federally funded research grants. It also says that the federal government is beginning the “march-in process” under which it can take over the patents itself, or grant licenses to Harvard’s patents to third parties so that they can be commercialized.
I have no idea whether Harvard has, in fact, violated its Bayh-Dole obligations as alleged by the administration, and I doubt whether other commentators do, either. Nevertheless, as you would expect, some observers have been horrified at the possibility that the federal government might actually use the tools available to it under the law. Thus:
In response to Lutnick’s letter, the Bayh-Dole Coalition issued a statement cautioning the Commerce Department to carefully consider any decision to march in.
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The Council for Innovation Promotion (C4IP) also criticized the plan:We are deeply troubled by the Commerce Department’s letter to Harvard University stating that the Department is ‘initiating the ‘march-in’ process under the Bayh-Dole Act’ to grant licenses or take title to Harvard’s patents. The Bayh-Dole Act exists to move federally funded discoveries from university labs into the marketplace — most often through startups and other entrepreneurial ventures — where they become new products, create jobs, and strengthen the economy. By casting doubt on the security of university patents, even for a single institution, this effort injects uncertainty into the market, discourages investment, and punishes the entrepreneurs who take the risks needed to bring innovations to life.
These critics could be correct. Then again, it may be that this is an instance where cozy establishment relationships have resulted in statutory and regulatory requirements being overlooked, to the benefit of institutions like Harvard and its employees. The process initiated by the Commerce Department should be allowed to play out, and generate more information, before any judgments are formed.
