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When you’re attacking the dead, you’ve hit the bottom of the barrel

Just when you think our political discourse can’t go any lower, you discover that we haven’t hit bottom yet. In an effort to undermine one of the critical underpinnings of American innovation, the Bayh-Dole Act of 1980, activists have stooped to questioning the integrity of its principal authors, Sens. Birch Bayh (D-Ind.) and Bob Dole (R-Kan.), who are no longer alive to defend themselves.

The Economist Technology Quarterly called the Bayh-Dole Act “possibly the most inspired piece of legislation over the past half century,” adding that more than anything it “helped reverse America’s precipitous slide into industrial irrelevancy.” The law, which I had the privilege to help shape as a staffer to Sen. Bayh, allows universities and small companies to commercialize inventions they create with federal support. Bayh-Dole launched an unprecedented era of innovation that continues to this day.

But the law has its critics, some of whom have been working for decades to kill it.

More than 20 years after Bayh-Dole passed, law professors Peter Arno and Michael Davis published an article in the Tulane Law Review claiming to have discovered a hidden meaning in the statute. They claimed the law allows the government to set prices on products derived from federally funded inventions. They propagated that theory a year later in a Washington Post op-ed.

That prompted Sens. Bayh and Dole, both of whom were retired from Congress, to immediately respond in a letter to the editor explaining that was not how their law worked.

Nevertheless, activists persisted in promoting their flawed interpretation. In 2004, they petitioned the National Institutes of Health to “march-in” under the authority of Bayh-Dole to set the price of a drug that had been successfully commercialized. As Sen. Bayh’s former staffer, I contacted him asking if he would speak at an NIH public meeting considering the proposal.

He agreed. His statement explained that the law’s purpose was for the commercialization of government-funded inventions so they can benefit the public. It does not allow the bureaucracy to regulate prices for resulting products. Sen. Bayh showed, in detail, how the petitioners had blatantly misrepresented the law’s legislative history to concoct their theory.

NIH appropriately dismissed that “march-in” petition as unsupported by the law. It’s rejected every subsequent price control petition it received under both Democratic and Republican administrations on the same basis.

But the critics refuse to admit their always denied theory is wrong. In 2016, they petitioned NIH and the Department of Defense to march-in on Xtandi, a prostate cancer drug. The Obama-Biden administration rejected both petitions as unjustified under the law. The Trump administration denied the appeal.

Now, activists have refiled nearly identical Xtandi petitions, hoping that political pressure can force the Biden administration to misuse the statute. And they’ve added a particularly nasty twist. It’s being alleged that Sens. Bayh and Dole falsified how their law works under pressure from the drug industry.

So, let’s set the record straight, because I was there and know what happened. The former senators got involved in the fight because I contacted them. At the time, I was the president of the National Technology Transfer Center, a federally funded organization that helped commercialize government-supported inventions.

I worked with both men to draft their letter to the Washington Post. I worked with Sen. Bayh in writing his statement to NIH defending the law and rebuking those seeking to misrepresent it. There were no “special interests” involved, only the three of us who were directly engaged in crafting and passing the law. My drafts were accepted by both former senators without changes.

We are now being asked to believe that those who’ve long sought to kill Bayh-Dole should be relied on to say how the law works — not its authors. That’s bad enough, but when they impugn the dead, that’s a line no one should follow them across. Sens. Bayh and Dole were men of the highest personal integrity.

It’s fine to vigorously debate public policies. What’s not fine is to cast aspersions on those unable to defend themselves because your arguments don’t hold water. Let’s hope we’ve finally reached a point where we begin to restore principled debates over policy differences. When all you have left are personal attacks, you’re scraping the bottom of the barrel. Hopefully, we’ve all had enough of that.

Joseph P. Allen is executive director of the Bayh-Dole Coalition and previously served as a staff member of the U.S. Senate Judiciary Committee.

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