Editorial: Dependence on federal grants is now creating problems for companies’ patent claims

Who owns the products of publicly funded research — the companies that created the products, or the people, through the government, who made the research possible?

That question is becoming a hot topic since the Biden administration proposed allowing the government to seize patent rights for medicines, and perhaps other products, in order to control prices.

President Joe Biden has long complained that drug companies are charging too much for many medications that many patients can’t afford, especially when insurance companies balk at paying the high prices.

Drug companies insist that cost controls would leave them without the resources they need to conduct the research and development that go into creating those drugs. Many say that their argument is invalid, since much of the research isn’t paid by the companies at all, but by taxpayers who fund the billions of dollars the companies receive from government grants.

Biden and other progressives have called for imposing caps on drug prices, although efforts to push through legislation to that effect haven’t gone far.

At issue is the 1980 Patent and Trademark Law Amendment Act, sponsored by U.S. Sens. Birch Bayh, D-Ind., and Bob Dole, R-Kansas, which allowed government contractors to claim ownership of products and inventions that result from government-funded research. The bill has a provision that allows the government to assume ownership of some products under certain circumstances, such as during a public health crisis like the recent COVID-19 pandemic, so that patented formulas could be shared with other companies in order to increase production.

But are high drug prices a public health crisis, and do they justify government patent seizures? Should the focus be on the companies that might be able to justify production costs, or insurance companies that are reluctant to fund claims for high-priced medications even when few or no options are available?

Medical companies and other supporters, including some universities that partner with drug makers and often are the direct recipients of the government grants, warn that weakening patent protections could create disincentives for research that could save lives and even find cures for many diseases.

Advocates for public ownership suggest the public good is paramount to profits, and the people at large should have a right to have some control over the fruits of their largess.

Litigation over the issue is likely, and any decision likely will spark protests from one side or another.

At the very least, the issue should lead officials at drug makers and other companies to rethink their dependence on taxpayer funding for the research that might ensure their profitability and secure their future, and whether that dependence affects their demand for independence with regard to patent protections.

Congress should revisit and clarify the issue, and consider which decision might affect the public more — weakening patent rights and perhaps reducing future research and new discoveries, or allow patent protections that might produce new drugs that are so costly that they are unavailable to all but a few patients.