Progressives Ask Biden Not To Name Pharma Allies To Top Patent Posts

An array of progressive groups sent President Joe Biden a letter on Monday, calling for him to resist efforts to fill key intellectual property posts with allies of the pharmaceutical industry or other patent hawks.

The letter , spearheaded by the Demand Progress Education Fund, wants Biden’s appointments to the U.S. Patent and Trademark Office and the National Institute for Standards and Technology to reflect the concerns of antimonopoly advocates and patients’ and consumers’ rights groups rather than just brand-name drug companies, Silicon Valley tech titans and other business interests that rely heavily on intellectual property regimes.

The coalition’s message, which is also addressed to White House Chief of Staff Ron Klain, praises Biden for his decision to support a waiver of the patents and other trade-related aspects of intellectual property for COVID-19 vaccines. It also asks him to continue crafting intellectual property policy in that spirit.

“A willingness to be appropriately flexible around intellectual property enforcement during times of great crisis must be understood to be an aspect of pandemic preparedness,” the letter says. “We need people in these posts who will understand consideration of global health to be a serious aspect of their charges, and who can be expected to strike the right balance on intellectual property rights in times of great global distress.”

The letter’s signatories, which include the Revolving Door Project and the Action Center for Race and the Economy, don’t specify whom they would like Biden to appoint to head the USPTO and NIST. 

Mainly, the antimonopoly coalition sought to emphasize the types of people they do not want Biden to heed when deciding whom to appoint. The groups warn Biden that relying on the advice of corporate-friendly Commerce Secretary Gina Raimondo and Sen. Chris Coons (D-Del.), both of whom opposed the COVID-19 vaccine IP waiver, could jeopardize the waiver’s success and the ability of the Biden administration to increase the affordability of prescription drugs more broadly. (As commerce secretary, Raimondo would supervise the heads of the two agencies.)

“As determinations are made about whom to install to lead USPTO and NIST, we urge you to ensure that the administration overrules any efforts by Raimondo, Coons, or any other relevant officials to install people who are aligned with the pharmaceutical industry or other intellectual property maximalists,” the letter says.

The USPTO and NIST play a key role in granting and protecting brand-name pharmaceutical companies’ patents, copyrights and other intellectual property. 

Through the USPTO, the federal government processes requests for patents that effectively grant companies monopolies on production of certain products or features, theoretically as an incentive to invest in innovation. 

The main function of NIST is to conduct technological research and collaborate with industry on improving performance. 

However, NIST is also the agency responsible for invoking so-called march-in rights . This power allows the federal government to “march in” and effectively suspend the patent of a product that was developed with federal funding if the government decides the product is not available to the public on “reasonable terms.”

The two agencies, which coordinate closely with business sectors that rely on intellectual property, have traditionally been home to some of the most corporate-friendly figures in both Republican and Democratic presidential administrations.

But antimonopoly activists in general, and patients’ rights groups in particular, have long lamented what they consider the excessive acquisition of patents and other intellectual property monopolies well past the point that is needed to encourage research and innovation. They would also like to see the federal government invoke march-in rights for medicines like insulin and EpiPens.

These advocates, including antitrust experts at the American Economic Liberties Project, which also signed the letter, are eager for Democrats to begin prioritizing affordable medicine and other social causes not just through legislation, but through executive branch appointments as well.

Just as Massachusetts Sen. Elizabeth Warren’s scrutiny of federal financial regulators gave her the inspiration for the Consumer Financial Protection Bureau, and progressive attorney Ady Barkan turned democratizing the Federal Reserve into a workers’ rights cause, longtime critics of the pharmaceutical industry and Big Tech want the left to pay more attention to obscure agencies like the USPTO and NIST.

“Every time we go to the pharmacy and pay for our medicines, we are feeling the effects of the patent system,” said Priti Krishtel, a co-founder of the Initiative for Medicines, Access & Knowledge, which did not sign Monday’s letter.

In a way, the letter confirms the pharmaceutical industry’s fears that the Biden administration’s support for waiving intellectual property protections for the COVID-19 vaccine would undermine their patent regimes in other instances.

But advocates like Krishtel insist that the waiver fight simply heightens awareness of the ways that the intellectual property system no longer serves the public as it was intended.

“Companies are too slow to share their intellectual property, their knowledge, to transfer their technology,” she said. “What we need is to show that intellectual property exists to serve people, not the other way around.”