On Monday, a coalition of progressive organizations urged President Joe Biden
to oppose efforts to fill key intellectual property
positions with pharmaceutical industry
allies or other patent hawks.
The Demand Progress Education
Fund spearheaded the letter, which requests that Biden's appointments to the United States Patent and Trademark Office and the National Institute of Standards and Technology reflect the concerns of antitrust 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 patents
The message, which is also addressed to White House
Chief of Staff Ron Klain, praises Biden for his decision to support a waiver of patents and other trade-related aspects of intellectual property for COVID-19 vaccines
and 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 positions who will understand that global health
is a serious aspect of their responsibilities, and who can be expected to strike the right balance on intellectual property rights.”
The letter's signatories, which include the Revolving Door Project and the Action Center for Race and the Economy
, do not specify who they want Biden to appoint to lead the USPTO and NIST. Arti Rai and Colleen Chien are liberal intellectual property law experts who are frequently cited as two of the left's preferred candidates to lead the two agencies, which are housed in the US Department of Commerce.
The antimonopoly coalition primarily sought to highlight the types of people they do not want Biden to consider when deciding who 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 Biden administration
“As decisions about who to appoint to lead the USPTO and NIST are made, we urge you to ensure that the administration overrules any efforts by Raimondo, Coons, or any other relevant officials to appoint people who are aligned with the pharmaceutical industry or other intellectual property maximalists,” the letter says.
The USPTO and NIST are critical in granting and protecting patents, copyrights, and other intellectual property for big-name pharmaceutical companies.
The federal government processes patent requests through the USPTO, which effectively grants companies monopolies on production of certain products or features, ostensibly as an incentive to invest in innovation.
NIST's primary mission is to conduct technological research and work
with industry to improve performance.
However, NIST is also in charge of exercising so-called march-in rights, which allow the federal government to "march in" and effectively suspend the patent of a product developed with federal funds if the government determines the product is not available to the public on "reasonable terms."
The two agencies, which work closely with business sectors that rely on intellectual property, have traditionally housed some of the most pro-business figures in both Republican
and Democratic presidential administrations.
However, antimonopoly activists in general, and patient rights groups in particular, have long decried what they see as the excessive acquisition of patents and other intellectual property monopolies far beyond what is required to encourage research and innovation, and they would like to see the federal government invoke march-in rights for medicines such as insulin and EpiPens.
These advocates, who include antitrust experts from the American Economic Liberties Project, which also signed the letter, want Democrats
to prioritize affordable medicine and other social causes not just through legislation, but also through executive branch appointments.
Longtime critics of the pharmaceutical industry and Big Tech
want the left to pay more attention to obscure agencies like the USPTO and the CFPB, just as Massachusetts Senator Elizabeth Warren
's scrutiny of federal financial regulators inspired her to create the Consumer Financial Protection Bureau and progressive attorney Ady Barkan turned democratizing the Federal Reserve into a workers' rights cause.
“Every time we go to the pharmacy and pay for our medicines, we feel the effects of the patent system,” said Priti Krishtel, a co-founder of the Initiative for Medicines, Access, and Knowledge, which did not sign the letter on Monday.
In some ways, 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 jeopardize their patent regimes in other situations.
However, advocates such as Krishtel argue that the waiver debate simply raises awareness of the ways in which the intellectual property system is no longer serving the public as it should.
“Companies are too slow to share their intellectual property, knowledge, and technology,” she said, adding, “What we need to demonstrate is that intellectual property exists to serve people, not the other way around.”