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Episode 68 — Drug Pricing: Will Agencies Exercise March-In Rights Based on Drug Price?

January 25, 2024
A new proposal seeks to reinvigorate the Bayh-Dole Act by allowing government to consider price as a factor when electing to exercise march-in rights.

The National Institute of Standards and Technology (NIST) recently published a draft guidance framework for considering the exercise of march-in rights. Under the Bayh-Dole Act, government agencies can “march in” on patents resulting from government-funded research if the patent licensee is not sufficiently developing the patented invention, based on the consideration of various factors. The guidance would add price as one such factor.

In this episode of Connected with Latham, partners Chris Schott and Reba Rabenstein and associate Danny Machado discuss the implications of using drug pricing as a factor in exercising march-in rights, the feasibility of the examples featured in the draft guidance, and what the draft guidance means in light of the 2024 election cycle.

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