NIST calls for public comments on draft March-In Rights Guidance

Press Release

CONTACT: (Media Only)
Paul Fucito or Mandy Kraft
(571) 272-8400 or or

WASHINGTON—The National Institute of Standards and Technology (NIST) has released a request for information seeking feedback on the Draft Interagency Guidance Framework for Considering the Exercise of March-In Rights under the Bayh-Dole Act. 

For forty plus years, the Bayh-Dole Act has promoted the commercialization of federally funded research and technology by according the recipient of those funds the right to retain ownership and seek patents on those inventions. The law also provides the federal government with residual rights, known as “march in” rights, allowing the funding agency, under certain circumstances, to license, or compel an awardee to license, an invention. To date, only a handful of petitions have been made for an agency to exercise their march-in rights authority. In all of those attempts, no agency has ever exercised their march-in rights. 

“The Bayh-Dole Act has been paramount to stimulating innovation in our country through the use of federal funds,” said Under Secretary of Commerce for Intellectual Property and Director of the USPTO Kathi Vidal. “The COVID-19 vaccine and modern wheelchair technology are just two examples of the many life-changing inventions that have been developed through federal funding then licensed under the Bayh-Dole Act to benefit all Americans and the world. Providing clear and consistent guidance for when agencies can exercise their rights to compel innovators to license their work is essential clarity for these innovators and the public at large. I encourage all USPTO stakeholders to submit their comments on this important issue as NIST works to shape guidance that will advance the intent and spirit of the Bayh-Dole Act for the benefit of the country.”

Recently there have been calls for greater clarity on when it is appropriate or warranted for a federal agency to exercise its march-in rights.

The draft framework released today encourages funding agencies to consider both the practical impact and the potential impact the use of march-in rights could have on the broader research and development (R&D) ecosystem. It guides agencies in assessing three overarching questions and provides eight hypothetical scenarios in which march-in could emerge, to demonstrate how an agency might apply the framework to its decision-making process. 

Your comments will help to shape a non-binding framework to encourage the consistent and predictable application of the Bayh-Dole Act’s march-in authority across all agencies of the federal government.

Comments must be submitted by 5:00 PM ET on February 6, 2024.

NIST will hold a public informational webinar on December 13, 2023 on the draft guidance and how to submit comments. Register to attend on the NIST events page