Direct comparison
March-In vs Compulsory Licensing Abroad
US march-in rights have no direct foreign equivalent. Compares Bayh-Dole march-in to TRIPS compulsory licensing and Crown/government-use provisions.
Side-by-side comparison
| Dimension | US Bayh-Dole March-In | TRIPS Compulsory Licensing | Crown / Government Use |
|---|---|---|---|
| Legal basis | 35 U.S.C. § 203 (Bayh-Dole Act, 1980), procedure at 37 CFR § 401.6 | National statutes implementing WTO TRIPS Article 31/31bis, e.g. India's Patents Act § 84, Germany's Patent Act § 24 | Domestic statutes predating TRIPS, e.g. UK Patents Act 1977 ss. 55-59, Canada Patent Act s. 19, US 28 U.S.C. § 1498 |
| Tied to government research funding? | Yes -- applies only to a "subject invention" made under a federal funding agreement | No -- applies to any qualifying patent regardless of how the underlying R&D was funded | No -- applies to any patent the government uses or authorizes use of |
| Who can invoke it | Only the federal agency that funded the invention | Varies by country -- typically a national patent authority acting on a third party's petition | The national government, or a contractor authorized by it |
| Typical trigger | Failure to commercialize, unmet health/safety needs, unmet public-use regulation, or noncompliance with the US-manufacturing requirement | Unmet public need, unaffordable pricing, non-working of the patent locally, or national emergency/public health | Government's own operational need -- no finding of licensee fault required |
| Remedy | Agency may require additional licenses to a responsible applicant, or grant one itself; title is not revoked | Licensing authority grants a compulsory license to a named third party, with royalty paid to the patent holder | Government (or its contractor) uses the invention directly, with compensation paid to the patent holder |
| Ever actually exercised? | No -- never exercised in over four decades; every petition denied at the agency-decision stage | Yes, though relatively rarely -- e.g. India granted its first compulsory license in 2012 (Natco v. Bayer, sorafenib) | Yes, more routinely than either mechanism above, typically resolved through negotiated compensation |
| University tech-transfer relevance | Central -- the primary check Bayh-Dole places on a TTO's exclusive licenses | Indirect -- documented cases target pharmaceutical-company patents, not university-originated ones | Indirect -- relevant mainly if a government itself becomes a user of a licensed invention |
Common questions
FAQ
Does any country have a direct equivalent to US Bayh-Dole march-in rights?+
Not in the documented record. Several countries have adopted Bayh-Dole-style legislation letting universities retain title to publicly funded inventions -- Japan's 1999 university-TLO framework and South Korea's Technology Transfer Promotion Act are examples -- but none is documented as having replicated Section 203's specific march-in trigger tied to federal research funding.
Has a foreign compulsory license ever been used against a university-held patent?+
The documented compulsory-license cases abroad, including India's Natco v. Bayer sorafenib license and COVID-era licenses in countries such as Hungary, Russia, and Israel, have targeted patents held by pharmaceutical companies, not university technology transfer offices.
Is TRIPS Article 31 the same legal basis as Bayh-Dole march-in?+
No. TRIPS Article 31 sets minimum international conditions for compulsory licensing and government use, implemented separately by each WTO member through its own domestic patent statute. Bayh-Dole march-in is a US-specific provision tied to federal research funding, and predates TRIPS (Bayh-Dole 1980; TRIPS in force 1995).
