Policy and Legal

The Biden administration’s proposal to invoke so-called “march-in” authority to seize the rights to patents developed in any part with federal funding would undermine the American innovation economy, the NAM told the federal government Tuesday.

What’s going on: A proposal put forth in December by the Biden administration would allow the government to seize private-sector patents for products it considers too costly.

Why it’s important: “Undermining manufacturers’ [intellectual property] rights would have sweeping ramifications for innovation in the United States and America’s world-leading innovation economy,” the NAM told the Biden administration.

• “In particular, start-ups and small businesses would bear the brunt of the drastic changes proposed by the administration, as … government march-in would disincentivize early-stage entrepreneurship and dissuade much-needed capital formation from outside investors.”

The background: The Bayh-Dole Act, passed in 1980, allows recipients of federal research dollars to license groundbreaking technologies to private-sector companies to commercialize them.

• “Prior to the act’s passage, the government held approximately 28,000 patents—yet fewer than 4% of those patents were licensed to the private sector. This is because private-sector participants viewed these patents as ‘contaminated by government funding,’” according to the NAM.

• Bayh-Dole includes a narrow “march-in” provision that allows the government to step in to ensure consumer access to certain products during times of crisis—but march-in “has never previously been used during the 44 years since the law’s enactment,” the NAM said.

• Allowing march-in based on the price of a product or technology “would hinder industry collaborations with research universities and laboratories across the country, stymieing manufacturers’ efforts to develop the products and technologies of the future and bring them to the public.”

What we’re doing: Last month, the NAM launched a seven-figure ad campaign opposing the proposal.

• The administration should “provide certainty to manufacturers and other stakeholders in the innovation economy by affirmatively and unequivocally withdrawing the proposal—and making clear that the administration will not implement any of its recommendations,” the NAM said.

The last word: “Undermining America’s world-leading patent system is a recipe for reduced innovation and significant economic damage, with a disproportionate impact on small manufacturers,” said NAM Vice President of Domestic Policy Charles Crain.

• “The administration’s march-in proposal would raise the spectre of government price controls on a wide range of technologies—fundamentally reshaping how life-changing innovation is developed, financed and commercialized in the United States. The administration must affirmatively and unequivocally withdraw this radical and flawed proposal.”

Pharmacy benefit managers are contributing to the skyrocketing cost of health care for manufacturers and must be reined in—and that’s why the NAM supports the bipartisan Delinking Revenue from Unfair Gouging (DRUG) Act, passed yesterday by the House Oversight and Accountability Committee.

What’s going on: PBMs, created in the 1960s with the intention of keeping prescription drugs affordable, are now doing the very opposite, the NAM informed the committee ahead of Tuesday’s markup.

• PBMs “increas[e] the price that health plan participants pay for medicines,” NAM Vice President of Domestic Policy Charles Crain said. “By applying upward pressure to list prices that dictate what patients pay at the pharmacy counter, pocketing manufacturer rebates and failing to provide an appropriate level of transparency about their business models, PBMs increase health care costs at the expense of manufacturers and manufacturing workers.”

• In addition to other reforms, the DRUG Act would require “delinking”—ensuring that PBMs charge a flat rate for their services rather than charging a percentage of a medication’s list price. This critical reform would “remov[e] PBMs’ incentive to put upward pressure on list prices in order to maximize their own profits,” Crain said.

Why it’s important: The NAM—whose advocacy, including a six-figure ad campaign, helped lead the DRUG Act to passage by the House Oversight Committee—“has long favored delinking PBM compensation from the list price of medications, including in the commercial market,” Crain continued.

• The NAM will continue to advocate for PBM reforms that “will benefit employers by making PBM contracts more straightforward, transparent and predictable—and will benefit workers by reducing the prices they pay out of pocket for their prescriptions.”

Washington, D.C. – Following the National Association of Manufacturers’ submission of comments opposing the Biden administration’s proposal that would allow the government to march in and seize the rights to groundbreaking innovations developed by manufacturers, NAM Vice President of Domestic Policy Charles Crain released the following statement:

“Undermining America’s world-leading patent system is a recipe for reduced innovation and significant economic damage, with a disproportionate impact on small manufacturers. The administration’s march-in proposal would raise the spectre of government price controls on a wide range of technologies—fundamentally reshaping how life-changing innovation is developed, financed and commercialized in the United States. The administration must affirmatively and unequivocally withdraw this radical and flawed proposal.”

The NAM’s comments on the proposal are available here. Key excerpts from the comments are below:

• The proposal contemplates an expansion of the Bayh-Dole Act’s march-in provision, which has never previously been used during the 44 years since the law’s enactment. This unlawful expansion of a 44-year-old statutory provision would prompt the government to exercise march-in rights to force patent licenses to private-sector inventions that are derived at least in part from federal funding. This price control measure would impact innovative companies of all kinds across the manufacturing sector.
• Undermining manufacturers’ IP rights would have sweeping ramifications for innovation in the United States and America’s world-leading innovation economy. In particular, start-ups and small businesses would bear the brunt of the drastic changes proposed by the administration, as the spectre of government march-in would disincentivize early-stage entrepreneurship and dissuade much-needed capital formation from outside investors.
• If the administration moves forward with the proposal, the unprecedented expansion and use of the Bayh-Dole Act’s march-in provision would impede R&D, investment and the commercialization of innovative technologies. It would cause significant market uncertainty as to current and future patent licenses that are derived in any part from federal funds—directly contradicting the intent and purpose of Bayh-Dole. And it would hinder industry collaborations with research universities and laboratories across the country, stymieing manufacturers’ efforts to develop the products and technologies of the future and bring them to the public.
• Courts have found that an agency violates the major questions doctrine on matters of significant economic importance when the agency cannot “point to clear congressional authorization for the power it claims.” The government’s ability to seize private-sector IP is undoubtedly a topic of vast economic and political significance; as discussed, America’s robust patent system lies at the heart of the innovation economy in the United States—and the proposal would threaten the financing of that innovation ecosystem and the economic viability of many of its key participants (including start-ups, entrepreneurs, small and medium-sized businesses, universities and more). The effects of the proposal would be felt in every state and every congressional district. Yet, the proposal cannot point to “clear congressional authorization” for including a price consideration in the government’s march-in analysis because it does not exist; as explained above, price is wholly absent from the Bayh-Dole Act’s text. More broadly, the act was enacted to support public–private partnerships and bolster the innovation economy in the United States—yet, the proposal would undermine and endanger American innovation. It is unlikely that Congress, in passing the Bayh-Dole Act, “could reasonably be understood to have granted” the administration the power to vitiate the primary goal of the act itself.
• The NAM respectfully encourages the administration to provide certainty to manufacturers and other stakeholders in the innovation economy by affirmatively and unequivocally withdrawing the proposal and making clear that the administration will not implement any of its recommendations. Abandoning and disclaiming the proposal’s attempts to impose price controls and undermine the Bayh-Dole Act will ensure that manufacturers in the United States can continue to lead the world in R&D and innovation—and continue to create and support well-paying jobs vital to the success of the U.S. economy.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.85 trillion to the U.S. economy annually and accounts for 53% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

The Biden administration is nearing the end of a lengthy review on whether to adjust or extend tariffs on a variety of goods and materials from China—and the NAM is working to make sure manufacturers’ voices are heard.

The background: Following a 2017 investigation into China’s trade practices, the Trump administration put in place a set of levies on imported goods from China—called Section 301 tariffs—intended to incentivize change in practices by China that were found by the Office of the U.S. Trade Representative to be “unreasonable or discriminatory.”

• These included policies and practices related to technology transfer, intellectual property and innovation.

The review: In May 2022, USTR initiated a legally required four-year review of the Section 301 tariffs that focused on tariff efficacy in changing Chinese discriminatory practices and the impact of the tariffs on the U.S. economy, workers and consumers, among other considerations.

• More than 18 months later, the review remains unfinished. The NAM is urging USTR to finish and publish it—and to take actions that reduce the burdens on manufacturers while maintaining appropriate leverage to incentivize China to adhere to bilateral and multilateral commitments.
• “Ideally, USTR will conclude the four-year review in the next few weeks and make the results public,” said NAM Senior Director of International Policy Ali Aafedt. “We would like to see the results reflect the 1,498 public submissions USTR received during the process and the reduction or removal of some of the tariffs that are harming manufacturers in the U.S. more than they’re creating leverage on China.”

The exclusions: There are 429 existing exclusions from the tariffs—including 77 COVID-19-related products and 352 reinstated exclusions—which are in effect through May 31.

• The NAM has also been pushing for a new process that allows manufacturers to ask the government to exclude specific products they need from the tariffs.
• “The NAM has been calling for a new, fair and transparent Section 301 tariff exclusion process that would allow all U.S. stakeholders an opportunity to seek relief or weigh in on the existing tariffs,” said Aafedt. “The last opportunity to petition USTR for relief from Section 301 tariffs was in 2020, and a new exclusion process will help to better align the tariffs with U.S. economic goals.”

The outlook: Reports such as this one from The Wall Street Journal indicate that the Biden administration will look to rebalance the tariffs, potentially reducing those that are not in the U.S. interest and raising tariffs on other items, including, potentially, on imports from China in the electric vehicle and battery sectors.

• “The NAM will continue to push for a more strategic approach,” said Aafedt.

If your company has interest in a specific existing exclusion, USTR is seeking feedback here by Feb. 21.

Washington, D.C. – Following the Senate introduction of the Border Act of 2024, National Association of Manufacturers President and CEO Jay Timmons released the following statement:

“For years, manufacturers have called on Congress to fix our broken immigration system, and the need for a solution at the border has only grown more urgent. This bill is neither perfect nor comprehensive, but it is important to take steps to address immigration reform and border security consistent with our plan, ‘A Way Forward.’

“Manufacturers believe the Senate’s legislation clears some critical tests: Does it make us more secure than we are today by tackling the border crisis? Yes. Does it address our ongoing worker shortage through strengthening the visa program? Yes. And does it protect democracy by supporting our allies overseas? Yes.

“Anytime Congress shows progress on sensible policy, it is a positive development for our country. The bipartisan group of Senate leaders deserves great credit for forging a plan on one of the most complicated issues facing our nation, and we appreciate the leadership’s support for this critical work.

“The NAM will work with both chambers and the administration to enact meaningful change on the critical issues of immigration and border security.”

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.85 trillion to the U.S. economy annually and accounts for 53% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Manufacturers scored a major victory last night when the House passed a bipartisan tax package containing provisions critical to the industry.

What’s going on: The House voted 357–70 to pass the bipartisan Tax Relief for American Families and Workers Act. The bill includes three important manufacturing priorities:

• Restoring immediate R&D expensing for domestic research
• Reinstating full expensing (also known as 100% accelerated depreciation) for businesses’ capital investments
• Returning the U.S. to a pro-growth interest deductibility standard

What it means: The measure will enable manufacturers to invest in their businesses, create jobs and compete in the global marketplace.

• The bill is particularly important for small and medium-sized manufacturers, many of which experienced significant tax increases as a result of the expiration of these pro-growth provisions.
• “While it was once a paid expense, R&D is now a cost that many small businesses cannot afford,” said Carol Miller (R-WV), in a speech on the House floor last month.
• The overwhelming majority—89%—of respondents to the NAM’s Q4 2023 Manufacturers’ Outlook Survey said higher tax burdens on manufacturing would make it more difficult for them to hire, buy new equipment and expand their facilities. 

What’s next: It’s critical that the Senate now also pass the measure, the NAM said. 

• “Manufacturers thank [House Speaker Mike Johnson (R-LA)] and [House Ways and Means Committee Chairman Jason Smith (R-MO)] for their leadership in passing the Tax Relief for American Families and Workers Act—and the bipartisan work in the House and Senate to secure progress for America’s manufacturing workers,” said NAM President and CEO Jay Timmons in a social post Wednesday night. “Manufacturers are now counting on the Senate to act quickly to restore these provisions that are absolutely critical to strengthening America’s competitiveness and growth of manufacturing in America.”
• Added Ketchie President and Owner and NAM Small and Medium Manufacturers Group Chair Courtney Silver, “This just isn’t about numbers on my financial statements and my tax returns—this is about taking care of the people here [at Ketchie] and in communities across this country…. Let’s restore some common-sense tax provisions, and let’s support our American manufacturers across our country.”

Washington, D.C. – Following House passage of the Tax Relief for American Families and Workers Act of 2024, National Association of Manufacturers President and CEO Jay Timmons and Ketchie President and Owner and NAM Small and Medium Manufacturers Group Chair Courtney Silver released the following statement:

“Manufacturers thank Speaker Johnson and Chairman Smith for their leadership in passing the Tax Relief for American Families and Workers Act—and the bipartisan work in the House and Senate to secure progress for America’s manufacturing workers,” said Timmons.

“Manufacturers are now counting on the Senate to act quickly to restore these provisions that are absolutely critical to strengthening America’s competitiveness and growth of manufacturing in America,” Timmons added. “We cannot afford to wait. The cost of delay or inaction will be measured in lost jobs and slower wage growth, along with investment ceded to other countries. Passing this legislation, however, will ensure that small manufacturers, who are the backbone of communities and foundation of America’s supply chain, can continue driving our nation forward.”

“When key tax provisions expired, it wasn’t just businesses like Ketchie that felt the pinch—it was our ability to support and create jobs that took a hit,” said Silver. “I thank Speaker Johnson and Chairman Smith for their efforts to ensure passage of the Tax Relief for American Families and Workers Act. This isn’t just about numbers on financial statements; it’s about taking care of people who make things in America and work at small manufacturing companies across our country.”

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.85 trillion to the U.S. economy annually and accounts for 53% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Earlier this month, Congress unveiled the bipartisan Tax Relief for American Families and Workers Act—and now it’s time it passed the legislation, the NAM recently urged congressional leaders.

What’s going on: The bipartisan tax package—a compromise between House Ways and Means Committee Chairman Jason Smith (R-MO) and Senate Finance Committee Chairman Ron Wyden (D-OR)—would restore immediate R&D expensing for businesses, reinstate full expensing (also known as 100% accelerated depreciation) for businesses’ capital investments and return the U.S. to a pro-growth interest deductibility standard.

• Thanks to the NAM’s advocacy, the House Ways and Means Committee supported moving the legislation to the House floor by a bipartisan vote of 40–3.
• A vote on the House floor is expected tomorrow or Thursday, thanks in part to the NAM’s work.

Why it’s important: “All three of these tax policies have a long history of bipartisan support and are critical to strengthening America’s global competitiveness,” the NAM, along with more than 260 other businesses and allied groups, told House Speaker Mike Johnson (R-LA), House Minority Leader Hakeem Jeffries (D-NY), Senate Majority Leader Chuck Schumer (D-NY) and Senate Minority Leader Mitch McConnell (R-KY) earlier this month.

• The policies “have enabled U.S. businesses to innovate, create [well]-paying jobs, protect our national security and remain at the cutting edge of the global economy. Restoring these provisions will have a profound impact on business investment, economic growth and job creation.”

Small businesses: The policies are particularly crucial for small- and medium-sized manufacturers, said Courtney Silver, president and owner of precision machining company Ketchie Inc. group chair of NAM Small and Medium Manufacturers Group.

• The absence of these three tax “provisions directly impacts our ability to invest in new technology, to purchase equipment and to create jobs,” she said.
• “Nearly 90% of manufacturers share similar concerns about their higher tax burden, and if left unaddressed, our companies and our teams will have a harder time securing an edge over our global competitors. … Passing this law would give companies like ours the certainty needed to plan for growth and more investments.” 

What you can do: Your members of Congress need to continue to hear why it is imperative they support this tax package. Add your voice at the NAM’s Tax Action Center.

Washington, D.C. – Ketchie President and Owner and National Association of Manufacturers Small and Medium Manufacturers Group Chair Courtney Silver released the following statement calling on Congress to advance key tax priorities included in the Tax Relief for American Families and Workers Act of 2024.

“There is so much at stake for small and medium-sized manufacturers as Congress debates pro-growth tax policy, which is why I strongly support the Tax Relief for American Families and Workers Act,” said Silver. “When Congress allowed immediate R&D expensing, interest deductibility and full expensing to expire, it created a higher tax bill and tremendous uncertainty for businesses like mine. The loss of these provisions directly impacts our ability to invest in new technology, to purchase equipment and to create jobs. Nearly 90% of manufacturers share similar concerns about their higher tax burden, and if left unaddressed, our companies and our teams will have a harder time securing an edge over our global competitors.

“This legislation restores those commonsense provisions, which would be a big jolt for manufacturers of all sizes. Passing this law would give companies like ours the certainty needed to plan for growth and more investments in our future.”

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.85 trillion to the U.S. economy annually and accounts for 53% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.

Washington, D.C. – Following the Department of Energy’s announced freeze on export permits for new liquified natural gas projects, National Association of Manufacturers President and CEO Jay Timmons released the following statement:

“Once again the Biden administration’s agencies are undercutting President Biden’s own stated goals. The president has said the following:

• ‘Where is it written that America can’t lead the world in manufacturing again? … Now, thanks to all we’ve done, we’re exporting American products and creating American jobs.’[1]
• ‘This nation used to lead the world in manufacturing, and we’re going to do it again.’[2]
• ‘We just have to remember who we are. We’re the United States of America…There’s not a single thing we can’t do when we put our minds to it. And we can strengthen our energy security now, and we can build a clean energy economy for the future at the same time. This is totally within our capacity.’’[3]
• ‘[W]e’re working closely with Europe and our partners to develop a long-term strategy to reduce their dependence on Russian energy.’[4]
• ‘[W]e’re a great nation. We’re the greatest nation on the face of the earth. We really are. That’s the America I see in our future.”[5]

“Manufacturers call on the president to direct his agencies to support his agenda and to end their political war on the manufacturers who power American jobs, our economy and our national security. Today’s decision weakens our country, while giving Russia an upper hand as Europe and Asia look to transition their energy needs.”

[1]  State of the Union Address, Feb. 7, 2023.

[2]  Remarks at a Political Rally Hosted by Union Members, June 17, 2023.

[3]  Remarks on Actions to Strengthen Energy Security and Lower Costs, Oct. 19, 2022.

[4]  Remarks Announcing U.S. Ban on Imports of Russian Oil, Liquefied Natural Gas and Coal, March 8, 2022.

[5] Remarks at First Campaign Speech of the 2024 Election, Jan. 5, 2024.

-NAM-

The National Association of Manufacturers is the largest manufacturing association in the United States, representing small and large manufacturers in every industrial sector and in all 50 states. Manufacturing employs nearly 13 million men and women, contributes $2.85 trillion to the U.S. economy annually and accounts for 53% of private-sector research and development. The NAM is the powerful voice of the manufacturing community and the leading advocate for a policy agenda that helps manufacturers compete in the global economy and create jobs across the United States. For more information about the NAM or to follow us on Twitter and Facebook, please visit www.nam.org.