Opinion
Patents are at the center of the latest development in the wider controversy between President Trump and Harvard University (August 8, 2025 CNN article). An “immediate comprehensive review” of Harvard’s compliance with the rules of research programs funded by the federal government is underway. The vaunted university is suspected of being “in breach of the statutory, regulatory, and contractual requirements tied to [its] federal funded research programs and intellectual property arising therefrom, including patents.”
There are different angles from which to look at this. At the policy level, the question of whether the Bayh-Dole Act socializes risks and costs while privatizing profits could be debated, but at this point there is no relevant legislative process in place or in sight. So for now this is all about whether the Trump Administration faithfully applies and whether Harvard complies with the laws as they stand.
It is premature to assess the merits of the allegations. Should it turn out that Harvard did not use those patents to ensure that, wherever feasible, manufacturing would substantially take place in the U.S., then it may lose some of its rights. In the end, that would have to be resolved in court.
The problem is that in the wider Trump-Harvard dispute, much of the public debate has little to do with the law or the facts. There’s a huge amount of disinformation out there, particularly in Europe where political bias, incompetence and laziness result in outrageously incorrect reporting. If the question was whether the Trump Administration or Harvard is more likely to break the law, the picture is more nuanced and the U.S. government actually deserves the benefit of the doubt to a far greater extent than Harvard.
President Trump’s compliance
The New York verdict against Trump is meaningless. It was a contorted theory, beyond a statutory limitation, and on appeal Trump’s lawyers could have raised multiple issues. It was a terrible precedent of trying to use criminal law to enforce a federal election law in order to influence an ongoing electoral campaign.
When I talk to people in Europe, it never stops surprising me how totally misguided most of them are with respect to Trump’s compliance with court injunctions. That’s because they believe in a mix of lying and incompetent media, and because Europe’s political spectrum has its center far left of the center of American politics.
The fact of the matter (easy to verify, but largely unknown in Europe) is that Trump has never been held in contempt of a court injunction. In one case, a judge denied a motion by the Associated Press to hold a member of the Trump Administration in contempt. In another, a radical left judge’s decision was thrown out on appeal.
In the Ábrego García case, where someone allegedly linked to a brutal gang was deported to El Salvador, the injunction came down too late. There was no sign, much less evidence, of President Trump or any other official having ordered anyone to disobey the court order. It simply takes time for such an order to be implemented, and a few hours are not enough in a large organization. Thereafter, the question was the standard for compliance. The Trump Administration made the reasonable argument that “facilitating” the man’s return (as the Supreme Court put it) means they have to let him return, but it does not mean they have to put pressure on El Salvador to do so because foreign policy is the President’s prerogative.
Those various injunctions were largely ordered by left-wing judges with an agenda. One cannot want a functional country and at the same time argue that a system of universal injunctions against the federal government by district judges, which the Supreme Court has meanwhile called into question (to say the least), would be workable or desirable. There are approximately 100 U.S. district courts with a total of approximately 700 United States District Judges, plus 100 or so who have “gone senior” and still make decisions. It would be intellectually dishonest to support the idea that any single one of them can enjoin the federal government on a wider issue (as opposed to an individual case). The result would be judge-shopping: even if, theoretically, 50 district courts already denied the injunction, you would just need to find a 51st court where you have a judge who grants one.
The Trump Administration does sometimes make bold moves in order to change the case law. Removing people from the Federal Trade Commission so they will sue and the courts can clarify the law is aggressive, but not lawless if there are reasonable questions of statutory interpretation to be raised.
There is no pattern of the Trump Administration systematically breaching laws. At this point there are far stronger indications of unlawful things having happened under the first of his two predecessors in office, also in connection with the Russia Hoax.
What one can criticize President Trump for, however, is that the way he talks about courts, judges and compliance with their decisions in public is disliked even by conservative judges. For example, he called Judge James L. Robart of the United States District Court for the Western District of Washington (who ordered the famous Microsoft v. Motorola antisuit injunction and made the related FRAND determination) “that so-called judge.” In retrospect, the Supreme Court now apparently believes that what Judge Robart did in the first year of the first Trump term overstepped his authority. And he even got some facts wrong, as the late Rush Limbaugh explained at the time. But Judge Robart deserves a lot of respect.
Harvard’s compliance
Harvard would not enjoy the reputation it has (whether it still deserves it or not) if it had never had a large number of brilliant people. But it may have degenerated into a political activist organization, not in all areas but in some. It can engage in that with its endowment that is worth tens of billions of dollars, but whether taxpayers should have to fund political activism is another story. They should not.
There are signs of Harvard sometimes prioritizing politics over science. Many members of the patent law community viewed former EU commissioner Thierry Breton skeptically. Fortunately, the regulation on standard-essential patents that he proposed has meanwhile been withdrawn (July 31, 2025 ip fray article). He described companies that opposed the regulation as “bad actors.” You can find some English-language interviews with him on YouTube if you’ve never heard him speak English. Now imagine that Harvard made him a professor. I live in a French-speaking country and the people here have a French accent when they speak English, but they are very easily understood.
The dispute between Harvard and the Trump Administration over foreign students is ultimately about compliance. It may have to be resolved in court.
A few months ago, the Washington Free Beacon put hard evidence on the table that seriously calls into question the lawfulness of the Harvard Law Review’s selection criteria. Weak papers have been accepted because of the author’s profile contributing to diversity, equity and inclusion (DEI) and high-quality papers have been rejected because the authors were not diverse enough. There appears to be a pattern of racial discrimination, and it could be that if enough parties sued, Harvard would be held to have violated U.S. anti-discrimination laws systematically and over a long period.
It would be a mistake to consider Harvard “pure” and not to consider it a possibility that Harvard may have breached one or more laws recently.
Implications for IP and research
Not a single AI researcher or other person engaging in profitable and very useful work has left the United States so far because of President Trump’s policies. The brain drain continues to go in only one direction, such as with Europeans working for U.S. companies (whether in the U.S. or at their research enters in Europe). Historians, sociologists, gender researchers and the like may indeed find more opportunities in Canada or Europe, but the U.S. doesn’t really need them.
At this point there is no reason to assume that the investigation of Harvard’s suspected non-compliance with applicable laws weakens U.S. innovation. The digital gap will continue to widen as Europe does not realize it has to stop being the Europe it used to be if it wants to catch up. It’s not happening, it’s not going to happen, and what is happening instead is Europe’s increasing colonization in technical terms. AI and robotics will only accelerate that trend.
Car wash ($125K+ per year at Buc-ee’s) and fast food (see below) outlet managers make much more money in the U.S. than AI developers do in Europe. Meanwhile, Meta offers AI developers NBA superstar-level packages in the hundreds of millions (or sometimes even a billion) dollars.
