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UNITED STATES DEPARTMENT OF COMMERCE,Q B The Assil tant Secretary for Economic Affairs. Washington D C 20230,4s r f o F a,MEMORANDUM FOR Norman Latker rf2. From Tip Parker,Subject Pre idential Memorandum on Patent Policy. On May 24 1982 I had a telephone conversation with Ron Kienlen. of the OMB General Council s Office I called to ask his. advice on handling the August 23 1971 Presidential memorandum. on patent policy The memorandum has not been rescinded but. it does not reflect current Administration policy The main. issue was Whether the Presidential memorandum would be binding. on the patent provisions of the new Federal Acquisition Regulation FAR. Ron advised me not to worry about the Presidential memorandum. It has no binding effect in law and needs no rescission. Replacing it with another Presidential memorandum would appear. to serve no useful purpose, The FAR is what will really convey the Administration s policy. to the contractors and the public OFPP has authority to issue. policy statements and guide the development of the FAR In. part the FAR must reflect P L 96 517 in providing patent. ownership rights to small businesses universities and non profit. organizations For large contractors the Commerce testimony. for the Schmitt Bill which was cleared by OMB is an adequate. expression of Administration policy on which to base the FAR. and OFPP could provide guidance to implement the Administration s. policy in the FAR,o pp ftl 1,Alternative ill,COMPROMISE BETWEEN DOE AND OFPP OSTP PROPOSALS.
1 Add a sixth subparagraph to Section 30l a as follows. 6 The contract is for the operation of a Government owned. research or production facility provided that the Federal agency. shall normally grant waivers under the authority of Section 303 d. of this title,2 Add a new paragraph d to Section 303 as follows. d l Where Federal agency has reserved the right to acquire. inventions und r contract for the operation of a Government owned. research or pr duction facility as authorized in Section 30l a 6. of this Act the Federal agency shall normally grant waivers upon. request to any identified subject invention to either the contracto. or a third party sponsoring research or development activities at 7. the facility unless the agency determines that such action will. not best serve the interests of the United States and the general. 2 In making Ideterminations under subsection Cd l of this. Section the agency shall consider at least the guidance of. Section 30l a of this Title the objectives of subsection c of. this section whether the agency is still funding development of. the invention and whether ownership of such invention could. result in a conflict of interest,Alternative 12,COMPROMISE BETWEEN DOE AND OFPP OSTP PROPOSALS. Add a sixth subparagraph to Section 30l a as follows. 6 The contract is for the operation of a Government owned research. or production facility provided that the Federal agency shall normally. grant waivers under the authority of Section 303 to any identified. subject invention upon request to either the contractor or a third. party sponsoring research or development activities at the facility. unless the agency determines that such action will not best serve the. interests of the United States and the general public In making such. determinations the agency shall consider the guidance of this subsection. a the objectives of subsection c of Section 303 of this Title. whether the agency is still funding development of the invention and. whether ownership of such invention could result in a conflict of. Delete paragraph 2 of section 301 a and include the following or something. similar in the section by section analysis of the legislative history. Section 301 Allocation of Rights, Section 301 a sets forth specific circumstances under which a Federal agency may. acquire title or other rights at the time of entering into a contract to inventions. which may be made by contractors or may otherwise limit the rights of the. contractor as established elsewhere in the Act Use of these exceptions by an. agency is discretionary,The exceptions and examples thereof are. 2 Exceptional circumstances when the agency on a contract by contract. basis and not a class of contract basis determines that this would. better promote the policy and objectives of section 101 5 It is. expected that the exceptional circumstances exception will be used. sparingly Examples where the exception might be justified included. a A contract which calls for the development of a product or. process that the agency plans to fully fund and promote to the. marketplace, b A contract for the operation of a Government owned research or.
production facility wherein some of the tasks to be performed at. the facility may result in inventions whose commercialization. should be discouraged restricted or otherwise controlled for. national security purposes Such inventions would include new. products or processeg used in the preparation of nuclear fuels In. such cases however it is the intent of the Act that the agency. define specific fields of use to which it will obtain rights in. inventions at the time of contracting and not destroy the. contractor incentive of ownership to further develop any. inventions in fields of use where commercial use need not be. discouraged restricted or controlled, c A contract where ownership and subsequent licensing of subject. inventions could result in a conflict of the contractor s interests. t I CUTI lE OfFl i i,Ot FICE Of MAN GF I Y D 2 UDG 2T 1 1 J 82. Take necessary action,Approvo I or ignature 0 Ih e. lC ffr t 4jI JISJ CTJ v,COmml ni o orle,S Cl m r Llf o. U OCOs Pre par reply,Oi cuas with me o C r,For your information o fl 1J 4 r.
See r marks below e,FROIl I 1144 C k a ee U,1 CdV il l fr. REIiA R KS,fe J J 1f j Jvi I u,7iut a t v n 7 P l 0 d 7Y 0 i I fl6p. i4 hi vcn F r r Vo o rfd OV M,we r fr1 7 1,Nor dd ur Coco. h v rcpivceJ 6v c ve,BI I PlA v,jO i1s v q r c dB 7L. i e j c v b 1 r t or rl E VNJ e 1 It,dra f J h r,c B w d Lee m a e Le 7 eI V v.
7M 8 a P t f C 0 c o,a cc rz V 7t 4,4 C frt c 4 1 S ek a. 1 k v T2 C VJ r c r7 r,frr L e 7d vrj w l j,AI L O BFORIl. yv n C rz 77J J 71 VtJh So nev AUG 70,C I ce f e tC o e. IN LIEU OF DOD LANGUAGEMENT AMENDMENT, Not address GOCO s in Bill but remain silent as is now the case. Amend the legislative history of the Bill as follows. It is expected that the exceptional circumstances exception will be used. sparingly An example of a situation in which it may be used is when the contract. calls for development of a specific product that will be required for use by. regulation In such a case it is presumed that patent incentives will not be. required to bring the product to the market Similarly if the funding agreement. calls for developmental work on a product or process that the agency plans to fully. fund and promote to the market place then the use of the exception may be. It has also been brought to the Committee s attention that some contractors at. Government owned research or production facilities GOCO s may perform tasks. such as the review or testing of the research work of other contractors that might. present delicate issues of organizational conflicts of interest if they were to claim. inventions that appeared to be build on the work they were reviewing Such a. situation might merit the tailoring of some special language under the exceptional. circumstances exception based on the equities of the parties. Similarly it has been pointed out that some GOCO s contractors may be doing. research in fields such as the production of nuclear fuels that have been carefully. controlled by the Government for national security proposes In such cases the. public interest might require the invocation of exceptional circumstances. However in general the Committee feels that security considerations are best. protected via control of information through the laws and regulations governing. classification and handling of classified materials and through reliance on Secrecy. Orders in the patent office rather than through the taking of title by the. Government, Mr Homer Blair Vice President Patent and Licensing Itek Corporation Lexington.
Massachusetts questioned the need for an agency to retain title to an invention on. national security grounds while testifying at our July 28 1981 hearings. He indicated that, I have a little problem understanding the reason for that Title in the. Government We have a number of very highly classified contracts under. which we make inventions If we wish to get a patent on it we can file the. patent application often through the particular agency ending up in the U S. Patent and Trademark Office which has a security group which can handle. any classification They will examine it as they would with a regular patent. application Of course all your correspondence is handled on a classified. basis When they have decided that there is allowable subject matter it is. held by the Patent and Trademark Office until the various Government. agencies involved decide it would be declassified which might be many years. Itek has patent applications which were allowed and will not issue in my. lifetime I don t think they should But my puzzlement is as to why whether. we have title or the Government has title bas anything to do with national. securi ty problems I have talked to some people in the Central Intelligence. Agency and asked them about this and they re trying to get the right person. to explain why it should be the case, The Committee is unaware of any justification other than previously discussed for. not allowing contractors that are operating Government owned research or. production facilities from normally taking title to inventions just as other. contractors Accordingly lacking a justification for an exception for GOCO s as. found in P L 96 517 the Committee has chosen not to include it in S 1657 We. believe agencies will retain sufficient flexibility in unusual cases involving GOCO s. through the exceptional circumstances exception In such cases however it. would be within the spirit of the Act for the agency to either define specific fields. of use to which it will obtain rights in any inventions at the time of contracting or. to carefully structure any deferred determinations so that he agency does not. destroy the incentives for further development of any inventions in fields of use. not of interest to the agency, There has been some concern expressed as to the need for guidance on the. obligations of a recipient of Government research funds at a GOCO university or. nonprofit organization when such research is closely related to other research at. such facilities sponsored by an industrial concern Since one of the primary. purposes of the Act is to foster cooperative research arrangements among. Government universities and industry in order to more effectively utilize iR el der. the productive resources of the nation in the creation and commercialization of. new technology it is important to remove any doubt as to the propriety of such. cooperative arrangements and the proper application of the Act to them. Given the right of research organizations to accept supplemental funding from. other sources by the agency for the purpose of expediting or more comprehensively. accomplishing the research objectives of a Government sponsored project it is. clear that the Act would remain applicable to any invention conceived or first. actually reduced to practice in performance of the project Separate accounting. for the two funds used to support the project in this case is not a determining. To the extent that a non government sponsor establishes a project which although. closely related falls outside the planned and committed agency funded effort and. does not diminish or distract from the performance of such effort inventions made. in performance of the non government sponsored project would not be subject to. the conditions of the Act Inventions made under these circumstances would be. disposable in accordance with agreements between GOCO university or nonprofit. organizations and the non government sponsor An example of such related but. separate projects would be a government sponsored project having research. objectives to expand scientific understanding in a field with a closely related. industry sponsored project having as its objectives the applicaton of such new. knowledge to develop usable new technology The time relationship in conducting. the two projects and the use of new fundamental knowledge from one in the. performance of the other are not important determinants since most inventions. rest on a knowledge base built up by numerous independent research efforts. extending over many years, An invention which is made outside of the research activities of a government. funded project but which in its making otherwise benefits from such project. without adding to its cost is not viewed as a subject invention since it cannot be. shown to have been conceived or first actually reduced to practice in. performance of the project An obvious example of this is a situation where an. instrument purchased with government funds is later used without interference. DO NOT use this form as a RECORD of approvals concurrences disposals See rema rks bedew 0 5 It is expected that

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