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Proposed Executive Branch Position for
Recommendation 1-1 of the
Report of the Commission on Government Procurement
Rendered October 31, 1973 I. Summation
a. Recommendation 1-1
ment Patent Policy promptly and uniformly. The Recommendation appears on page 112 of Volume 4 of the Report, and is in Category A.
b. Proposed Position
It is proposed that Recommendation 1-1 be adopted by the Executive branch. In order to facilitate the implementation of this Recommendation, it is further proposed that all existing legislation be modified, where necessary, to permit agencies to allocate patent rights as provided by the guidelines of the 1971 Presidential Memorandum and Statement of Government Patent Policy.
At the time the Commission was preparing its report, many Government agencies had not published regulations implementing the 1971 revisions of the President's Policy. Moreover, the contract clauses being used varied from agency to agency. The Executive Subcommittee believes that the Commission felt early implementation of the revised President's Policy was necessary if its effectiveness was to be measured. It was also noted by the Commission that some agencies could not "adhere completely to the President's Policy because of statutory provisions." (See pp. 113–114 of Volume 4 of the Report of the Commission.)
Since the Commission rendered its Report a number of administrative actions have been taken or are in the process of being completed which have largely accomplished that aspect of this Recommendation which can be administratively accomplished. The first of these was the promulgation of the GSA licensing regulations found at 41 CFR 101-4.1. As noted by the Commission at p. 113 of Volume 4 of its Report, the emphasis on licensing, including exclusive licensing, of Government-owned inventions was one of the major changes made in the 1971 revisions of the President's Policy. The above-cited regulation constitutes a Government-wide implementation of this change, and a number of agencies have instituted supporting procedures and programs for the licensing of inventions.
In addition to the licensing regulations, on September 4, 1973, the General Services Administration published a new Part I-9 of the Federal Procurement Regulations which will, for the first time, establish uniform contract clauses and procedures in the patent rights area applicable to civilian agencies. It is also understood that the Armed Services Procurement Regulations are in the process of being revised to bring them into harmony with the FPR provisions. Further, a number of civilian agencies are now in the process of publishing supplementing regulations of their own.
Thus it would appear that the main thrust of the Commission's Recommendation has or is in the process of being accomplished. We do find, however, that there are a number of statutes on the books which establish certain limitations on agency patent policies. These can be identified by examining section 14 of the draft legislation found on p. 144 of Volume 4 of the Report of the Commission. We have examined these statutes and found that while some are in harmony with the President's Policy Statement, others are not or, at least in some cases, have been interpreted by the agencies involved as to require a policy different than that of the President's Policy. In general, those statutes that may be in conflict require the taking of title by the Government in circumstances where the President's Policy might allow greater flexibility. And at least one statute requires adherence to the 1963 version of the President's Policy.
As our findings indicate, we have concluded that this Recommendation has been largely accomplished, except as regards the need to amend certain legislation. We have concluded that the Commission's observations regarding the need to repeal certain statutes to allow truly Government-wide implementation of the President's Policy are accurate and that the Executive branch should sponsor legislation to accomplish this.
There was almost unanimous agreement among the Executive Subcommittee members that “where necessary" legislation should be amended so as to enable the agencies to follow the Presidential guidelines. The only dissents to this position were from representatives of the Justice Department and the AEC. Justice's dissent is based on the belief that action to obtain legislation should be deferred until a real need for change is demonstrated. The AEC representative's objection rests on the possibility that in implementing this Recommendation its legislation would be adversely affected.
There is general agreement among the Executive Subcommittee members that the legislation sponsored would not have to make changes to the AEC or NASA legislation, since, in fact, the President's Policy is compatible with these laws. However, few members do feel that the AEC and NASA legislation could hamper future changes in the President's Policy, and thus should be amended.
The majority of the Executive Subcommittee members also was of the opinion that there ought to be a moratorium on future piecemeal legislation which would conflict with the Presidential Policy guidelines.
A more difficult problem in drafting legislation will probably be involved in identifying precisely which statutes should be altered and how. Should the patent aspects of these statutes simply be eliminated, or should substitute language be added ?
Another question involves the strategy for implementing the Recommendation. Should a bill be drafted covering all these statutes in one package or should separate legislation be prepared in conjunction with the individual agency legislative programs. Most members of the Executive Subcommittee feel the former approach is the one that should be taken, though such tactical decisions can obviously be deferred for later consideration.
The Executive Subcommittee feels it is premature at this point to attempt to draft legislation until a decision is made as to whether the implementation of Recommendation I-1 should be further pursued. It is suggested that if further action on this Recommendation is desired, the Committee on Government Patent Policy of the FCST should be asked to draft the necessary legislation and make further recommendations as to the manner in which enactment of the legislation should be pursued.
VII. Dissenting Views
Dissenting views are set forth in Part V, above.