ness" of procurement by the Executive Branch of the Federal Government. Industry, the trade and bar associations, individuals, members of the Executive Branch, and a full-time staff assigned to the Commission assisted in the development of the Commission Report which was rendered to the Congress on December 31, 1972.16 The bipartisan report contains 149 recommendations, 16 of which are related to patent, data and copyright matters. Recommendation No. 1 of Part I, Volume IV of the Report states: "Implement the revised Presidential Statement of Government Patent Policy promptly and uniformly." Recommendation No. 2 states: "Enact legislation to make clear the authority of all agencies to issue exclusive licenses under patents held by them." Recommendation No. 1 was partially implemented with the issuance of the FPMR (licensing regulation) and the FPR (standard patent rights clause). However, if uniformity is to be achieved, a corollary of Recommendation No. 1 requires the repeal of all conflicting statutory provisions. Repeal of such provisions requires legislation as does the implementation of Recommendation No. 2. During the September 23, 1975 meeting of the FCST Committee on Government Patent Policy, it was decided to prepare drafts of an Administration Bill to implement these recommendations of the Commission's Report. In later meetings, after considering several proposals, the Committee unanimously agreed that the policy concepts of the so-called "Alternate Approach" set forth in the Commission's report should provide the basis for such legislation. Briefly, the policy concept of the Alternate Approach provides a balanced approach to the longstanding policy issue by permitting the contractor to retain invention rights subject to the usual license to the Federal Government and a requirement that third parties be licensed under resulting patents in specified public interest situations. DRAFT BILL A summary of the draft Bill approved by the Committee on Government Patent Policy follows: TITLE I-FEDERAL INTELLECTUAL PROPERTY POLICY Title I states as the primary purpose of the Act the establishment of a Federal Intellectual Property Policy based on the findings that inventions resulting from Federal research and development constitute a valuable national resource which should be appropriately protected by domestic and foreign patents and rights therein allocated in a manner which recognizes the equities of Federal employees and contractors while pursuing the mechanism most likely to promote their utilization in the national interest. TITLE II-FUNCTIONS OF THE OFFICE OF SCIENCE AND DINATING COUNCIL FOR SCIENCE, ENGI- Title II provides to the Federal Coordinating Council for Science, Engineering and Technology (established by Title IV, P.L. 94-282, The National Science and Technology Policy, Organization and Priorities Act of 1976) the more specific responsibilities, and the means to exercise them, of making recommendations on intellectual property matters to the Office of Science and Technology Policy for the purpose of implementing this Act and the policy objectives of P.L. 94-282. Such responsibility also includes advising on the impact of use, ownership or licensing of trademarks, copyrights, right-in-technical data and matters connected therewith on Federal programs. In addition, Title II provides for a Board on Intellectual Property for the purpose of making determinations and hearing appeals as provided for in the Act. TITLE III-ALLOCATION OF PROPERTY RIGHTS IN INVENTIONS RESULTING FROM FEDERALLYSPONSORED RESEARCH AND DEVELOPMENT Chapter 1-Inventions of Contractors Chapter 1 of Title III provides for a single patent rights clause that normally is to be used in all Federally-funded contracts. The clause is intended to meet the competing policy objectives of 1. encouraging the participation of the most qualified and competent contractors, 2. fostering competition, 3. promoting the widespread utilization of inventions resulting from such research, and 4. reducing the burden of both the Federal agencies and their contractors in the administration of invention matters, while maintaining the uniform principles called for by Title I, Sec. 101. (c) (4) of P.L. 94-282. Chapter 1 also establishes procedures within which the Federal agencies may modify the single patent rights clause in situations which are deemed to be outside normal expectations or pose considerations radically different from those that arise in conventional negotiations for research and development services. Notwithstanding, the procedures are designed to assure uniformity of application through regulations, publication and postreview. Chapter 2-Inventions of Federal Employees Chapter 2 of Title III establishes the criteria for allocation of rights between the Federal agencies and their employees in inventions made by such employees. Chapter 2 further provides for an Incentive Awards and/or Royalty-sharing Program to be implemented at the discretion of the Federal agencies in order to monetarily reward or otherwise recognize Federal employees, stimulate inventive creativeness and encourage disclosure of inventions for purposes of enhancing utilization. TITLE IV-DOMESTIC AND FOREIGN PROTECTION AND LICENSING OF FEDERALLY-OWNED INVENTIONS Title IV provides the authorities and responsibilities in the Federal agencies deemed necessary to administer effectively a program or programs for the domestic and foreign licensing of Federally-owned inventions. The inventions include those that contractors have assigned to the Federal agencies under the provisions of Title III, Chapter 1, due to disinterest or failure to pursue utilization, and those acquired from Federal employees under the criteria of Title III, Chapter 2. TITLE V-MISCELLANEOUS Chapter 1-Other Related Provisions Chapter 1 of Title V sets forth the definitions for the purposes of this Act for, "Federal agency," "Federal employees," "contractor," "contract," "invention," "Subject Invention," "practical application," "person," "made," and "antitrust law." In addition, Chapter 1 clearly removes any implication that the Act provides immunity from the antitrust laws. Chapter 2-Amendments to Other Acts Chapter 2 of Title V is intended to amend or repeal parts of all Acts covering similar subject matter. Chapter 3-Effective Date Provisions Chapter 3 of Title V establishes the effective date of this Act. CONCLUSIONS Enactment of this Bill would resolve longstanding policy issues, answers to which Congress, the Executive Branch, Industry and the public-at-large have actively sought for approximately thirtysix years. Further the Bill is responsive to the Commission on Government Procurement recommendations, set forth in the bipartisan report to the Congress that legislation be enacted which would make uniform the Federal practices in the area of allocating the rights to contractor inventions and make clear the authority to grant exclusive licenses under Federally-owned inventions. The Bill would also codify the basic policy concepts of Executive Order 10096, the provisions of which would be uniformly applicable to all Federal employees. In addition, passage of this Bill would overcome any remaining legal questions raised by past and pending litigation. It is anticipated that, following implementation of the Act, greater commercial use will be made of the technology and intellectual property resulting from the Federal Government's total R&D effort and this in turn will create additional employment, a higher standard of living, and an overall economic benefit to the United States and the general public. 'Executive Order 10096: "Providing for a Uniform Policy for the Government with Respect to Inventions Made by Government Employees and for the Administration of Such Policy," President Harry S. Truman, January 23, 1950 (3 CFR, 1949-1953 Comp., p. 292); as amended by Executive Order No. 10930: “Providing for the Abolishment of the Government Patents Board and Providing for the Performance of its Functions," President John F. Kennedy, March 23, 1961 (26 F.R. 2583, March 28, 1961). "Ervin Kaplan vs. Donald E. Johnson, Administrator, and John J. Corcoran, General Counsel, Veterans Administration, No. 74-C2004, United States District Court for the Northern District of Illinois, Eastern Division, February 18, 1976. * Memorandum and Statement of Government Patent Policy Issued by President John F. Kennedy on October 10, 1963. (Published F.R., Vol. 28, No. 200, October 1963.) 'S.1809. On April 23, 1965, Senator McClellan introduced in the 89th Congress, 1st Session, a Bill "To Establish a Uniform National Policy Concerning Property Rights to Inventions Made Through the Expenditure of Public Funds, and For Other Purposes." The Bill was amended and accepted by the Senate Judiciary Committee as the "Federal Inventions Act of 1966." (No vote by full Senate.) "Government Patent Policy Study by Harbridge House, Inc., Boston, Massachusetts, Volumes I-IV, May 17, 1968. Superintendent of Documents, U.S. Printing Office, Washington, D. C. 20402-Contract No. 7-35087. "Memorandum and Statement on Government Patent Policy Issued by President Richard M. Nixon on August 23, 1971. (Published F.R., Vol. 66, No. 166, August 26, 1971.) 'Amendment A-16 to Federal Property Management Regulations Issued January 29, 1973. (F.R., Vol. 38, No. 23, February 5, 1973.) 8 Public Citizen, Inc., et al. vs Arthur F. Sampson, GSA (Civil Action No. 781-73), United States District Court for the District of Columbia. FPMR Temp. Reg. A-10 to Federal Property Management Regulations Issued February 12, 1974. (F.R., Vol. 39, No. 34, February 19, 1974.) 10 Arthur F. Sampson, GSA, vs Public Citizen, Inc., et al. (Civil Action No. 74-1619), United States District Court of Appeals for the District of Columbia Circuit. "1 Amendment A-10 to Federal Property Management Regulations Issued October 1, 1975. (F.R., Vol. 40, No. 199, October 14, 1975.) 12 Amendment 116 to Federal Procurement Regulations Issued August 29, 1973. (F.R., Vol. 38, No. 170, September 4, 1973). 13 Public Citizen, Inc., et al., vs Arthur F. Sampson, GSA. (Civil Action 74-303), United States District Court for the District of Columbia. "Public Citizens, Inc., et al., vs Arthur F. Sampson, GSA (Civil Action No. 74-1849), United States Court of Appeals for the District of Columbia Circuit. 15 Amendment 147 to Federal Procurement Regulations Issued May 1, 1975. (F.R., Vol. 40, No. 89, May 7, 1975.) 16 Volumes I-IV, Report of the Commission on Government Procurement, Superintendent of Documents, U.S. Printing Office, Washington, D. C. 20402. Stock Nos. 5255-00002; 5255-00003; 5255-00004; and 5255-00006. |