(b) The term "employee" or "Government employee" means any officer or employee, civilian or military, of the Veterans Administration. Part-time employees and part-time consultants are included, except when special circumstances in a specific case require the departure herefrom to meet the needs of the Veterans Administration, such circumstances to be reported to and approved by the Commissioner. (c) The term "Commissioner" means the Commissioner of Patents, Department of Commerce, or his designee. [21 F.R. 10377, Dec. 28, 1956, as amended at 31 F.R. 5291, Apr. 2, 1966] § 1.652 Governing provisions. (a) Executive Order 10096. Paragraph 1, Executive Order 10096, dated January 23, 1950 (15 F.R. 389, 3 CFR, 1949-1953 Comp., p. 292) as amended by Executive Order 10930, dated March 24, 1961 (26 F.R. 2583, 3 CFR, 1959-1963 Comp., p. 456), provides in part: (a) The Government shall obtain the entire right, title and interest in and to all inventions made by any Government employee (1) during working hours, or (2) with a contribution by the Government of facilities, equipment, materials, funds, or information, or of time or services of other Government employees on official duty, or (3) which bear a direct relation to or are made in consequence of the official duties of the inventor. (b) In any case where the contribution of the Government, as measured by any one or more of the criteria set forth in paragraph (a) last above, to the invention is insufficient equitably to justify a requirement of assignment to the Government of the entire right, title and interest to such invention, or in any case where the Government has insufficient interest in an invention to obtain entire right, title and interest therein (although the Government could obtain same under paragraph (a), above), the Government agency concerned, subject to the approval of the Commissioner of Patents, shall leave title to such invention in the employee, subject, however, to the reservation to the Government of a nonexclusive, irrevocable, royalty-free license in the invention with power to grant licenses for all governmental purposes, such reservation, in the terms thereof, to appear, where practicable, in any patent, domestic or foreign, which may issue on such invention. (c) In applying the provisions of paragraphs (a) and (b), above, to the facts and circumstances relating to the making of any particular invention, it shall be presumed that an invention made by an employee who is employed or assigned (1) to invent or improve or perfect any art, machine, manu facture, or composition of matter, (11) to conduct or perform research, development work, or both, (111) to supervise, direct, coordinate, or review Government financed or conducted research, development work, or both, or (iv) to act in a liaison capacity among governmental or nongovernmental agencies or individuals engaged in such work, or made by an employee included within any other category of employees specified by regulations issued pursuant to section 4 (b) hereof, falls within the provisions of paragraph (a), above, and it shall be presumed that any invention made by any other employee falls within the provisions of paragraph (b), above. Either presumption may be rebutted by the facts or circumstances attendant upon the conditions under which any particular invention is made and, notwithstanding the foregoing, shall not preclude a determination that the invention falls within the provisions of paragraph (d) next below. (d) In any case wherein the Government neither (1) pursuant to the provisions of paragraph (a) above, obtains entire right, title and interest in and to an invention nor (2) pursuant to the provisions of paragraph (b) above, reserves a non-exclusive, irrevocable royalty-free license in the invention with power to grant licenses for all governmental purposes, the Government shall leave the entire right, title and interest in and to the invention in the Government employee, subject to law • (b) Executive Order No. 9865. Executive Order No. 9865 provides in part: 1. All Government departments and agencies shall, whenever practicable, acquire the right to file foreign patent applications on inventions resulting from research conducted or financed by the Government • [21 F.R. 10377, Dec. 28, 1956, as amended at 31 FR. 5291, Apr. 2, 1966] § 1.653 Delegation of authority. The General Counsel is authorized to act for the Administrator of Veterans Affairs in matters concerning patents and inventions, unless otherwise required by law. The determination of rights to an invention as between the Government and the employee shall be made by the General Counsel, subject to the approval of the Commissioner, where required. [31 F.R. 5291, Apr. 2, 1966] § 1.654 Invention owned by the Gov ernment. Any invention owned by the Government under the criteria given in paragraph 1(a) of Executive Order 10096 (15 F.R. 389, 3 CFR, 1949-1953 Comp., p. 292) shall be protected by an application for a domestic patent and other necessary documents executed by the inventor (employee) prepared by or through the General Counsel, unless some other agency has primary interest or it is decided to dedicate the invention to the public. Such dedication requires approval of the Commissioner. Applications on behalf of the Government for foreign patents may be made if determined to be in the public interest. The payment of necessary expenses in connection with any application filed or patent obtained under this section by the Veterans Administration is authorized. [31 F.R. 5291, Apr. 2, 1966] § 1.655 Government license in invention of employee. If an invention is made by an employee as to which he is entitled to full ownership under paragraph 1(b) of Executive Order 10096 (15 F.R. 389, 3 CFR, 1949– 1953 Comp., p. 292) subject to a nonexclusive, irrevocable, royalty-free license in the Government with power to grant sublicenses for all Governmental purposes, it shall be the duty of the employee to make application for a U.S. patent, to execute all necessary documents, and to diligently prosecute such application at his own expense in instances in which either the Veterans Administration determines (insofar as its interest is concerned), or the Commissioner of Patents or other agency advises (insofar as other Government interest is concerned), that such action is necessary to protect the interest of the Government. Provided, however, That if the employee states that he is unwilling or unable to do so, the filing of the patent application, the prosecution thereof and the payment of necessary fees and other expenses by the Veterans Administration may be authorized subject to reimbursement by the employee as determined by the General Counsel based on the respective interests of the employee and the Government, or by an interested Government agency pursuant to agreement with the Veterans Administration. [31 F.R. 5291, Apr. 2, 1966] § 1.656 Information to be submitted by inventor. In the case of an invention or believed invention, the inventor will prepare a statement for submission to his immediate superior. It will be submitted regardless of where the ownership is believed to exist. The statement will consist of two parts: (a) One part of the statement will be a disclosure of the invention sufficient to permit the preparation of a patent application. It will include ordinarily drawings or blueprints which contain reference numerals, such numerals being crossed to an accompanying explanatory list or description of the parts or components of the invention as shown on the drawings or blueprints, accompanied further by a description of the construction and operation of the invention. Photographs of the invention may be included. The inventor should state pertinent prior art known to him, and set forth in detail as clearly as possible the respects in which his invention differs. (b) The other part of the statement will set forth the circumstances attending the making of the invention. It will include the full name and address of the inventor; the grade and title of his position; whether full time or part time; his duties at the time the invention was made; the facts pertinent to a determination whether the invention bore a direct relation to or was made in consequence of such official duties; whether there was, and if so, the terms of any special agreement or understanding with respect to use or manufacture of his invention; date of the invention; when and where it was conceived, constructed and tested; whether it was made entirely during working hours; whether there was a contribution by the Government of any of the following: Facilities; equipment; materials or supplies; funds; information; time or services of other Government employees on duty. If the invention has previously been disclosed, as for example by an article submitted for publication, or in consultation with a manufacturer or attorney, details will be given. In the case of an article, a copy will be attached if possible, or the citation given. [21 FR. 10377, Dec. 28, 1956, as amended at 31 F.R. 5291, Apr. 2, 1966] § 1.657 Transmittal of inventor's state ment. The inventor's immediate superior shall promptly review the statement of the employee for completeness and accuracy, and he shall certify that the employee's statement of circumstances attending the invention is or is not correct, giving reasons if pertinent. The file should then be submitted through the station head (or department heads or top staff officials in the case of Central Office employees) to the General Counsel together with comments and recommendations, including whether the invention is used or is likely to be used in the public interest, and any such additional information as may be deemed helpful or necessary. The General Counsel will assemble the evidence bearing upon this question. [31 F.R. 5291, Apr. 2, 1966] § 1.658 Determination of rights. The General Counsel will make a determination of rights, subject to review where required by the Commissioner. The determination may be that title is in the Government, that title is in the employee, or that the employee is entitled to commercial rights and the Government to a license, depending on the facts. The employee has a right of appeal to the Commissioner within 30 days from the determination of the General Counsel. The decision reached by the General Counsel or by the Commissioner, as the case may be, will be communicated to the employee. [31 F.R. 5291, Apr. 2, 1966] § 1.659 Relationship to incentive awards program. Procedures set out in the regulations concerning inventions by employees of the Veterans Administration are not affected by the submission or proposed submission of an employee suggestion or idea on an item which may be patentable. Consideration of an item for patentability and also for an incentive award may proceed simultaneously, usually on separate correspondence. An employee suggestion or copies and extracts of the file may be forwarded to the General Counsel by the reviewing or awarding authority, or by the station head, for patent consideration. [31 F.R. 5291, Apr. 2, 1966] § 1.660 Patents of peculiar importance to the public service. The rules of practice of the U.S. Patent Office provide for expediting consideration of applications for patents that are of peculiar importance to the public service, upon the request of department heads. Where the circumstances apparently justify such a request, the station head, department head or top staff official will so state. [31 F.R. 5292, Apr. 2, 1966] All information pertaining to inventions and pending patent applications is confidential, and employees having access to such information are forbidden to disclose or reveal the same except as required in the performance of their official duties. [21 F.R. 10378, Dec. 28, 1956] § 1.663 Provisions of regulations made a condition of employment. The provisions of the regulations concerning inventions by employees of the Veterans Administration shall be a condition of employment of all employees. [21 F.R. 10378, Dec. 28, 1956] APPEALS FROM DECISIONS OF CONTRACTING OFFICERS AUTHORITY: §§ 1.770 to 1.775 issued under secs. 1, 2, 68 Stat. 81, 72 Stat. 1114; 41 US.C. 321, 322, 38 U.S.C. 210. § 1.770 Contract Appeals Board. (a) Establishment. The Contract Appeals Board has been established in the Office of the Administrator to act as his duly authorized representative to hear and decide appeals of contractors under disputes provisions in contracts of the Veterans Administration. (b) Location. The offices of the Board are located in the Veterans Administration Central Office, Washington, D.C., 20420. (c) Short title. The short title of the Board is VACAB. [25 FR. 4804, June 1, 1960, as amended at 25 F.R. 14025, Dec. 31, 1960; 30 F.R. 14595, Nov. 24, 1965; 33 FR. 12045, Aug. 24, 1968] § 1.771 Delegation of authority. (a) The Board is delegated authority by the Administrator to ascertain the facts and circumstances and to render and publish final decisions on appeals entered by contractors from decisions of Veterans Administration contracting officers in accordance with contract terms and §§ 1.770 through 1.775. (b) The Board and its individual members are delegated authority by the Administrator to take such actions as may be necessary to hear and decide appeals including the administering of oaths and affirmations, the taking of testimony and affidavits, the conduct of hearings, the dismissal of proceedings and ordering the production of documents and other evidence. (c) The Board is authorized to take official notice of facts within general knowledge and to decide all questions necessary for complete adjudication. (d) The Board is authorized to require Veterans Administration contracting officers and other Veterans Administration officials having responsibility for or official knowledge of the design of projects, or the award, administration or supervision of contracts, or of work performed thereunder, to furnish the Board such information, technical data, and similar assistance as the Board may require in the performance of its duties. In such event a copy of the request and of the reply will be furnished to the appellant. (e) There is no further administrative appeal within the Veterans Administration from decisions rendered by the Board. (f) Sections 1.770 through 1.776 are subject to the provisions of Public Law 356, 83d Congress (41 U.S.C. 321 and 322). [25 F.R. 4804, June 1, 1960, as amended at 30 F.R. 14595, Nov. 24, 1965; 33 F.R. 12046, Aug. 24, 1968] $1.772 Composition of the Board. (a) Membership. The Board is composed of a chairman and members designated by the Administrator, all of whom shall be members of the bar of a State, commonwealth, or territory of the United States or of the District of Columbia. (b) Panels. Each appeal shall be assigned by the chairman to a panel of three Board members, one of whom shall be designated to preside. Each panel so designated has authority to exercise the full jurisdiction of the Board on the appeal. A decision by a majority of the members of the panel shall constitute the final decision of the Board. (a) Emphasis is placed upon the sound administration of the rules in § 1.774 in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. The rules in § 1.774 will be interpreted so as to secure a just and inexpensive determination of appeals without unnecessary delay. (b) Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise. Hearings, which will be quasi-judicial in nature and which will be held at the election of either party, will be scheduled without undue delay. (c) All time limitations specified for various procedural actions are computed as maximums, and are not to be fully exhausted if the action described can be accomplished in a lesser period. These time limitations are similarly eligible for extension in appropriate circumstances, on good cause shown. [33 F.R. 12046, Aug. 24, 1968] § 1.774 Rules of the Board. (a) Rule 1; appeals, how taken. Notice of an appeal must be in writing, and the original, together with two copies, may be filed with the contracting officer from whose decision the appeal is taken. The notice of appeal must be mailed or otherwise filed within the time specified therefor in the contract. (b) Rule 2; notice of appeal, contents of. A notice of appeal should indicate that an appeal is thereby intended, and should identify the contract by number and the decision from which the appeal is taken. The notice of appeal should be signed personally by the appellant (the contractor making the appeal), or by an officer of the appellant corporation or member of the appellant firm, or by the contractor's duly authorized representative or attorney. The complaint referred to in paragraph (f) of this section (Rule 6) may be filed with the notice of appeal, or the appellant may designate the notice of appeal as a complaint, if it otherwise fulfills the requirements of a complaint. (c) Rule 3; forwarding of appeals. When a notice of appeal in any form has been received by the contracting officer, he shall endorse thereon the date of mailing (or date of receipt, if otherwise conveyed) and within 10 days shall forward said notice of appeal to the Board. Following receipt by the Board of the original notice of an appeal (whether through the contracting officer or otherwise), the contractor and contracting officer will be promptly advised of its receipt, and the contractor will be furnished a copy of §§ 1.770 through 1.776. (d) Rule 4; duties of the contracting officer. (1) Following receipt of a notice of appeal, or advice that an appeal has been filed, the contracting officer shall promptly, and in any event within 30 days, compile and transmit to the Board and to the Government trial attorney copies of all documents pertinent to the appeal, including the following: (i) The findings of fact and the decision from which the appeal is taken, and the letter or letters or other documents of claim in response to which the decision was issued; (ii) The contract, and pertinent plans, specifications, amendments, and change orders; (iii) Correspondence between the parties and other data pertinent to the appeal; (iv) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; (v) Such additional information as may be considered material. (2) Upon completion of the foregoing compilation, the contracting officer shall notify the appellant, provide him with a listing of its contents, and afford him an opportunity to examine the complete compilation at the office of the contracting officer, or at the office of the Board for the purpose of satisfying himself as to the contents, and furnishing or suggesting any additional documentation deemed pertinent to the appeal. Following receipt of the foregoing compilation, as it may be augmented at the time of receipt, the Board will promptly advise the parties. (e) Rule 5; dismissal for lack of jurisdiction. Any motion addressed to the jurisdiction of the Board shall be promptly filed. Hearing on the motion shall be afforded on application of either party, unless the Board determines that its decision on the motion will be deferred pending hearing on both the merits and the motion. The Board shall have the right at any time and on its own motion to raise the issue of its jurisdiction to proceed with a particular case, and shall do so by an appropriate order, affording the parties an opportunity to be heard thereon. (f) Rule 6; pleadings—(1) Complaint. Within 30 days after receipt of notice of docketing of the appeal, the appellant shall file with the Board an original and two copies of a complaint setting forth simple, concise and direct statements of each of his claims, alleging the basis with appropriate reference to contract provisions for each claim, and the dollar amount claimed. This pleading shall fulfill the generally recognized requirements of a complaint, although no particular form or formality is required. Upon receipt thereof, the Board shall serve a copy upon the respondent. Should the complaint not be received within 30 days, appellant's claim and appeal may, if in the opinion of the Board the issues before the Board are sufficiently defined, be deemed to set forth his complaint and the respondent shall be so notified. answer (2) Answer. Within 30 days from receipt of said complaint, or the aforesaid notice from the Board, respondent shall prepare and file with the Board an original and two copies of an thereto, setting forth simple, concise, and direct statements of respondent's defenses to each claim asserted by appellant. This pleading shall fulfill the generally recognized requirements of an answer, and shall set forth any affirmative defenses or counterclaims, as appropriate. Upon receipt thereof, the Board shall serve a copy upon appellant. Should the answer not be received within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the appellant shall be so notified. (g) Rule 7; amendments of pleadings or record. (1) The Board upon its own initiative or upon application by a party may, in its discretion, order a party to make a more definite statement of the complaint or answer, or to reply to an answer. |