his right to request in writing a review by the Secretary and the time limit in which such request for review must be made.

§ 18.6 Review and decision.

(a) Review. The complainant may request a review of his complaint by the Secretary:

(1) Within 30 days of notification of disposition of his complaint by the President;

(2) Within 30 days of notification of refusal by the President to accept his complaint; or

(3) Upon failure of the President to act on the complaint in accordance with the program.

The Secretary may extend the prescribed time limit for good cause.

Any request shall be in writing. The President upon request by the Secretary, shall furnish to the Secretary the complete file, including the transcript of any hearing together with whatever other information the Secretary requests. The Secretary may request supplemental information from the President, order further investigation by the Office of the Inspector General, U.S. Department of Agriculture, remand the complaint to the President for further action, and if circumstances warrant, hold a hearing under such procedure and on such issues as he determines appropriate to obtain information which would assist him in making a decision as provided under § 18.6(b).

(b) Decision. After the Secretary completes his review of the President's disposition of the complaint, he shall make a decision as to whether the President's decision or disposition of the complaint is proper. The decision of the Secretary shall be in writing and shall be sent to the President for appropriate action. A copy of the decision shall also be furnished to the complainant. § 18.7

Reports.

Within 6 months of the program going into effect and thereafter at least annually, the President shall submit a summary report to the Secretary on implementation and operation of the program. The Secretary may request additional reports as he deems advisable.

§ 18.8 Noncompliance.

A university conducting a Cooperative Extension Service will be in violation of this part:

(a) If the President fails to file a program in which the Secretary concurs under § 18.3, or fails to file an appropriate amendment in accordance with § 18.3 (d);

(b) If after concurrence in the President's program the Secretary finds that a university has failed to administer such program according to its terms;

(c) If the university or the President does not take appropriate action on the decision under § 18.6 (b) which is satisfactory to the Secretary; or

(d) If the Secretary finds that any officer of the university has intimidated, coerced, or improperly pressured a complainant, employee, representative, or witness exercising the rights given him by this part or any program adopted pursuant thereto, and that corrective action has not been taken.

(a) "Department invention" means an invention covered by a patent or patent application assigned to the Government as represented by the Secretary of Agriculture or in the custody of the Secretary for administrative purposes.

(b) "To the point of practical application" means to manufacture in the case of a composition or product, to practice in the case of a process, or to operate in the case of a machine and under such conditions as to establish that the invention is being worked and that its benefits are reasonably accessible to the public.

(c) "To practice an invention" means to make, use, or sell any embodiment of the invention, or to use the process where the invention is a process.

(d) "Secretary" means the Secretary of Agriculture or his designee.

(e) "Administrator" means the Administrator of the Agricultural Research Service or his designee.

(f) "Government" means the Government of the United States of America.

(g) "Appeals Board" means a board appointed by the Secretary to hear an appeal made pursuant to this part.

(h) "Licensee" means the person, firm, or entity granted a license under a Department invention. § 19.2

Purpose and policy.

of

This part sets forth the procedures for licensing Department inventions. Department inventions serve the interests of the Government by being developed to the point of practical application. It is the policy of the Department of Agriculture to encourage this by all suitable means, including the granting licenses. Any Department invention will normally be made available to responsible applicants. Licenses will be granted on terms and conditions considered to be the most favorable to the public interest. The public interest will in most instances be best served by the granting of nonexclusive royalty-free licenses, but in other instances the incentive offered by an exclusive license may be needed for speedy development and commercial adoption of the Department invention. In selecting licensees and types of licenses, due consideration will be given to the impact on general policies of the Gov

ernment and the Department of Agriculture (e.g., rural area development, environmental quality, export market development).

§ 19.3 Types of licenses.

Either nonexclusive or exclusive licenses under Department inventions may be issued by the Administrator. The Administrator, in the case of each Department invention made available for licensing, shall determine in accordance with this part which type shall be granted. The Administrator shall have published, in the FEDERAL REGISTER and the Official Gazette of the U.S. Patent Office, lists of Department inventions available for each type of license, including abstracts and technical information where appropriate, and shall keep such lists current. The listing of a Department invention as available for an exclusive license shall not preclude consideration of an application for a nonexclusive license for such invention if an exclusive license is not yet in effect.

§ 19.4

Nonexclusive licenses.

(a) A Department invention shall be made available for nonexclusive licenses if the Administrator determines (1) that the invention has already been developed to, or substantially to, the point of practical application, and (2) that the incentive of an exclusive license is unnecessary to complete the development of the invention.

(b) The period of a nonexclusive license shall be the life of the patent, unless revoked as provided in this part.

(c) The license shall extend to subsidiaries and affiliates of the licensee, but shall be nontransferable except to the successor of that part of the licensee's business to which the invention pertains. (d) The license shall reserve to the Administrator the right to require the licensee to submit reports not more often than annually on his efforts to practice the invention. The reports shall contain information within his knowledge, or which he may acquire under normal business practices, pertaining to the commerical use being made of the invention, and such other information relating to the license and invention as the Administrator determines pertinent. (e) No royalties shall be charged on nonexclusive licenses.

(a) Basic requirements. A Department invention shall be made available for an exclusive license only if

(1) The Administrator determines that:

(i) The invention has not already been developed to, or substantially to, the point of practical application,

(ii) The invention is not likely to be developed to such point by the Government or by means of nonexclusive licenses under the invention, and

(iii) The granting of an exclusive license will substantially accelerate its development to the point of practical application; or

(2) The Administrator determines that an invention made available for nonexclusive licenses at least 1 year previously, on the basis that it had been developed substantially to the point of practical application, has not been brought to the point of practical application, and that the granting of an exclusive license is necessary to completion of the development of the invention.

(3) With respect to both subparagraphs (1) and (2) of this paragraph, the following must also be complied with before the Administrator issues an exclusive license:

(i) At least 60 days notice by publication in the FEDERAL REGISTER and the Official Gazette of the Patent Office must have been given of the availability of the Department invention for an exclusive license;

(ii) At least 30 days notice by publication in the FEDERAL REGISTER and the Official Gazette of the Patent Office must have been given of the initial selection of the licensee, and final decision must have been rendered with respect to any application or protest filed pursuant to this part as a result thereof.

(b) Matter for consideration in selecting licensee. The Administrator, in selecting an exclusive licensee, shall take into consideration any factors deemed pertinent by him, including:

(1) Capability of applicants;

(2) Terms proposed by applicants; (3) Whether applicants' businesses are located in a low-income rural area, labor-surplus area, or in an area designated by the Government as economically depressed;

(4) Whether the applicants have previously demonstrated interest in the

invention by obtaining a nonexclusive license on it; and

(5) Whether applicants are U.S. citizens, or, in the case of a corporation, whether at least 51 percent of the stock is owned by U.S. citizens, and whether it is controlled by such citizens.

(c) Terms and conditions. The following shall be applicable with respect to exclusive licenses:

(1) The license may be granted to practice an invention in a limited or unlimited field of use either throughout the United States of America, its territories and possessions, or in only a part thereof.

(2) The period for the license will be negotiated; however, it will not extend for more than 5 years, except in unusual cases as determined by the Administrator. The period of the license shall not include the terminal portion of the patent, as determined by the Administrator.

(3) The license shall require the licensee to develop the invention, and thereafter to offer its benefits for the remaining period of the license to the public in accordance with a plan approved by the Administrator. Such plan may include fixing by the Administrator of the maximum price of sale.

(4) The license may require the payment of royalties when determined by the Administrator to be in the public interest.

(5) The license shall be subject to an irrevocable, nontransferable, royaltyfree right of the Government to practice the invention by or on behalf of the Government, or any foreign government, international organization, or group of nations, pursuant to any treaty or agreement.

(6) The license shall reserve to the Government the right to require the granting of a sublicense on terms that are reasonable in the circumstances, including royalty-free, as determined by the Administrator to the extent that the invention is required for public use by Government regulations or as may be necessary to fulfill health needs, or for other public purposes stipulated in the license.

(7) The license shall be subject to any rights of third parties established or derived directly or indirectly from a nonexclusive license previously granted under the invention.

(8) The license shall be nontransferable except to the successor of that part

of the licensee's business to which the invention pertains.

(9) The licensee, subject to approval of the Administrator, may grant sublicenses, subject to the conditions of the license. Each sublicense shall refer to the rights retained by the Government under the license and a copy of each sublicense shall be furnished to the Administrator.

(10) The license shall require the licensee to submit reports not more often than annually on his efforts to practice the invention. The reports shall contain information within his knowledge, or which he may acquire under normal business practices, pertaining to the commercial use being made of the invention, and such other information relating to the license and invention as the Administrator determines pertinent.

(d) After initial selection of an exclusive licensee, notice thereof shall be published in the FEDERAL REGISTER and the Official Gazette of the U.S. Patent Office. Such notice shall include identification of the Department invention, identification of the contemplated licensee, the period of the contemplated license, a summary statement of the terms and conditions of the contemplated license, and a statement that the license will be granted unless:

(1) A nonexclusive licensee of the invention files a protest with the Administrator within 30 days after such publication, stating that he has already brought or is likely to bring the invention to the point of practical application without an exclusive license, and submitting documentation in support thereof; or

(2) An application for nonexclusive license on such invention is filed with the Administrator within 30 days after such publication and such application states that the applicant is likely to bring the invention to the point of practical application without an exclusive license, and contains documentation in support thereof; or

(3) A protest is filed by any person with the Administrator within 30 days after such publication, setting forth reasons why it would not be in the public interest to grant the proposed exclusive license.

The Administrator shall make a decision with respect to any such application or protest under subparagraphs (1), (2), and (3) of this paragraph, which de

cision shall be final and conclusive unless appealed as provided in this part.

(e) Exception to exclusivity. Unless the exclusive license specifically limits the authority of the Administrator to do so, the Administrator may issue a nonexclusive license under a Department invention which is the subject of an exclusive license if he determines it in the public interest in connection with:

(1) Settlement of an interference with respect to such invention; or

(2) Obtaining the release of a claim of infringement with respect to such invention; or

(3) An exchange for a license to the Government under adversely held patents, including improvement patents and inventions, relating to such invention.

(f) Litigation. An exclusive licensee shall, during the period of the license, have the right to sue at his own expense infringers of the licensed patent. The licensee may join the Government, upon its consent, as a party complainant in such a suit, but without expense to the Government, and the licensee shall pay all costs, and any final judgment or decree that may be rendered against itself or the Government as a result of such suit. If, as a result of any litigation, the licensed patent is declared invalid, the licensee shall be relieved from any further obligation under the license.

§ 19.6 Application for licenses.

(a) Nonexclusive licenses. An application for a nonexclusive license under a Department invention shall be addressed to the Administrator, and shall include: (1) The name and address of the applicant;

(2) The identity of the invention; (3) A request for a nonexclusive license on such invention; and

(4) The purpose for which the license is desired.

(b) Exclusive licenses. An application for an exclusive license under a Department invention shall be addressed to the Administrator, and shall include:

(1) The name and address of the applicant, the type of business engaged in, and information as to the nationality of the applicant, or, in the case of corporation, whether at least 51 percent of the stock is owned by citizens of the United States, and whether it is controlled by such citizens;

(2) The identity of the invention;

(3) A request for an exclusive license on such invention;

(4) The purpose for which the license is desired;

(5) A description of applicant's capabilities to undertake the industrial and market development required to develop the invention to the point of practical application;

(6) The time and expenditure which the applicant estimates is required to develop the invention to the point of practical application, and a statement of the applicant's intention to invest that sum of money in development of the invention if the license is granted;

(7) The amount which the applicant considers to be a fair return on his expenditure under the license;

(8) The period of exclusive license which the applicant believes to be the minimum necessary to give a reasonable expectation of said fair return;

(9) Whether the applicant would be willing to accept an exclusive license to practice the invention in a limited field of use and for a geographical area less than the entire United States of America, its territories and possessions. If so, define the geographic portion and/or limited field of use; and

(10) Any other facts which the applicant believes would show it to be in the interests of the Government to grant an exclusive license to the applicant.

(c) Fees. Each application for an exclusive license must be accompanied by a certified or cashier's check, or bank or other recognized money order, in the amount of One Hundred Dollars ($100.00). Such fee is for the purpose of partially covering administrative expenses of issuing the license. The fee will be refunded in full if the applicant is not granted the license.

§ 19.7

Advertising and marking.

(a) No advertising shall refer to the license, the Department of Agriculture, or the Government.

(b) An exclusive license shall require the licensee to mark the article made under the license by fixing thereon the word "patent" or the abbreviation "pat.", together with the number or numbers of such patent or patents as may be applicable. Likewise, where applicable, the words "patent applied for" or the abbreviation "pat. appl." together with the number or numbers of such applications shall be marked on the article. When, from the character of

A license, including a revoked or expired license, may be reissued upon the licensee showing to the satisfaction of the Administrator that he has developed the invention, or is likely to develop the invention, to the point of practical application within a reasonable period. Requests must be made to the Administrator prior to or within 30 days after the expiration or revocation of the license, or such longer period as the Administrator may fix for good cause shown in writing. The Administrator may require, as a condition of the reissuance, that the licensee develop the invention to the point of practical application within a specified period.

Any dispute arising under a license which is not disposed of by mutual agreement shall be decided by the Administrator who shall reduce his decision to writing and mail or otherwise furnish a copy thereof to the licensee. His decision shall be final and conclusive, unless within 30 days after receipt thereof, or such longer period as the Secretary may determine, the licensee mails or otherwise furnishes to the Administrator a written appeal addressed to the Secretary of Agriculture.

§ 19.11 Decisions on refusal to issue or reissue licenses and revocations.

Any decision by the Administrator pursuant to § 19.5(d) in connection with issuance of an exclusive license, any revocation by the Administrator of a