A long, Hard Journey: From Bayh-Dole to the Federal Technology Transfer Act

Expanding Bayh-Dole to Cover University Operated Federal Labs

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Expanding Bayh-Dole to Cover University Operated Federal Labs
Senator Dole was growing increasingly frustrated by continued resistance at DOE. As it became apparent that legislation would be needed to compel change, Dole introduced a bill specifically including federal laboratories within the coverage of Bayh-Dole. This time DOE was openly opposing these efforts.
Finally fed up with an agency defying Administration policy, on August 24, 1984 Senator Dole wrote a letter to the Office of Management and Budget with a copy to Vice President Bush. It said:
I write to call your attention to the existence of continuing opposition within the Department of Energy to the implementation of the President’s new policies regarding contractor ownership of inventions developed under federal research and development contracts...
The Administration and I have been seeking to establish the concept of

contractor ownership of all Federally funded inventions by law. Legislation

proposing contractor ownership and repealing DOE’s authority, which has been

used by the agency to generally retain ownership, has been endorsed in a Cabinet

Council Resolution, three letters from the President’s Science Advisor to congressional committee chairmen, and OMB approved testimony before House and Senate committees during the current and previous session. In spite of this clear position, DOE staff have recently been trying to influence Congress to exclude DOE from… the current bills providing for changes in the law needed to implement an agency-wide contractor ownership policy.
The 1984 Dole bill amended the Bayh-Dole Act to give federal laboratories the authorities to manage their inventions on the same basis as the original law provided for universities and small businesses.
The bill was approved by the Senate Judiciary Committee with little debate. The night before full Senate passage, DOE sent an Assistant Secretary to try to dissuade Dole from proceeding to passage. Summoning Department of Commerce representatives to a late night showdown with DOE, Dole’s staff made clear they had no intent of backing off.
The bill was passed unanimously the next day and sent to the House of Representatives.

However, since the House companion bill was more limited, a compromise was reached as the Congressional session ground to an end. The final law extended the provisions of the Bayh-Dole Act to university operated federal labs with exceptions for DOE “naval nuclear propulsion or weapons related programs.” The other provisions of the Dole bill covering the remaining federal laboratories were dropped, leaving resolution of this issue to the future.

Another important part of the Dole bill was maintaining a strong Executive branch oversight function for the expanded Bayh-Dole Act. The Department of Commerce in the Reagan Administration had formed a new technology policy office recruiting Norman Latker as their patent policy expert. Ironically, the Department strongly opposed Bayh-Dole in the Carter Administration, but the new organization under the leadership of Assistant Secretary Bruce Merrifield warmly embraced the law and its philosophy. Thus, Senator Dole moved oversight authorities for the law from the Office of Federal Procurement Policies to the Commerce Department.
Commerce was given statutory authority to notify the head of any federal agency if it believes “that any pattern of determinations is contrary to the policies and objectives of this chapter.” If agencies still did not comply, Congress authorized the issuance of additional regulations bringing them into line.
This meant that the Department of Commerce was charged with insuring that all federal agencies applied the law uniformly as Congress intended.

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