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



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The Congress finds that-
(1) the importance of linking our unparalleled network of over 700 Federal laboratories and our Nation’s universities with United States industry continues to hold great promise for our future prosperity;

(2) the enactment of the Bayh-Dole Act of 1980 was a landmark change in United States technology policy, and its success provides a framework for removing bureaucratic barriers and for simplifying the granting of licensees for inventions that are now in the Federal Government’s patent portfolio;

(3) Congress has demonstrated a commitment over the past 2 decades to fostering technology transfer from our Federal laboratories and to promoting public/private sector partnerships to enhance our international competitiveness;

(4) Federal technology transfer activities have strengthened the ability of United States industry to compete in the global marketplace; developed a new paradigm for greater collaboration among the scientific enterprises that conduct our Nation’s research and development- government, industry, and universities; and improved the quality of life for the American people, from medicine to materials;

(5) the technology transfer process must be made “industry friendly” for companies to be willing to invest the significant times and resources needed to develop new products, processes, and jobs using federally funded inventions; and

(6) Federal technology licensing procedures should balance the public policy needs of adequately protecting the rights of the public, encouraging companies to develop existing government inventions, and making the entire system of licensing government technologies more consistent and simple.
Demonstrating her concern that it was simply taking too long to license federal patents, Morella cut through a Gordian knot of required public notices. The Bayh-Dole Act requires federal agencies to place notices in the Federal Register whenever they want to license other than non-exclusively. A second notice is required when the agency had selected a potential licensee. Taken together, these two notice periods could easily take five months to complete. The Morella Act authorized agencies to combine both notices in one posting for as short a time as 15 days. Thus, the agencies are now able to significantly reduce the amount of time they must spend on public notifications.
The law made clear that Congress was clearly expecting to see results from its legislative actions. The Morella bill required agencies to report annually on their technology transfer programs, including how many patent applications they filed, how many patents were issued, how many inventions were successfully licensed, how much income they generated, how many licenses were non-exclusive or exclusive and “the time elapsed from the date on which the license was requested by the licensee in writing to the date the license was executed.”
Ironically, just as the federal laboratories received unprecedented authorities to transition their technologies from the bench to the marketplace, the oversight function at the Department of Commerce was fading away. Beginning in the Clinton Administration, Commerce re-organized the Technology Administration (where federal technology management oversight resided) and interest in federal technology transfer policy seemed to wane.
Next, the Department of Commerce exempted its own Advanced Technology Program (ATP),6 designed to promote high risk technology partnerships, from the Bayh-Dole Act. When enacting the ATP program, Congress wanted to ensure that U.S. companies were the program’s main beneficiaries. Thus, it included language that ownership of resulting intellectual property would vest in businesses incorporated in the United States. The Department of Commerce took this to imply that Congress meant to exempt the program from the Bayh-Dole Act, brushing aside arguments that this was not the case.
The Commerce Department did not object when the Department of Defense created “other transactions” than grants or contracts for funding research to be exempt from Bayh-Dole. In fact, in its report,


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