U.S. Government Property Interests in Patent Rights – Patently-O

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by Dennis Crouch
The chart below provides one look at the role of the U.S. Gov’t in directly funding patentable research-and-development.  You’ll see two curves. The bottom curve tracks the percent of U.S. utility patents assigned to the U.S. governmental (or agency of the government, such as the Navy).  U.S. Gov’t owned patents has dropped precipitously over the past 40 years.  The upper curve tracks the percentage that list some U.S. Government interest in the patent — typically based upon Gov’t funding of the R&D and the government interest is provided for under the Bayh-Dole Act.  Overall, when these two curves are combined together, we have a slight downward trend in the percentage of patents where the U.S. Gov’t asserts some property interest.
Readers should note that the primary government interest in government-funded patents are the march-in rights outlined in 35 U.S.C. § 200 et seq., and extended to large entities by various executive orders.  Although that interest appears powerful, it has never been used by the government to ignore patent owner’s exclusivity.  In addition, the funding agency receives a non-exclusive license to the patents for governmental uses. “With respect to any invention in which the contractor elects rights, the Federal agency shall have a nonexclusive, non-transferrable, irrevocable, paid-up license to practice or have practiced for or on behalf of the United States any subject invention throughout the world.” 35 U.S.C. 202.
 
The U.S. Gov't disclaims copyright protection the works of authorship created by the Government.
How would the world be different if we did the same with patentable inventions?
— Dennis Crouch (@patentlyo) March 6, 2022

Data available here: Dennis Crouch, Replication Data for: U.S. Government Property Interests in Patent Rights, Harvard Dataverse (March 6, 2022),  https://doi.org/10.7910/DVN/8CXI6Y.
Law Professor at the University of Missouri School of Law. View all posts by Dennis Crouch
Re: “The U.S. Gov’t disclaims copyright protection the works of authorship created by the Government. How would the world be different if we did the same with patentable inventions?”
Besides the complete difference in what is protected, the rationale for the Bayh-Dole Act was that new technologies requiring product R&D, tooling, manufacturing facilities, or marketing risks needs patent protection to get such venture capital investments.
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To exemplify the first point, compare the “investment” to make copies of a government document on a Xerox machine with that required for making any new physical product.
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?
That’s a rather bizarre comparison between two different forms of intellectual property protection.
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Slight correction here, Dennis: “The PERCENTAGE of U.S. Gov’t owned patents has dropped precipitously over the past 40 years. ”
At least, that’s what’s shown in the graph. One explanation for the observed drop could be that the types of patents whose genesis might be supported by government funding (basic research in biochemistry) are decreasing relative to other kinds of patents (apps for sticking an ad in your face).
I’d be curious about the absolute numbers.
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We are also talking about about 5 fold drop in what was already a small amount over 40 years so maybe “steady” is more accurate than “precipitous.”
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Actually Malcolm, looking at the actual numbers, there was an upward drift of 5x over the course of the data set for the sum of patents with Government interests in them.
Sure, as a percentage, the rate did not keep pace, but who in the world would expect ANY type of central government planning to yield innovation that the private sector could yield?
THAT political model has NEVER worked in reality.
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As always Malcolm, feel free to abstain from any type of innovation that you do not like.
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Also, the government interest line is actually increasing as a percentage, and given the [real number] increases over time, that paints a decidedly different view of your “tale of woe” in real number terms.
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As summarized in a law firm article on this subject:
“..the Bayh-Dole Act has FOUR main effects on the relationship between the Federal Government and the private party when federal funding is involved:
The Federal Government receives a license in subject inventions.*
The private party must notify the Government of inventions [and mark subject patents].
The preference for U.S. industry that is found in all technology transfer programs is included.
The Federal Government retains march-in rights.”
*important in view the extent of government military and other procurement contracts
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Dennis Crouch
Associate Professor, University of Missouri School of Law
SSRN Articles
Jason Rantanen
Professor, University of Iowa College of Law
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