[Code of Federal Regulations]
[Title 48, Volume 1]
[Revised as of October 1, 2002]
From the U.S. Government Printing Office via GPO Access
[CITE: 48CFR27.305-3]

[Page 510-511]
 
            TITLE 48--FEDERAL ACQUISITION REGULATIONS SYSTEM
 
                CHAPTER 1--FEDERAL ACQUISITION REGULATION
 
PART 27--PATENTS, DATA, AND COPYRIGHTS--Table of Contents
 
         Subpart 27.3--Patent Rights Under Government Contracts
 
Sec. 27.305-3  Follow-up by Government.

    (a) Agencies shall maintain appropriate follow-up procedures to 
protect the Government's interest and to check that subject inventions 
are identified and disclosed, and when appropriate, patent applications 
are filed, and that the Government's rights therein are established and 
protected. Follow-up activities for contracts that include a clause 
referenced in 27.304-2 shall be coordinated with the appropriate agency.
    (b) The contracting officer administering the contract (or other 
representative specifically designated in the contract for such purpose) 
is responsible for receiving invention disclosures, reports, 
confirmatory instruments, notices, requests, and other documents and 
information submitted by the contractor pursuant to a patent rights 
clause. If the contractor fails to furnish documents or information as 
called for by the clause within the time required, the contracting 
officer shall promptly request the contractor to supply the required 
documents or information and, if the failure persists, shall take 
appropriate action to secure compliance. Invention disclosures, reports, 
confirmatory instruments, notices, requests, and other documents and 
information relating to patent rights clauses shall be promptly 
furnished by the contracting officer administering the contract (or 
other designee) to the procuring agency or contracting activity for 
which the procurement was made for appropriate action.
    (c) Contracting activities shall establish appropriate procedures to 
detect and correct failures by the contractor to comply with its 
obligations under the patent rights clauses, such as failures to 
disclose and report subject inventions, both during and after contract 
performance. Ordinarily a contractor should have written instructions 
for its employees covering compliance with these contract obligations. 
Government effort to review and correct contractor compliance with its 
patent rights obligations should be directed primarily towards contracts 
that, because of the nature of the research, development, or 
experimental work or the large dollar amount spent on such work, are 
more likely to result in subject inventions significant in number or 
quality, and towards contracts when there is reason to believe the 
contractors may not be complying with their contractual obligations. 
Other contracts may be reviewed using a spot-check method, as feasible. 
Appropriate follow-up procedures and activities may include the 
investigation or review of selected contracts or contractors by those 
qualified in patent and technical matters to detect failures to comply 
with contract obligations.
    (d) Follow-up activities should include, where appropriate, use of 
Government patent personnel--
    (1) To interview agency technical personnel to identify novel 
developments made in contracts;
    (2) To review technical reports submitted by contractors with 
cognizant agency technical personnel;
    (3) To check the Official Gazette of the United States Patent and 
Trademark Office and other sources for patents issued to the contractor 
in fields related to its Government contracts; and
    (4) If additional information is required, to have cognizant 
Government personnel interview contractor personnel regarding work under 
the contract involved, observe the work on site, and inspect laboratory 
notebooks and other records of the contractor related to work under the 
contract.

[[Page 511]]

    (e) If it is determined that a contractor or subcontractor does not 
have a clear understanding of the rights and obligations of the parties 
under a patent rights clause, or that its procedures for complying with 
the clause are deficient, a post-award orientation conference or letter 
should ordinarily be used to explain these rights and obligations (see 
subpart 42.5). When a contractor fails to establish, maintain, or follow 
effective procedures for identifying, disclosing, and, when appropriate, 
filing patent applications on inventions (if such procedures are 
required by the patent rights clause), or after appropriate notice fails 
to correct any deficiency, the contracting officer may require the 
contractor to make available for examination books, records, and 
documents relating to the contractor's inventions in the same field of 
technology as the contract effort to enable a determination of whether 
there are such inventions and may invoke the withholding of payments 
provision (if any) of the clause. The withholding of payments provision 
(if any) of the patent rights clause or of any other contract clause may 
also be invoked if the contractor fails to disclose a subject invention. 
Significant or repeated failures by a contractor to comply with the 
patent rights obligation in its contracts shall be documented and made a 
part of the general file (see 4.801(c)(3)).