What FAR Part 27 - Patents, Data, and Copyrights (Bayh-Dole Act at 35 USC 200-212, March-In Rights at 35 USC 203, US Manufacturing Preference at 35 USC 204, Rights in Data under 52.227-14, 28 USC 1498 Infringement Liability) requires
Federal Acquisition Regulation (FAR) Part 27 governs patent, data, and copyright rights in federal contracts and applies to all executive agencies for patents and copyrights (Subparts 27.2, 27.3, 27.5) and to civilian agencies for rights in data (Subpart 27.4 - DoD uses separate DFARS 252.227-7013, 7014, and 7015 rules). Subpart 27.2 addresses patent and copyright infringement liability under 28 USC 1498 (the exclusive remedy is monetary damages in the Court of Federal Claims, not injunctive relief) and prescribes clauses 52.227-1 (Authorisation and Consent), 52.227-2 (Notice and Assistance), 52.227-3 (Patent Indemnity for commercial products), and 52.227-4 (Construction Patent Indemnity). Subpart 27.3 implements the Bayh-Dole Act at 35 USC 200-212 and 37 CFR Part 401 through FAR Section 27.302. FAR 27.302(b)(1) provides that each contractor may, after required disclosure to the Government, elect to retain title to any subject invention, with five enumerated exceptions at 27.302(b)(2): (i) contractor not located in or lacking US business presence; (ii) exceptional circumstances determined by the agency; (iii) foreign intelligence or counterintelligence security needs; (iv) DOE Government-owned contractor-operated naval nuclear or weapons programs; (v) other statutory or agency regulation authorisation. Small business and nonprofit contractors retain election rights even under exception (ii) or (iii) for inventions that are not classified or are not limited from dissemination by DOE within 6 months. FAR 27.302(f) implements march-in rights under 35 USC 203 - agencies may require the contractor to grant a license to a responsible applicant only on a determination that action is necessary because of contractor failure to achieve practical application, unmet health or safety needs, unmet federal regulatory public-use requirements, or licensee breach of the US manufacturing preference. FAR 27.302(g) implements the US manufacturing preference under 35 USC 204 - no contractor shall grant an exclusive right to use or sell any subject invention in the United States unless the licensee agrees that products embodying the invention will be manufactured substantially in the United States, with agency waiver available on a showing of reasonable but unsuccessful efforts to find domestic manufacturing or commercial infeasibility. FAR 27.302(h) imposes a special obligation on nonprofit organisation contractors to use reasonable efforts to attract small business licensees. Patent clause selection is in FAR 27.303 - small business and nonprofit contractors use 52.227-11 (Patent Rights - Ownership by the Contractor); large business contractors use 52.227-13 (Patent Rights - Ownership by the Government). Subpart 27.4 (Rights in Data and Copyrights) for civilian agencies establishes three categories of Government rights through clause 52.227-14: unlimited rights (data first produced in performance, form-fit-and-function data, instructional materials), limited rights (proprietary trade-secret data developed at private expense - 52.227-14 Alternate II), and restricted rights computer software (commercial software developed at private expense - 52.227-14 Alternate III). FAR 27.404-5 governs marking remedies: data without proper notice is presumed unlimited rights; the Government may cancel or ignore unauthorised markings after a 60-day contractor response period; contractors may request to add omitted notices within 6 months on a demonstration that the omission was inadvertent.
Pillar: Public Sector & Government Procurement · Authority: Federal Acquisition Regulatory Council (DOD, GSA, NASA) issuing the Federal Acquisition Regulation under 41 USC 1303 and 48 CFR Chapter 1; United States Patent and Trademark Office under 35 USC and 37 CFR Part 401 implementing the Bayh-Dole Act; National Institute of Standards and Technology administering Bayh-Dole interagency reports under 37 CFR 401; United States Copyright Office under 17 USC; Department of Justice and the Court of Federal Claims under 28 USC 1498 for patent and copyright infringement claims against the Government · Version: 1.0.0 · Last updated:
Primary source: https://www.acquisition.gov/far/part-27
SHA-256 integrity: 53a390db15c227c8b3478bc5226edc530400f6958159c82666cbb4873c50fd15
Primary Citations — 7 traced to source
- FAR Part 27 Section 27.302(b)(1) (Bayh-Dole policy - contractor right to elect title): 'Each contractor may, after required disclosure to the Government, elect to retain title to any subject invention.' Subject to the exceptions in 27.302(b)(2) for non-US-located contractors, exceptional circumstances, foreign intelligence or counterintelligence security restrictions, DOE naval nuclear or weapons programs, and other statutory or agency regulation authorisation.
- FAR Part 27 Section 27.302(f) (March-in rights under 35 USC 203): 'Agencies may exercise march-in rights only if the agency determines that this action is necessary' due to: contractor failure to achieve practical application of the subject invention; unmet health or safety needs; unmet federal regulatory requirements for public use; or licensee breach of the US manufacturing preference agreement required by 35 USC 204. The contractor is entitled to reasonable time to present facts and show cause before agency action.
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