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§ 207. —  Domestic and foreign protection of federally owned inventions.



[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
  January 24, 2002 and December 19, 2002]
[CITE: 35USC207]

 
                            TITLE 35--PATENTS
 
        PART II--PATENTABILITY OF INVENTIONS AND GRANT OF PATENTS
 
  CHAPTER 18--PATENT RIGHTS IN INVENTIONS MADE WITH FEDERAL ASSISTANCE
 
Sec. 207. Domestic and foreign protection of federally owned 
        inventions
        
    (a) Each Federal agency is authorized to--
        (1) apply for, obtain, and maintain patents or other forms of 
    protection in the United States and in foreign countries on 
    inventions in which the Federal Government owns a right, title, or 
    interest;
        (2) grant nonexclusive, exclusive, or partially exclusive 
    licenses under federally owned inventions, royalty-free or for 
    royalties or other consideration, and on such terms and conditions, 
    including the grant to the licensee of the right of enforcement 
    pursuant to the provisions of chapter 29 of this title as determined 
    appropriate in the public interest;
        (3) undertake all other suitable and necessary steps to protect 
    and administer rights to federally owned inventions on behalf of the 
    Federal Government either directly or through contract, including 
    acquiring rights for and administering royalties to the Federal 
    Government in any invention, but only to the extent the party from 
    whom the rights are acquired voluntarily enters into the 
    transaction, to facilitate the licensing of a federally owned 
    invention; and
        (4) transfer custody and administration, in whole or in part, to 
    another Federal agency, of the right, title, or interest in any 
    federally owned invention.

    (b) For the purpose of assuring the effective management of 
Government-owned inventions, the Secretary of Commerce is authorized 
to--
        (1) assist Federal agency efforts to promote the licensing and 
    utilization of Government-owned inventions;
        (2) assist Federal agencies in seeking protection and 
    maintaining inventions in foreign countries, including the payment 
    of fees and costs connected therewith; and
        (3) consult with and advise Federal agencies as to areas of 
    science and technology research and development with potential for 
    commercial utilization.

(Added Pub. L. 96-517, Sec. 6(a), Dec. 12, 1980, 94 Stat. 3023; amended 
Pub. L. 98-620, title V, Sec. 501(11), Nov. 8, 1984, 98 Stat. 3367; Pub. 
L. 106-404, Sec. 6(2), Nov. 1, 2000, 114 Stat. 1745.)


                               Amendments

    2000--Subsec. (a)(2). Pub. L. 106-404, Sec. 6(2)(A), substituted 
``inventions'' for ``patent applications, patents, or other forms of 
protection obtained''.
    Subsec. (a)(3). Pub. L. 106-404, Sec. 6(2)(B), inserted ``, 
including acquiring rights for and administering royalties to the 
Federal Government in any invention, but only to the extent the party 
from whom the rights are acquired voluntarily enters into the 
transaction, to facilitate the licensing of a federally owned 
invention'' after ``or through contract''.
    1984--Pub. L. 98-620 designated existing provisions as subsec. (a) 
and added subsec. (b).

 Ex. Ord. No. 9424. Establishment of a Register of Government Interests 
                               in Patents

    Ex. Ord. No. 9424, Feb. 18, 1944, 9 F.R. 1959, provided:
    1. The Secretary of Commerce shall cause to be established in the 
United States Patent Office [now Patent and Trademark Office] a separate 
register for the recording of all rights and interests of the Government 
in or under patents and applications for patents.
    2. The several departments and other executive agencies of the 
Government, including Government-owned or Government-controlled 
corporations, shall forward promptly to the Commissioner of Patents [now 
Under Secretary of Commerce for Intellectual Property and Director of 
the United States Patent and Trademark Office] for recording in the 
separate register provided for in paragraph 1 hereof all licenses, 
assignments, or other interests of the Government in or under patents or 
applications for patents, in accordance with such rules and regulations 
as may be prescribed pursuant to paragraph 4 hereof; but the lack of 
recordation in such register of any right or interest of the Government 
in or under any patent or application therefor shall not prejudice in 
any way the assertion of such right or interest by the Government.
    3. The register shall be open to inspection except as to such 
entries or documents which, in the opinion of the department or agency 
submitting them for recording, should be maintained in secrecy: 
Provided, however, That the right of inspection may be restricted to 
authorized representatives of the Government pending the final report to 
the President by the National Patent Planning Commission under Executive 
Order No. 8977 of December 12, 1941, and action thereon by the 
President.
    4. The Commissioner of Patents [now Under Secretary of Commerce for 
Intellectual Property and Director of the United States Patent and 
Trademark Office], with the approval of the Secretary of Commerce, shall 
prescribe such rules and regulations as he may deem necessary to 
effectuate the purposes of this order.

Ex. Ord. No. 9865. Patent Protection Abroad of Inventions Resulting From 
                   Research Financed by the Government

    Ex. Ord. No. 9865, June 14, 1947, 12 F.R. 3907, as amended by Ex. 
Ord. No. 10096, Jan. 23, 1950, 15 F.R. 389, provided:
    1. All Government departments and agencies shall, whenever 
practicable, acquire the right to file foreign patent applications on 
inventions resulting from research conducted or financed by the 
Government.
    2. All Government departments and agencies which have or may 
hereafter acquire title to inventions or the right to file patent 
applications abroad thereon, shall fully and continuously inform the 
Chairman of Government Patents Board [now Secretary of Commerce. See Ex. 
Ord. No. 10930 set out as a note below] concerning such inventions, 
except as provided in section 6 hereof, and shall make recommendations 
to the Chairman of Government Patents Board as to which of such 
inventions should receive patent protection by the United States abroad 
and the foreign jurisdictions in which such patent protection should be 
sought. The recommendations of such departments and agencies shall 
indicate the immediate or future industrial, commercial or other value 
of the invention concerned, including its value to public health.
    3. The Chairman of Government Patents Board shall determine whether, 
and in what foreign jurisdictions, the United States should seek patents 
for such inventions, and, to the extent of appropriations available 
therefor, shall procure patent protection for such inventions, taking 
all action, consistent with existing law, necessary to acquire and 
maintain patent rights abroad. Such determinations of the said 
Department shall be made after full consultation with United States 
industry and commerce, with the Department of State, and with other 
Government agencies familiar with the technical, scientific, industrial, 
commercial or other economic or social factors affecting the invention 
involved, and after consideration of the availability of valid patent 
protection in the countries determined to be immediate or potential 
markets for, or producers of, products, processes, or services covered 
by or relating to the invention.
    4. The Chairman of Government Patents Board shall administer foreign 
patents acquired by the United States under the terms of this order and 
shall issue licenses thereunder in accordance with law under such rules 
and regulations as he shall prescribe. Nationals of the United States 
shall be granted licenses on a nonexclusive royalty free basis except in 
such cases as he shall determine and proclaim it to be inconsistent with 
the public interest to issue such licenses on a nonexclusive royalty 
free basis.
    5. The Department of State, in consultation with the Chairman of 
Government Patents Board, shall negotiate arrangements among governments 
under which each government and its nationals shall have access to the 
foreign patents of the other participating governments. Patents relating 
to matters of public health may be licensed by the Chairman of 
Government Patents Board, with the approval of the Secretary of State, 
to any country or its nationals upon such terms and conditions as are in 
accordance with law and as the Chairman of Government Patents Board 
determines to be appropriate, regardless of whether such country is a 
party to the arrangements provided for in this section.
    6. There shall be exempted from the provisions of this order (a) all 
inventions within the jurisdiction of the Atomic Energy Commission 
except in such cases as the said Commission specifically authorizes the 
inclusion of an invention under the terms of this order; and (b) all 
other inventions officially classified as secret or confidential for 
reasons of the national security. Nothing in this order shall supersede 
the declassification policies and procedures established by Executive 
Orders Nos. 9568 of June 8, 1945, 9604 of August 25, 1945, and 9809 of 
December 12, 1946.
    [Atomic Energy Commission abolished and all functions transferred to 
Administrator of Energy Research and Development Administration (unless 
otherwise specifically provided) by section 5814 of Title 42, The Public 
Health and Welfare. Energy Research and Development Administration 
terminated and functions vested by law in Administrator thereof 
transferred to Secretary of Energy (unless otherwise specifically 
provided) by sections 7151(a) and 7293 of Title 42.]

 Ex. Ord. No. 10096. Uniform Government Patent Policy for Inventions by 
                          Government Employees

    Ex. Ord. No. 10096, Jan. 23, 1950, 15 F.R. 389, as amended by Ex. 
Ord. No. 10695, Jan. 16, 1957, 22 F.R. 365; Ex. Ord. No. 10930, Mar. 24, 
1961, 26 F.R. 2583, provided:
    NOW, THEREFORE, by virtue of the authority vested in me by the 
Constitution and statutes, and as President of the United States and 
Commander in Chief of the armed forces of the United States, in the 
interest of the establishment and operation of a uniform patent policy 
for the Government with respect to inventions made by Government 
employees, it is hereby ordered as follows:
    1. The following basic policy is established for all Government 
agencies with respect to inventions hereafter made by any Government 
employee:
    (a) The Government shall obtain the entire right, title, and 
interest in and to all inventions made by any Government employee (1) 
during working hours, or (2) with a contribution by the Government of 
facilities, equipment, materials, funds, or information, or of time or 
services of other Government employees on official duty, or (3) which 
bear a direct relation to or are made in consequence of the official 
duties of the inventor.
    (b) In any case where the contribution of the Government, as 
measured by any one or more of the criteria set forth in paragraph (a) 
last above, to the invention, is insufficient equitably to justify a 
requirement of assignment to the Government of the entire right, title 
and interest to such invention, or in any case where the Government has 
insufficient interest in an invention to obtain entire right, title and 
interest therein (although the Government could obtain some under 
paragraph (a), above), the Government agency concerned, subject to the 
approval of the Chairman of the Government Patents Board [now Secretary 
of Commerce. See Ex. Ord. No. 10930 set out as a note below] (provided 
for in paragraph 3 of this order and hereinafter referred to as the 
Chairman), shall leave title to such invention in the employee, subject, 
however, to the reservation to the Government of a non-exclusive, 
irrevocable, royalty-free license in the invention with power to grant 
licenses for all governmental purposes, such reservation, in the terms 
thereof, to appear, where practicable, in any patent, domestic or 
foreign, which may issue on such invention.
    (c) In applying the provisions of paragraphs (a) and (b), above, to 
the facts and circumstances relating to the making of any particular 
invention, it shall be presumed that an invention made by an employee 
who is employed or assigned (i) to invent or improve or perfect any art, 
machine, manufacture, or composition of matter, (ii) to conduct or 
perform research, development work, or both, (iii) to supervise, direct, 
coordinate, or review Government financed or conducted research, 
development work, or both, or (iv) to act in a liaison capacity among 
governmental or nongovernmental agencies or individuals engaged in such 
work, or made by an employee included within any other category of 
employees specified by regulations issued pursuant to section 4(b) 
hereof, falls within the provisions of paragraph (a), above, and it 
shall be presumed that any invention made by any other employee falls 
within the provisions of paragraph (b), above. Either presumption may be 
rebutted by the facts or circumstances attendant upon the conditions 
under which any particular invention is made and, notwithstanding the 
foregoing, shall not preclude a determination that the invention falls 
within the provisions of paragraph (d) next below.
    (d) In any case wherein the Government neither (1) pursuant to the 
provisions of paragraph (a) above, obtains entire right, title and 
interest in and to an invention nor (2) pursuant to the provisions of 
paragraph (b) above, reserves a non-exclusive, irrevocable, royalty-free 
license in the invention with power to grant licenses for all 
governmental purposes, the Government shall leave the entire right, 
title and interest in and to the invention in the Government employee, 
subject to law.
    (e) Actions taken, and rights acquired, under the foregoing 
provisions of this section, shall be reported to the Chairman in 
accordance with procedures established by him.
    2. Subject to considerations of national security, or public health, 
safety, or welfare, the following basic policy is established for the 
collection, and dissemination to the public, of information concerning 
inventions resulting from Government research and development 
activities:
    (a) When an invention is made under circumstances defined in 
paragraph 1(a) of this order giving the United States the right to title 
thereto, the Government agency concerned shall either prepare and file 
an application for patent therefor in the United States Patent Office 
[now Patent and Trademark Office] or make a full disclosure of the 
invention promptly to the Chairman, who may, if he determines the 
Government interest so requires, cause application for patent to be 
filed or cause the invention to be fully disclosed by publication 
thereof: Provided, however, That, consistent with present practice of 
the Department of Agriculture, no application for patent shall, without 
the approval of the Secretary of Agriculture, be filed in respect of any 
variety of plant invented by any employee of that Department.
    (b) [Revoked. Ex. Ord. No. 10695, Jan. 16, 1957, 22 F.R. 365]
    3. (a) [Revoked. Ex. Ord. No. 10930, Mar. 24, 1961, 26 F.R. 2583]
    (b) The Government Patents Board shall advise and confer with the 
Chairman concerning the operation of those aspects of the Government's 
patent policy which are affected by the provisions of this order or of 
Executive Order No. 9865 [set out above], and suggest modifications or 
improvements where necessary.
    (c) [Revoked. Ex. Ord. No. 10930, Mar. 24, 1961, 26 F.R. 2583]
    (d) The Chairman shall establish such committees and other working 
groups as may be required to advise or assist him in the performance of 
any of his functions.
    (e) The Chairman of the Government Patents Board and the Chairman of 
the Interdepartmental Committee on Scientific Research and Development 
(provided for by Executive Order No. 9912 of December 24, 1947), shall 
establish and maintain such mutual consultation as will effect the 
proper coordination of affairs of common concern.
    4. With a view to obtaining uniform application of the policies set 
out in this order and uniform operations thereunder, the Chairman is 
authorized and directed:
    (a) To consult and advise with Government agencies concerning the 
application and operation of the policies outlined herein;
    (b) After consultation with the Government Patents Board, to 
formulate and submit to the President for approval such proposed rules 
and regulations as may be necessary or desirable to implement and 
effectuate the aforesaid policies, together with the recommendations of 
the Government Patents Board thereon;
    (c) To submit annually a report to the President concerning the 
operation of such policies, and from time to time such recommendations 
for modification thereof as may be deemed desirable;
    (d) To determine with finality any controversies or disputes between 
any Government agency and its employees, to the extent submitted by any 
party to the dispute, concerning the ownership of inventions made by 
such employees or rights therein; and
    (e) To perform such other or further functions or duties as may from 
time to time be prescribed by the President or by statute.
    5. The functions and duties of the Secretary of Commerce and the 
Department of Commerce under the provisions of Executive Order No. 9865 
of June 14, 1947 [set out above] are hereby transferred to the Chairman 
and the whole or any part of such functions and duties may be delegated 
by him to any Government agency or officer: Provided, That said 
Executive Order No. 9865 shall not be deemed to be amended or affected 
by any provision of this Executive order other than this paragraph 5.
    6. Each Government agency shall take all steps appropriate to 
effectuate this order, including the promulgation of necessary 
regulations which shall not be inconsistent with this order or with 
regulations issued pursuant to paragraph 4(b) hereof.
    7. As used in this Executive order, the next stated terms, in 
singular and plural, are defined as follows for the purposes hereof:
    (a) ``Government agency'' includes any executive department and any 
independent commission, board, office, agency, authority, or other 
establishment of the Executive Branch of the Government of the United 
States (including any such independent regulatory commission or board, 
any such wholly-owned corporation, and the Smithsonian Institution), but 
excludes the Atomic Energy Commission.
    (b) ``Government employee'' includes any officer or employee, 
civilian or military, of any Government agency, except such part-time 
consultants or employees as may be excluded by regulations promulgated 
pursuant to paragraph 4(b) hereof.
    (c) ``Invention'' includes any art, machine, manufacture, design, or 
composition of matter, or any new and useful improvement thereof, or any 
variety of plant, which is or may be patentable under the patent laws of 
the United States.

    Ex. Ord. No. 10695. Transfer of Records to Department of Commerce

    Section 2 of Ex. Ord. 10695, Jan. 16, 1957, 22 F.R. 365, provided 
that: ``The Chairman of the Government Patents Board is hereby 
authorized to transfer to the Department of Commerce any or all of the 
records heretofore prepared by the Board pursuant to paragraph 2(b) of 
Executive Order No. 10096 [set out above].''

        Ex. Ord. No. 10930. Abolition of Government Patents Board

    Ex. Ord. No. 10930, Mar. 24, 1961, 26 F.R. 2583, provided:
    By virtue of the authority vested in me as President of the United 
States, it is ordered as follows:
    Section 1. The Government Patents Board, established by section 3(a) 
of Executive Order No. 10096 of January 23, 1950 [set out above], and 
all positions established thereunder or pursuant thereto are hereby 
abolished.
    Sec. 2. All functions of the Government Patents Board and of the 
Chairman thereof under the said Executive Order No. 10096, except the 
functions of conference and consultation between the Board and the 
Chairman, are hereby transferred to the Secretary of Commerce, who may 
provide for the performance of such transferred functions by such 
officer, employee, or agency of the Department of Commerce as he may 
designate.
    Sec. 3. The Secretary of Commerce shall make such provision as may 
be necessary and consonant with law for the disposition or transfer of 
property, personnel, records, and funds of the Government Patents Board.
    Sec. 4. Except to the extent that they may be inconsistent with this 
order, all determinations, regulations, rules, rulings, orders, and 
other actions made or issued by the Government Patents Board, or by any 
Government agency with respect to any function transferred by this 
order, shall continue in full force and effect until amended, modified, 
or revoked by appropriate authority.
    Sec. 5. Subsections (a) and (c) of section 3 of Executive Order No. 
10096 are hereby revoked, and all other provisions of that order are 
hereby amended to the extent that they are inconsistent with the 
provisions of this order.
                                                        John F. Kennedy.

                  Section Referred to in Other Sections

    This section is referred to in section 209 of this title; title 15 
sections 3710, 3710a, 3710c.



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