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?
— Prof. Dennis Crouch ⚖️ Patent Law & AI (@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.