27.305-2 Administration by the Government
Source: FAR 27.305-2 on acquisition.gov
Agencies and contracting officers must actively monitor, enforce, and document contractor compliance with patent rights clauses to protect the Government’s interests in subject inventions.
Overview
FAR 27.305-2 outlines the Government’s responsibilities for administering patent rights clauses in contracts, ensuring that subject inventions are properly disclosed, patent applications are filed, and the Government’s rights are protected. Agencies must establish follow-up procedures, coordinate with legal counsel, and take corrective actions if contractors fail to comply with patent rights obligations. The regulation emphasizes proactive oversight, especially for contracts likely to yield significant inventions, and details steps for monitoring, investigating, and correcting contractor compliance. Contracting officers play a central role in receiving disclosures, requesting missing documents, and explaining obligations to contractors. Persistent or significant noncompliance must be documented and may result in payment withholdings.
Key Rules
- Agency Follow-Up Procedures
- Agencies must maintain procedures to ensure inventions are disclosed, patent applications are filed, and Government rights are protected.
- Contracting Officer Responsibilities
- Contracting officers must receive and process invention disclosures and related documents, request missing information, and escalate persistent noncompliance.
- Legal Counsel Coordination
- All patent-related documents must be promptly forwarded to legal counsel.
- Compliance Monitoring
- Agencies should establish procedures to detect and correct contractor failures, focusing on high-risk contracts.
- Use of Patent Personnel
- Government patent personnel may be used for interviews, technical reviews, patent searches, and on-site inspections.
- Contractor Education and Enforcement
- Contracting officers should clarify obligations to contractors and may withhold payments or document failures for repeated noncompliance.
Responsibilities
- Contracting Officers: Receive and process invention disclosures, request missing documents, coordinate with legal counsel, educate contractors, and document noncompliance.
- Contractors: Disclose inventions, file patent applications, submit required documents, and comply with patent rights clauses.
- Agencies: Establish oversight procedures, use patent personnel for monitoring, and focus efforts on contracts likely to produce significant inventions.
Practical Implications
- This section ensures the Government secures its rights in inventions arising from federally funded contracts.
- It requires active oversight and documentation, especially for research and high-value contracts.
- Common pitfalls include failing to disclose inventions, missing deadlines for document submission, and inadequate contractor education or follow-up.
(a) Agencies should establish and 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 should be coordinated with the appropriate agency.
(b)
(1) The contracting officer administering the contract (or other representative specifically designated in the contract for this 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.
(i) For other than confirmatory instruments, 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. If the failure persists, the contracting officer shall take appropriate action to secure compliance.
(ii) If the contractor does not furnish confirmatory instruments within 6 months after filing each patent application, or within 6 months after submitting the invention disclosure if the application has been previously filed, the contracting officer shall request the contractor to supply the required documents.
(2) The contracting officer shall promptly furnish all invention disclosures, reports, confirmatory instruments, notices, requests, and other documents and information relating to patent rights clauses to legal counsel.
(c) Contracting activities should 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. Government effort to review and correct contractor compliance with its patent rights obligations should be directed primarily toward contracts that are more likely to result in subject inventions significant in number or quality. These contracts include contracts of a research, developmental, or experimental nature; contracts of a large dollar amount; and any other contracts when there is reason to believe the contractor may not be complying with its 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) 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.
(e) If a contractor or subcontractor does not have a clear understanding of its obligations under the clause, or its procedures for complying with the clause are deficient, the contracting officer should explain to the contractor its obligations. The withholding of payments provision (if any) of the patent rights clause may be invoked if the contractor fails to meet the obligations required by the patents rights clause. 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)).