52.227-11
Patent Rights-Ownership by the Contractor
If you want to keep ownership of inventions made under the contract, you must meet strict disclosure, election, filing, notice, and flowdown requirements—or the Government can take title or enforce broad license rights.
Overview
- FAR 52.227-11 establishes the default patent-rights framework for subject inventions made by contractors performing covered work, generally allowing the contractor to retain ownership while preserving significant Government rights.
- The clause implements Bayh-Dole-style requirements for disclosure, election of title, patent filing, Government licensing, utilization reporting, domestic manufacturing preferences, and special rules for nonprofits and certain subcontracts.
Key Rules
- Definitions and ownership framework
- A subject invention is an invention of the contractor made in performing the contract. The contractor may retain worldwide ownership, subject to the clause’s timing and procedural requirements.
- Disclosure, election, and filing deadlines
- The contractor must disclose each subject invention to the Contracting Officer within 2 months after internal written disclosure by the inventor, elect whether to retain title within 2 years after agency disclosure, and file a patent or plant variety application within 1 year after election, with accelerated deadlines when publication, sale, or public use triggers statutory bars.
- Government rights and contractor duties
- The Government receives a nonexclusive, nontransferable, irrevocable, paid-up worldwide license in retained inventions and may obtain title if the contractor misses disclosure, election, filing, or prosecution obligations.
- Protection of Government interests and downstream flowdown
- Contractors must secure employee invention agreements, execute documents confirming Government rights, include required Government-support statements in U.S. applications, notify the agency before abandoning protection, and flow down the proper patent-rights clause in covered R&D subcontracts.
Responsibilities
- Contracting Officers: receive disclosures and elections, request title when authorized, evaluate extension requests, obtain utilization reports, and ensure proper clause use and any applicable alternates.
- Contractors: disclose inventions on time, elect title, file and maintain applications, protect Government rights, mark utilization reports as confidential/proprietary, and comply with U.S. manufacturing and subcontract flowdown requirements.
- Agencies: preserve confidentiality of utilization data, exercise march-in or title rights when warranted, and oversee nonprofit and small-business preference requirements where applicable.
Practical Implications
- This clause exists to encourage commercialization of federally funded inventions while ensuring the Government can use the technology and intervene if contractors do not pursue practical application.
- For contractors, the biggest compliance risks are missed deadlines, inadequate inventor reporting systems, failure to notify before abandoning patent rights, and improper subcontract flowdown.
- Nonprofit contractors face added restrictions on assignment, royalty use, and small-business licensing preferences.