A misunderstanding of intellectual property rights laws and their inflexible nature may hinder homeland security projects
Federal agencies are just getting started with their long-term homeland security research and development projects, but they likely will encounter problems getting the best and brightest from industry to help, experts testified before a House subcommittee May 10.
Intellectual property rights have long been a concern when developing R&D contracts between federal agencies and vendors or universities, primarily because of the perception that the government has full rights to any information and products developed with federal funding.
This has caused many companies and researchers to shy away from federal R&D contracts, something that could end up hurting the government, which does less and less of its own research every year, said Rep. Tom Davis (R-Va.), chairman of the House Government Reform Committee's Technology and Procurement Policy Subcommittee.
There is no evidence that the government's homeland security efforts are being harmed by this fear on the part of the private sector, according to a General Accounting Office study of the issue. But because the fear is keeping many private sector researchers from even approaching government, it is difficult to measure the impact, said Jack Brock, director of acquisition and sourcing management at GAO.
Most of the concern, from agencies and the private sector, stems from the inflexibility of the laws governing intellectual property rights and a lack of understanding about what can be done to protect those rights on both sides, said Anthony Tether, director of the Defense Advanced Research Projects Agency (DARPA). The primary legislation in this area is the Bayh-Dole Act of 1980, which outlines a uniform policy for federally sponsored research.
When putting together an R&D contract, many agency contracting officers are unsure of how many rights may need protection down the line and often will put in more stringent controls than are really necessary, causing the private-sector partners to back away, Brock said.
"Agencies are afraid of making a mistake, and because of that fear, they want all the intellectual property rights they can get," he said.
The Defense Department, among several other agencies, has "other transactions authority," which cuts down on the number of federal procurement regulations that must be followed for specific contracts.
This authority does not allow agencies to get completely around the intellectual property requirements set out in Bayh-Dole. But it does protect the subcontractors' intellectual property rights on an R&D project, and that allows the prime contractors to bring in innovative companies and technologies that might not otherwise work with the government, Tether said.
"The flexibility [of the other transaction authority] has really been great," Tether said.
The Bayh-Dole Act works in most cases, even though there are vast differences in the level of understanding of its rules across government and industry, said Benjamin Wu, deputy undersecretary for technology at the Commerce Department's Technology Administration. The agency is the administration's primary point for technology transfer issues and leads an interagency working group on the subject.
Tether said the real problem is the lack of flexibility in Bayh-Dole, which keeps contracting officers from changing, exempting or ignoring certain protections that may not be necessary for every R&D project.
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