Bayh-Dole Basics, 1: public covenant

The Bayh-Dole Act is part of federal patent law. Bayh-Dole establishes a policy (35 USC 200) regarding the use of the patent system for inventions arising in federally supported research or development. This policy establishes the property rights in patents on such inventions.

See 35 USC 261:

Subject to the provisions of this title, patents shall have the attributes of personal property.

For patents on inventions made with federal support, Bayh-Dole establishes the provisions of the title (that is, patent law, Title 35) that specifically apply.

These policy provisions establish a public covenant that runs with any invention made with federal support. Bayh-Dole’s public covenant includes using the patent system:

working requirement: to promote the utilization of inventions arising from federally supported research or development

free competition requirement: to ensure that inventions made by nonprofit organizations and small business firms are used in a manner to promote free competition and enterprise without unduly encumbering future research and discovery

United States manufacturing requirement: to promote the commercialization and public availability of inventions made in the United States by United States industry and labor.

Bayh-Dole then establishes procedures responsive to this policy in the cases of (i) federal contracting and (ii) ownership of inventions by the federal government. Bayh-Dole’s statement of policy applies in both situations.

Regardless of the statement of specific obligations, Bayh-Dole’s general statement of policy applies and changes ordinary inventions into inventions that carry a public covenant that runs with patent property rights in those inventions.



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