Bayh-Dole Basics, 3: funding agreement

Bayh-Dole requires federal agencies to use a standard patent rights clause in every funding agreement for experimental work, development, or research, unless they can justify something different.

A “funding agreement” is defined as

any contract, grant, or cooperative agreement entered into between any Federal agency, other than the Tennessee Valley Authority, and any contractor for the performance of experimental, developmental, or research work funded in whole or in part by the Federal Government.

Bayh-Dole then expands the definition of funding agreement to include other agreements:

Such term includes any assignment, substitution of parties, or subcontract of any type entered into for the performance of experimental, developmental, or research work under a funding agreement as herein defined

If we remove qualifiers, we see the basic structure:

Any agreement for the performance of work funded at least in part by the Federal Government, including any assignment, substitution of parties, or subcontract of any type.

A funding agreement need not provide funding for the entire work–the definition anticipates that the “work” may be funded from other sources as well, and the work may be sequenced in time, so that the federally funded part may come before other work (such as research that feeds into development).

A funding agreement extends to include any type of assignment, substitution of parties, and subcontract. Assignment of the funding agreement itself, assignment of the patent rights clause in the funding agreement, assignment of subject inventions–all are assignments of any type that extend the definition of “funding agreement.”

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