Advancing Commercialization of Digital Products from Federal Laboratories (2021) / Chapter Skim
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Pages 1-14
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From page 1... ...
Recently, renewed concern about the potential loss of technological leadership to foreign competitors has refocused attention on federal laboratory innovation and stimulated interest in determining how to maximize returns on federal investments in R&D, including by advancing commercialization of R&D performed at federal labs. Recent administrations have articulated the goal of improving the transfer of federally funded technologies, including technologies created by the federal government, through Lab-to-Market initiatives.
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All of these findings address notable aspects of technology transfer and commercialization for digital products from federal laboratories, but 5 of the 14 stood out to the committee as especially important. These 5 key findings are discussed below: 3 of the findings relate to trade-offs between open and exclusive access to data and software; 1 finding relates to the lack of copyright available to GOGO labs; and 1 finding relates to available metrics for assessing transfers of digital technologies created within the labs.
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At the same time, however, the committee recognized that there may be cases in which the granting of exclusive rights to a firm is necessary to promote additional investment in innovation to facilitate commercialization of products emanating from federal labs. Furthermore, small, minority-owned, and woman-owned firms can be systemically excluded from accessing or exploiting government works freely available in the public domain because they lack the tools or resources to identify and exploit the vast number of works dedicated to the public.
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From page 4... ...
Reflecting these differences, the application of intellectual property law to the federal labs has been inconsistent over the years, and lacks a single set of guiding principles. Section 105 of the Copyright Act excludes GOGO labs from being able to claim copyright in their digital products, thus limiting the channels available to them for disseminating and commercializing those products relative to GOCO labs, which are allowed to assert copyright in their digital products.
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The first key recommendation stems from the need for uniformity around intellectual property rights across federal labs, as noted in the discussion of Finding 5-2. Unlike GOCO labs, GOGO labs are not permitted to hold copyright in federally developed software, and the committee found evidence that this restriction may inhibit the ability of GOGO labs to issue both exclusive licenses, when needed, and OSS licenses, relative to GOCO labs, which have a broader range of tools at their disposal for commercializing their research outputs.
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The committee believes that exclusive licensing by federal labs should be allowed only when it meets the public interest requirements laid out in Section 209, regardless of the type of federal lab or the type of intellectual property right associated with the digital product. This public interest requirement will ensure the broadest reach of publicly funded and government-created technologies and enable healthy competition among firms and other actors to receive and benefit from the public's investment.
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For example, the violation of such requirements could be recognized as an affirmative defense to a claim of infringement by an exclusive licensee of a federal patent or give rise to a private cause of action for such violation. Finally, the committee recognizes the need for a substantial amount of additional data on technology transfer and commercialization of digital products from federal labs, while also recognizing the substantial costs associated with collecting these data.
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This information should be tracked annually and reported publicly at the individual lab level except where national security might be compromised. Recommendation 7-2: The National Institute of Standards and Technology or the Office of Management and Budget should direct federal agencies to provide a more comprehensive accounting of the activities of and results produced by all cooperative research and development agreements and all other cooperative arrangements between the federal laboratories and the private sector, including accounting of failures.
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Recommendation 6-2: An appropriate federal agency should conduct a study of the potential impact of different incentive and organizational factors on the motivation of federal laboratory researchers to engage in technology transfer and commercialization and the success of such efforts. Federal labs should use the results of this study when considering changes to their incentive structure and organizational practices.
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Finding 3-3: While placing digital products in the public domain may reduce obstacles to their use, reliance on the public domain alone will not enable the participation of small firms, minority-owned firms, woman-owned firms, and members of society that lack the market networks, resources, and tools to discover and exploit what is available in the public domain. Finding 4-1: Given documented cases in which federal laboratories have licensed software patents to patent assertion entities, it appears that federal labs do not always adhere to the requirements in Section 209 of the Bayh-Dole Act, which include allowing licensing only if such action is necessary to achieve practical application.
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Thus, they do not allow for a comprehensive assessment of the commercialization of either digital products arising from research at federal labs or the federally developed inputs into that research, including their broader impact on the economy.
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From page 12... ...
Recommendation 3-3: Federal laboratory directors should consider ways to identify and support small, minority-owned, and woman-owned firms and members of society that may not be in a position to identify freely available digital goods, may not know how to interface with the federal labs on such matters, and/or may not understand how the use of these digital products may be relevant to their interests. Federal lab directors should proactively address such disparities in access.
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From page 13... ...
Recommendation 5-4: If Congress does not amend Section 105(a) of the Copyright Act to allow government-owned, government-operated laboratories to hold copyright in federally created software, the director of the National Institute of Standards and Technology should develop a uniform federal software contribution agreement that does not depend on copyright, to be made available for use by all federal labs on a voluntary basis.
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From page 14... ...
should develop survey questions for firms, in accordance with Paperwork Reduction Act requirements, regarding the data, software, digital content, knowledge, and inventions originating from the federal laboratories that have contributed to firms' commercialization of new products, processes, and services. Firms should also report on the patents, processes, and products to which the outputs of the federal labs have contributed.
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