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We have had no experience on the licensing of our patents under the Federal Nonnuclear Energy Research and Development Act of 1974. However, an ERDA patent licensing program is in existence under the authority of the Atomic Energy Act. It is our view that the patent licensing provisions of both Acts may be harmonized by regulation into a uniform patent licensing program for ERDA-owned patents. However, it appears from our study that the licensing of ERDA-owned foreign patents under the requirements of the Federal Nonnuclear Energy Research and Development Act may be unduly restrictive. More experience will be needed before we can make a positive recommendation on these provisions.

To ascertain whether additional compulsory licensing authority would be desirable for energy technology, we have conducted a limited study of existing legislative compulsory licensing provisions. We see no need for compulsory licensing authority for work performed either for or by ERDA in view of the existing authority of 28 USC 1498(a). Further, as we propose to utilize background patent provisions with many of our contractors, compulsory licensing authority is generally not needed to require these contractors to license their background patents to assure the availability of the contract results to the public. Existing legislative compulsory licensing provisions applicable to private parties under the Atomic Energy Act of 1954 and the Clean Air Amendments of 1970 have received little use and in our view should be better understood before compulsory patent licensing for the entire energy field is considered by the Congress. We intend to carry on further studies on the desirability of compulsory licensing in the energy field. These studies will investigate the need for and effect of compulsory licensing through industry surveys on research and development, patent licensing, and other pertinent industry practices; it will include a study of the effect of compulsory licensing decrees in antitrust cases and an assessment of the experience in foreign countries with compulsory patent licensing laws. A panel of experts in law, business, and economics will also be formed to prepare papers and present their views on these issues. The result of these further studies will be submitted in a future supplement to this report.

It is expected that additional operating experience under our statutory patent policies will permit a better evaluation of these policies and a basis on which future recommendations may be made. While we do not recommend any basic change in our policies at this time, we have identified three possible areas which, after further consideration, may require action to either clarify or expand our existing authority. These areas are the authority under the waiver guidelines to enter into institutional patent agreements with universities; the applicability of

ERDA's legislative patent policies to interagency agreements and the utilization of ERDA facilities and services on a reimbursable basis; and the authority and procedures to make monetary awards to inventors and innovators in the recognition of their contributions to the solution of energy problems.

I subscribe to and support the conclusions and recommendations of this report. I commend them to your attention. Copies of this report have been submitted to the appropriate Congressional committees.

Respectfully yours,

Risut Sena

s

Robert C. Seamans, Jr.

Administrator

Enclosure:
ERDA-76-16: The Patent

Policies Affecting
ERDA Energy Programs

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KF 3139 „A82 1976

vell

United States. Energy Research and Development

Administratione

THE PATENT POLICIES AFFECTING

ERDA ENERGY PROGRAMS

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