the Government's right to own and exercise patent rights leaves little doubt as to the ultimate resolution of this issue. 102/ In Presuming the Government's right to own patents, the scope of the Government's authority to license these patents has also been a source of controversy over the years. At the core of the controversy is the constitutional provision granting to Congress the power to dispose of and make rules respecting property belonging to the United States. 103/ Congress has given patents the attributes of personal property.1924, in the principal legal opinion of this subject, Attorney General Harlan F. Stone ruled that a nonexclusive, revocable license under a government-owned patent, not being a disposition of property, did not require explicit statutory authorization, but fell within the general 104/ powers of the heads of government departments.- Many have inferred from this 1924 opinion that the granting of exclusive licenses under 105/ government-owned patents requires specific statutory authority. Nevertheless, the issue remains as to whether the grant of an exclusive 102/ U.S. Const. art. IV, §3. cl.2. Such property includes personal and real property. 105/ The Attorney General in his 1947 report, Supra note 38 at 112, or limited exclusive licenses is a disposal of government property or is the management of the utilization thereof. 106/ If it is a disposal, the general authority for the disposal of personal property under the Federal Property and Administrative Services Act of 1949107/ may be sufficient authority for all government agencies to license their patents in this manner. If not, specific legislation granting exclusive licensing author The issue of the necessity for statutory authority is largely moot so far as ERDA is concerned since both the Atomic Energy Act and the Nonnuclear Energy Act specifically provide for licensing authority. The Atomic Energy Act has been interpreted to permit AEC to exclusively li109/ cense its patent rights,- whereas the Nonnuclear Energy Act specifically authorizes the Administrator of ERDA in subsection 9(g) to grant exclusive or partially exclusive licenses. The third and final issue concerns the determination of an appropriate policy for implementation of the licensing authority. There is general agreement that the government licensing policy should encourage utilization of government-owned patents within the framework of our 106/ 107/ 108/ 109/ Supra note 80. 40 U.S.C. §§ 471 et seq. The Government, in the appeal of the In the Report of the Commission on Government Procurement, supra note 3 at 114 (1972), the Commission recommended that the uncertainty as to the exact scope of the authority of the individual agencies and the GSA to grant exclusive licenses should be rectified by providing clear statutory authority to grant exclusive licenses. Supra notes 73, 74, and 85. fundamental national economic policy of fostering free competitive enterprise. The 1963 Presidential Patent Policy Statement stated that "The Government has a responsibility to foster the fullest exploitation of ,,110/ the inventions for the public benefit. The Harbridge House Study111/ identified a host of factors, including agency mission, lack of full technical development of the invention, and degree of agency promotion, which affect both commercial utilization of government-sponsored inventions and business competition in commercial markets. The study identified several cases where the Government's nonexclusive licensing activities were instrumental in obtaining wide adoption and commercial utilization of government-owned inventions. In other cases, the study concluded that some measure of exclusive rights appeared necessary to motivate licensees to invest in the work necessary to commercialize the inventions. Accordingly, a licensing policy should provide government agencies with sufficient flexibility to encourage utilization of government-owned inventions under a variety of circumstances that are likely to be encountered. Congress, in our view, has provided such a flexible policy in the Nonnuclear Energy Act in order to permit ERDA to promote utilization of its patents with certain prescribed safeguards to preserve com The allocation of patent rights in some of the very earliest contracts involving research and development in the atomic energy field basically utilized a deferred determination "short form" patent clause. This clause was developed by the National Defense Research Committee (NDRC) in 1940 for use by NDRC and the Office of Scientific Research and Development (OSRD) and provided the Government with the sole power to determine the disposition of title to inventions which resulted from contract work. The OSRD and NDRC also used a "long-form" clause in research and development contracts in situations where the contractor was unwilling to accept the short form clause. The long-form clause provided the contractor with title to inventions made under the contract subject to a governmental license for military and national defense purposes.1/ 1/ The use of the short and long-form clauses in the atomic energy pro- ....The long-form clause was used primarily in those cases where The early NDRC and OSRD contracts in the field of atomic fission contained the long-form patent clause for the reason that the initial contracts were executed with organizations which already had done work in that or related fields, the program was on a small scale, and the outlook for success in terms of weapons was considered to be relatively modest. As the atomic energy program grew, a rising percentage of contracts were successful and the possibilities of using these successful results beyond the field of military weapons became apparent. Mr. Stewart, Deputy Director of OSRD, testified that, after consultation with President Roosevelt in the spring of 1942, it was decided that because of the unusual public interest involved, future policy would dictate that all NDRC and OSRD research and development contracts and all subcontracts involving research on the atomic fission project would provide that the Government would receive the right to determine the allocation of all patent rights covering inventions and discoveries made during the course of the required work. In 1943, the responsibility for the atomic energy program was transferred to the Manhattan Engineer District (MED). MED used three different patent clauses for research and development contracts and a fourth clause for procurements involving off the shelf items. The clauses used by MED in their research and development contracts ....In addition, the short-form clause was regularly Hearings before the Special Committee on Atomic Energy, U.S. |