Patent Policy

In response to a congressional request, GAO examined several Department of Commerce actions aimed at influencing Department of Energy (DOE) patent policy to determine if they were in violation of the law, specifically: (1) Commerce's involvement in an Office of Management and Budget (OMB) initiative to change DOE patent policies and reduce its patent attorney staff; (2) Commerce's role in an OMB decision not to clear a DOE letter to Congress expressing concerns regarding patent legislation being considered; (3) Commerce's role in drafting a letter to OMB critical of DOE actions relating to federal patent policy; and (4) regulations Commerce was developing to implement newly enacted patent legislation governing certain aspects of DOE handling of patent rights at its nonprofit contractor-operated laboratories.

GAO found that Commerce: (1) recommended that OMB change DOE patent policy to include budget and staffing reductions; (2) opposed clearance of a DOE letter to a congressional member commenting on proposed patent legislation that would affect its government-owned, contractor-operated facilities; (3) was involved in preparing a Senate letter to OMB calling attention to DOE opposition to the implementation of the President's new policies regarding contractor ownership of inventions developed under federal research and development contracts and suggesting that OMB review DOE patent regulations; (4) did not maintain a record of the oral communications it received on its proposed regulations to implement certain sections of the law dealing with government research and development patent policy; and (5) changed the regulations because of comments it solicited after the close of the comment period. GAO held that: (1) there was a potential defect in the validity of the regulations caused by Commerce's failure to record oral comments and changing the final draft regulations after the close of the comment period; and (2) none of Commerce's other activities violated any law or regulation.