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NIST Special Publication 1234 

Return on Investment Initiative for 

Unleashing American Innovation 

This publication is available free of charge from: https://doi.org/10.6028/NIST.SP.1234

December 2018

U.S. Department of Commerce

Wilbur L. Ross, Jr., Secretary

National Institute of Standards and Technology 

Walter Copan, NIST Director and Undersecretary of Commerce for Standards and Technology

DISCLAIMER STATEMENT

Any mention of companies or commercial products within this document is for information only; it does not 

imply recommendation or endorsement by NIST or the other Federal agencies participating in the Lab-toMarket cross agency priority goal of the President’s Management Agenda.

National Institute of Standards and Technology Special Publication 1234

Natl. Inst. Stand. Technol. Spec. Publ. 1234, 135 pages (December 2018) 

CODEN: NSPUE2
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PREFACE

MESSAGE FROM UNDER SECRETARY OF COMMERCE FOR 

STANDARDS AND TECHNOLOGY

The Return on Investment (ROI) Initiative for Unleashing American Innovation is part of a 

national conversation that is designed to advance the Lab-to-Market cross agency priority (CAP) 

goal of the President’s Management Agenda (PMA). The ROI Initiative’s vision is to unleash 

American innovation into our economy. The goal is to maximize the transfer of Federal 

investments in science and technology into value for America in ways that will (a) meet current 

and future economic and national security needs in a rapidly shifting technology marketplace 

and enhance U.S. competitiveness globally, and (b) attract greater private sector investment to 

create innovative products, processes, and services, as well as new businesses and industries.

The PMA’s Lab-to-Market CAP Goal is co-led by the U.S. Department of Commerce (DOC) via 

the National Institute of Standards and Technology (NIST) and the White House Office of 

Science and Technology Policy (OSTP). By statute, DOC is the lead Federal agency for 

technology transfer policy and practice. The Secretary of Commerce has delegated to NIST the 

stewardship for technology transfer policy, to promote and advance technology transfer, and to 

report on its progress to the Nation. Indeed, NIST’s mission is to promote U.S. innovation and 

industrial competitiveness, serving also as the host organization for the Federal Laboratory 

Consortium for Technology Transfer (FLC) in convening America’s Federal Laboratories. In 

these capacities, NIST is a partner with the Nation’s R&D enterprise in seeking continued 

advancement of U.S. innovation. 

As part of the ROI Initiative, NIST implemented an open, inclusive, and collaborative process to 

identify and assess options for supporting the ROI Initiative’s overall goal and objectives. NIST’s 

outreach efforts were designed to ensure that Federal R&D, intellectual property, and 

technology transfer stakeholders had an opportunity to provide inputs to inform this Green 

Paper. Our outreach included a Request for Information (RFI) published in the Federal 

Register, four public meetings, a summit hosted by NIST, and multiple stakeholder engagement 

sessions. The Green Paper also integrates findings from an extensive review of prior reports and 

studies related to federally funded R&D technology transfer policies and practices.

This Green Paper is a discussion document based on an assessment of the feedback from the 

U.S. stakeholder community. It provides an initial summary of key stakeholder inputs and 

identifies short-term and long-term actions to further enhance the U.S. innovation engine at the 

public-private interface. Implementation of any of the intended actions that require specific 

policy, legislative, and/or regulatory actions will be advanced via formal proposals subject to 

appropriate interagency review, and public comment. Our goal is to remove barriers to 

innovation, modernize partnering models and tools, expand entrepreneurial ecosystems, and 

create increased opportunities for returns to the American people from investment in R&D.
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I am grateful to all stakeholders, especially those who submitted oral and written comments in 

response to the RFI and at ROI public forums throughout 2018, to the outstanding, dedicated 

team at NIST and the Office of Science and Technology Policy, to all the U.S. Federal science and 

technology agencies represented in the National Science and Technology Council and its Lab-toMarket Subcommittee, and to the Science and Technology Policy Institute (STPI) for your many 

contributions thus far. 

Thank you for your continuing engagement in helping to chart this important course of action 

for the Nation.

Sincerely,

Walter G. Copan, Ph.D.

Under Secretary of Commerce for Standards and Technology

Director, National Institute of Standards and Technology

Senior Executive Branch Policy Officials at the Unleashing American Innovation 

Symposium, held at U.S. Institute of Peace, Washington, D.C. on April 19, 2018. 

Shown: Michael Kratsios, Deputy Assistant to the President and Deputy U.S. Chief Technology Officer; 

Dr. Walter Copan, Under Secretary of Commerce for Standards and Technology, and Director, National 

Institute of Standards and Technology; United States Secretary of Commerce Wilbur L. Ross; Margaret 

Weichert, Deputy Director for Management, Office of Management and Budget; and Andrei Iancu, Under 

Secretary of Commerce for Intellectual Property and Director, United States Patent and Trademark Office.

Credit: Peter Cutts
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EXECUTIVE SUMMARY

The United States (U.S) has led the world in innovation, research, and technology 

development since World War II, but that leadership is being challenged on a global scale. At risk 

is America’s leadership in industries of the future such as artificial intelligence, quantum 

computing, and robotics. In combination with the rapid, foundational advances in technology, 

innovation has never been more critical to U.S. economic competitiveness and national security 

than it is today. 

The President’s Management Agenda (PMA), released March 20, 2018, lays out a long-term 

vision for modernizing the Federal Government for the 21st Century. The Return on Investment 

(ROI) Initiative directly supports the PMA and is designed to unleash American innovation. ROI

refers here to the economic and national security return to the Nation based on the investment in 

Federal research and development (R&D) by the American people. 

The U.S. innovation system is substantially fueled by the discoveries and inventions arising 

from federally funded R&D at the Nation’s universities, research institutes, and Federal 

Laboratories. The Bayh-Dole and Stevenson-Wydler Acts were transformational for the U.S. when 

enacted in 1980, providing clarity of intellectual property ownership for the public good, and 

incentivizing the commercial development of inventions for U.S. economic impact. These 

landmark pieces of legislation, as well as their subsequent updates, have served America well. 

The Bayh-Dole Act predominantly deals with ownership of inventions made with Federal 

funding. Specifically, it allows companies, nonprofits, and universities to retain title to federally

funded R&D inventions to facilitate their further development. With the Stevenson-Wydler Act, 

each Federal agency that carries out and sponsors R&D has been given the mandate, as part of its 

agency’s mission, to secure intellectual property rights and to contribute directly to U.S. 

innovation through technology transfer. Federal agencies are obligated to communicate the 

benefits of those inventions having potential economic value to the private sector, and to 

effectively transition them for use by American companies and entrepreneurs. With these 

legislative acts, the technology transfer profession was born—and the results for the U.S. economy 

have continued to grow ever since.

The competitive environment for the U.S. has changed dramatically since implementation 

of the Bayh-Dole and Stevenson Wydler Acts and their amendments in subsequent technology 

transfer legislation. This legislative framework has been widely emulated around the world and 

further adapted. Technology transfer and its practices have advanced substantially as the pace of 

innovation continues to accelerate globally. Shorter product life cycles, disruptive business 

models, new partnering strategies, and globalized R&D and supply chains are enabled by 

revolutionary advances in digital, communications, biological, materials, and quantum 

technologies. 
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As part of ROI Initiative, this Green Paper addresses the critical need to modernize the U.S.

system of technology transfer and innovation for the 21st Century. Although Federal technology 

transfer laws and activities have served the Nation well over nearly four decades and continue to 

support innovation, the U.S. is continuing to lose ground to competition.

U.S. economic competitiveness is strengthened by the ability of private sector-companies to 

advance the new technologies resulting from basic R&D, and to deliver the products and services 

that drive the Nation’s economy forward. This ecosystem has allowed the U.S. to enjoy the 

economic benefits of advancing science and technology and has kept the Nation prosperous and 

strong. The partnership between Federal R&D and the private-sector has proven to be an effective 

model. In 2017 alone, the Federal Government invested approximately $150 billion in R&D—

about one-third at Federal Laboratories across the country and two-thirds at universities and 

private-sector R&D institutions. Federal R&D funding represents about one-third of all U.S. R&D 

spending. 

Measures of technology transfer in the U.S. from 1996 to 2015 demonstrate over $1 trillion 

in economic growth and millions of new jobs. Critical technologies such as life-saving drugs, 

vaccines, and medical devices, the internet, global positioning system or GPS, and countless other 

innovations underpinning every aspect of the American way of life are traceable to 

groundbreaking work at Federal Laboratories, federally funded universities, and private sector

R&D organizations. Removing impediments to effective technology transfer and collaboration 

will accelerate economic value creation.

The PMA includes the Lab-to-Market (L2M) cross agency priority (CAP) goal, which aims to 

improve the transfer of technology from federally funded R&D to the private sector to promote 

U.S. economic growth and national security. The L2M CAP Goal is organized around the five 

strategies, which also serve as the organization for the chapters in this green paper:

1. Identify regulatory impediments and administrative improvements in Federal 

technology transfer policies and practices;

2. Increase engagement with private sector technology development experts and 

investors;

3. Build a more entrepreneurial R&D workforce;

4. Support innovative tools and services for technology transfer; and

5. Improve understanding of global science and technology trends and benchmarks.

Each of the strategy chapters is organized to provide an introductory background, note the 

challenges, and explain intended actions to streamline Federal technology transfer policies and 

practices and accelerate the transfer of technology to the private sector. The intended actions 

include best practice sharing, policy guidance, statutory improvements, and clarification of 

statutory provisions through regulatory changes, which are directed at reducing government 

bureaucracy and cutting red tape to accelerate innovation. A succinct summary of the intended

actions is in the following table.
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Return on Investment Initiative – Summary of Intended Actions

Strategy 1

Identify regulatory impediments and administrative improvements in Federal 

technology transfer policies and practices

Government Use License: Define the scope of the “government use license” 

March-In Rights: Define the circumstances under which the government may exercise march-in 

rights to license further development of an invention to achieve practical application

Preference for U.S. Manufacturing: Protect and strengthen U.S. manufacturing; streamline 

waiver process in accordance with statute

Software Copyright: Establish copyright for software products of Federal Government R&D 

Trade Secrets: Expand authority to protect trade secrets 

Strengthen Technology Transfer at Federal Laboratories: Streamline Federal Laboratory

technology transfer policies and practices

Presumption of Government Rights to Employee Inventions. Provide for a present 

assignment of invention rights and streamline rights determination processes

Strategy 2

Increase engagement with private sector technology development 

experts and investors

Streamline Partnership Mechanisms: Establish consistency in legislative interpretation and use 

of best practices 

New/Expanded Partnership Mechanisms: Authorize new and expanded mechanisms to establish 

partnership agreements and nonprofit foundations

Technology Maturation Funding: Allow limited use of R&D funding awards for intellectual 

property protection; work with Small Business Administration for Small Business Innovation Research

Strategy 3

Build a more entrepreneurial R&D workforce

Technology Entrepreneurship Programs: Establish technology entrepreneurship programs at 

Federal R&D agencies government-wide

Managing Conflicts of Interest: Implement government-wide requirements to better manage 

conflicts of interest to promote entrepreneurship

Strategy 4

Support innovative tools and services for technology transfer

Federal IP Data Reporting System(s): Establish a modern platform for reporting data on 

intellectual property resulting from Federal R&D 

Access to Federal R&D Assets: Establish a federated data portal that is easy for the public to 

access, use, and analyze

Strategy 5

Improve understanding of global science and technology 

trends and benchmarks

Benchmarking and Metrics: Establish metrics to better capture, assess, and improve Federal R&D

outcomes, impacts, and operational processes
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CONTENTS

DISCLAIMER STATEMENT ............................................................................................ ii

Preface ................................................................................................................................3

Executive Summary ..........................................................................................................5

Introduction.....................................................................................................................13

American Innovation Framework ........................................................................14

The President’s Management Agenda .................................................................17

The PMA Vision ..............................................................................................17

The Lab-To-Market CAP Goal ......................................................................17

Return on Investment Initiative ...........................................................................19

The ROI Green Paper .............................................................................................20

Inputs to the Green Paper .............................................................................20

Definitions Used in the Green Paper ...........................................................21

Structure of the Green Paper ........................................................................22

Strategy 1. Identify Regulatory Impediments and Administrative Improvements in 

Federal Technology Transfer Policies and Practices .........................................23

A. Introduction ....................................................................................................24

B. Government Use License...............................................................................26

1. Background................................................................................................26

2. Challenges..................................................................................................27

3. Intended Action ........................................................................................28

C. March-In Rights..............................................................................................29

1. Background................................................................................................29

2. Challenges..................................................................................................32

3. Intended Action ........................................................................................33

D. Preference for U.S. Manufacturing ..............................................................34

1. Background................................................................................................34

2. Challenges..................................................................................................36

3. Intended Action ........................................................................................36

E. Software Copyright.........................................................................................38

1. Background................................................................................................38

2. Challenges..................................................................................................40

3. Intended Action ........................................................................................42

F. Trade Secrets ...................................................................................................43

1. Background................................................................................................43

2. Challenges..................................................................................................45
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3. Intended Action ........................................................................................46

G. Strengthen Technology Transfer at Federal Laboratories........................47

1. Background................................................................................................47

2. Challenges..................................................................................................47

3. Intended Action ........................................................................................49

H. Presumption of Government Rights to Employee Inventions .................50

1. Background................................................................................................50

2. Challenges..................................................................................................51

3. Intended Action ........................................................................................52

Strategy 2. Increase Engagement with Private Sector Technology Development Experts 

and Investors ...........................................................................................................53

A. Introduction ....................................................................................................53

B. Streamline Partnership Mechanisms ..........................................................54

1. Background................................................................................................54

2. Challenges..................................................................................................55

3. Intended Action ........................................................................................56

C. New/Expanded Partnership Mechanisms ..................................................58

1. Background................................................................................................58

2. Challenges..................................................................................................62

3. Intended Action ........................................................................................62

D. Technology Maturation Funding..................................................................64

1. Background................................................................................................64

2. Challenges..................................................................................................67

3. Intended Action ........................................................................................69

Strategy 3. Build a More Entrepreneurial R&D Workforce ......................................71

A. Introduction ....................................................................................................71

B. Technology Entrepreneurship Programs ....................................................72

1. Background................................................................................................72

2. Challenges..................................................................................................76

3. Intended Action ........................................................................................80

C. Managing Conflicts of Interest .....................................................................81

1. Background................................................................................................81

2. Challenges..................................................................................................86

3. Intended Action ........................................................................................89

Strategy 4. Support Innovative Tools and Services for Technology Transfer ........91

A. Introduction ....................................................................................................91

B. Federal IP Data Reporting System(s)..........................................................92
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1. Background................................................................................................92

2. Challenges..................................................................................................93

3. Intended Action ........................................................................................95

C. Access to Federal R&D Assets.......................................................................96

1. Background................................................................................................96

2. Challenges..................................................................................................98

3. Intended Action ......................................................................................100

Strategy 5. Improve Understanding of Global Science and Technology Trends and 

Benchmarks ...........................................................................................................101

A. Introduction ..................................................................................................101

B. Benchmarking and Metrics .........................................................................104

1. Background..............................................................................................104

2. Challenges................................................................................................110

3. Intended Action ......................................................................................115

Summary and Conclusions ..........................................................................................117

References ..................................................................................................................... A-1

Abbreviations................................................................................................................ A-9

Appendix 1. Select Technology Transfer Mechanisms in Use by Federal Agencies 

.............................................................................................................................. A-12

Appendix 2. Comparison of SPP, CRADA, and ACT Attributes .......................... A-13
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INTRODUCTION

Since the 19th Century, American economic prosperity and national security have been 

based upon innovation—the process of invention and commercialization of new ideas into 

products and services in the marketplace. Victory in World War II was enabled by technological 

pre-eminence—radar, atomic weapons, gyroscopic bomb sights—and the production of goods on 

a mass scale. 

The United States (U.S.) has led the world in innovation, research, and technology 

development since World War II, but that leadership is being challenged on a global scale.

1

 Unlike 

many of its global competitors, the U.S. economic system relies on the strength of private sector 

companies to produce the new technologies that result from research and development (R&D) to 

deliver the goods and services that drive the nation’s economy forward. The partnership between 

Federal R&D, through Federal Laboratories and Federal funding for R&D at external 

organizations, and the private sector has proven to be an effective model. 

The intimate connection between a competitive economy and national security is recognized 

at the highest level. In the Administration’s “National Security Strategy of the United States,”2

President Donald J. Trump states “Economic security is national security.” Pillar II of the 

Strategy, “Promote American Prosperity,” highlights the need to “Lead in Research, Technology, 

Invention, and Innovation” as a key goal and identifies four objectives:

• Understand worldwide science and technology trends,

• Attract and retain inventors and innovators,

• Leverage private capital and expertise to build and innovate, and

• Rapidly field inventions and innovations.

America’s future competitiveness will be driven in part by our ability to capture the economic 

and national security benefits of emerging technologies. U.S. leadership in advanced technology 

development, however, is threatened by a number of converging factors including declining 

domestic manufacturing, the relocation of technology-intensive R&D abroad, and the changing 

rules around intellectual property development.

3 American leadership in industries of the future 

1 National Science Foundation. 2018. “Science and Engineering Indicators 2018.” 

https://nsf.gov/statistics/2018/nsb20181/digest/sections/introduction 

2 The White House, Washington, D.C. December 2017.

3 Department of Defense. 2018 “Assessing and Strengthening the Manufacturing and Defense Industrial 

Base and Supply Chain Resiliency of the United States.” 

https://defense.gov/StrengtheningDefenseIndustrialBase
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such as artificial intelligence, quantum computing, Internet-of-Things, advanced manufacturing, 

and robotics is at risk. Over the remainder of this century, these emerging industries will help 

redefine the battlefield of the future as well as how Americans live. 

The Federal Government’s continued investment in a broad range of fundamental and 

mission-oriented scientific and engineering R&D is a crucial innovation driver for the Nation, 

supporting job creation, national security, economic growth, and global competitiveness. These 

investments, along with continued collaboration and partnerships with private sector businesses, 

are critical for the U.S. to remain the preeminent world leader of scientific discovery, invention, 

and globally competitive innovations. Reliable and predictable intellectual property rights are 

essential to incentivize innovation and encourage private sector investment in R&D. 4 In 

combination with the rapid, foundational advances in technology, innovation has never been 

more critical to U.S. economic competitiveness and national security than it is today. The 

“American system” of technology transfer is a distinctive comparative advantage in the global 

marketplace, and America must extract all possible value from its significant investment of human 

and capital resources. 

To ensure that American taxpayers are reaping the full benefit of R&D investments and that 

the United States is strengthening its economic competitiveness and national security, the Federal 

Government is working to move the Nation to a new level of innovation performance that will

increase the taxpayers return on their investment in federally funded R&D. This green paper 

identifies critically needed actions to “unleash American innovation” by removing systemic 

barriers and strengthening partnerships between government, industry, and academia.

AMERICAN INNOVATION FRAMEWORK

The American innovation ecosystem is the envy of the world, advancing science and 

technology and making the Nation prosperous and strong. The essence of the innovation process 

involves bringing inventions arising from Federal investment in science and technology (S&T) to 

the private sector, attracting private capital to further invest in their development, and then 

launching and advancing them successfully in practical commercial use. Excellence in each stage 

of R&D—discovery, translation, and innovation—is vital to America’s global competitiveness. 

 

4 National Science and Technology Council, Committee on Technology, Subcommittee on Advanced 

Manufacturing. 2018. “Strategy for American Leadership in Advanced Manufacturing.”
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In 2017, the Federal Government invested approximately $150 billion in R&D—about onethird at Federal Laboratories across the country and two-thirds at universities and private sector 

R&D institutions.5 Federal R&D funding represents about one-third of all U.S. R&D spending.6

The Federal Government fills a crucial gap in the innovation process by funding R&D in areas of 

critical importance to the Nation. Often, these R&D topics do not carry a strong enough immediate 

financial incentive for R&D investment by the private industry sector. Federal R&D investment 

priorities adapt to changing National needs and Administration priorities, with the expectation 

that this investment will strengthen the Nation's innovation base and position the United States 

for unparalleled job growth, continued prosperity, and national security.7 For example, current 

Administration R&D priorities include security; artificial intelligence (AI), quantum information 

sciences, and strategic computing; connectivity and autonomy; manufacturing; space exploration 

and commercialization; energy; medical innovation; and agriculture.

The discoveries that result from American R&D efforts must be transferred from the 

laboratory to the marketplace through innovations that bring products and services to consumers 

more quickly. Protection of intellectual property rights is often necessary to achieve this transfer

by establishing partnerships with industry for commercial adoption. The U.S. Constitution 

enshrined the critical importance of private rights in innovation as an enduring, foundational 

principle that would sustain and guide the Nation:

“Congress shall have power...to promote the progress of science and useful 

arts, by securing for limited times to authors and inventors the exclusive right 

to their respective writings and discoveries.”

8

5 There are over 300 Federal Laboratories, including Government-Owned, Government-Operated 

(GOGO) Laboratories, Government-Owned, Contractor-Operated (GOCO) Laboratories, and Federally 

Funded Research and Development Centers (FFRDCs). For further information, see Analytical 

Perspectives, Budget of the United States Government, Fiscal Year 2019, Ch. 18, https://www.gpo.gov/

fdsys/pkg/BUDGET-2019-PER/pdf/BUDGET-2019-PER.pdf.

6 National Science Board. 2018. “Science and Engineering Indicators 2018.” 

7 Office of Management and Budget & Office of Science and Technology Policy, FY 2020 Administration 

R&D Budget Priorities, Memorandum for the Heads of Executive Departments and Agencies, M-18-22, 

July 31, 2018.

8 Article I, Section 8 of the U.S. Constitution establishing the Legislative Branch.
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Since then, the Federal Government has provided the framework for technology transfer 

through several laws, executive orders, and regulations.9 Federal technology transfer laws and 

activities have served the Nation well over nearly four decades, and continue to support U.S. 

innovation.10 From 1996 to 2015, contributions to the U.S. economy from academic technology 

transfer alone included up to $1.3 trillion in gross industrial product, $591 billion in gross 

domestic product, and 4.3 million jobs.11 Critical technologies such as life-saving drugs, vaccines, 

and medical devices, the internet, global positioning system or GPS, and countless other 

innovations underpinning every aspect of the American way of life are traceable to 

groundbreaking work at Federal Laboratories and at federally funded universities and private 

sector R&D organizations. 

While substantial positive benefits continue to accrue from Federal R&D investments, the 

United States can do better to resolve barriers that inhibit realizing the largest and broadest

commercial, economic, and national security returns possible from these investments. There are 

significant challenges in effectively transferring the technology, knowledge, and capabilities 

resulting from Federal R&D investments to the private sector. Potentially valuable technologies, 

created at taxpayer expense, can remain in laboratories due to systemic barriers that limit 

opportunities to move these innovations to the commercial marketplace. The intended actions 

described in this green paper aim to enhance the American innovation framework and maximize 

the ROI to the American taxpayer.

9 The term “technology transfer” refers to the broad range of mechanisms used to transfer technology, 

knowledge, and capabilities resulting from federally funded R&D to productive uses, and, where 

appropriate, commercialization.

10 For further information on relevant technology transfer legislation, see Federal Laboratory 

Consortium for Technology Transfer (FLC). 2013. FLC Technology Transfer Desk Reference, 

https://www.federallabs.org/media/publication-library/flc-technology-transfer-desk-reference; and 

FLC. §2013. The Green Book, https://www.federallabs.org/media/publication-library/federaltechnology-transfer-legislation-and-policy-the-green-book.

11 Estimates based on contributions of patent licensing activity; estimates do not include broad-based 

spillover benefits to the U.S. economy, see Association of University Technology Managers (AUTM). 

2016. Driving the Innovation Economy, 

https://www.autm.net/AUTMMain/media/SurveyReportsPDF/AUTM-FY2016-Infographic-WEB.pdf. 
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THE PRESIDENT’S MANAGEMENT AGENDA

The President’s Management Agenda (PMA), released March 20, 2018, lays out a long-term 

vision for modernizing the Federal Government for the 21st Century in key areas that will improve 

the ability of Federal agencies to deliver mission outcomes, provide excellent service, and 

effectively steward taxpayer dollars on behalf of the American people. 12 This green paper

establishes a framework for enacting the vision put forth in the PMA through intended actions

that will result in real improvements in how Federal Laboratories and federally funded

universities and private sector R&D organizations support economic development through 

research and innovation. 

THE PMA VISION

The PMA’s vision for reform is to enable the Federal Government to adapt to changing needs 

over time, with a focus on pursuing deep-seated transformation rather than short-term fixes. The 

reform agenda identifies five root cause challenges facing the Federal Government to meet the 

needs of the 21st Century: 1) accumulated regulatory burden, 2) structural issues, 3) decisionmaking and processes, 4) leadership and culture, and 5) capabilities and competencies. To get 

traction on these complex and interconnected challenges, the PMA recognizes the need for 

broader, system-level thinking across agencies and functional disciplines for a whole-ofgovernment effort to tackle barriers to change.

The PMA established Cross-Agency Priority (CAP) Goals targeting 14 specific areas in which

multiple agencies must collaborate to effect change and report progress in a manner that the 

public can easily track. Each CAP Goal is expected to move from vision to action by acknowledging

shortcomings, setting a modern vision, and delivering on concrete goals that adapt Federal 

programs, capabilities, and the Federal workforce to efficiently, effectively, and, through an 

accountable approach, meet mission demands and public expectations. CAP Goals report 

quarterly, providing the public an open and transparent assessment of the progress being made 

on milestones and key performance indicators.13

THE LAB-TO-MARKET CAP GOAL

The Lab-to-Market (L2M) CAP Goal aims to improve the transfer of technology from 

federally funded R&D to the private sector to promote U.S. economic growth and national 

 

12 White House. 2018. President’s Management Agenda, https://www.whitehouse.gov/wpcontent/uploads/2018/03/The-President%E2%80%99s-Management-Agenda.pdf. 

13 Quarterly CAP Goal reports publish in March, June, September, and December at 

https://www.performance.gov/
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security. The L2M CAP Goal is designed to enable the United States to adapt to a rapidly changing 

global innovation landscape by:

• Improving the transition of federally funded innovations from the laboratory to the

marketplace by reducing the administrative and regulatory burdens for technology

transfer and increasing private sector investment in later-stage R&D;

• Developing and implementing more effective partnering models and technology

transfer mechanisms for Federal agencies; and

• Enhancing the effectiveness of technology transfer by improving the methods for

evaluating the investment returns and economic and national security impacts of

federally funded R&D and using that information to focus efforts on successful

approaches.

The L2M CAP Goal charges agencies to develop and implement stakeholder-informed action 

plans, which may include improved Federal practices and policies, regulatory reform, and 

legislative proposals; increased interactions with private-sector experts; identification, sharing, 

and adoption of best practices for technology transfer; and increased transfer of federally funded

innovations from laboratory to market.

The L2M CAP Goal is co-led by the Department of Commerce (DOC) via the National 

Institute of Standards and Technology (NIST) and the White House Office of Science and 

Technology Policy (OSTP). Other participating agencies include the Office of Management and 

Budget (OMB), the Departments of Agriculture, Defense, Commerce, Education, Energy, Health 

and Human Services, Homeland Security, Interior, Transportation, and Veterans Affairs, the 

Environmental Protection Agency, the National Aeronautics and Space Administration (NASA), 

the National Science Foundation (NSF), and the Small Business Administration (SBA). The 

National Science and Technology Council (NSTC), through its Lab-to-Market Subcommittee 

(L2M SC), is working to coordinate, review, and implement interagency priorities related to the 

L2M CAP Goal. Other supporting interagency groups include the Interagency Working Group on

Technology Transfer (IAWGTT), the Interagency Working Group on Bayh-Dole (IAWGBD), the 

Federal Laboratory Consortium for Technology Transfer (FLC), the Small Business Innovation 

Research (SBIR) Project Managers Working Group, and the Innovation CorpsTM (I-CorpsTM)

Community of Practice.14

14 For further on the L2M CAP Goal supporting organizations, see NIST. Lab to Market, 

https://www.nist.gov/tpo/lab-market. 
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RETURN ON INVESTMENT INITIATIVE

On April 19, 2018, NIST, in coordination with OSTP, launched the Return on Investment 

(ROI) Initiative to advance the PMA and its L2M CAP Goal. The ROI Initiative was formally 

announced at the Unleashing American Innovation Symposium, in which leaders from across 

government, industry, and academia exchanged views on current obstacles, best practices, and 

potential solutions to address systemic barriers to catalyze the full potential of American 

innovation (Figure 1).

The ROI Initiative’s vision is to “unleash American innovation” into our economy and its 

goal is to “maximize the transfer of Federal investments in science and technology into value for 

America in ways that will (a) meet current and future economic and national security needs in a 

rapidly shifting technology marketplace and enhance U.S. competitiveness globally, and (b) 

attract greater private sector investment to create innovative products, processes, and services, as 

well as new businesses and industries.” 

Figure 1. Federal panelists at the Unleashing American Innovation Symposium, held at 

U.S. Institute of Peace, Washington, D.C. on April 19, 2018. 

Shown: Michael Kratsios, Deputy Assistant to the President and Deputy U.S. Chief Technology Officer; Dr. 

Christopher Austin, Director, National Center for Advancing Translational Sciences, National Institutes 

of Health; Dr. France Córdova, Director, National Science Foundation; Andrei Iancu, Under Secretary of 

Commerce for Intellectual Property, and Director, United States Patent and Trademark Office; and Dr. 

Walter Copan, Under Secretary of Commerce for Standards and Technology, and Director, National 

Institute of Standards and Technology.
20

The objectives of the ROI Initiative are to “assess and, where appropriate, streamline and 

accelerate the transfer of federally funded technology by (a) identifying critically needed 

improvements to Federal technology transfer policies, practices, and efforts; and (b) seeking 

broad input from Federal R&D, intellectual property (IP), and technology transfer stakeholders.”

THE ROI GREEN PAPER

As part of the ROI Initiative, NIST implemented an open, inclusive, and collaborative

process to identify and assess options for supporting the ROI Initiative’s objectives. This green 

paper identifies a set of intended actions—based on careful consideration of stakeholder input—

to reduce or remove barriers and facilitate accelerated technology transfer in ways that will 

improve the return on federally funded R&D investment as well as further the missions of Federal 

agencies. 

INPUTS TO THE GREEN PAPER

NIST engaged in several outreach efforts to ensure that Federal R&D, intellectual property,

and technology transfer stakeholders had an opportunity to provide inputs to inform this green 

paper. This outreach included a Request for Information (RFI) published in the Federal Register, 

four public meetings, a summit hosted by NIST, and multiple stakeholder engagement sessions:

• The RFI requested responses on topics related to Federal technology transfer principles 

and practices, challenges, and solutions to improve the transfer of technology, 

knowledge, and capabilities resulting from Federal R&D investments.

15

• Four public meetings were held to gather stakeholder feedback and comments: San 

Jose, CA (May 17, 2018); Denver, CO (May 21, 2018); Chicago, IL (May 31, 2018); and 

Gaithersburg, MD (June 14, 2018).

• The Maryland Technology Transfer Summit, held on April 20, 2018, was organized by 

the Maryland Department of Commerce and hosted by NIST. The event included 

 

15 83 FR 19052. Request for Information Regarding Federal Technology Transfer Authorities and 

Processes, May 1, 2018, https://www.federalregister.gov/documents/2018/05/01/2018-

09182/request-for-information-regarding-federal-technology-transfer-authorities-and-processes. 
21

Federal and State policy makers, industry leaders, technology managers, and 

universities and research institutes, among others.16

• NIST hosted multiple stakeholder engagement sessions.

17

In addition, this green paper integrates findings from an extensive review of prior reports 

and studies related to federally funded R&D technology transfer policies and practices (refer to 

References).

DEFINITIONS USED IN THE GREEN PAPER

In this green paper, ROI is not intended to be defined in classic economic terms. Instead, 

ROI as used here takes a broad approach that emphasizes the underlying social and public mission 

inherent in the development of Federal research into products and services benefiting American 

taxpayers. The “return” is interpreted to encompass a wide variety of benefits of technology 

transfer, both tangible and intangible to the investor, namely American citizens. It should not be 

viewed in the narrow context of revenue generation, but rather as contributions to broader 

economic prosperity, national security, and societal impact. The “return” is to the American 

society as a whole in accordance with each agency’s statutory mission. “Investment” refers to 

federally funded R&D both performed by the government (intramural) and by universities and 

the private sector (extramural). 

In the context of Federal activities, technology transfer often refers to the movement of 

knowledge and results—such as products, techniques, tools, data, and inventions—from 

intramural Federal R&D out of laboratories and into practical application.18 Given that about twothirds of Federal R&D expenditures support research by non-Federal scientists and engineers, 

16 Maryland Department of Commerce and National Institute of Standards and Technology. “2018 

Maryland Technology Transfer Summit.” https://www.nist.gov/news-events/events/2018/04/2018-

maryland-technology-transfer-summit. 

17 Including the NIST Visiting Committee on Advanced Technology, the Association of University 

Technology Managers, the Licensing Executives Society, the Council on Government Relations, the 

Council on Competitiveness (Technology Leadership and Strategy Initiative), the State Science and 

Technology Institute, FLC, the Association of Public and Land Grant Universities (Commission on 

Innovation, Competitiveness, and Economic Prosperity), the Association of American Universities

(Council on Federal Relations), and the American Chemical Society (Chief Technology Officers 

Summit).

18 NAS. 1997. Enabling America: Assessing the Role of Rehabilitation Science and Engineering, 

https://www.nap.edu/read/5799/chapter/1
22

technology transfer, for the purposes of this green paper, also encompasses the activities of these 

extramural partners. In addition, throughout this green paper, “the process by which existing 

knowledge, facilities, or capabilities developed under Federal research and development (R&D) 

funding are used to fulfill public and private need” is referred to as technology transfer.

19

STRUCTURE OF THE GREEN PAPER

The L2M CAP Goal is executed through five strategies that also form the foundation for how 

this green paper is organized:

1. Identify regulatory impediments and administrative improvements in Federal 

technology transfer policies and practices;

2. Increase engagement with private sector technology development experts and 

investors;

3. Build a more entrepreneurial R&D workforce;

4. Support innovative tools and services for technology transfer; and

5. Improve understanding of global science and technology trends and benchmarks.

Each chapter in this green paper provides an introductory background, notes the challenges,

and explains intended actions to streamline and accelerate Federal technology transfer policies 

and practices. Implementation of any of the intended actions that require specific policy, 

legislative, and/or regulatory actions will be advanced via formal proposals subject to appropriate 

interagency review, and public comment. The final chapter of the green paper summarizes the 

intended actions to overcome systemic challenges raised by technology transfer stakeholders that 

will unleash American innovation and provide even greater return on investment to the American 

taxpayer.

 

19 Federal Laboratory Consortium for Technology Transfer (FLC). 2013. FLC Technology Transfer Desk 

Reference: A Comprehensive Introduction to Technology Transfer. Cherry Hill: Federal Laboratory 

Consortium for Technology Transfer.
23

STRATEGY 1. IDENTIFY REGULATORY IMPEDIMENTS AND 

ADMINISTRATIVE IMPROVEMENTS IN FEDERAL TECHNOLOGY 

TRANSFER POLICIES AND PRACTICES

The first of the five strategies of the L2M CAP Goal is focused on identifying and reducing 

regulatory impediments and administrative barriers in Federal technology transfer policies and 

practices.20 The intended actions are designed to make it easier for industry to work with Federal 

Laboratories and access federally funded R&D by removing both real and perceived barriers.

The ownership and transfer of federally funded science and technology developed at 

government institutions, universities, and corporations is governed by a series of laws and 

associated regulations and policy that originally date back to the 1980s. While the basic structure 

is still strong, the environment has changed dramatically, and updates are needed. Federal

agencies and their laboratories are responsible for managing intellectual property and research 

partnerships independently based on the overall framework, thereby facilitating the transfer of 

technology through a distributed approach. The distributed approach allows Federal agencies to 

align their technology transfer efforts with the mission focus of their R&D, but this mission-based 

variability between agencies makes it more difficult to identify and address systemic barriers. 

This chapter describes ways to address the first L2M CAP Goal strategy to address barriers 

that slow or prevent technology transfer. While the Bayh-Dole Act and Stevenson-Wydler Act 

provide essential authorities that facilitate the transfer and translation of federally funded R&D

to innovative products, processes, and services for the American people, there are numerous 

provisions that would benefit from clarification. A common concern noted throughout the RFI 

responses are the variations across agency technology transfer policies and practice because of 

differing authorities between agencies as well as differing interpretations of shared legislation

guiding technology transfer efforts. 

20 President’s Management Agenda (PMA), Cross-Agency Priority Goals: Improve Transfer of 

Federally-Funded Technologies from Lab-to-Market; released March 20, 2018.

https://www.performance.gov/CAP/CAP_goal_14.html
24

A. INTRODUCTION

In the early 1980s, Congress passed the first two of a series of laws that are designed to enable 

the further development of federally funded inventions: the Stevenson-Wydler Technology 

Innovation Act of 1980 (P.L. 96-480)21 and the Bayh-Dole Act of 1980 (P.L. 96-517).22 StevensonWydler Act, as amended, governs how Federal Laboratories transfer technology to non-Federal

entities, and enables Federal entities to provide access to Federal Laboratory assets (both 

researchers and facilities) to outside organizations through research partnerships and other 

means.23 These laws require each laboratory with 200 or more technical staff to have an office 

dedicated to technology transfer,

24 mandate that technology transfer be a responsibility of all 

science and engineering professionals consistent with their mission responsibilities, 25 and 

establish a principle of royalty sharing for Federal inventors.26 Congress also encouraged access 

to government researcher expertise and laboratory facilities by establishing a mechanism called a 

Cooperative Research and Development Agreement (CRADA), which can be used to form publicprivate partnerships with other Federal agencies, State or local governments, industrial 

organizations, and nonprofit organizations including universities.27 To encourage commercial 

development of products developed under a CRADA, the CRADA partners receive preferential 

rights to license intellectual property developed under the partnership.28

The Bayh-Dole Act established uniform rules that allow companies, nonprofits, and 

universities to retain title to federally funded research inventions in order to facilitate their further 

 

21 P.L. 96-480, codified at 15 U.S.C. §§ 3701-15.

22 P.L. 96-517, codified at 35 U.S.C. §§ 201-14, Also known as the University and Small Business Patent 

Procedures Act of 1980.

23 Trademark Clarification Act of 1984 (P.L. 98-620); Federal Technology Transfer Act of 1986 (P.L. 99-

502); National Competitiveness Technology Transfer Act of 1989 (P.L. 101-189); National Technology 

Transfer and Advancement Act of 1995 (P.L. 104-113); Technology Transfer Commercialization Act of 

2000 (P.L. 106-404)

24 15 U.S.C. § 3710(b) Establishment of Research and Technology Applications Offices

25 15 U.S.C. §3710(a)(2)

26 15 U.S.C. §3710c – Distribution of royalties received by Federal Agencies

27 15 U.S.C. § 3710a – Cooperative research and development agreements

28 15 U.S.C. § 3710a(b)(1)
25

development.29 This right is limited to patentable inventions that arise from federally funded

research and is subject to a few limitations to protect U.S. taxpayer investment, namely U.S. 

manufacturing preference, government use licenses, and march-in rights to ensure 

commercialization. 30 Through this law and amendments, Congress also incentivized the 

commercialization of federally funded inventions by requiring that the inventor get a share of the 

royalties.31 Bayh-Dole and amendments also allow Federal agencies and Government-Owned, 

Government-Operated (GOGO) Laboratories to issue exclusive licenses to government-held 

patents for the full life of the patent.32 Bayh-Dole and amendments allow the contractors who 

operate Government-Owned, Contractor-Operated (GOCO) Laboratories to hold title and make 

commercialization decisions to patents of GOCO Laboratory-developed inventions.

The Economist Technology Quarterly called Bayh-Dole, “[p]ossibly the most inspired piece 

of legislation to be enacted in America over the past half century...this unlocked all the inventions 

and discoveries that had been made in laboratories throughout the United States with the help of 

taxpayers’ money.”33

Private investment, practical application of innovations, and economic growth depend on a 

strong system of IP protection. The Leahy-Smith America Invents Act34 (AIA) was enacted in 2011

to modernize the U.S. patent system and, among other things, better align it with other systems 

by instituting a first-inventor-to-file system rather than the former first-to-invent system. Several 

RFI comments were received about updating the AIA and its implementation by U.S. Patent and 

Trademark Office (USPTO). (Refer to “What We Heard: America Invents Act.”) NIST will 

communicate the RFI input received to the USPTO. All supporting interagency groups related to 

technology transfer will assist USPTO as needed to evaluate the received input and work 

collaboratively to support a strong IP system in the U.S. 

29 35 U.S.C. § 202 – Disposition of rights.

30 35 U.S.C. § 204 – Preference for United States Industry, 15 U.S.C. § 3710a(b)(1)(A) government use 

license, 35 U.S.C. § 203 – March-in rights

31 35 U.S.C. § 202(c)(7)

32 35 U.S. Code § 209 - Licensing federally owned inventions

33 Innovation’s golden goose. The Economist Technology Quarterly. Dec. 2002. 

https://www.economist.com/technology-quarterly/2002/12/12/innovations-golden-goose

34 Public Law 112–29 https://www.uspto.gov/sites/default/files/aia_implementation/20110916-publ112-29.pdf
26

What We Heard: America Invents Act

There were numerous suggestions and data presented related to AIA and its implementation through 

USPTO rules. Below is a summary of what we heard from the RFI:

• Allow Small Entity Status (SES) for university or small business entities leading patent 

prosecution of jointly-owned inventions with Federal agency or agencies.

• Consider changes to the Patent Trial and Appeal Board Proceedings, particularly around Inter 

Partes Review (IPR).

o Address perception that IPR introduces asymmetries into the patent system that 

disadvantage patent holders and create uncertainty that discourages investment.

o Address perception that IPR treats patent review as a hybrid form of continued 

examination and generally denies the due process that patents were supplied in the 

courts.

o Harmonize the IPR claim construction standard with the Federal courts and 

International Trade Commission; and apply the same the burden of proof standard in 

IPR proceedings that is applied by the Federal district courts.

o Consider comments that IPR implementation deprives patent owners of basic due 

process, exposes patent claims to varying and inconsistent standards of review as 

between USPTO and Article III proceedings, unduly restricts amendment of claims 

under review, and denies patent owners quiet title in this important property right.

• Remedy situations where inventors prevail against infringers but cannot secure injunctions 

halting unauthorized sales of their discoveries.

• Address concerns that the grace period under the AIA has been negated by the implementing 

regulations.

• Clarify the scope of patent eligible subject matter based on AIA and Supreme Court rulings.

• Explore actions to reduce the burden of patent owners facing serial challenges brought by 

parties having no standing in court; without freedom from the cloud of challenge throughout 

the entire patent life, patent owners face diminishing confidence, investment, product 

development and commercialization, and new business formation.

• Restore the right of patent holders to sue for damages if their patents are subject to 

reexamination based on false evidence or other abuse, harmed by fraud on the court, or abuse 

of process.

B. GOVERNMENT USE LICENSE

1. BACKGROUND 

The government use license refers to the “nonexclusive, nontransferable, irrevocable, paidup license to practice the invention or have the invention practiced throughout the world by or on 

behalf of the Government,” that applies to any federally funded invention. While there are slight 

differences in statutory language, the government use license applies to inventions stemming 
27

from research partnerships with Federal Laboratories (15 U.S.C. § 3710a(b)(1)(A)),35 Federal 

employee inventions (15 U.S.C. § 3710d(a)), 36 and federally funded inventions produced by 

contractors and grantees (35 U.S.C. §202(c)(4)).37 The primary benefit of the government use 

license is that the government can use research that it funded for its mission-driven purposes 

without a threat of legal challenges for patent infringement.

38 It has been long recognized that 

government use includes direct use by the agency for its own acquisition purposes, even if this 

may involve a different contractor.39,40

2. CHALLENGES

RFI respondents commented that the purpose of the government use license needed to be

clarified and its use should be construed consistently and narrowly. It was also noted that an 

overly broad interpretation of this right was contrary to the stated intent of the Bayh-Dole Act to 

allow rights to be elected and retained by the contractor. In addition, GAO found that there were 

few statistics on how often Federal agencies exercise their use rights. 41 While disseminating 

statistics on Government use would be helpful, it is nevertheless important to better define the 

circumstances under which use of the government use license would be appropriate consistent 

with the original legislative intent.

35 “A nonexclusive, nontransferable, irrevocable, paid-up license from the collaborating party to the 

laboratory to practice the invention or have the invention practiced throughout the world by or on 

behalf of the Government.” 

36 “...subject to reservation by the Government of a nonexclusive, nontransferable, irrevocable, paid-up 

license to practice the invention or have the invention practiced throughout the world by or on behalf 

of the Government.”

37 “...the Federal agency shall have a nonexclusive, nontransferable, irrevocable, paid-up license to 

practice or have practiced for or on behalf of the United States any subject invention throughout the 

world...”

38 U.S. Government Accountability Office (GAO). 1999. “Reporting Requirements for Federally 

Sponsored Inventions Need Revision.” https://www.gao.gov/assets/230/227817.pdf

39 Night Vision Corp v. United States, No. 06-5048. U.S. Court of Appeals 

https://caselaw.findlaw.com/us-federal-circuit/1393887.html

40 U.S. Government Accountability Office (GAO). 2009. “Information on the Government's Right to 

Assert Ownership Control over Federally Funded Inventions.”

https://www.gao.gov/assets/300/293020.pdf

41 U.S. Government Accountability Office (GAO). 1999. “Reporting Requirements for Federally 

Sponsored Inventions Need Revision.” https://www.gao.gov/assets/230/227817.pdf
28

An issue that has been noted is the use of the government use license to obtain discounts on 

products developed from federally funded R&D, primarily pharmaceuticals. A 2003 GAO report 

concluded that the government use license does not bestow the broader right to purchase royaltyfree (i.e., discounted) products that happen to incorporate a federally funded invention if not 

produced under the government’s license.42

3. INTENDED ACTION

Intended Action 1. Define the scope of the “government use license” for use 

directly by the government—or a government contractor in the performance of an 

agreement with the government—for a government purpose only, including 

continued use in research and development by the government. The scope of the 

government use license should not extend to goods and services made, sold, or 

otherwise distributed by third parties if the government—or a government 

contractor in the performance of an agreement with the government—does not 

directly use or consume those goods and services.

A. UPDATE DEFINITION OF GOVERNMENT USE LICENSE FOR EXTRAMURAL R&D 

PROGRAMS

Implement regulatory change under the Bayh-Dole Act to (i) update the definition of 

government use license and its use directly by the government—or a government contractor in the 

performance of an agreement with the government—for government purpose only and not for the

 

42 U.S. Government Accountability Office (GAO). 2003. “Agencies’ Rights to Federally Sponsored 

Biomedical Inventions.” https://www.gao.gov/new.items/d03536.pdf
29

use of a third party,43 and (ii) clarify the appropriate processes and use of the government use 

right based on a consistent interpretation of the definition restricting its scope of use.44

B. UPDATE DEFINITION OF GOVERNMENT USE LICENSE FOR INTRAMURAL AND

PARTNERSHIP R&D PROGRAMS

Implement regulations under the Stevenson-Wydler Act45 (consistent with the Bayh-Dole 

regulatory change) to (i) update the definition of government use license and its use directly by 

the government for government purpose only and not for use by a third party, and (ii) clarify the 

appropriate processes and use of the government use right based on a consistent interpretation 

of the definition restricting its scope of use.

C. MARCH-IN RIGHTS

1. BACKGROUND

The Bayh-Dole Act is based on the idea that inventions resulting from federally funded

research should benefit the American people through the practical application of products and 

services through commercialization, and that sufficient protections are available to achieve this 

result. The Federal Government reserves the right to ensure that a contractor, an assignee, or 

exclusive licensee of intellectual property developed with Federal funding is taking effective steps 

43 Two regulatory changes suggested: 

• Insert new definition in 37 CFR 401.2: “The term government use is defined as use directly by

the government for a government purpose and the direct benefit of an agency, not to the benefit

of a third party even if related to the government mission. Continued use in research and

development by the government is included.”

• Insert new language into existing standard patent rights clause in 37 CFR 401.14(b) “Allocation of

Principal Rights” clause: “The government use license is restricted by the following conditions:

(A) for use directly by the government or on behalf of the government for its own consumption or

practice for its own direct benefit. (B) to continue to perform research. (C) This right does not

extend authority to third parties to make, sell, or otherwise distribute goods and services as a

commercial product where the government is not procuring the goods or services for its own

direct use or consumption through a contract.”

44 37 CFR 401.14

45 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

planned action is discussed under Strategy 1, Section G.
30

to further develop the invention for the benefit of the public. In limited circumstances the 

government may compel action, or march in, to, “require the contractor, an assignee or exclusive 

licensee of a subject invention to grant a nonexclusive, partially exclusive, or exclusive license in 

any field of use to a responsible applicant or applicants,” and, if the contractor, assignee, or 

exclusive licensee refuses, then the Federal Government can grant such a license itself.

46

Congress specified the conditions that must be met in order for the Federal Government to 

exercise its march-in rights: (1) effective steps have not occurred, or are not expected to occur, 

within a reasonable time to achieve “practical application” of the subject invention; (2) health and 

safety needs are not being reasonably satisfied; (3) public use requirements specified by Federal 

regulations must be met; and (4) agreements for U.S. manufacturing have not been met or have 

been breached.47 Implementing regulations established rigorous administrative processes for 

agencies to initiate and exercise march-in rights.48 The Government Accountability Office (GAO) 

noted that this process is detailed, time-consuming, and complex, making it difficult for agencies 

to initiate and exercise the march-in right.49 The use of march-in is typically regarded as a last 

resort, and has never been exercised since the passage of the Bayh-Dole Act in 1980. 

Although the march-in right has not been used, the National Institutes of Health (NIH) has 

received six formal petitions to initiate march-in proceedings.50 In each case, NIH determined the 

criteria to exercise march-in rights were not met. Petitioners argued that march-in rights should 

be used to curtail high drug prices and ensure U.S. citizens receive public health benefits from 

accessible and affordable drugs. Ultimately, for each petition, NIH determined that the use of 

march-in to control drug prices was not within the scope and intent of the authority.51 While there 

is no government-wide repository of information related to march-in petitions and 

determinations, NIH published several of its march-in petitions online to demonstrate 

 

46 35 U.S.C. § 203 – March-in rights; 35 U.S. Code § 209 - Licensing federally owned inventions

47 35 U.S.C. § 203 – March-in rights

48 37 CFR 401.6 – Exercise of march-in rights

49 U.S. Government Accountability Office (GAO). 2009. Federal Research: Information on the 

Government’s Right to Assert Ownership Control over Federally Funded Inventions. Washington, 

D.C.: GAO.

50 Thomas, John. 2016. March-In Rights under the Bayh-Dole Act. Washington, D.C. CRS.

51 For summaries of NIH petitions and determinations, see Ibid.
31

transparency in their process, and other relevant petition materials were made available via the 

NIH Freedom of Information Act Office.52

As seen in the petitions to NIH, much of the discussion of march-in rights focuses on the 

definition in the statute for “practical application,” which includes the idea of “reasonable terms.” 

The meaning of “reasonable terms” has proven to be ambiguous. In requests for the government 

to exercise the march-in right, “reasonable terms” has been interpreted as a reasonable price to 

the consumer or use to control price.

53 To date, the government has not taken march-in action 

deferring to a different interpretation based on reasonable licensing terms. The original sponsors 

of the Bayh-Dole Act have noted that their intent was to ensure that products were licensed for 

reasonable terms rather than being used as a price control. (Refer to “Statements by Senators 

Bayh and Dole on March-In.”) 

Statements by Senators Bayh and Dole on March-In

The “Bayh-Dole [Act] did not intend that government set prices on resulting products. The law 

makes no reference to a reasonable price that should be dictated by the government...The ability 

of the government to revoke a license granted under the [Act] is not contingent on the pricing of 

the resulting product or tied to the profitability of a company that has commercialized a product 

that results in part from [federally] funded research. The law instructs the government to revoke 

such licenses only when the private industry collaborator has not successfully commercialized 

the invention as a product,” among other circumstances.

Source: Birch Bayh and Robert Dole, “Our Law Helps Patients Get New Drugs Sooner,” Washington 

Post, April 11, 2002.

RFI respondents pointed to potential consequences from using march-in rights as a price 

control. These reasons include impeding the creation of new drugs and discouraging university 

and medical school licensees from making the substantial additional investments necessary to 

develop and commercialize new drug discoveries. The RFI respondents had generally positive 

views of the NIH’s march-in determinations and thought NIH’s approach appropriate. Overall, 

respondents agreed that the march-in authority should not be broadened, and that doing so would 

52 For example, see the NIH FOIA Office’s documentation on the CellPro petition at NIH, “First-Party 

Correspondence Documents,” https://www.nih.gov/institutes-nih/nih-office-director/officecommunications-public-liaison/freedom-information-act-office/cellpro-march-petition-documents. 

53 Peter S. Arno and Michael H. Davis. 2001. “Why Don’t We Enforce Existing Drug Price Controls? The 

Unrecognized and Unenforced Reasonable Pricing Requirements Imposed upon Patents Deriving in 

Whole or in Part from Federally Funded Research,” Tulane Law Review, vol. 1, pgs. 631-692, 

http://www.cptech.org/ip/health/bd/arnodavis012001.pdf. 
32

create uncertainties in the U.S. innovation system. Some respondents called for the elimination 

of the march-in provision, citing the track record on its lack of use as a proxy for ineffectiveness. 

However, according to GAO, multiple agencies support the existence of march-in rights because 

it acts as leverage to promote commercialization of federally funded inventions.54

2. CHALLENGES

RFI respondents stated that prospective licensees are often not satisfied with obtaining

anything less than exclusive licensing rights to federally sponsored inventions. Industry 

stakeholders have noted their concern that the Federal Government’s march-in right is a risk to 

consider in making the business decision to take a license for a federally funded technology. RFI 

respondents elaborated that despite the fact that march-in rights have never been exercised by 

the government under the Bayh-Dole Act, there continues to be a general misunderstanding from 

prospective licensees that march-in rights take ownership rights away from inventors and 

licensees.55 The existence of march-in might lead to a lack of confidence that patents will be 

enforceable in fair court proceedings or the U.S. Patent and Trademark Office’s Patent Trial and 

Appeal Board. RFI respondents report that the threat of march-in has prevented licensing deals 

that would have otherwise occurred, leading to technologies languishing in contravention to the 

law’s stated purpose.

The National Academies recommended that agencies review their actions with respect to 

“Determinations of Exceptional Circumstances, government use rights, and exercise of march-in 

rights.”56 RFI respondents argued that proper and consistent determination and application of 

march-in rights across Federal agencies is critical for a clear, predictable, and reliable technology 

transfer system. Specifically, they referenced language in the march-in statute under the 

definition of “practical application” including “reasonable terms” and whether that applies to 

creating government price controls, particularly for pharmaceuticals. Pricing is covered by other 

statutes, e.g., Drug Price Competition and Patent Term Restoration Act (P.L. 98-417), which 

encourages the development of generic drugs by the pharmaceutical industry. Prescription drug 

54 U.S. Government Accountability Office (GAO). “Information on the Government's Right to Assert 

Ownership Control over Federally Funded Inventions.” https://www.gao.gov/assets/300/293020.pdf

55 NIST public meeting at Chicago, IL on May 31, 2018

56 National Research Council. 2011. Managing University Intellectual Property in the Public Interest. 

Washington, DC: The National Academies Press. 82.
33

pricing is also covered in a recent policy blueprint.

57 In addition, there is a general need to identify 

and further define the exceptional circumstances that must be met to appropriately exercise 

march-in rights.58

RFI respondents mentioned further ideas including explicit criteria for the technologies that 

are and are not subject to march-in, such as export-controlled items; stipulation of a time limit

for the Federal Government to exercise march-in rights; or defining investment limits in which 

significant resources have been spent on technology after transfer.

3. INTENDED ACTION

Intended Action 2. Define the circumstances under which the government 

may exercise march-in rights consistent with the uses of march-in specified in 

statute and not as a regulatory mechanism for the Federal Government to control 

the market price of goods and services. 

A. DEFINE CIRCUMSTANCES UNDER WHICH MARCH-IN RIGHTS MAY BE 

EXERCISED

Implement regulatory change under the Bayh-Dole Act to make explicit that the use of 

march-in rights specified in statute is reserved for a compelling national issue or declared 

national emergency when other remedies have failed. When a Federal agency receives 

information that it believes might warrant march-in, regulation will require that the agency first 

conduct an informal consultation with the contractor, grantee, or licensee to understand the 

nature of the issue and consider other potential alternatives to remedy the concern. The agency 

will summarize the efforts made to correct the non-compliance when notifying the contractor 

or licensee if it intends to proceed with a potential march-in action. 

B. CLARIFY AMBIGUITIES IN MARCH-IN RIGHTS PROCESSES AND TERMINOLOGY

Implement regulatory change under the Bayh-Dole Act by specifying that march-in rights 

should not be used as a mechanism to control or regulate the market price of goods and services. 

Provide a clear and consistent definition for “reasonable terms” contained within the existing 

statutory definition of “practical application.” Clarify the intent of reasonable licensing terms to 

 

57 Department of Health and Human Services. 2018. “American Patients First: The Trump 

Administration Blueprint to Lower Drug Prices and Reduce Out-of-Pocket Costs.”

58 NIST public meeting at Gaithersburg, MD on June 14, 2018
34

allow a product or service to reach the marketplace but not as terms (i.e., price control 

mechanism) for consumer use.

59 , 60 Clarifications for “reasonable terms” and “practical 

application” should allow flexibility in crafting commercial or other terms in license agreements 

to achieve effective technology transfer. 

D. PREFERENCE FOR U.S. MANUFACTURING

1. BACKGROUND

Under Bayh-Dole, any recipient of an exclusive license to a federally funded invention must

agree to manufacture it substantially in the United States in order to use or sell it domestically.61

The intent of the provision is “to promote the commercialization and public availability of 

inventions made in the United States by United States industry and labor.”62 According to the 

Manufacturing USA 2017 Annual Report, the manufacturing sector makes up 8.5 percent of U.S 

59 37 CFR 401.14(j) details the march-in rights in standard Bayh-Dole Act patent rights. The four 

enumerated circumstances that the government would elect to assert march-in rights are: 1) contractor 

has not taken or is not expected to take effective steps to achieve practical application of the subject 

invention, 2) there is a health or safety need which is not reasonably satisfied by contractor or its 

licensees, 3) there is a public use requirement specified by Federal regulations that are not reasonably 

satisfied by contractor or its licensee, and 4) march-in is necessary because of preference of U.S. 

manufacturing has not been met, a waiver was not granted or obtained, or licensee is in breach of such 

agreement. Suggested changes to the enumerated circumstances may include language that makes 

clear that march-in will not be used for anti-competitive reasons such as price control. 

37 CFR 401.6 details the procedures that govern the exercise of march-in rights. Language may be 

added to this section to provide procedural guidance regarding march-in right proceedings, factfinding, and determination.

60 37 CFR 401.2 is the definitions section for Bayh-Dole Act rights regulation. The current definition of 

practical application, per 401.2(e), is “The term practical application means to manufacture in the 

case of a composition of product, to practice in the case of a process or method, or to operate in the 

case of a machine or system; and, in each case, under such conditions as to establish that the invention 

is being used and that its benefits are, to the extent permitted by law or government regulations, 

available to the public on reasonable terms.” The bolded text has been used to support the use of 

march-in rights as a price control mechanisms as reasonable terms has been interpreted to mean “low 

price.” 

61 35 U.S.C. § 204 – Preference for United States industry. U.S. Manufacturing Preference also applies to 

inventions produced under CRADAs, but it is a recommendation rather than a requirement. See 15 

U.S.C. § 3710a(c)(4)(A).

62 35 U.S.C. § 200 - Policy and objective
35

employment, 11.7 percent of the Nation’s GDP, 35 percent of productivity growth, 60 percent of 

exports, and 70 percent of private-sector R&D.63 

The September 2018 Department of Defense report to the President “Assessing and 

Strengthening the Manufacturing and Defense Industrial Base and Supply Chain Resiliency of the 

United States”64 in response to Executive Order 1380665 makes the case for protecting American 

manufacturing. This report notes that it is imperative to maintain domestic manufacturing 

capability to meet more than current production needs with the conclusion that: “Above all, 

America’s manufacturing and defense industrial base must support economic prosperity, be 

globally competitive, and have the capabilities and capacity to rapidly innovate and arm our 

military with the lethality and dominance necessary to prevail in any conflict.”

In certain cases, institutions can request a waiver66 to the U.S. manufacturing requirement 

from the Federal agency that sponsored the research. Federal agencies can issue waivers in 

instances where “upon a showing by the small business firm, nonprofit organization, or assignee 

that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to 

potential licensees that would be likely to manufacture substantially in the United States or that 

under the circumstances domestic manufacture is not commercially feasible.”67 For example, if 

manufacturing in the U.S. would cause a significant delay or is prohibitively expensive for a 

primarily overseas market, then the requirement could potentially be waived. Other technologyspecific factors are also considered when agencies issue waivers, such as whether the technology

 

63 Manufacturing USA 2017 Annual Report. https://nvlpubs.nist.gov/nistpubs/ams/NIST.AMS.600-

3.pdf

64 https://media.defense.gov/2018/Oct/05/2002048904/-1/-1/1/assessing-and-strengthening-themanufacturing-and%20defense-industrial-base-and-supply-chain-resiliency.pdf

65 https://www.whitehouse.gov/presidential-actions/presidential-executive-order-assessingstrengthening-manufacturing-defense-industrial-base-supply-chain-resiliency-united-states/

66 In the majority of cases, the U.S. manufacturing requirement will not be waived completely. Rather, 

the requirement will be modified to include specific, enforceable commitments that will provide a net 

benefit to the U.S. economy.

67 35 U.S.C. § 204 – Preference for United States industry; see also 37 C.F.R. § 401.14(i) – Preference for 

United States industry
36

will create new U.S.-based jobs that have a positive impact on the U.S. trade balance, even if it is 

manufactured overseas.

68

In addition to requirements in licensing, agencies are also directed to “give preference to 

business units located in the United States which agree that products embodying inventions made 

under the cooperative research and development agreement or produced through the use of such 

inventions will be manufactured substantially in the United States.”69 Although this requirement 

does not have the potential to trigger march-in as under the Bayh-Dole requirement, it is still built 

into the terms of the resulting CRADA licensing agreement and may result in termination of the 

license. 

2. CHALLENGES

RFI respondents who have attempted to comply with the requirement have been confused

by the meaning of the phrase “manufactured substantially in the United States.” Specifically, 

respondents did not understand the term “substantially.” This ambiguity may not allow 

businesses to properly assess whether they should apply for a waiver or continue with the risk of 

developing a new technology. The lack of clarity can lead companies not to license technologies, 

which ultimately prevents new inventions and discoveries from reaching the public. 

While the phrase "manufactured substantially in the United States" may be seen as 

ambiguous, the term is intentionally flexible. 70 The intent is to strike a balance between 

encouraging other countries to open their markets for American businesses and protecting 

American taxpayers' interests in United States Government-funded technologies. Furthermore, 

satisfying "substantial manufacture" will vary, depending on factors such as the developmental 

state of the technology and domestic supply chain.

Institutions that decide to apply for a waiver can experience a long and opaque process

within each agency. Some institutions that have requested waivers have found that the responses 

are slow to come if they ever come at all. Further, there are agency-to-agency differences in 

preference for U.S. industry manufacturing waiver process due to differences in the missions and 

technology focus areas of the different agencies.

3. INTENDED ACTION

68 U.S. National Institutes of Health. “NIH Procedures for Request for Waivers of the U.S. Manufacturing 

Requirement in Licenses to Extramural Inventions.” 

https://public.era.nih.gov/iedison/public/utilization/ManufacturingWaiver.jsp

69 15 U.S.C. § 3710a(c)(4)(B)

70 See https://www.wto.org/english/docs_e/legal_e/22-roo_e.htm
37

Intended Action 3. Protect and strengthen the statutory requirement that 

products embodying or using federally funded inventions be manufactured 

substantially in the United States. Streamline and implement a uniform waiver 

process government-wide in accordance with statutory requirements.

A. STREAMLINE THE WAIVER PROCESS FOR EXTRAMURAL R&D PROGRAMS

Implement regulatory change under Bayh-Dole Act to support the preference for U.S. 

manufacturing by implementing a more transparent, government-wide, uniform, streamlined 

waiver process. These revisions could include identifying common requirements for granting 

waivers across government agencies71 and a government-wide point of application for requesting 

waivers. Although each agency would still have responsibility for reviewing the requests and 

issuing waivers, as appropriate, this action will strengthen public access to the waiver process and 

the ability to obtain a more consistent, timely decision. 

B. STREAMLINE THE WAIVER PROCESS FOR INTRAMURAL R&D PROGRAMS

Implement regulations under the Stevenson-Wydler Act72 (consistent with the Bayh-Dole 

regulatory change) to support the preference for U.S. manufacturing by implementing a more 

transparent, government-wide, uniform process for implementing the U.S. manufacturing 

preference for CRADAs. This may include only extending rights and protections to domestic 

CRADA partners.

C. IDENTIFY THE PATHWAY TO EXTEND PREFERENCE FOR U.S.

MANUFACTURING TO NON-EXCLUSIVE LICENSES

Identify the pathway for expanding the preference for U.S. manufacturing to all licenses 

rather than limiting this preference to exclusive licenses as it is in current statute. While the 

majority of RFI commenters indicated that eliminating rather than expanding the manufacturing 

requirement would accelerate transfer, the need to support and expand the U.S. domestic 

manufacturing base cannot be ignored so that the American people benefit fully from the R&D 

71 35 U.S.C. § 209(b) contains language on preference of the government for licensees of federally owned 

inventions to manufacture in US. 

37 CFR § 401.14(i) details the preference for U.S. industry. The waiver language is as follows: 

“However, in individual cases, the requirement for such an agreement may be waived by the Federal 

agency upon a showing by the contractor or its assignee that reasonable but unsuccessful efforts have 

been made to grant licenses on similar terms to potential licensees that would be likely to manufacture 

substantially in the United States or that under the circumstances domestic manufacture is not 

commercially feasible.”

72 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

intended action is discussed under Strategy 1, Section G.
38

they support. The expansion of the need for a waiver to all licenses must be coupled to a more 

reliable and speedy mechanism to request and obtain appropriate waivers. 

D. IDENTIFY THE PATHWAY TO EXPAND PREFERENCE FOR U.S. 

MANUFACTURING TO ALL CONTRACTORS

Identify the pathway for expanding the preference for U.S. manufacturing to contractors, in 

addition to all licensees. This will ensure that the preference for U.S. manufacturing extends to (i) 

all products embodying or using federally funded inventions, and (ii) contractors at any tier, and 

all sales, regardless of geographic location. 

E. SOFTWARE COPYRIGHT

1. BACKGROUND

Since the passage of the foundational technology transfer statutes in the 1980s, the digital 

age has resulted in major changes in many of the products and services that result from R&D and 

the way in which they are used by the public. The ubiquitous use of computers and personal digital 

devices has revolutionized major parts of our daily lives. The reliance on embedded computing 

capability is also found within ordinary products.73 Technology transfer law and policy does not 

adequately address technological development in the 21st Century; the technology landscape and 

marketplace has been dramatically reconfigured since the foundational laws were enacted in the 

1980s. This is particularly true for software, which has changed fundamentally in the ensuing 40 

years. Software is commonly defined as a set of computer readable language that serve as 

directions, procedures, rules, and associated documentation for the operation of a computer 

system. Intellectual property protection for digital goods and services is critical for competing in 

the global high-tech marketplace. 

U.S. copyright law protects “original works of authorship” fixed in a tangible medium of 

expression by granting to authors certain exclusive rights74 subject to a number of exceptions and 

limitations.75 Computer programs, video games, photographs, films, journal publications, and 

 

73 United States Copyright Office, “Software-Enabled Consumer Products.” December 2016. 

https://www.copyright.gov/policy/software/software-full-report.pdf

74 17 U.S.C. §106.

75 See, e.g. 17 U.S.C. §§107-122. https://www.copyright.gov/title17/
39

databases are examples of works eligible for copyright protection. Copyright protects not only 

software source code, but also protects software structure, sequence, and organization. 76

Copyright protection automatically attaches upon fixation of the work in a tangible medium of 

expression, and extends from at least 70 years to approximately 120 years from creation.77

Copyright registration confers some additional benefits to copyright protection and 

establishes a public claim with the United States Copyright Office.78 Copyright registration is 

required to file a lawsuit in the United States for U.S. works, and registration confers on copyright 

holders the opportunity to obtain remedies for infringement of proprietary software. Companies 

are likely to invest in taking computer software to the marketplace when it is registered with the 

Copyright Office because of the damages that can be obtained in the case of copyright 

infringement. The lack of certainty surrounding the rights has contributed to the lack of lab-tomarket commercialization activity of non-copyrighted or unregistered software. 

Although copyright protects computer software, there is an exception that provides that a 

works falling into the statutory definition of “Government Works,” are not subject to copyright 

protection in the United States. Under 17 U.S.C. § 105, works created by government employees 

are not eligible for copyright protection.79 The effect of section 105 is that all government works, 

including software developed by Federal employees, enter the public domain without commercial 

consideration whether published or unpublished. 

Some software produced by government researchers is patented, but this is a relatively 

lengthy process that is not ideally suited to the fast-paced software industry. In addition, a recent 

Supreme Court case, Alice v. CLS Bank International, threw into question the validity of hundreds 

of thousands of patents for computer-implemented inventions.

80 Agencies and Federal 

Laboratories have developed various work-arounds to deploy software for commercial use in the 

absence of a copyright or patent, such as invention licensing agreements or limited-purpose 

 

76 “Copyright Registration of Computer Programs.” Circular 61. 

https://www.copyright.gov/circs/circ61.pdf 

77 17 U.S.C. § 302 – Duration of copyright: Works created on or after January 1, 1978 and 17 U.S.C. §303 

– Duration of copyright: Works created but not published or copyrighted before January 1, 1978

78 https://www.copyright.gov/circs/circ01.pdf

79 17 U.S.C. § 105 – Subject matter of copyright: United States Government works

80 Alice v. CLS Bank International, 573 U.S. __, 134 S.Ct. 2347 (2014).
40

CRADAs, but these have limited utility.81 Certain exemptions have been carved out from the 

Government Works copyright exception; for example, NIST is permitted to secure copyright on 

Standard Reference Data under 15 U.S.C. § 290e,

82 and the U.S. Postal Service is permitted to 

secure copyright for its designs on postage stamps, stamped envelopes, souvenir cards, and other 

philatelic publications. 83 , 84 In addition, works that are produced or funded by the Federal 

Government may not fall under the strict limits of the statutory definition of “Government Works” 

and may be protected by copyright or other legal mechanisms.

85

2. CHALLENGES

Government researchers have reported that the exception for copyrighting government

works that are software has led to a lack of control over potentially sensitive code; the diminished 

commercial potential for partners seeking to further develop government work due to its lack of 

exclusivity; third parties asserting copyright in some cases, thus requiring the government to pay 

81 Hughes, Mary E., Susannah V. Howieson, Gina Walejko, Nayanee Gupta, Seth Jonas et al. 2011. 

Technology Transfer and Commercialization Landscape of Federal Laboratories, Washington, DC: 

IDA Science and Technology Policy Institute; Howieson, Susannah V., Stephanie S. Shipp, Gina K. 

Walejko, Pamela B. Rambow, Vanessa Peña, et al. 2013. Exemplar Practices for Department of 

Defense Technology Transfer. Washington, DC: Science and Technology Policy Institute.

82 15 U.S. Code § 290e – United States copyright and renewal rights

(a) Notwithstanding the limitations under section 105 of title 17, the Secretary may secure copyright and

renewal thereof on behalf of the United States as author or proprietor in all or any part of any standard

reference data which he prepares or makes available under this chapter and may authorize the

reproduction and publication thereof by others.

(b) The publication or republication by the Government under this chapter, either separately or in a

public document, of any material in which copyright is subsisting shall not be taken to cause any

abridgment or annulment of the copyright or to authorize any use or appropriation of such material

without the consent of the copyright proprietor.

83 Postal Reorganization Act of 1970, Public Law 91-375, enacted in Title 39 of the U.S. Code. 

https://www.law.cornell.edu/uscode/text/39

84 U.S. Postal Service G013 Trademarks and Copyrights. 

https://pe.usps.com/archive/html/dmmarchive20030810/G013.htm

85 For example, there are criminal statutes against the reproduction of U.S. currency in 18 U.S.C. Chapter 

25 – Counterfeiting and Forgery. 18 U.S.C. § 501(1) permits color illustrations of U.S. currency under 

specific conditions, and 18 U.S.C. § 504 permits black and white reproductions of currency. 
41

to use its own inventions;86 and difficulty applying the standard terms of free use licenses for

software that is freely disseminated or open source software.

87

Federally funded R&D that are not “Government Works,” including research performed at 

universities and other organizations are eligible for copyright protection. However, embedded 

portions of code written by Federal employees working with these organizations must be 

excluded, creating an overly complicated framework. Software that have commercial value do not 

have the protections needed to provide a license that can maintain quality, such as ensuring 

software code integrity and version control, and can lead to further private investment and 

development to result in commercial products. RFI respondents indicated that this lack of the 

ability to protect research innovations through copyright led to lost opportunities to transfer 

software developed by Federal researchers and created a disincentive for them to envision and 

develop software with potential for commercial use.

88 The ability to identify and transfer software 

is generally more limited, unlike the system that is in place for patented inventions resulting from 

the lack of copyright protection for federally developed software. 

The ineligibility of the government to copyright software has frustrated endeavors to release 

and participate in open source development. Open source software is a type of computer software 

where the software code is released under a copyright license where the copyright holder grants 

to users the rights to modify and share to promote public accessibility. There is a need for the legal 

right for government software works to be protected by copyright in order to grant public users 

an open source license that helps define the terms of use. 

The marketplace, however, is increasingly digital. The Bureau of Economic Analysis (BEA) 

noted in 2016 that 6.5 percent of the U.S. Gross Domestic Product is digital amounting to over 

$1.2 trillion of trade.

89 The rate of growth for this sector of the economy likewise showed a 5.6

percent growth compared to the overall growth of 1.3 percent. The respondents to the RFI 

supported enabling Federal entities to secure software ownership rights. (Refer to “RFI Response 

on Protection Limitations for Software.”)

86 Hughes, Mary E., Susannah V. Howieson, Gina Walejko, Nayanee Gupta, Seth Jonas et al. 2011. 

Technology Transfer and Commercialization Landscape of Federal Laboratories, Washington, DC: 

IDA Science and Technology Policy Institute; Howieson, Susannah V., Stephanie S. Shipp, Gina K. 

Walejko, Pamela B. Rambow, Vanessa Peña, et al. 2013. Exemplar Practices for Department of 

Defense Technology Transfer. Washington, DC: Science and Technology Policy Institute.

87 An example of an open content license for copyright is Creative Commons license, see 

https://creativecommons.org/licenses/.

88 GAO Report “Copyright Law Constrains Commercialization of Some Federal Software.” 

https://www.gao.gov/assets/150/149097.pdf

89 See https://www2.ntia.doc.gov/node/1090
42

RFI respondents also stressed that there is a great deal of confusion about software rights in 

Government Works and argued for establishing uniform policy and procedures to enable transfer 

and licensing of federally developed software. The inconsistency in agency approaches to software 

rights,90 among other issues, can hinder the development of federally sponsored technology. For 

example, agencies use other technology transfer mechanisms to approximate copyright 

protection, but not all agencies use the same mechanisms and not all government attorneys agree 

on the validity of such mechanisms. This has created confusion in the private sector and served 

as an obstacle to commercialization.

3. INTENDED ACTION

Intended Action 4. Establish copyright for software products of Federal

Government R&D.

A. PROTECT SOFTWARE PRODUCTS OF FEDERAL R&D

Legislative change is required to allow agencies to register a copyright to establish protection 

for the commercialization of “software” that are products of R&D for which the Federal 

Government owns a right, title, or interest.

91 This narrowly tailored change will maintain the

90 See, e.g. Pamela B. Rambow, Vanessa Peña, et al. 2013. Exemplar Practices for Department of 

Defense Technology Transfer. Washington, DC: Institute for Defense Analysis (IDA) (noting that the 

Department of Commerce interprets the Stevenson-Wydler Act to permit licensing of copyright, but 

that Department of Defense attorneys disagree with this approach).

91

 Changes could be made to:

RFI Response on Protection Limitations for Software 

“The inability for works created by Federal employees to be protected under copyright has acted as a 

significant deterrent in the field of software innovation. Due to the short duration of software product 

lifecycles, the speed of software development, and limitations around patenting software, it is often 

copyright that provides the primary intellectual property protection for software. Without copyright, 

Federal Laboratories have no asset to license, and technology transfer may be blocked. Further, if 

software is co-developed between a Federal Laboratory and a university, the university may license its 

copyright, but the Federal Laboratory will be unable to participate in the license agreement. 

Implications include lost opportunities to transfer software developed in Federal laboratories, lost 

licensing revenue, and a lack of incentive for Federal employees to develop commercially-relevant 

software.”

Source: RFI response, University of Colorado Boulder
43

original intent of the Bayh-Dole Act to use IP to create a means to transfer results to the private 

sector to develop marketable goods and services. The change will not affect most Government 

Works since they are usually not software and are not R&D inventions under the meaning of the 

Bayh-Dole Act.

92 

F. TRADE SECRETS

1. BACKGROUND

Trade secrets represent a type of intellectual property which “consist of information and can 

include a formula, pattern, compilation, program, device, method, technique, or process”

93 that

provides an economic advantage over competitors or consumers, is generally not known, and is 

subject to efforts reasonable under the circumstances to maintain its secrecy.94 Unlike patents 

and copyrights which are enforceable throughout the length of time of the issued protection, a 

trade secret is tenuous in that the protection is lost in the event that a trade secret holder fails to 

maintain secrecy or if the information is reverse engineered or independently developed by a 

competitor. Small businesses receive disproportionately greater benefits from trade secret 

protections than larger businesses as larger businesses can generally afford to maintain and 

enforce more costly patent and other intellectual property protections.95 However, trade secrets 

 

• 35 U.S.C. § 207 authorizes each federal agency to apply for, obtain, and maintain domestic and 

foreign protection of federally owned inventions. Software copyright may be accomplished with a 

revision to 35 U.S.C. § 207(a)(1).

• 15 U.S.C. § 3710c authorizes distribution of royalties received by Federal agencies. Software

copyright may be accomplished with a revision to 15 U.S.C. § 3710c(a)(1) to explicitly state that 

technology transfers outside of a traditional invention license are equally eligible for the collection 

and disbursement of royalties.

• 17 U.S.C. § 105 orders that copyright protection is not available for any work of the United States 

Government. Works by government scientists and engineers performing federal R&D can be 

exempted from this law through revision. 

92 35 U.S.C. § 201(d) definition of “invention.”

93 U.S. Patent and Trademark Office. 2018. “Trade Secret Policy.” Last modified July 11, 2018. 

https://www.uspto.gov/patents-getting-started/international-protection/trade-secret-policy

94 Ibid.

95 David S. Almeling. 2009. “Four Reasons to Enact a Federal Trade Secrets Act, 19.” Fordham Intell. 

Prop. Media & Ent. L. J. 769, 786-87.
44

have some benefits over patents in that trade secrets have a potentially unlimited duration, no 

territorial limits, and no applications to file or fees to pay.96 While trade secrets are often used by 

businesses, working with a Federal Laboratory creates barriers to maintaining trade secrets for 

the resulting products, as government functions are generally geared toward publication to 

disseminate research results and, when applicable, patenting as the means of protecting research 

results without unduly restricting publication. Additionally, government practice includes 

Freedom of Information Act (FOIA) requirements,97 which makes keeping trade secrets difficult 

for Federal Laboratories. Patents by their conception in the U.S. Constitution are a means of 

disclosing information in exchange for a limited period of protection. 

Federal Laboratories, which do not have the authority to create and protect their own trade 

secrets, already have requirements to protect incoming trade secrets. Beginning in 1948 with the 

Federal Trade Secrets Act, there has been federal protection against the disclosure of proprietary 

information provided to the government.98 There are now both civil and criminal remedies for 

misappropriation of trade secrets under Federal law,99 and the U.S. is obligated to provide trade 

secret protection under the Agreement on Trade-Related Aspects of Intellectual Property Rights 

(TRIPS).100 Trade secrets and commercial and financial information are also exempted from 

mandatory disclosure under FOIA. Federal trade secret protections decrease the likelihood that 

the government will disclose proprietary information when entering into R&D collaborations with 

the private sector. In addition, these protections provide a signal to the private sector that they 

can rely on robust legal enforcement for violations disclosing their intellectual property and, in 

 

96 U.S. Patent and Trademark Office. “Trade Secrets Protection in the U.S.” 

https://www.nist.gov/sites/default/files/documents/mep/marinaslides.pdf

97 5 U.S.C. §552(b)(4)– Public Information; Agency Rules, Opinions, Orders, Records, Land Proceedings, 

amended by OPEN Government Act of 2007, Pub. L. No. 110 175, 121 Stat. 2524; Executive Order 

12600 – Pre-disclosure Notification Procedures for Confidential Commercial Information; Presidential 

Memorandum on Administration of Freedom of Information Act, Oct. 4, 1993; Attorney General 

memorandum for heads of Department and Agencies, Freedom of Information Act, Oct 4, 1993.

98 18 U.S.C. §1905 – Disclosure of confidential information generally

99 Procurement-related laws (1994)—provide both civil and criminal penalties for the Federal 

Government disclosure of non-government information gained through procurement (41 U.S.C. §

423); The Economic Espionage Act (1996)—regulates the theft or misappropriation of trade secrets for 

the benefit of any foreign government (18 U.S.C. §§ 1831-1839); The Defend Trade Secrets Act (2016)—

creates Federal civil cause of action for the disclosure of trade secrets (P.L. 114–153).

100 The TRIPS Agreement binds all members of the World Trade Organization, see World Intellectual 

Property Organization, http://www.wipo.int/wipolex/en/other_treaties/details.jsp?treaty_id=231
45

turn, spur R&D investments and collaborations that would otherwise have been viewed by 

industry collaborators as too risky to pursue.101

The rapidly changing landscape of information and communication technologies and the 

growing availability of information in the digital public domain are challenges to maintaining 

secrecy and protection of trade secrets. Since it is easier to store, access, and disseminate trade 

secrets in the digital environment, there is an increased risk of disclosure or misappropriation.102

2. CHALLENGES

RFI respondents commented on industry stakeholders’ general perceptions that the Federal 

Government does not sufficiently protect and enforce trade secrets, and that this situation is one 

of the major obstacles to private sector engagement and establishing public-private R&D 

collaborations. There is a perceived lack of transparency and consistency in the Federal 

Government’s protection and enforcement of trade secrets. For instance, Federal employees may 

inadvertently disclose information, e.g., through FOIA requests. The processes to notify R&D 

collaborators when relevant information is requested via a FOIA request differs across agencies 

and Federal Laboratories. It was noted that government may lack access to new cybersecurity 

technology and applications that could provide proof of information ownership and ensure that 

information exchanged through R&D collaborations is secure.

Authorities under CRADAs provide protection of information “obtained in the conduct of 

research or as a result of activities” and provides a 5-year time limit for that protection.103 (For 

more information on CRADAs see Strategy 2 Section C). However, the 5-year limit is likely 

inadequate when dealing with technologies that take a long time to reach maturity. For example, 

technology development occurs in the nuclear sector over decades, and collaborators and industry 

may find the 5-year limit insufficient to meet their needs to bring a developed product to market. 

There are serious liabilities and consequences for mishandling trade secrets and related

proprietary information that may discourage agencies from accepting the risk associated with 

trade secret protection. Some agencies, such as the Department of Energy (DOE), have issued 

 

101 Png, Ivan P. L. 2012. “Law and Innovation: Evidence from State Trade Secrets Laws” June 15, 2012, 

http://dx.doi.org/10.2139/ssrn.1755284

102 U.S. Patent and Trademark Office. “Trade Secrets Protection in the U.S.” 

https://www.nist.gov/sites/default/files/documents/mep/marinaslides.pdf

103 15 U.S.C. § 3710a(c)(7)(A) Cooperative research and development agreements contract considerations
46

standard procedures for the submission and protection of trade secrets and commercial or 

financial information that is privileged or confidential, where such information is submitted by 

applicants for DOE assistance including research partnerships.104 However, there is a lack of 

clear, Federal-wide guidance or regulation for accepting and managing this information for 

technology transfer activities.

3. INTENDED ACTION

Intended Action 5. Establish clear and consistent definition as well as 

authorities required to protect the trade secrets of companies involved in R&D 

collaborations with Federal Laboratories.

A. CLARIFY THE DEFINITION OF TRADE SECRET

Implement regulations under the Stevenson-Wydler Act 105 to establish a clear and 

consistent definition of trade secret106 and the use of trade secrets in technology transfer.

B. EXTEND CRADA INFORMATION PROTECTION PERIOD

Legislative change is required to extend the potential CRADA information protection period 

to 10 years (from 5 years specified in current statute) in cases where there is a demonstrable need 

to protect the information for a business collaborator to achieve practical application of products 

that result from CRADA work.

 

104 Procedures for Submitting to the Department of Energy Trade Secrets and Commercial or Financial 

Information That Is Privileged or Confidential, 76 FR 26579 (2011).

105 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

planned action is discussed under Strategy 1, Section G.

106 See definition provided in the Defense Trade Secrets Act, codified at 18 U.S.C. §§ 1839(3)
47

G. STRENGTHEN TECHNOLOGY TRANSFER AT FEDERAL 

LABORATORIES

1. BACKGROUND

The Stevenson-Wydler Act of 1980, as amended, is the key foundational legislation that defines 

and delineates how the technology transfer function will be conducted by Federal Laboratories—

including GOGO and GOCO Laboratories. Among its key features, the Stevenson-Wydler Act:

• Establishes the technology transfer function and describes the role and responsibilities 

of technology transfer at all federal R&D agencies and laboratories,

107,108

• Authorizes a mechanism for public-private partnerships through Cooperative Research 

and Development Agreements,

109

• Provides for policies that describe distribution and use of royalties from Federal 

Laboratory inventions,

110

• Requires annual reporting on federal technology transfer,

111 and

• Creates the Federal Laboratory Consortium for Technology Transfer.

112

2. CHALLENGES

Unlike the Bayh-Dole Act, for which the Secretary of Commerce is given authority to develop 

implementing regulations, there are no companion regulations for technology transfer under the 

Stevenson-Wydler Act. The lack of regulation requires that clarifications for minor items must be 

enacted by the Congress rather than implemented through the promulgation of regulations. The 

 

107 15 U.S.C. § 3710 (b) Establishment of Research and Technology Applications Offices and (c) Functions

of Research and Technology Applications Offices

108 Federal Laboratories with 200 or more full-time equivalent scientific, engineering, and related 

technical positions are required to dedicate at least one full-time equivalent professional to staff an 

ORTA.

109 15 U.S.C. § 3710a 

110 15 U.S.C. § 3710c

111 15 U.S.C. § 3710(f) and (g) 

112 15 U.S.C. § 3710(e)
48

ability to further describe the meaning of the statute in a regulation would allow for greater 

consistency and a more flexible response to provide updated processes. 

The process and procedures related to granting this authority are well understood through

the regulations that implement licensing under the Bayh-Dole Act by the Secretary of Commerce. 

Although it is a clear objective of the Administration to reduce regulation and regulatory burden 

on businesses, regulation under this Act would be directed at streamlining government operations 

rather than increasing a reporting or compliance burden on citizens. The process of promulgating 

a regulation is also very collaborative across agencies and requires public input. The technology 

transfer offices across the Federal Laboratories have developed and maintained a strong network 

across the federal enterprise via both well-established interagency committees and working 

groups as well as other less formal mechanisms. These mechanisms work well in identifying and 

implementing best practices, however, policies do not have the ability to impact legal 

interpretations of the statute. 

Regulations are a primary vehicle used by the Federal Government to implement laws. 

Outdated, unnecessary, and burdensome regulations are market-dampening burdens that require 

streamlining. Updating regulations that ensure optimal performance by federal agencies can serve 

to address market failures, reduce entry barriers, encourage greater competition, and spur 

innovation. 

In 2007, the DOC delegated responsibility to NIST for implementing the Bayh-Dole 

regulations (37 C.F.R. §§ 401 and 37 CFR §§ 404). In 2018, NIST updated the regulations to 

synchronize the rules with changes in the America Invents Act, incorporate provisions from 

Executive Order 12591 that have been in effect since 1987, and address provisional patent 

applications and other related issues. The Stevenson-Wydler Act does not grant regulatory 

authority to any federal agency. This omission has contributed to a measure of uncertainty for the 

public due to the inconsistent interpretation of the law’s requirements by different federal 

agencies. 

Royalties collected by Federal agencies are disbursed in accordance with provisions in the 

Stevenson-Wydler Act that are codified in 15 U.S.C. § 3710c. The royalties are shared with all 

inventors of the licensed invention, with a maximum amount not to exceed $150,000 per year to 

any one person, unless the President approves a larger award. 113 The National Defense 

 

113 15 U.S.C. § 3710c(a)(3)
49

Authorization Act (Public Law 115-91) 114 authorized an increase for Department of Defense 

employees up to $500,000 per year subject to approval at the level of the Secretary, unless the 

employee leaves the laboratory, which reduces the amount back to the $150,000. Additionally, 

the statute related to royalties states that royalties shall be retained and disbursed to inventors 

for “inventions.” This has led to confusion and uncertainty among several agencies as to whether 

royalties can be collected and disbursed for transfers of technology that do not meet the definition 

of an “invention,” such as software and biological materials.

3. INTENDED ACTION

Intended Action 6. Implement consistent and streamlined policies and 

practices government-wide under the Stevenson-Wydler Act.

A. REGULATORY AUTHORITY FOR STEVENSON-WYDLER ACT

Legislative change is required to grant the DOC authority to implement regulations for the 

Stevenson-Wydler Act, confirming the mission requirement of contributing to U.S. innovation for 

all government entities engaged in research and development. This green paper identifies the 

need for consistent and streamlined regulations government-wide that will reduce the 

inconsistency and burden on the American people. Many of the areas of discussion of Bayh-Dole 

Act regulation for federal licensing that have been granted to the Secretary of Commerce have a 

companion component in partnership agreements under the Stevenson-Wydler Act. The 

government use license, preference for U.S. manufacturing, technology transfer agreements, and 

the ability to measure and report progress are all examples of areas that could be addressed in

regulation instead of requiring new legislation. Additional areas include consistent policies for 

appropriate use of international intellectual property protections, such as international patents,

in support of U.S. innovation, manufacturing, and export. 

B. CONSISTENCY IN ROYALTIES FROM LICENSED INTELLECTUAL PROPERTY

Legislative change is required to authorize royalty payments to federal employees for noninvention forms of licensed intellectual property and to extend to federal employees at all agencies 

 

114 In Public Law 115-91, Section 233, Congress approved a pilot program to improve incentives for 

technology transfer from DoD laboratories. In Section 233(b)(2)(A), inventor share of royalties is 

capped at $500,000 per year to any one person, unless a larger award is approved by the respective 

DoD branch Secretary. Section 233(b)(2)(B) caveats that an inventor leaving the laboratory shall be 

capped at $150,000 unless the head of the agency approves a larger award. It should be noted that the 

pilot program will terminate 5 years after the date of the enactment of the Act, per Section 233(e). 
50

the increase in royalty cap of up to $500,000 per year authorized in the FY 2018 National Defense 

Authorization Act (Public Law 115-91).

H. PRESUMPTION OF GOVERNMENT RIGHTS TO EMPLOYEE

INVENTIONS

1. BACKGROUND

Like many employers, the Federal Government does have a presumed assignment of

intellectual property rights for work related inventions. Executive Order 10096 signed January 

23, 1950 by President Harry Truman 115 includes provisions that “The Government shall obtain 

the entire right, title and interest in and to all inventions made by any Government employee (1) 

during working hours, or (2) with a contribution by the Government of facilities, equipment, 

materials, funds, or information, or of time or services of other Government employees on official 

duty, or (3) which bear a direct relation to or are made in consequence of the official duties of the 

inventor.” The provisions of this Executive Order are included in 37 C.F.R. 501 et seq. for the 

purposes of determining federal employee invention rights. 

In the Stanford v. Roche case,

116 the U.S. Supreme Court found that the Bayh-Dole Act states 

that a contractor may “elect to claim title,” and therefore the Act does not automatically vest title 

to the contractor. While this case applies to contractors, action was taken to amend the Bayh-Dole 

Act implementing regulations117 to require that a contractor acquire a present assignment of 

rights from the employee in order to ensure the government interest is protected. Although not 

directly tested by the court, this same consideration is needed to protect the government right to 

employee inventions under Executive Order 10096. The Executive Order does contain a provision 

that it is presumed that the Federal Government will retain the entire right, title, and interest to 

federal employee inventions: 

[I]t shall be presumed that an invention made by an employee who is employed or

assigned (i) to invent or improve or perfect any art, machine, manufacture, or composition 

of matter, (ii) to conduct or perform research, development work, or both, (iii) to supervise, 

direct, coordinate, or review Government financed or conducted research, development 

work, or both, or (iv) to act in a liaison capacity among governmental or nongovernmental 

115 https://www.archives.gov/federal-register/codification/executive-order/10096.html

116 (No. 09-1159 ) 583 F. 3d 832, https://www.law.cornell.edu/supct/html/09-1159.ZS.html

117 37 C.F.R. 401.14(f)(2), see https://www.federalregister.gov/documents/2018/04/13/2018-

07532/rights-to-federally-funded-inventions-and-licensing-of-government-owned-inventions
51

agencies or individuals engaged in such work, or made by an employee included within any 

other category of employees specified by regulations issued pursuant to section 4(b) hereof, 

falls within the provisions of paragraph (a), above, and it shall be presumed that any 

invention made by any other employee falls within the provisions of paragraph (b), above. 

Either presumption may be rebutted by the facts or circumstances attendant upon the 

conditions under which any particular invention is made and, notwithstanding the 

foregoing, shall not preclude a determination that the invention falls within the provisions 

of paragraph (d) next below.

In addition to the requirements in the Executive Order, Congress clarified in a policy 

statement that “Technology Transfer, consistent with mission responsibilities, is the 

responsibility of each laboratory science and engineering professional.”118 

2. CHALLENGES

The current practice described in the implementing regulations for employee inventions in 

37 C.F.R 501 requires an affirmative action to prove that the government right exists rather than 

following the presumption in Executive Order 10096. This requires an attorney to examine and 

make a finding as an administrative action, adding time and cost to each invention disclosure. 

This is a considerable amount of burden and expense considering that 4,830 inventions were 

reported in FY 2015.

119 Given the broad applicability of this presumption as stated by Congress in 

the statutory policy statement in the Steven-Wydler Act, the vast majority of inventions should be 

presumed to require assignment to the U.S. Government without further review. In cases where 

there is a question of rights, a rights determination could be performed by the agency and the 

current appeal rights retained. 

In addition to the administrative cost associated with inventions, the requirement of 

assignment still relies on an executive order and regulations, rather than a firm basis in statute. 

Although the Executive Order has been in place for nearly seven decades, there are still questions 

about ownership of rights from employees in certain professions and in cases where employees 

hold additional positions outside the Federal Government. While the test in the Executive Order 

has been useful, there have been claims that employees developed inventions related to 

government work while on a dual appointment or in another work arrangement. Since the 

Stanford v. Roche case has moved employers to obtain a present assignment of rights, the order 

of these claims is not established. 

 

118 15 U.S.C. 3710(a)(2)

119 NIST. 2018. “Federal Laboratory Technology Transfer Fiscal Year 2015.” 

https://www.nist.gov/sites/default/files/documents/2018/04/30/fy2015_fed_tt_report.pdf
52

3. INTENDED ACTION

Intended Action 7. Provide for a present assignment of invention rights by 

federal employees to the Federal Government and provide for streamlined rights 

determination processes for federal employee inventions. 

A. UPDATE REGULATIONS THAT APPLY TO RIGHTS IN INVENTIONS BY 

GOVERNMENT EMPLOYEES

Implement regulatory change under Executive Order 10096 for a present assignment of 

invention rights by federal employees to the Federal Government and provide for streamlined 

rights determination processes with a presumption of assignment of all rights title and interest in 

government-related inventions by federal employees. 

B. UPDATE LEGAL BASIS FOR INVENTION RIGHTS FOR GOVERNMENT 

EMPLOYEES

Legislative change is required to codify the federal employee’s requirement to report 

inventions and assign all right, title, and interest in work related inventions to the Federal 

Government. 
53

STRATEGY 2. INCREASE ENGAGEMENT WITH PRIVATE SECTOR 

TECHNOLOGY DEVELOPMENT EXPERTS AND INVESTORS

The second of five strategies of the L2M CAP Goal is focused on increasing engagement with 

private sector technology development experts and investors. The intended actions are designed 

to make it easier for the private sector to partner with Federal agencies and to attract private 

sector investment for translational R&D, technology maturation, and commercialization. This 

chapter discusses actions to streamline existing partnership mechanisms for technology transfer 

and to accelerate technology transfer through new/expanded partnership mechanisms. The

actions also help build and leverage innovation ecosystems that include incubators, accelerators, 

public-private co-location, personnel exchange, and university-based research parks.

A. INTRODUCTION

For the Nation to see significant return on its investment in R&D, the science and technology 

developments must be transferred to the private sector to enable practical application through 

further development and/or commercialization. There are critical components that enable this 

transfer to occur, including: (1) availability of effective legal mechanisms to actualize the 

partnership and transfer of potentially impactful innovation from the lab to the private sector; (2)

an ability to make connections between the federally funded R&D performer and private industry 

so that industry is aware of existing technologies, expertise, and capabilities; and (3) a sufficient 

level of technology readiness to be of interest to private industry. Informing the right private 

sector partner with such information increases the chance of impact in the American marketplace. 

A significant number of RFI responses addressed the importance of R&D tax credits to 

stimulate private investment. Changes to the tax code, however, might be difficult at this time 

since major tax legislation was enacted into law very recently.120 NIST will communicate these 

suggestions to appropriate policy making bodies for their consideration and action. (Refer to 

“What We Heard: Tax Incentives.”)

120 Public Law No: 115-97 (12/22/2017)
54

What We Heard: Tax Incentives

There were numerous suggestions and data presented regarding tax incentives. Below is a summary of 

what we heard from the RFI:

• Provide tax incentives to investors to encourage them to take more risk early on in a

technology project or tech startup.

• Remove restrictions placed on public-private use of tax-exempt bond financed facilities

through IRS Procedure 2007-047.

• Need for an improved R&D tax credit.

• Provide incentives for companies to partner with universities for R&D.

• Broaden basic research definition.

• Expand the corporate R&D tax credit.

B. STREAMLINE PARTNERSHIP MECHANISMS

1. BACKGROUND

Government-wide and agency-specific legislation provides a variety of legal mechanisms to

facilitate engagement with the private sector. These mechanisms can be grouped into the 

following categories:

• Intellectual property protection, such as patents and copyrights;

• Property transfers, such as material transfer agreements;

• Research partnership agreements, such as CRADAs;

• Resource use agreements, such as those for use of facilities;

• Educational agreements, such as training;

• Personnel exchange mechanisms, such as for guest researchers and fellows; and

• Agreements with intermediaries, such as partnership intermediary agreements.

The use of these mechanisms varies across agencies, reflecting the differences in agency missions 

as well as legislative authorities and practices across Federal Laboratories (Appendix 1). 

Standard and required terms for these agreements vary based on legislation, regulations, 

and other governing policies. For instance, comparing the main partnering agreements used by 

the DOE’s National Laboratories—Strategic Partnership Projects (SPPs), CRADAs, and 
55

Agreements for Commercializing Technology (ACT) 121 —demonstrates differing technology 

transfer mechanisms used to provide flexibility depending on the project, intellectual property 

ownership and indemnification concerns, among other contract terms (Appendix 2).

2. CHALLENGES

RFI respondents remarked that private companies and universities perceive collaboration

with Federal Laboratories to be difficult due to differing authorities, processes, and required 

terms across agencies. Agency terms vary regarding intellectual property rights, financial terms, 

and indemnification, among others. The lack of standardized technology transfer mechanisms 

can frustrate potential partners and have a negative impact on technology transfer. Additionally, 

the base templates for developing CRADAs differ significantly across agencies. This situation 

causes inefficiency and frustration for institutions that are attempting to partner with multiple 

agencies. Adding to the lack of uniformity, there is contradictory statutory language. For example, 

there is a discrepancy in statute on who can be a CRADA partner in the CRADA authority (e.g., 

CRADA partner can be one or more non-Federal parties) versus the CRADA definition (e.g., 

CRADA partner can be other Federal agencies in addition to non-Federal parties).

122

A 2018 GAO report similarly stated that, “some stakeholders had concerns about consistency 

in licensing practices both within the labs and across labs.”

123 GAO also reported that stakeholders

found the licensing process “lengthy and uniquely regulated, which can deter companies from 

licensing federal inventions.” 124 RFI respondents noted the added burden of navigating 

technology transfer processes and high transaction costs related to negotiating intellectual 

121 DOE announced the ACT as a pilot program in December 2011, for further on the basis for 

development of the ACTs see Susannah V. Howieson, Brian J. Sergi, and Stephanie S. Shipp. 2013. 

Department of Energy Agreements for Commercializing Technology. IDA, Science and Technology 

Policy Institute.

122 15 U.S.C. 3710a(a)(1) identifies the following organizations as potential CRADA partners: “other 

Federal agencies; units of State or local government; industrial organizations (including corporations, 

partnerships, and limited partnerships, and industrial development organizations); public and private 

foundations; nonprofit organizations (including universities); or other persons (including licensees of 

inventions owned by the Federal agency).”

15 U.S.C. 3710(d)(1) defines a CRADA as an “agreement between one or more Federal laboratories and 

one or more non-Federal parties...” 

123 U.S. Government Accountability Office (GAO). 2018. Federal Research: Additional Actions Needed to 

Improve Licensing of Patented Laboratory Inventions, https://www.gao.gov/assets/700/692606.pdf.

124 Ibid.
56

property terms. It was noted that successful technology transfer of Federal Government R&D 

investment is impeded by administrative bottlenecks and roadblocks posed by multiple, timeconsuming layers of agency review and processing as well as difficulty communicating the purpose 

and rationale of agreement requirements to prospective licensees. 

3. INTENDED ACTION

Intended Action 8. Establish consistency in legislative interpretation and use

of best practices government-wide and implement streamlined, transparent

partnership agreements, including licensing and indemnification terms. 

A. LEGISLATIVE INTERPRETATION OF TECHNOLOGY TRANSFER AUTHORITIES

Implement regulations under the Stevenson-Wydler Act 125 to establish consistency in 

legislative interpretation of technology transfer authorities government-wide.

126

B. USE OF BEST PRACTICES FOR TECHNOLOGY TRANSFER

Develop, adopt, and use “speed-of-business”-based best practices and tools for technology 

transfer that deliver modern, streamlined, and responsive customer-experience governmentwide.

127

C. CONSISTENT LICENSING POLICIES AND PRACTICES

Establish consistent, transparent licensing policies and practices for federally funded

intellectual property—while maintaining flexibility to tailor the specific financial terms of each 

license, consistent with the statutory goal to promote commercial use of inventions.

128 

125 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

planned action is discussed under Strategy 1, Section G.

126 Including agreements such as CRADAs, consortia, license agreements, materials transfer agreements, 

non-disclosure agreements, facility use agreements, and FFRDC agreements.

127 Including, for example, technology transfer taxonomy, standardized menu-based customizable model 

agreements and templates; mission-aligned strategic portfolio-based intellectual property 

management; performance incentives and expectations for researchers/managers and technology 

transfer/licensing professionals; and training for R&D executives/officials as well as technology 

transfer/licensing professionals.

128 Responsive to May 2018 GAO Report (GAO-18-327) titled “Additional Actions Need to Improve 

Licensing of Patented Federal Inventions” (https://www.gao.gov/assets/700/692606.pdf): The 

Secretary of Commerce should instruct NIST to (1) fully report the range of challenges in federal 
57

Implementation of consistent government-wide licensing policies and practices will require 

regulatory change under the Bayh-Dole Act and implementation of regulations under the 

Stevenson-Wydler Act.129

D. CONSISTENCY IN USE OF INDEMNIFICATION PROVISIONS IN AGREEMENTS 

Establish consistent indemnification terms government-wide for agreements 130 with 

Federal research and development contractors, grantees, and collaborators. Alternative 

indemnification terms should be considered, including disclaiming liability to the extent of the 

Federal Tort Claims Act.

131,132

E. PURPOSE OF GOVERNMENT LICENSE ROYALTIES

Implement regulatory change under the Bayh-Dole Act to clarify that license royalties are 

used primarily to promote compliance by the licensee to the terms of development and achieve 

practical application of technology.133

F. CONFLICTING LANGUAGE IN CRADA AUTHORITY

 

patent licensing, such as those outlined in this report, by, for example, leveraging its survey of 

practices at federal technology transfer offices, past FLC studies, and agency reports and including that 

information in its summary reports to Congress; (2) clarify the link between establishing patent license 

financial terms and the goal of promoting commercial use, through appropriate means, such as the 

upcoming rule-making process and updating relevant guidance; and (3) facilitate formal information 

sharing among the agencies to provide Federal Laboratories with information on financial terms in 

comparable patent licenses, as appropriate.

129 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

planned action is discussed under Strategy 1, Section G.

130 Including contracts, grants, cooperative agreements, cooperative research and development 

agreements, and other agreements.

131 28 U.S.C. Chapter 171

132 Suggested language: No indemnification for any loss, claim, or liability is intended or provided by any 

Party under this Agreement. Each Party will be liable for any claims or damages it incurs in 

connection with this Agreement, except that {insert name}, as an agency of the Government, assumes 

liability only to the extent provided under the Federal Tort Claims Act, 28 U.S.C. Chapter 171.

133 In response to May 2018 GAO Report (GAO-18-327) Recommendation 2 in footnote 60. Language 

changes can be made in applicable sections of 37 CFR § 404.2 to describe the government policy on 

license royalties. It has generally been accepted that the government will use royalties to promote 

practical application of an invention as a method to ensure compliance by the licensee, promote 

fairness, and encourage invention to promote economic growth. It is not viewed as an alternative to 

appropriated funding or as funding mechanism. 
58

Legislative change is required to fix the statutory discrepancy regarding who can be a CRADA 

partner.

134 This fix will address difficulties executing CRADAs between federal agencies, for 

example, between a federal agency and another agency’s GOCO Laboratory.

C. NEW/EXPANDED PARTNERSHIP MECHANISMS

1. BACKGROUND

New and expanded mechanisms may be designed to establish partnership agreements at the 

speed of business and to attract private sector investment for translational R&D, technology 

maturation, and commercialization efforts. They also provide the means to build and leverage 

innovation ecosystems that include incubators, accelerators, public-private co-location, 

personnel exchange, and university-based research parks. Examples of such partnership 

mechanisms include the use of nonprofit foundations, partnership intermediaries, Agreements to 

Commercialize Technology (ACT), and Other Transaction Authority (OTA).

Nonprofit foundations support Federal R&D agencies by employing mechanisms that 

Federal agencies cannot always readily pursue, such as receiving and actively seeking gifts and 

other monetary donations from private donors and organizations. For example, the Foundation 

for the National Institutes of Health (FNIH) can raise nonfederally appropriated funds that 

support agency R&D activities.135 In addition, foundations sponsored or initiated by Federal and 

State entities have facilitated technology commercialization and generated revenue to reinvest in 

R&D. Foundations act synergistically with agency and Federal Laboratory technology transfer 

offices and serve to increase the capacity for identifying collaborative R&D and other 

opportunities.

Federal Laboratories may also use Partnership Intermediary Agreements (PIAs) 136 to 

perform services that support cooperative or joint activities with small businesses, institutions of 

higher education, and other defined educational institutions. PIAs are a legal agreement between 

 

134 15 U.S.C. § 3710a(a)(1) identifies the following organizations as potential CRADA partners: “other 

Federal agencies; units of State or local government; industrial organizations (including corporations, 

partnerships, and limited partnerships, and industrial development organizations); public and private 

foundations; nonprofit organizations (including universities); or other persons (including licensees of 

inventions owned by the Federal agency).” 15 U.S.C. § 3710(d)(1) defines a CRADA as an “agreement 

between one or more Federal laboratories and one or more non-Federal parties...” 

135 “The FNIH manages the solicitation of funds by private donors for NIH research projects with 

appropriate firewalls.” https://www.nih.gov/news-events/news-releases/nih-end-funding-moderatealcohol-cardiovascular-health-trial

136 15 U.S.C. § 3715 – Use of partnership intermediaries 
59

a Federal agency and an agency of—or nonprofit entity affiliated with—a State or local government 

as defined in statute. 

Nonprofit private foundations that operate on behalf of a Federal agency can be 

congressionally mandated or created within an agency to advance its mission. Most foundations 

for federal agencies are established via acts of Congress. A few, including USDA’s Agricultural 

Technology Innovation Partnership (ATiP) Foundation, are PIA arrangements. The main 

differences include: foundations have broad application, including technology transfer, while 

PIAs are narrowly focused to technology transfer functions; and foundations are essentially “startups” based on congressional action, while a PIA is a legal agreement between an agency and an 

existing nonprofit or State entity. Nonprofit foundations may enter into R&D collaboration and 

service agreements with industry and with nonprofit, state, and local organizations.

One congressionally mandated example is FNIH, authorized under Public Law 101-613 titled 

“The National Institutes of Health Amendments of 1990.” The FNIH’s primary duties include: (a) 

raising private funds to support the NIH mission; (b) creating innovative public-private 

biomedical partnerships that complement the NIH mission; providing a neutral forum to engage 

all partners to work together between NIH, Federal partners, industry, academia, and the 

philanthropic community; (c) accelerating transition of basic research findings into biomedical 

interventions and public health applications; and (d) enabling private partners to expand the 

number of funded NIH grants, among others. According to its 2017 Annual Report, FNIH has 

raised more the $1 billion since its inception.137

University research parks and open campuses represent initiatives in which geographic 

proximity to local, State, and regional ecosystems can be leveraged to increase collaborative R&D 

and technology maturation. A university research park is a property-based venture with 

numerous responsibilities: developing property master plans for research and commercialization; 

creating partnerships with universities and other research institutions; encouraging the growth 

of new companies; translating technology; and driving technology-led economic development.

138

137 Foundation for the National Institutes of Health. “2017 Annual Report: Shaping the Future of Human 

Health.” Accessed October 9, 2018. https://fnih.org/2017-annual-report/about-us/

138 Association of University Research Parks, n.d. “What is a Research Park?” Accessed Oct 11, 2018. 

https://www.aurp.net/what-is-a-research-park
60

In a 2012 survey of university research parks, 88 percent of the respondents indicated that 

research parks provide access to business and commercialization services.

139

Similarly, an open campus is a business model that facilitates collaborative engagement 

between Federal and private sector researchers through access to researchers, unique facilities, 

and additional collaboration resources.140 Open campuses aim to extend an organization’s R&D 

activities to other dispersed geographic facilities and organizations. Research and development is 

typically focused on the originating organization’s mission priorities. Participating organizations 

and facilities receive a unique opportunity to collaborate face-to-face with researchers working on 

state-of-the-art problems and potentially benefit from the transfer of the results into commercial 

markets. 

One Federal example is the Army Research Laboratory’s (ARL) Open Campus initiative.

141

Through the Open Campus initiative, ARL leverages regional expertise and facilities to accelerate 

the discovery, innovation, and transition of science and technology of relevance to the Army. 

Partner researchers and institutions are given access to unique ARL facilities; real data sets and 

expertise; generation of joint intellectual property; incubation of spin-off companies for the 

pursuit of science and technology innovations; and maturation and rapid transition of intellectual 

property rights and technologies to the industrial marketplace. As of March 2017, the ARL open 

campus had 105 active CRADAs, 234 CRADA projects, and 775 visiting researchers; there was 

$29.9 million of in-kind research in FY 2016.142 Another example is the DOE Oak Ridge National 

Laboratory’s Manufacturing Demonstration Facility (MDF).143 The MDF is the DOE’s first facility 

established to provide affordable and convenient access to R&D expertise, facilities, and tools to

facilitate rapid adoption of advanced manufacturing technologies to enhance the competitiveness 

of the U.S. workforce.

Open campuses associated with Federal Laboratories can help facilitate researcher and 

knowledge exchange by enabling prospective private and other R&D collaborators to have access 

to state-of-the-art research facilities and other collaborative space. Open campuses tend to be 

 

139 Driving Regional Innovation and Growth, Results of the 2012 Survey of North American Research 

Parks, Prepared for Association of University Research Parks (AURP), by Battelle Technology 

Partnership Practice, August 2013, 

https://aurp.memberclicks.net/assets/documents/aurp_batelllereportv2.pdf

140 United States Army. 2014. “Army Research Lab Open Campus Opportunities” Accessed 10/3/2018. 

https://www.arl.army.mil/www/pages/2357/ARL_Open_Campus_Opportunities.pdf

141 United States Army. “Army Research Lab, Extended.” Accessed Oct 1, 2018. 

https://www.arl.army.mil/opencampus/ARLExtended

142 Tien Pham, n.d. “ARL Open Campus – A New Model for Army Science and Technology.” 

https://sites.nationalacademies.org/cs/groups/pgasite/documents/webpage/pga_180834.pdf

143 https://www.ornl.gov/mdf
61

“outside the fence,” meaning R&D collaborators experience streamlined facility access and 

security procedures than would otherwise be in place for “inside the fence.” 

One approach to grant non-Federal researchers access to unique government facilities is 

through outleasing, often called Enhance Use Lease Authority (EULA), leasing underutilized 

government property to the private sector. These agreements often occur when agencies hold land 

that is vital to their mission in the long-term, but they are currently not utilizing the facility or 

property at full capacity. Through these leases, private industry can work in close proximity to 

Federal researchers, which might enhance the outcomes of associated research partnerships. This 

has been used to establish open campuses and research parks at multiple Federal Laboratories, 

including 2008 Planetary Ventures Bay View at NASA Ames Research Center, the Rolls-Royce 

Outdoor Jet Engine Testing Facility at John C. Stennis Space Center, Falcon Hill National 

Aerospace Research Park at Hill Air Force Base, and the USDA Agriculture Research Service 

Beltsville Agricultural Research Center. There is also interest from Federal Laboratories to 

outlease non-excess property to the private sector.

The Agreement for Commercializing Technology (ACT)

144 is an innovative DOE partnering 

mechanism for GOCO Laboratories, using as authorization the Atomic Energy Act. 145 DOE 

authorized the use of ACTs as a permanent mechanism in October 2017 after piloting the program 

for 6 years. The ACT enables (i) DOE Laboratory contractors to engage in partnerships with terms 

that are more compatible with industry practices (e.g., business-friendly intellectual property 

rights, indemnification terms, best-effort performance, advance payments); (ii) supports 

Industry-Lab Partnerships that leverage Federal assets; and (iii) complements SPP, CRADA and 

User Agreements.146 DOE is currently piloting an extension of the ACT, called FedACT, that 

expands the use of ACT to allow organizations to partner with DOE’s National Laboratories on 

federally funded projects. 

The explicit expansion of the ACT authority to all GOCO Laboratories would open the unique 

knowledge, capabilities, and facilities at these laboratories to greater commercial development 

without hampering their intended government mission and function. The ACT authority could

also be used by GOGO Laboratories through partnership intermediaries that are authorized under 

the Stevenson-Wydler Act. The ACT authority is not intended to replace other technology transfer 

144 See https://www.energy.gov/technologytransitions/frequently-asked-questions-about-act

145 The Atomic Energy Act of 1954 (Public Law 83-703), codified in Title 42 of the U.S.C.

146 ACT: Mechanism that allows DOE GOCO National Laboratories to partner with businesses and other 

non-Federal entities with greater flexibility than CRADAs or Strategic Partnership Projects (SPP) 

agreements. ACT allows a GOCO contractor to negotiate terms and conditions that are more consistent 

with private industry practice, such as IP rights, payment arrangements, indemnification, and 

development of multi-party R&D partnerships. ACT is a contractual agreement based specifically on 

DOE statutory authorities.
62

mechanisms. Rather, it is intended to provide an alternative mechanism for creating partnerships 

in cases where standard DOE terms could not be negotiated. 

2. CHALLENGES

Legislative modification of CRADAs to a more flexible agreement called the Research

Transaction Authority (RTA) will enable Federal agencies to pursue faster agreement negotiations 

and reduce the risks for businesses that seek to partner with the government. The RTA would 

extend the ability of all Federal Laboratories to enter into an arrangement similar to “Other 

Transaction Authority,” but strictly limited to R&D and not for use in procurement or financial 

assistance actions.147 Other Transaction Authority allows for agreements that offer greater speed, 

flexibility, and accessibility in performing research and prototyping activities, and can be used to 

design and implement innovative business models within the government that would otherwise 

not be feasible.148 This authority is envisioned to parallel the Space Act Agreements149 used by 

NASA to win the space race with the Soviet Union and still in use today. Regulatory authority is 

required to exercise implementing regulations for RTA to guide the adoption of uniform policy 

and practice. 

There are few foundations currently supporting Federal agencies, which is potentially due to 

confusion over whether agencies have the authority to establish foundations. Possibly another 

point of confusion may be whether agencies can use appropriated dollars to support a foundation 

if the foundation was not explicitly authorized by Congress. In general, congressionally

established foundations have benefited from appropriated agency funding to partially support 

their operations.

3. INTENDED ACTION

Intended Action 9. Authorize new and expanded mechanisms to establish

partnership agreements at the speed of business and to attract private sector 

investment for translational R&D, technology maturation, and commercialization.

147 RTAs may be viewed as modified and modernized version of CRADAs.

148 https://www.transform.af.mil/Portals/18/documents/OSA/OTA_Brief.pdf?ver=2015-09-15-073050-

867

149 National Aeronautics and Space Act of 1958 Public Law 85-568, see 

https://www.nasa.gov/partnerships/about.html
63

A. EXPAND USE OF ACT AUTHORITY

Implement regulations under the Stevenson-Wydler Act150 to extend the ACT authority151 to 

all GOCO Laboratories. Legislative change is required to extend the use of the ACT authority by 

GOGO Laboratories through partnership intermediaries authorized under the Stevenson-Wydler 

Act.

B. ESTABLISH NEW RESEARCH TRANSACTION AUTHORITY

Legislative change is required to establish the Research Transaction Authority152 to support 

translational R&D collaborations

153 by simplifying, accelerating, tailoring, and executing 

partnership agreements at the speed of business. The new authority is modeled after the OTA and 

will not be used for procurement or financial assistance actions. Implement regulations under the 

Stevenson-Wydler Act154 with uniform government-wide policies and practices to ensure proper 

stewardship for use of the RTA authority and appropriate conveyance of intellectual property 

rights consistent with the Bayh-Dole Act. The RTA is a new partnering mechanism to for Federal 

Laboratories and is not intended to change or limit existing authorities.

C. EXPAND USE OF NONPROFIT FOUNDATIONS

Legislative change is required to authorize all Federal R&D agencies to establish nonprofit

foundations that will advance their missions by attracting private sector investment to accelerate 

technology maturation, transfer, and commercialization efforts of an agency’s R&D outcomes.155

150 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

planned action is discussed under Strategy 1, Section G.

151 See https://www.energy.gov/technologytransitions/frequently-asked-questions-about-act

152 Add a new section to 15 U.S.C. § 3710a to create “research transactional authority” which would 

expand to all applicable agencies the ability to use Other Transaction Authority (OTA). Only a few 

agencies are authorized to use OTAs. The RTA would exclude procurement and financial assistance 

actions.

153 To also include incubators, accelerators, public-private co-location, personnel exchange, and 

university-based research parks.

154 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

planned action is discussed under Strategy 1, Section G.

155 15 U.S.C. 3705 details cooperative research centers. Language can be added to extend the authority for 

agencies to develop nonprofit foundations. Agencies that require appropriated funding for a 

foundation will require direct action by Congress.
64

Develop, adopt, and use consistent policies and practices to establish and operate nonprofit

foundations at Federal R&D agencies.

D. EXPAND USE OF OUTLEASING AUTHORITY

Legislative change is required to authorize all Federal Laboratories to outlease real property 

to the private sector for use to support technology transfer and commercialization activities.156

The ability to make the most use of existing real property assets through EULA, or other 

mechanisms for non-excess property, while retaining the potential for future government use is a 

potential way to increase interactions with Federal Laboratories. In addition, if lease revenue is 

retained by the laboratory, it can create an incentive to ensure full use of existing capacity and 

boost research outcomes. 

D. TECHNOLOGY MATURATION FUNDING

1. BACKGROUND 

Developing early-stage research discoveries into products for Federal or commercial use 

requires significant investment in capital and labor. Additional funding is often needed to mature 

the technology before a private sector investor will be willing to take the risk on a potential 

product. RFI respondents reported that it can be difficult to attract prospective private sector 

licensees for federally funded patents. “The chasm between the immature state of the work 

emerging from the research laboratory and the level of maturity needed to attract a large corporate 

transferee was identified as one of the largest barriers to technology transfer.”157 According to 

GAO, “potential industry partners are often reluctant to assume the risks of investing in 

technologies whose potential has not been demonstrated with a prototype, performance data, or 

similar evidence.”158 Technology maturation funding can be used to produce a proof of concept,

 

156 Expansion of this authority could be included in 15 U.S.C. § 3710 as an additional section (section “j”). 

157 Wang, M., S. L. Pfleeger, D. M. Adamson, G. Bloom, W. Butz, D. Fossum, M. Gross, A. Kofner, H. 

Rippen, T. K. Kelly, and C. T. Kelley Jr. 2003. Technology Transfer of Federally Funded R&D. Santa 

Monica, CA: RAND Science and Technology Policy Institute.

158 U.S. Government Accountability Office (GAO). 2009. Technology Transfer: Clearer Priorities and 

Greater Use of Innovative Approaches Could Increase the Effectiveness of Technology Transfer at 

Department of Energy Laboratories. Washington, D.C.: GAO. GAO-09-548. 

http://www.gao.gov/assets/300/290963.pdf
65

prototype, additional data, or validation studies; scale-up a technology; or enhance intellectual 

property protection.

159

The Federal Government supports a variety of technology maturation programs, some of 

which require a cost-sharing arrangement between an agency and a private company or other 

organization. Federal technology maturation programs involve both cross-cutting programs, such 

as those supporting small businesses, and agency-specific programs that support specific sectors:

• Small Business Innovation Research (SBIR) and Small Business Technology Transfer

(STTR) Programs—the Nation's largest source of early-stage technology financing—are

administered by the Small Business Administration through 11 Federal agencies with

about $2.5 billion160 annual set aside and about 160,000 awards granted;161 STTR

requires collaboration with a research institution162

• The Department of Defense (DOD) Rapid Innovation Program aims to transition

technologies into applications that can be used on defense weapon systems and focuses

on more mature technologies that would have an immediate impact.163

• The DOD Manufacturing Technology (ManTech) Program aims to advance the state-ofthe art for defense-essential manufacturing capabilities and supports manufacturing

innovation institutes, which provide companies with access to facilities and risk sharing

to bring new products to market and increase U.S. manufacturing competitiveness.164

159 Howieson, Susannah V., Elaine M. Sedenberg, Brian J. Sergi, and Stephanie S. Shipp, 2013. 

Department of Energy Technology Maturation Programs. IDA Paper P-5013, May 2013

160 SBIR is funded with 3.2% of extramural research budget for all agencies with a budget greater than 

$100 million per year; STTR is funded with 0.45% of extramural research budget for all agencies with 

a budget greater than $1 billion per year. SBA Office of Investment & Innovation presentation on 

December 2016, slide 8 and 10. https://www.sbir.gov/sites/default/files/SBIR%20Overview-

%20DEC%202016.pptx. 

161 Ibid, slide 4.

162 Small Business Innovation Research (SBIR). “About SBIR.” Accessed October 1, 2018. 

https://www.sbir.gov/about

163 U.S. Department of Defense (DOD), n.d. “Rapid Innovation Fund.” Accessed Oct 11, 2018. 

https://defenseinnovationmarketplace.dtic.mil/business-opportunities/rapid-innovation-fund/

164 U.S. Department of Defense (DOD), n.d. “Manufacturing Technology Program.” Accessed Oct 11, 2018. 

https://www.dodmantech.com/
66

• DOE Energy Innovation Hubs include five innovation hubs that focus research on fuels

from sunlight, nuclear energy modeling and simulation, energy storage, and critical

materials and involve R&D collaborations among scientists from Federal Laboratories,

universities, and private companies.165

• DOE Technology Commercialization Fund is funded via a set-aside of 0.9 percent of

DOE’s budget for applied energy research, development, demonstration, and

commercial application and matches funds with private partners.

166,167

• NIH through its National Center for Advancing Translational Sciences programs, an

institute of the NIH, funds transition via its Clinical and Translational Science

Awards168

• NSF requires, through cooperative agreements, cost-sharing with academic and other

organizations for its Engineering Research Centers,169 Industry-University Cooperative

Research Centers (IUCRC), and Partnerships for Innovation170 programs

• NIST, with DOD and DOE, supports the U.S. manufacturing sector through its

Manufacturing Extension Partnership171 and Manufacturing USA program.172

RFI responses noted the difficulty of fulfilling the patent and licensing requirements to 

patent and license inventions. This was particularly notable for small businesses and small 

institutions that do not have resources to invest. The comments noted the need to allow a 

165 U.S. Department of Energy (DOE), n.d. “Hubs.” Accessed Oct 11, 2018. 

https://www.energy.gov/science-innovation/innovation/hubs

166 U.S. Department of Energy (DOE), n.d. “Technology Commercialization Fund.” Accessed Oct 11, 2018. 

https://www.energy.gov/technologytransitions/services/technology-commercialization-fund

167 Section 1001 of the Energy Policy Act of 2005

168 National Institutes of Health (NIH), n.d. “Clinical and Translational Science Awards (CTSA) 

Program.” Accessed Oct 11, 2018.

169 National Science Foundation (NSF), n.d. “Engineering Research Centers (ERC).” Accessed Oct 11, 

2018. https://www.nsf.gov/funding/pgm_summ.jsp?pims_id=5502

170 National Science Foundation (NSF), n.d. “Partnerships for Innovation (PFI).” Accessed Oct 11, 2018. 

https://www.nsf.gov/funding/pgm_summ.jsp?pims_id=504790

171 National Institute of Standards and Technology (NIST) and U.S. Department of Commerce, n.d. 

“Manufacturing Extension Partnership (MEP).” Accessed Oct 11, 2018. https://www.nist.gov/mep

172 Manufacturing USA, n.d. “Manufacturing USA.” Accessed Oct 11, 2018. 

https://www.manufacturingusa.com/
67

portion of award funds to be allocated to properly protect and sustain the government’s 

investment in the R&D. Since the government retains a use license while placing the full cost on 

the contractor, it was noted that there is an imbalance in the requirement. 

2. CHALLENGES

Technology maturation requires a significant amount of funding, time, and energy to

facilitate the adoption of the new technology by commercial entities. 173 The Congressional 

Research Service found that university-developed technologies are not at a technology maturation 

level that is suitable for adoption by industry and are “doomed to remain in the laboratory unless 

incentives are added to induce ongoing collaboration between the inventors and the 

entrepreneurs seeking to take them to market.”174 RFI responses echoed the same sentiment. 

(Refer to “Perspectives on a New Approach for Federal R&D Funding.”)

Perspectives on Federal R&D Funding Approach

“The federal government has played a long and foundational role in funding basic and 

applied scientific research that has produced tremendous commercial and social benefits 

for the United States. This role must persist. However, in the post-World War II era the 

U.S. science, technology, and innovation system pursued a “linear model” of innovation 

that pumped seemingly limitless funding for basic research into U.S. universities and 

government labs on the front-end with the expectation that industry virtually alone would 

conduct the applied and translational work needed to transform the basic research into 

technologies and products that could be commercialized (and manufactured at scale in the 

United States) on the back-end. That approach also viewed all scientific research as 

essentially equal and didn’t prioritize scientific research funding based on its ability or 

likelihood to help support U.S. economic competitiveness, which was taken as a given. 

While this model worked for a time—when many fewer other nations had the technological 

capabilities to translate basic research into commercial products—it's ill-suited to today's 

intensely competitive global economy. Thus, a new approach is needed to guide federally 

funded R&D and its impact on the U.S. innovation system, and it should focus on two key

areas of importance: what research is funded and how that research is commercialized.” 

Source: NIST public meeting at Gaithersburg, MD on June 14, 2018

173 Schacht, W. H. 2012. The Bayh-Dole Act: Selected issues in patent policy and the commercialization 

of technology. Library of Congress, Washington DC: Congressional Research Service, 2009.

174 Mary Elizabeth Hughes, Susannah Vale Howieson, Gina Walejko, Nayanee Gupta, Seth Jonas, Ashley 

T. Brenner, Dawn Holmes, Edward Shyu, and Stephanie Shipp. 2011. Technology Transfer and

Commercialization Landscape of the Federal Laboratories. IDA.
68

Funding support is also needed to support non-technical aspects of the commercialization 

process. For example, companies, particularly startups and small businesses, need capital to 

perform customer discovery and validation, which involve a substantial number of interviews and 

follow up meetings, and to iterate on their prototypes based on feedback. Startups, particularly 

those that may be interested in SBIR and STTR programs, may lack the capital to perform these 

essential functions for successful commercialization of their products. In addition, funding is 

needed for filing patents and for identifying potential commercial partners (Refer to “RFI 

Response on the Need for Resources for the Intellectual Property Process”). In order to work with 

federally funded technologies, small companies also need assistance on patenting and licensing, 

commercialization planning, and market assessments.175 (Refer to “What We Heard: SBIR.”)

RFI Response on the Need for Resources for the Intellectual Property Process

“It is challenging for universities and other recipients of federal research funding to 

independently pay for technology and product research and development, as well as for 

preparation, filing, prosecutions and maintenance of patents and applications...Lack of 

funding for patenting and commercialization activities poses a fundamental challenge to a 

university’s ability to transfer federally funded technologies.”

Source: RFI—State University of New York

Many RFI comments noted that a new technology commercialization appropriation is 

needed. While a new technology maturation fund would be useful, this green paper generally 

attempts to maintain a budget neutral posture. 

 

175 Federal Laboratory Practices Contributing to Economic Development DOC
69

What We Heard: SBIR

There were numerous suggestions and very strong data presented as evidence to support the

SBIR/STTR Program as “America’s Seed Fund.” Below is a summary of what we heard from the 

RFI:

• Ensure the continued funding and sustainment/increase of the SBIR and STTR

programs.

• Develop broader and more flexible approach to include translational research.

• Initiate an SBIR for Federal Laboratories.

• Expand "Phase zero" proof-of-concept pilot program (already implemented by NSF).

• Provide for additional flexibility in how SBIR/STTR funds can be used including market

assessment, customer discovery, and technology transfer.

• Expand connections between SBIR and I-CorpsTM to provide training.

• Promote the protection and use of Phase II inventions to Phase III.

• Better align FAR/DFARS with SBIR.

• Increase geographic dispersion of awards.

• Reduce paperwork – consider shorter or modified Phase I applications.

• Further study SBIR metrics to inform how updates can maximize effectiveness.

3. INTENDED ACTION

Intended Action 10. Allow the limited use of R&D funds awarded through

government grants, contracts, and cooperative agreements for intellectual property 

protection; and provide a summary of public comments on SBIR/STTR technology 

maturation funding and related improvements

176 to the U.S. Small Business 

Administration (SBA) for consideration and development of follow up actions. 

A. LIMITED USE OF FUNDS FOR PATENTING

Implement regulatory change under the Bayh-Dole Act to allow for a reasonable amount of 

awarded R&D funds up to a specified maximum to be used by the contractor to secure the 

government’s right and interest to a patented invention.177 

176 For example, expanded support for technology entrepreneurship and commercialization involving 

startups and small businesses including commercial viability assessment, market analysis, and proofof-concept/prototyping. 

177 A change to 37 CFR 401.14(f) could be used to note that up to 3% of the award could be used to protect 

the government’s right and interest in an invention through the contractor’s election to patent. This 

action would not increase the size of any award. 
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71

STRATEGY 3. BUILD A MORE ENTREPRENEURIAL R&D 

WORKFORCE

The third of five strategies of the L2M CAP Goal is focused on building a more 

entrepreneurial R&D workforce to unleash American innovation. The intended actions are 

designed to promote start-ups, job creation, and economic growth by facilitating technology 

transfer activities through an R&D workforce more knowledgeable about the needs of industry 

and with the flexibility to support industry’s needs. This chapter discusses actions to stimulate a 

more entrepreneurial mindset for the Federal R&D workforce through targeted programs in areas 

such as skill building, mentoring, training, professional development, education, and personnel 

exchange. It also describes actions to address constraints to entrepreneurial activities posed by 

restrictive conflict of interest policies.

A. INTRODUCTION

The R&D workforce is the foundation of the American R&D enterprise and the greatest asset 

for U.S. innovation and industrial competitiveness. Federally funded researchers, engineers, and 

managers develop new innovative technologies, identify commercialization opportunities, and 

transfer technology to industry, or start companies themselves. Further, since passage of the 

Federal Technology Transfer Act of 1986, which amended the Stevenson-Wydler Act of 1980,

“technology transfer, consistent with mission responsibilities, [has been] a responsibility of each 

laboratory science and engineering professional.”178 By empowering both the intramural and 

extramural R&D workforce to be more entrepreneurial, the Federal Government ensures that its 

funds will be used with an eye towards practical application and commercialization, resulting in 

a greater return on investment to the American taxpayer. 

At its core, technology transfer is a person-to-person “contact sport” requiring robust 

engagement between motivated researchers and engaged industry representatives. Innovators 

need to be knowledgeable about the needs of industry, while those in industry need to be flexible 

and responsive, to effectively transfer technology. Truly revolutionary technologies can languish 

if a strong business acumen is not available to meet the challenges of bringing a technology to 

market. The skills needed to develop a value proposition and assemble a team to run a business 

are not within the classical training of researchers. Training and flexible solutions are needed 

whether it will be the inventor taking the new product to market, or for inventors to communicate 

178 15 U.S.C. § 3710 (a) - Utilization of Federal Technology, Policy
72

the discovery and its implications to a business that will eventually translate the new ideas into 

tomorrow’s products and services. 

B. TECHNOLOGY ENTREPRENEURSHIP PROGRAMS

1. BACKGROUND

Training and professional development programs are mechanisms used across government,

business, and education to teach specific skills or areas of knowledge. These programs impart

important competencies that are not necessarily learned on the job. The Federal Government uses 

entrepreneurial training and professional development to give the R&D workforce the tools they 

need to be more enterprising.

Researchers play a critical role in technology transfer because they have the best 

understanding of the technology itself and the way in which it might be used. However, most 

scientists and researchers lack experience in business formation,179 may be unaware of how to 

collaborate with industry, and may not understand the commercial viability of their 

innovations. 180 This skill gap can lead to an inability to balance basic research and the 

identification of commercialization opportunities, and can hinder the effective transfer of 

technology.181 In general, entrepreneurial training programs teach researchers to understand the 

needs of industry, to commercialize technology, and to recognize their potential to add to the 

technology transfer and start-up ecosystem. Federally funded training programs not only educate 

researchers on how to navigate this balance, but also establish an avenue for product 

development.

Federal agencies use training and professional development in diverse ways to achieve their 

unique goals and needs. Some agencies use mentoring as a complement to other entrepreneurial 

179 West, Darrell. 2012. “Improving University Technology Transfer and Commercialization.” Issues in 

Technology Innovation, Num 20. https://www.brookings.edu/research/improving-universitytechnology-transfer-and-commercialization/

180 U.S. Government Accountability Office (GAO). 2014. “Federal Laboratory Commission Should 

Increase Communication with Potential Customers to Improve Initiatives.” 

https://www.gao.gov/products/GAO-15-127

181 Hughes, Mary E., Susannah V. Howieson, Gina Walejko, Nayanee Gupta, Seth Jonas et al. 2011. 

Technology Transfer and Commercialization Landscape of Federal Laboratories, Washington, DC: 

IDA Science and Technology Policy Institute.
73

programs. For example, the NIST N-STEP program provides mentors to researchers and 

associates affiliated with NIST to evaluate research for business potential and helps develop new 

businesses that can commercialize the research results. 182 The DOE Lab-Embedded 

Entrepreneurship Programs (LEEP) takes top entrepreneurial scientists and engineers and 

embed them within National Laboratories to perform early-stage R&D that may lead to the launch 

of energy or manufacturing businesses in the future. 183 Other agencies have established 

mentoring networks to counsel entrepreneurs, such as the SBA SCORE program, which consists 

of 13,000 volunteer businessmen and businesswomen. Additional programs are designed to 

directly provide innovation training and professional development, most notably the NSF 

Innovation CorpsTM (I-CorpsTM).184

I-CorpsTM is an accelerated version of the Stanford University’s Lean Launchpad

course.185,186 Founded in 2011, the experiential learning program seeks to give federally funded

extramural researchers a course in start-up entrepreneurship. I-CorpsTM teams—composed of a 

technical lead, entrepreneurial lead, and business (or industry) mentor—engage in a seven-week 

curriculum187 to understand customer problems that their technology may address, potential 

addressable markets, and the potential pathways forward to commercialize their technology 

concepts. I-CorpsTM teams are exposed to feedback from potential customers with the goals of 

understanding their markets and learning how to identify fail-fast issues and pivot to alternative 

paths forward. I-CorpsTM teams also develop regional networks, engage in customer discovery 

work, and receive hands-on training on entrepreneurship and ecosystem development. 

182 TEDCO. “Providing opportunities to Maryland researchers.” Website accessed 9/26/2018. 

https://www.tedcomd.com/funding/tech-transfer/n-step

183 https://www.energy.gov/eere/amo/lab-embedded-entrepreneurship-programs

184 National Science Foundation (NSF). “I-CorpsTM.” Website accessed 9/26/2018. 

https://www.nsf.gov/news/special_reports/I-CorpsTM/

185 Stanford. 2014. “Stanford’s Lean LaunchPad Course Sets Students on Entrepreneurial Trajectory.” 

Accessed 9/26/2018. https://stvp.stanford.edu/blog/stanfords-lean-launchpad

186 National Science Foundation (NSF)was directed by Congress to continue funding I-CorpsTM and 

encouraged to expand the program in Section 601 of the American Innovation and Competitiveness 

Act of 2017, Public Law 114-329.

187 The I-CorpsTM 2016 Teaching Handbook is available for download and view at 

https://venturewell.org/wp-content/uploads/I-CorpsTM-Teaching-Handbook-Jan16.pdf
74

I-CorpsTM started at NSF, but some agencies, such as DHS, DOD,188 and NASA189 partner

with NSF to send awardees through NSF I-CorpsTM programs, while other agencies developed 

their own programs based on I-CorpsTM and adapted the curriculum for their research 

communities. Examples of agency-based programs include I-CorpsTM@NIH, 190 , 191 National 

Security Agency’s (NSA) version of I-CorpsTM for the Intelligence Community,192 I-CorpsTM at 

ARPA-E,193 Energy I-CorpsTM at DOE,194 and the USDA I-CorpsTM Agricultural Research Service 

(ARS) pilot program. 195 Some States have also collaborated with NSF to create I-CorpsTM

programs, such as I-CorpsTM@Ohio. 196 Most agencies provide entrepreneurial training for 

extramural researchers funded under their research programs, while some programs, such as 

NIH’s Clinical and Translational Science Awards (CTSA), train professionals working on 

translating science into practical applications.

197 For example, the University of Michigan created 

188 U.S. Department of Defense (DOD). 2018. “I-CorpsTM @ DoD Funding Announcement.” 

https://basicresearch.defense.gov/News/Articles/News-Display/Article/1490285/I-CorpsTM-dodfunding-announcement/

189 National Aeronautics and Space Administration. 2018. “I-CorpsTM Program.” Accessed 10/1/2018. 

https://sbir.nasa.gov/content/I-CorpsTM. 

190 National Institutes of Health (NIH). 2018. “The I-CorpsTM at NIH.” Accessed 10/1/2018. 

https://sbir.cancer.gov/programseducation/icorps. 

191 Domain focused programs include the I-CorpsTM@NIH, which includes cross-cohort learning on 

sector-specific topics like regulatory strategy for therapeutic candidates, and a National I-CorpsTM NSF 

Cohort, which may focus topics of a more granular nature, such as business model differences between 

a manufactured product versus a business service. NSF also has built a relationship with Science 

Foundation Ireland (SFI) to send their teams through the NSF program. The program is called ICorps@SFI. Additionally, the DOE also has an I-Corps program called Energy I-Corp, that DoE 

manages and is separate from the NSF program, and is specialized for energy opportunities.

192 The White House. 2015. “Fact Sheet: President Obama Announces New Commitments from Investors, 

Companies, Universities, and Cities to Advance Inclusive Entrepreneurship at First-Ever White House 

Demo Day.” https://obamawhitehouse.archives.gov/the-press-office/2015/08/04/fact-sheetpresident-obama-announces-new-commitments-investors-companies

193 ARPA-E. “I-CorpsTM at ARPA-E.” Accessed 10/1/2018. https://arpa-e.energy.gov/?q=site-page/ICorpsTM-arpa-e. 

194 https://www.energy.gov/eere/technology-to-market/energy-i-corps

195 Bahar, Mojdeh. “I-CorpsTM ARS—A New Twist on NSF’s I-CorpsTM Model.” 

https://meeting.federallabs.org/wp-content/uploads/2018/04/I-CorpsTM-at-ARS-I-Fast-at-NIFAM.Bahar_.pptx

196 I-CorpsTM Ohio. Accessed 10/1/2018. https://icorpsohio.org/ . 

197 NIH. “About the CTSA Program.” Accessed 10/1/2018. https://ncats.nih.gov/ctsa/about. 
75

a supplementary training program for CTSA called Fast Forward Medical Innovation (FFMI) 

fastPACE to accelerate entrepreneurial training.198

RFI respondents perceived government entrepreneurial training and professional 

development programs, especially I-CorpsTM, to be very successful. RFI respondents remarked on 

the success of I-CorpsTM in preparing scientists, engineers, and graduate students to extend their 

focus beyond the laboratory. From 2011 to June 2018, I-CorpsTM trained 1,223 teams representing 

248 universities from 47 States, D.C., and Puerto Rico. 199 , 200 NSF has also used I-CorpsTM

programs to promote inclusion in science and technology entrepreneurship through efforts such 

as funding targeted I-CorpsTM sites,201 and to promote a more entrepreneurial mindset.202 Teams 

that went through I-CorpsTM raised $300 million in follow-on funding and started 583 start-up 

companies, with six of those start-ups being successfully acquired by a larger company.203

Federal agencies also use accelerator and incubator programs to stimulate entrepreneurship. 

A seed accelerator is defined as “a fixed-term, cohort-based program, including mentorship and 

educational components, that culminates in a public pitch event or demo-day.”204 Accelerator 

programs typically offer funding and other support services to potential startup companies in 

return for a share of equity in the company. Accelerators generally attempt to expedite the growth 

of an existing company in a few weeks or months. Alternatively, incubators recruit individuals 

 

198 Servoss, Jonathan et al. 2017. “fastPACE Train-the Trainer: A scalable new educational program to 

accelerate training in biomedical innovation, entrepreneurship, and commercialization.” Journal of 

Clinical and Translational Science, Volume 1, Issue 5.

199 NSF. “I-CorpsTM Curriculum and Resources.” Accessed 10/1/2018. 

https://www.nsf.gov/news/special_reports/I-CorpsTM/resources.jsp. 

200 In addition to the nine NSF I-Corps Nodes, there are also 99 sites that contribute to the national 

infrastructure of I-CorpsTM – providing additional geographic reach beyond the nine Nodes. Link to a 

recent map of sites: https://www.nsf.gov/news/special_reports/i-corps/sites.jsp

201 NSF. 2017. “NSF promotes inclusion in tech entrepreneurship through eight I-CorpsTM Sites.” 

https://www.nsf.gov/news/news_summ.jsp?cntn_id=190921

202 VentureWell. 2016. “How an Entrepreneurial Mindset Can Make Research More Effective: Reflections 

from an I-CorpsTM Alumnus.” https://venturewell.org/entrepreneurial-mindset-can-make-researcheffective-reflections-corps-alumnus/

203 National Science Foundation (NSF). “I-CorpsTM Curriculum and Resources.” Website accessed 

9/26/2018. https://www.nsf.gov/news/special_reports/I-CorpsTM/resources.jsp

204 Susan G. Cohen, University of Richmond, and Yael V. Hochberg (Massachusetts Institute of 

Technology and the National Bureau of Economic Research, “Accelerating Startups: The Seed 

Accelerator Phenomenon,” March 2014, http://seedrankings.com/pdf/seed-acceleratorphenomenon.pdf
76

with promising ideas and nurture them over a longer period of time with the hope of establishing 

a business model and company based on a particular innovation.205

Federal accelerator programs include the SBA Growth Accelerator Fund Program launched 

in 2014. From 2014 to 2017, SBA funded approximately 235 accelerators and incubators.206

Cyclotron Road, embedded within DOE’s Lawrence Berkeley National Laboratory, is an example 

of an incubator that recruits entrepreneurial technology fellows. Fellows receive access to 

laboratory scientists and equipment to pursue technology development, raise capital, build a 

business case, and ideally commercialize their products. Since 2015, Cyclotron Road has awarded 

more than $15 million to 41 fellows who have generated an additional $75 million in early stage 

funding from varied sources to support their projects.207

2. CHALLENGES

RFI respondents overwhelmingly provided positive evaluations of I-CorpsTM and indicated 

that these successes could be expanded. (Refer to “RFI Recommendations for I-CorpsTM 

Expansion.”) The NSF I-CorpsTM is organized around nine regional I-CorpsTM Nodes designed to 

support regional needs. 208 While these regional nodes are intended to sustain a national 

ecosystem, the limited geographic reach of I-CorpsTM caps its effectiveness in regions that are 

geographically distant from its nodes. Furthermore, agencies provide I-CorpsTM training for the 

extramural researchers funded under their grants, so agencies without I-CorpsTM-like programs 

or agreements with the NSF I-CorpsTM program do not have access to the training.

 

205 Conner Forest, TechRepublic, “Accelerators vs. Incubators: What Startups Need to Know.” June 25, 

2018. https://www.techrepublic.com/article/accelerators-vs-incubators-what-startups-need-to-know/

206 See SBA Growth Accelerator Fund Competition https://www.sba.gov/content/sba-growthaccelerator-fund-competition

207 Cyclotron Road, n.d. “Home.” Accessed Oct 11, 2018. http://www.cyclotronroad.org/home/

208 The nine nodes are spread out around the Nation. See a list of the nodes here:

https://www.nsf.gov/news/special_reports/I-CorpsTM/nodes.jsp
77

Respondents also indicated that I-CorpsTM and I-CorpsTM-like programs could be improved 

by targeting populations interested in commercialization. For example, graduate students or 

postdoctoral researchers may be a target audience to start companies. Entrepreneurial training 

could also be paired with other training programs to reach groups interested in 

commercialization—for example, the NASA and NIH I-CorpsTM-like programs fund groups that 

have already received Phase I funding from the SBIR/STTR programs.209 Agencies could expand 

this by pairing entrepreneurial training with SBIR/STTR awards or requiring that SBIR/STTR 

Phase I awardees participate in an entrepreneurial training or professional development program 

before becoming eligible to receive a Phase II grant.210 Other RFI respondents recommended 

addressing industry need by establishing training programs relevant to “hot” technologies or 

specializing I-CorpsTM nodes to address specific branches of research. (Refer to “RFI 

Recommendation to Better Target Training Programs.”) 

 

209 See Chapter on Strategy 2 of this report for an introduction and overview of SBA SBIR/STTR 

programs.

210 Blank, Steve. 2012. “Innovation Corps: A Review of the New National Science Foundation Program to 

Level Research Investments.” 

https://science.house.gov/sites/republicans.science.house.gov/files/documents/HHRG-112-SY21-

WState-Sblank-20120716_0.pdf

RFI Recommendations for I-CorpsTM Expansion

“We urge NIST and the administration to continue to support the I-CorpsTM program at the 

NSF and to encourage that other Federal research agencies establish and expand I-CorpsTM 

programs.”

Source: RFI response, AAU, APLU, COGR, AAMC, and ACE

“UC supports the expansion of the successful NSF I-CorpsTM program into other agencies. This 

program helps train academics in entrepreneurship by giving them the tools to effectively 

commercialize the results of their research.”

Source: RFI response, University of California (UC)
78

Leveraging regional innovation ecosystems has proven to be a successful approach to 

increasing economic investment and growth centered on a geographic area. A 2014 economic 

analysis concluded that the establishment of an accelerator program has an impact on the 

geographical region where the accelerator was formed. Both startup companies and venture 

capitalists are often attracted to the region.211 The establishment of accelerators and incubators 

can provide an opportunity for Federal Laboratories to pursue partnerships and leverage 

resources for technology transfer. However, a potential challenge is that there may not be 

sufficient leadership emphasis and incentives for laboratory researchers to engage with other 

stakeholders. This support can be indispensable to maximizing the effectiveness of the Federal 

Laboratory’s technology transfer mission. 212 (Refer to “RFI Response on Federal Laboratory 

Leadership Support for Technology Transfer.”)

RFI Response on Federal Laboratory Leadership Support for Technology Transfer

“With some notable exceptions, Federal Laboratory directors do not view tech transfer as central to 

their core mission. In fact, since some Federal Laboratories support tech transfer through overhead 

budget lines, tech transfer is in direct competition for funding with operational expenses including 

security, IT, training, and infrastructure upgrades. Additionally, Federal Laboratories are encouraged 

and rated on their ability to keep their overhead low, so increasing funding for tech transfer within the 

overhead budget line is often discouraged. Commercialization performance at Federal Laboratories

will continue to lag universities until laboratory leaders are directed, funded, and incentivized to place 

greater emphasis on commercialization outcomes, including through accountability to meaningful 

metrics.”

Source: RFI—State University of New York

 

211 Daniel C Fehler and Yael V Hochberg; “Accelerators and the Regional Supply of Venture Capital 

Investment;” September 19, 2014. http://www.seedrankings.com/pdf/accelerators-and-regionalsuppy-of-vc-investment.pdf

212 Palmintera, D. 2003. “Partners on a mission: Federal laboratory practices contributing to economic 

development.” Office of Technology Policy, Technology Administration, U.S. Department of 

Commerce. Partners on A Mission: Federal Laboratory Practices Contributing to Economic 

Development [Diane Palmintera, Bruce P. Mehlman]

RFI Recommendation to Better Target Training Programs

“CMU recommends that these programs also include support for establishing regional Lab 

hubs and I-Core nodes focused on emerging technologies—such as autonomy, AI, quantum 

computing and critical areas of advanced manufacturing.”

Source: RFI response, Carnegie Mellon University (CMU)
79

Most existing entrepreneurial training programs are targeted towards extramural 

researchers. The primary pathway for admittance in the NSF I-CorpsTM program is for 

participants to have received an NSF award.

213 For the NSF I-CorpsTM, Federal researchers do not 

typically participate in these programs. Some agencies do host commercialization related 

training/workshops for Federal researchers. NASA, for example, hosts an annual SBIR 

Technology Commercialization Workshop for its employees.214 However, these training programs 

are of limited scope due to conflict of interest regulations. For example, I-CorpsTM training is 

developed around the experience of taking a technology to market and understanding its 

commercial viability—activities that Federal researchers are typically precluded from conducting 

when they relate to their job functions.

215 The inability of Federal researchers to participate in ICorpsTM and similar programs limits the reach of current entrepreneurial training programs from 

a large segment of the Federal R&D portfolio.

In addition to strong entrepreneurship programs externally, it is also important to have 

trained professionals in technology transfer to promote entrepreneurship. Technology transfer is 

not clearly recognized as a career choice across Federal agencies. There is a lack of uniformity in 

the job description, job titles, and described functions for the professionals who carry out the 

important functions of technology transfer offices. This hinders the ability of the Federal agencies 

to attract and recruit well qualified candidates, and results in a lack of adequate opportunities for 

continued growth and development of technology transfer professionals. The basis of technology 

transfer involves understanding research at the laboratory, and a scientific and technical 

background is common. However, technology transfer professionals must also be skilled in 

business applications, negotiation, capital investment, outreach, and management as well as 

aware of legal contracts and the patent system. Since the Office of Personnel Management (OPM) 

Occupational Handbook does not currently contain a jobs series for technology transfer, 216

Federal agencies offer technology transfer positions in a wide variety of occupational series. 

 

213 Another pathway is for teams that have successfully completed regional I-CorpsTM training at an ICorpsTM Node or I-CorpsTM Site to join the National I-CorpsTM program.

214 Lal, Bhavya et al. 2013. “Expediting the Transfer of Technology from Government Laboratories into 

the Aeronautics Industry.” IDA Science and Technology Policy Institute.

215 See 18 U.S.C. §208 and §209, 5 C.F.R §2935 and §2936, and OGE guidance at 

https://www.oge.gov/web/oge.nsf/Use+of+Government+Position+and+Resources. For more 

information, see the Conflict of Interest Policies section of this chapter (Section C).

216 https://www.opm.gov/policy-data-oversight/classification-qualifications/classifying-generalschedule-positions/occupationalhandbook.pdf
80

3. INTENDED ACTION

Intended Action 11. Establish technology entrepreneurship programs at 

Federal R&D agencies government-wide. 

A. EXPAND TECHNOLOGY ENTREPRENEURSHIP PROGRAMS

Federal R&D agencies should leverage entrepreneurship programs representing best 

practices, such as NSF’s I-CorpsTM217 program for extramural R&D programs, and internal 

experiential training programs such as DOE’s Lab-Embedded Entrepreneurship Program218 for 

intramural R&D programs.

B. GUIDANCE TO IMPLEMENT AND OPERATE TECHNOLOGY ENTREPRENEURSHIP 

PROGRAMS

Develop, adopt, and use consistent policies and practices government-wide to implement 

and operate technology entrepreneurship programs at Federal R&D agencies. 

C. STRENGTHEN THE I-CORPSTM PROGRAM

A summary of public comments specific to NSF’s I-CorpsTM Program, DOE’s Lab-Embedded 

Entrepreneurship Program, and others will be provided to the respective agencies for actions. 

More general comments to strengthen technology entrepreneurship programs will be 

summarized and provided for consideration and appropriate follow up actions by Federal R&D 

agencies (Refer to “What We Heard: I-CorpsTM.”)

D. DESIGNATE JOB SERIES FOR TECHNOLOGY TRANSFER PROFESSIONALS

Establish a designated job series to recruit, develop, and retain well qualified professionals 

to pursue a career in Federal technology transfer and develop needed implementation guidance 

for government-wide adoption and use. Given the need for individuals with business 

backgrounds and scientific/technical backgrounds, the job series should be inclusive of both 

types of professionals required to carry out technology transfer functions.

 

217 National Science Foundation (NSF). “I-CorpsTM.” Website accessed 9/26/2018. 

https://www.nsf.gov/news/special_reports/I-CorpsTM/

218 Department of Energy (DOE). “Lab-Embedded Entrepreneurship Programs.” Website accessed 

10/26/2018. https://www.energy.gov/eere/amo/lab-embedded-entrepreneurship-programs
81

What We Heard: I-CorpsTM

There were numerous suggestions regarding the success of the I-CorpsTM Program. Below is a summary 

of what we heard from the RFI:

• Maintain and expand I-CorpsTM.

• Customize I-CorpsTM to focus on specific areas.

• For large awards, require that the proposal include entrepreneurial training.

• Provide formal programs that are targeted to the tech-based startups needing longer term 

(>10 years) to reach a product.

• Allow Federal employees to participate in I-CorpsTM.

C. MANAGING CONFLICTS OF INTEREST

1. BACKGROUND

Technology transfer ultimately happens through the movement of ideas and knowledge. This 

can be accomplished by enabling personnel mobility. Rotating external technical talent into 

Federal science and technology projects, or vice versa, serves as a potent vehicle for technology 

transfer.219

Federal laws and regulations present a substantial barrier to the ability of R&D workers to 

be more entrepreneurial.220 A conflict of interest can be defined as a situation in which a person’s 

official duties are at conflict with other secondary interests. Conflicts of interest are common 

among all professions but are especially important for Federal Government interests because 

workers who administer and use public funds are placed in a unique position of trust.

Federal ethics statutes constrain the actions of Federal employees along with extramural 

researchers who receive Federal funding. For government employees, the Office of Government 

 

219 U.S. Office of Personnel Management. 2018. “Hiring Information: Intergovernmental Personnel Act.” 

Accessed September 21, 2018. https://www.opm.gov/policy-data-oversight/hiringinformation/intergovernment-personnel-act/

220 See 18 U.S.C. §208 and §209, 5 C.F.R §2935 and §2936, and OGE guidance at 

https://www.oge.gov/web/oge.nsf/Use+of+Government+Position+and+Resources.
82

Ethics (OGE) promulgates Federal ethics regulations across the Federal Government. The OGE 

groups Federal ethics rules into five areas: (1) financial conflicts and impartiality, (2) postgovernment employment, (3) outside employment and activities, (4) gifts and payments, and (5) 

use of government position and resources.221 Conflict of interest plays a key role in each of these 

areas, with the most applicable section to entrepreneurial practices being financial conflict of 

interest and impartiality. 

The basic criminal conflict of interest statute, “prohibits Government employees from 

participating personally and substantially in official matter where they have a financial 

interest.”222 Other important provisions address the ability to represent a third party before the 

U.S. Government;223 and prohibit the supplementation of a Federal employee’s salary.224 The 

practical implications of these statutes include the types of business a Federal employee can own 

and operate, if or for whom they can consult, what royalties they can take from their intellectual 

property, and what assets they can hold. 

The administration of Federal ethics rules is shared among OGE, heads of agencies, 

designated agency ethics officials, and the Department of Justice (DOJ). The OGE promotes 

ethical standards and provides overall guidance and accountability. The DOJ is responsible for 

enforcing the criminal and civil ethics rules. Agencies have primary responsibility for their own 

internal ethics programs and can supplement ethics regulations to address potential conflicts 

unique to the agency’s mission.225 In an effort to avoid conflicts of interest under Title 18, most 

 

221 United States Office of Government Ethics. “Enforcement.” Accessed 10/3/2018. 

https://www.oge.gov/web/oge.nsf/Enforcement

222 18 U.S.C. §208 - Acts affecting a personal financial interest; United States Office of Government 

Ethics. “Analysis Potential Conflicts of Interest.” Accessed 10/3/2018. 

https://www.oge.gov/web/OGE.nsf/Financial+Conflicts+of+Interest/931A1B0819F5E884852582200

075ECC8

223 18 U.S.C. §203 - Compensation to Members of Congress, officers, and others in matters affecting the 

Government; 18 U.S.C. §205 - Activities of officers and employees in claims against and other matters 

affecting the Government

224 18 U.S.C. §209 - Salary of Government officials and employees payable only by United States

225 5 CFR Part 2635.106—Disciplinary and corrective action.
83

agencies restrict Federal employees from owning businesses, equity, or consulting with 

companies related to their Federal work.226, 227

Extramural R&D Programs. Each Federal agency responsible for extramural R&D programs

is required to establish conflict of interest policies for awardees.

228 Conflict of interest policies 

differ across agencies but generally detail requirements for the non-Federal institution to review 

potential conflicts of interest and for extramural researchers to report both to the institution and 

award agency. In general, extramural researchers must report conflicts of interest and avoid 

significant financial conflicts of interest.

Personnel Exchange. Personnel exchange programs have varying degrees of formality229 and 

significantly different durations. The DOC promulgated a regulation in 2016 directed at 

encouraging personnel exchanges.230 

The Intergovernmental Personnel Act (IPA) of 1970231 allows the temporary movement of 

personnel between the Federal Government and State or local governments, educational 

institutions, Federally Funded Research and Development Centers (FFRDCs), and nonprofits.

IPAs are not available to personnel from private industry, but other mechanisms are, such as the 

Visiting Scholars Program at the Frederick National Laboratory for Cancer Research.232

Entrepreneur-in-residence (EIR) programs represent similar efforts, bringing into the 

Federal agency outside expertise in the form of academics, software designers, business experts, 

policymakers, etc. who have demonstrated a significant record of innovative achievement.

233 RFI 

 

226 Based on interviews with COI program managers at Federal agencies

227 The NIST Summary of Ethics Rules 2015 lists principles that apply to entrepreneurship and are 

consistent with most federal agencies guidelines. 

https://ogc.commerce.gov/file/nist-summary-ethics-rules-2015-updated

228 2 U.S.C. §200.112—Conflict of interest

229 Ponomariov, B., & Boardman, C. §2012. Organizational behavior and human resources management 

for public to private knowledge transfer: An Analytic Review of the Literature. Paris: Organisation for 

Economic Cooperation and Development (OECD).

230 15 C.F.R. 17 Personnel Exchanges between Federal Laboratories and Non-Federal Entities.

231 42 U.S.C. § 4701

232 Frederick National Laboratory for Cancer Research, “Visiting Scholars Program,” 

https://frederick.cancer.gov/workwithus/visitingscholars

233 Reamer, Andrew. 2017. “Federal Efforts in Support of Entrepreneurship: A Reference Guide (Working 

Draft).” The George Washington University. March 9, 2017. 
84

respondents noted that these entrepreneurs may be posted at an agency (Department of Health 

and Human Services’ IDEA Lab,234 DOE235,236) to act as opportunity spotters, domain experts, 

and target industry insiders. Personnel exchange can occur through educational partnership 

agreements, such as those which exist between the DOD and educational institutions, enabling 

DOD laboratory directors to make personnel available to teach science courses or assist in 

developing course materials. There also exist more specific personnel exchanges, such as the 

Presidential Innovation Fellows237 and the Information Technology Exchange Program. These 

programs are supported by the White House and the DOD, respectively.

Developing and commercializing new technologies often happens as a result of the above

forms of alliances in which resources, knowledge, and skills are pooled.238 Formal (or informal) 

personnel exchange agreements are observable indicators of knowledge transfer and a meaningful 

gauge for measuring the effectiveness of these relationships.239 Such alliances have shown impact

in Japan, where national universities offer visiting professorships attached to R&D projects.240

Companies can place visiting researchers at universities to serve both as adjunct faculty members

and to collaborate on R&D projects. These personnel exchanges, along with technology licensing, 

proved the most influential factors for generating product innovation and increasing sales.241 The 

movement of university researchers to industrial firms is valuable as well, with scientific 

breakthroughs often attributed to contributions of the knowledge creators, through either part-

 

https://gwipp.gwu.edu/sites/g/files/zaxdzs2181/f/downloads/Reamer%20federal%20entrepreneursh

ip%20reference%20draft%2003-09-17.pdf

234 U.S. Department of Health and Human Services. 2018. “Entrepreneurs-in-Residence Program.” IDEA 

Lab. Accessed September 21, 2018. https://www.hhs.gov/idealab/eir-program/

235 U.S. Department of Energy (DOE). 2007. “DOE’s Entrepreneur in Residence (EIR) Program.” 

Department of Energy. Last modified October 24, 2007. https://www.energy.gov/articles/doesentrepreneur-residence-eir-program

236 U.S. Department of Energy (DOE). “Technologist in Residence Program.” 

https://www.energy.gov/eere/amo/technologist-residence-program

237 Presidential Innovation Fellows Program. https://presidentialinnovationfellows.gov/

238 Betz, Frederic. 1996. “Industry-University Partnerships.” Handbook of Technology Management, 

Chapter 8. Gayner, G. ed. New York: McGraw-Hill. Pp. 250-259.

239 Lakpetch, P., & Lorsuwannarat, T. 2012. “Knowledge transfer effectiveness of university-industry 

alliances.” International Journal of Organizational Analysis, 20(2), 128-186.

240 Ibid.

241 Pittayasophon, S., Intarakumnerd, P., Sumikura, K., Saito, H., & Suzuki, J. 2016. “Firm Characteristics 

and Modes of University-Industry Collaboration.” STI Policy Review, 7(1), 17-39.
85

or full-time assignments.

242 Other successful models focus on applied R&D through partnership 

between representatives of industry, academia, and government. 243 Looking at innovative 

performance as represented by the number of and citation to firms’ patents has supported the 

idea of a direct link between innovation and the human capital of scientists, provided they are 

“commercially oriented.”244

The various forms of personnel exchange are often described as a triple-win,245 with the 

home organization, the personnel involved in the exchange, and destination organization all 

benefiting from the interaction. The destination or host organization may fill a gap in expertise or 

staff shortage, benefit from fresh ideas and talent, and save money by mitigating the need to hire 

a full-time employee. The personnel involved in the exchange benefit by being exposed to a 

different organization’s processes and structures, learning new skills, and experiencing 

professional growth. The home organization develops network ties by participating in this lending 

process and receives back an employee with greater experience and potentially better job 

performance.246

Entrepreneurial Leave and Sabbaticals. One specific type of personnel exchange program is 

entrepreneurial leave and/or sabbaticals. These offer opportunities for workers to take leaves of 

absence or sabbaticals in which they can pursue the independent commercialization of a product 

developed in a laboratory. Entrepreneurial leave can be an effective way to leverage the intramural 

research expertise into business creation. Several Federal Laboratories already make limited use 

of this practice; for instance:

• Sandia National Laboratories encourages an “entrepreneurial separation to transfer

technology,” which is a program that allows employees to leave for a time to grow their

own business. Reinstatement for employees is guaranteed if the researcher comes back

242 Zucker, L. G., M.R. Darby and M. Torero. 2002. "Labor mobility from academe to commerce." 

Journal of Labor Economics, Vol. 20(3), pp. 629-660.

243 Fraunhofer-Gesellschaft. https://www.fraunhofer.de/en.html

244 Toole, A. A., & Czarnitzki, D. 2009. “Exploring the relationship between scientist human capital and 

firm performance: The case of biomedical academic entrepreneurs in the SBIR program.”

Management Science, 55(1), 101-114.

245 Wynne, M. 2016. “Lab-to-Market: Commercializing New Technologies by Exchanging Talent.” 

Retrieved from https://obamawhitehouse.archives.gov/blog/2016/11/22/lab-marketcommercializing-new-technologies-exchanging-talent

246 Howieson, S. V., Yglesias, E., Blazek, S. L., & Tran, E. D. 2013. “Federal Personnel Exchange 

Mechanisms.” Washington, DC: Science and Technology Policy Institute. 
86

within a 2-year window. In 2008, alumni from this program had created 44 companies 

and expanded another 46.247

• Los Alamos National Laboratory (LANL) has a similar leave program wherein 

employees can take up to 3 years away from the home organization to participate in a 

venture based on LANL-developed technologies or expertise. Medical benefits and a 

comparable job opening are available in the first year, with reduced funding for 

benefits and hiring preference possible for the year after.248

Sabbaticals for faculty at universities act as similar opportunities to step away and pursue a 

commercialization venture. However, these opportunities are often only available post-tenure and 

are not widespread across academia. A survey of more than 50 research universities showed that 

only half permit this type of temporary leave. 249 The use of leave without pay by Federal 

employees for a sabbatical or entrepreneurship has limited effectiveness, since the full conflict of 

interest rules apply even during periods of uncompensated leave. 

2. CHALLENGES

Definitions of conflict of interest and regulations for managing it vary across agencies and 

Federal Laboratories, making it difficult for investigators and their institutions to comply with the 

varying requirements. A 2016 report by The National Academies noted the differing policies 

across agencies and even in Federal-wide guidance. 250 For example, the conflict of interest

regulations for the Public Health Service251 (PHS) and NSF252 differ significantly even though 

 

247 Sandia National Laboratories. 2008. “Sandia Entrepreneurial Program Is Back,” News Release, 

November 24, 2008.

248 Palmintera, D. 2003. “Partners on a mission: Federal laboratory practices contributing to economic 

development.” Office of Technology Policy, Technology Administration, U.S. Department of 

Commerce.

249 Blumenstyk, G. 2012. “Recipe for Start-Ups: Sabbaticals, Tenure Credit for Patents, and a Dash of 

‘Disorder.’” Retrieved from https://www.chronicle.com/article/Recipe-for-Start-Ups-/130379/

250 National Academies of Sciences, Engineering, and Medicine. “Optimizing the Nation’s Investment in 

Academic Research: A New Regulatory Framework for the 21st Century.” 

https://www.nap.edu/catalog/21824/optimizing-the-nations-investment-in-academic-research-anew-regulatory

251 See, for example, https://grants.nih.gov/grants/policy/coi/index.htm 

252 National Science Foundation. 2005. NSF Conflict of Interest Policies, Chapter V, Section 510, NSF 

Grant Policy Manual, NSF 05-131, July 2005.
87

they provide funding to many of the same institutions. RFI responses frequently mentioned the 

increased (and, in their view, extraneous) stringency of the PHS regulations. (Refer to “RFI 

Response on Aligning PHS COI Policies.”) After pressure from the Office of the Inspector General, 

PHS revised their regulations, lowering the threshold for disclosing financial interests from 

$10,000 to $5,000, moving the responsibility to analyze potential conflicts of interest from 

investigators to institutions, and expanding the definition of required disclosures. NSF did not 

revise their rules to align with the new PHS policies. The differences in policies make it more 

burdensome for investigators and their institutions to track and comply with Federal policies.253

Though conflict of interest policies for Federal employees can vary from agency to agency, 

the greatest difference is between researchers employed by the Federal Government and by 

universities. Generally, universities manage the potential for conflict of interest, while most 

Federal agencies prohibit the potential to exist. In academia and other non-government R&D

organizations, employees are granted the ability to remain employees of the institution while 

starting a company or consulting with an outside organization. This allows inventors to work in 

an official capacity with a start-up company that has licensed the inventor’s technology. 

Additionally, academic institutions generally allow faculty members a leave of absence to pursue 

entrepreneurial opportunities. Federal workers, conversely, may be discouraged from such 

entrepreneurial participation due to restrictions on receiving external salary while remaining in 

Federal employment.254 This Federal restriction runs counter to the goal of building a more 

entrepreneurial R&D workforce.

The lack of a clear policy for leave of absence limits the incentives for Federal researchers to 

pursue commercialization opportunities, particularly ones that necessitate researchers leaving 

their positions to begin a start-up or other venture. Other restrictions include limitations on 

founding a start-up related to the employee’s Federal work, owning equity in a start-up company, 

or consulting for a start-up. Federal conflict of interest policies negatively affect the proliferation 

253 Ibid.

254 18 U.S.C. §203 - Compensation to Members of Congress, officers, and others in matters affecting the 

Government

RFI Response on Aligning PHS COI Policies

“The government must seek to better align its current PHS conflict of interest policies with its interest 

in seeing the commercialization of, and ROI on, its NIH research investments.”

Source: AAU, APLU, COGR, AAMC, and ACE
88

of network-building activities such as consulting for industry or personnel exchange. Conflict of 

interest policies can also limit the ability of the government to recruit innovative and highly skilled 

science, technology, engineering, and mathematics (STEM) employees who may be concerned 

about conflicts with restriction on partnering with a former employer or divesting financial 

interests.255

Conflict of interest policies can diminish the effectiveness of the technology transfer process 

by restricting coordination between the private organization commercializing technology and the 

Federal researchers by whom it was developed. Several RFI respondents mentioned an example 

of a start-up company leveraging a technology developed in a Federal Laboratory. In such a 

situation, the start-up would like to be able to speak or work with the inventors of the technology 

for technical assistance. However, if the Federal researcher has a patent on the technology, 

speaking with the company in an official capacity would be considered a financial conflict of 

interest based on the potential royalties from the patent. These rules prevent scientists from being 

involved and improving business ventures based from their research, thus limiting the 

effectiveness of those original partnerships.256 (Refer to “RFI Response on Requiring Federal 

Employees to Leave Government Service.”)

255 Peña, Vanessa, Michael C. Mineiro, and Ryan M. Whelan. 2014. Federal Ethics Rules and Their 

Impacts on Recruiting and Retaining Federal Science, Technology, Engineering, and Mathematics 

(STEM) Employees. Washington, DC: IDA Science and Technology Policy Institute.

256 U.S. Government Accountability Office (GAO). 2014. “Federal Laboratory Consortium Should Increase 

Communication with Potential Customers to Improve Initiatives.” 

https://www.gao.gov/products/GAO-15-127

RFI Response on Requiring Federal Employees to Leave Government Service

“It is unclear to me why this policy was initiated originally, but I can easily understand the 

rationale for it at the time. This is a complex issue with major perception concerns. I suggest 

that it is now outdated and can accommodate some flexibility while balancing concerns 

prudently. Universities (which on this topic are very different organizations) allow carefully 

crafted “Leave of Absence” or “Sabbaticals” as part of their culture. Some of these have fully 

paid salaries, some totally unpaid, some partially paid. An ‘Entrepreneurial Leave of Absence’ 

for 2 years (difficult to accomplish a lot in 12 months), could be offered within Federal 

Laboratories. At the end, the person can return to the same position without any impact on 

fringe benefits, pensions, etc., if they wished. This is a non-issue for Agencies with guest 

researchers on soft money but could work well for full government employees.”

Source: RFI Response, Burnside Development
89

3. INTENDED ACTION

Intended Action 12. (i) Implement harmonized and consistent governmentwide requirements to manage conflicts of interest involving recipients of 

extramural Federal R&D funding, and (ii) authorize scientists and engineers at 

Federal Laboratories to engage in entrepreneurial activities that support 

technology transfer and commercialization.

A. ENTREPRENEURIAL ACTIVITIES BY EXTRAMURAL FEDERAL R&D FUNDING 

RECIPIENTS

Develop, adopt, and use consistent and streamlined government-wide requirements and 

practices to manage conflicts of interest involving recipients of extramural Federal R&D 

funding.

257

B. ENTREPRENEURIAL ACTIVITIES BY FEDERAL SCIENTISTS AND ENGINEERS

Legislative change is required to authorize scientists and engineers at Federal Laboratories 

to engage in entrepreneurial activities258 that support technology transfer and commercialization 

(notwithstanding 18 U.S.C. § 208-209) if such activities are approved by the agency head, or 

designee, in consultation with the agency’s legal counsel. Implement regulations under the 

Stevenson-Wydler Act 259 with consistent and streamlined government-wide policies and 

practices to manage conflicts of interest involving scientists and engineers at Federal 

Laboratories. Clarification will also be necessary regarding copyright ownership under such 

programs.

C. ENTREPRENEURIAL LEAVE AND SABBATICALS

Legislative change is required to authorize Federal agencies to grant scientific and technical 

professionals, including those who are senior executives, at Federal Laboratories entrepreneurial 

leave and sabbatical absence to engage in compensated or uncompensated entrepreneurial 

 

257 Consider comments received through the RFI process and engage with Nonfederal organizations to 

identify best practices to manage conflict of interest for extramural Federal R&D recipients.

258 For example, service as an advisor or consultant to companies, service on a scientific advisory board or 

board of directors of companies, and equity ownership in companies. Companies may be startups, 

small, or large.

259 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

intended action is discussed under Strategy 1, Section G.
90

activities 260 (notwithstanding 18 U.S.C. § 208-209) that support technology transfer and 

commercialization for up to 3 years with full reinstatement privileges.

261 , 262 Implement 

regulations under the Stevenson-Wydler Act263 with consistent and streamlined governmentwide policies and practices to grant scientists and engineers, including senior executives, at 

Federal Laboratories entrepreneurial leave and sabbatical absence to engage in entrepreneurial 

activities.

260 To attempt to spin-out a technology or start a business of their own in addition to service as an advisor 

or consultant to companies, service on a scientific advisory board or board of directors of companies, 

and equity ownership in companies without fear of losing Federal employment or seniority.

261 New language can be added to 15 U.S.C. § 3710 creating the authority for Federal R&D staff to take 

entrepreneurial leave, provided such language notes the potential conflict with Title 18 (18 U.S.C. 208-

209). Such language may want to reflect the intention that the agency will rehire the staff member who 

elects to take entrepreneurial leave, and that the entrepreneurial leave shall not result in loss of, or 

reduction in, pay, leave to which the employee is otherwise entitled, credit for time or services, or 

performance or efficiency rating.

262For Senior Executive Service career appointees to use sabbatical absence from duty for compensated 

work experience changes to 5 U.S.C. § 3396(c)(1) may require: (a) extending the term of sabbatical 

from 11 months to a longer time (i.e., up to 3 years) to reflect the time-consuming nature of 

commercialization, (b) add permission for appointee to engage in compensated work experience.

263 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. The 

planned action is discussed under Strategy 1, Section G.
91

STRATEGY 4. SUPPORT INNOVATIVE TOOLS AND 

SERVICES FOR TECHNOLOGY TRANSFER

The fourth of five strategies of the L2M CAP Goal is focused on supporting innovative 

tools and services for technology transfer. The intended actions are designed to make it 

easier for potential partners to discover both extramural and intramural Federal R&D 

results and to access information on Federal R&D programs, facilities, equipment and 

tools, expertise, services, and other relevant assets. This chapter discusses actions to 

modernize the Federal IP data reporting system(s) and to provide easy access to Federal 

R&D assets.

A. INTRODUCTION

Managers and business professionals need timely, accurate, and useful access to 

Federal R&D, IP, and technology transfer information to identify translational R&D, 

technology maturation, and commercialization opportunities and engage in collaborative 

partnerships. Technology managers need accurate information to identify the right private 

sector contacts to facilitate promising collaborations. 

Effective tools and services improve awareness of Federal R&D assets available for 

commercial opportunities, and avenues for public and private parties to find each other to 

engage. To facilitate this awareness among relevant stakeholders, tools and services 

provide access to resources, such as intellectual property, equipment and facilities, and 

information about mission and capabilities of Federal Laboratories. For extramural 

inventions, these tools provide a mechanism to report information and for agencies to

curate data through standardized reporting requirements. Overall, tools and services 

assist all stakeholders both within and outside the government with timely, accurate, and 

potentially impactful data. 

In addition, there is a need for timely and accurate information regarding extramural 

inventions under the Bayh-Dole Act. The requirements to report inventions, elect rights, 

request extensions of time requirements, request waivers, demonstrate progress, inform 

the government of their limited use rights, and other interactions are an important part of

the obligation of funding recipients to support technology transfer for the American 

people. Although ease of access to information can help technology transfer, development 

of these systems can be expensive. The costs to maintain the system and especially the 

currency of the data can be even higher.

It is essential to modernize the data systems involved in technology transfer. RFI 

responses overwhelmingly noted the need for simplified and streamlined reporting 

requirements that keep sensitive data secure and increase timely access to information 
92

and services to support transformational R&D partnerships and technology transfer 

outcomes for the 21st Century. The cost of reporting and compliance can have a large 

impact on the government’s ability to attract partners. 

B. FEDERAL IP DATA REPORTING SYSTEM(S)

1. BACKGROUND

Regulations implementing the Bayh-Dole Act give the extramural funding recipient

a period of 2 years to elect rights to a Bayh-Dole Act subject invention, or 60 days before 

a bar date for patenting under U.S. law.

264,265 If the funding recipient elects rights, they 

agree to file for a patent and take steps to achieve practical application of the invention, 

that is, actively seek a commercial opportunity. Agencies can require additional reporting 

on progress to ensure that the recipient is continuing to achieve practical application. 

Invention reporting is also necessary to inform the government of its use right. A major 

issue with invention reporting is the need to properly secure proprietary information from 

unauthorized disclosure by the funding agency. Agencies requiring invention reporting 

must be cognizant of the need to keep information confidential during the patent filing 

process as well as any specific business plans regarding efforts to commercialize a product. 

The Bayh-Dole Act and accompanying regulations require reporting to Federal 

funding agencies on the utilization of subject inventions. Since the adoption of the 

legislation, many agencies have used different processes for invention reporting. Most 

agencies have moved from paper-based reporting to electronic systems. The primary 

electronic system for invention reporting currently in use is the interagency-Edison 

(iEdison) system developed and maintained by NIH. The iEdison system is a web-based 

platform used by all government awardees to report on federally funded inventions.266,267

There are currently more than 30 Federal agency offices that have elected to use the 

 

264 See 37 C.F.R. 401 

265 See 35 U.S.C. 102(b) as amended by the Leahy-Smith America Invents Act, Public Law 112-29.

266 National Institutes of Health (NIH). n.d. “iEdison.gov.” Accessed October 5, 2018. 

https://public.era.nih.gov/iedison

267 Edison was created in 1995 by the NIH and became iEdison in 1997 when the NSF and USAID

joined. https://public.era.nih.gov/iedison/public/faq.jsp#q2
93

iEdison system.

268 The iEdison system can track inventions from the reporting phase, 

starting with funding and invention details, through to commercialization, monitoring

utilization, and profit data. Data within the iEdison database is partitioned by agency, 

allowing individual agencies to view their invention reports. This partitioning does make 

it more difficult to discover inventions across agencies but enhances the protection of the 

proprietary information in the system.269 

In addition to the iEdison system, agencies may use or design their own tools for this 

reporting function. For example, NASA developed and uses the New Technology 

Reporting System (e-NTR). As e-NTR only manages NASA intellectual property data, eNTR employs one standardized form for intellectual property reporting across all NASA 

technology transfer offices. 270 NASA exploits the standardized and complete data 

gathered by e-NTR to build metrics and technology transfer reports, as well as collect 

intellectual property data for public consumption.

The need to report in different systems with unique requirements can be time 

consuming and difficult for government awardees that work across multiple agencies. 

While each system is based on the same rules, each has its own commands and operation 

and requires a separate login. 

2. CHALLENGES

Without a single government-wide reporting system, university technology transfer

offices and federally funded researchers must devote significant resources to reporting 

tasks to navigate different agency platforms and reporting requirements. Even within a 

single agency, individual Federal Laboratories may use unique reporting platforms. RFI 

respondents noted that this lack of consistent reporting places a burden on technology 

transfer offices, especially smaller offices or individuals with fewer resources to devote to 

administrative tasks. Many respondents called for mandated use of a single reporting 

system by all agencies to meet the Bayh-Dole Act reporting requirements. (Refer to “RFI 

Response a Unified Federal Invention Reporting System.”)

268 National Institutes of Health (NIH). 2016. “iEdison – Agency Websites.” Accessed October 5, 

2018. https://era.nih.gov/iedison/agency_sites.htm

269 Bayh-Dole Act regulations note that the reported information is subject to 35 U.S.C. 202(c)(5). 

As such, agencies shall not disclose such information to persons outside the government. 

Contractors will continue to provide confidential markings to help prevent inadvertent release 

outside the agency. 

270 National Aeronautics and Space Administration. n.d. “New Technology Reporting System.” 

Accessed October 5, 2018. https://invention.nasa.gov/prog/login.
94

Further, agencies do not always have the same reporting requirements, even agencies 

that use the same platform. RFI respondents echoed this concern, stating that the 

inconsistent requests for additional information add to the difficulties with reporting. The 

National Academies recommends developing a standard set of requirements to ensure 

that reporting requirements do not exceed those stated in Bayh-Dole.

271 RFI respondents 

also noted issues related to the quality, timeliness, and transparency of communication 

between agencies and extramural partners in reporting and called for guidance to be 

developed in this area (See “RFI Response on Reporting System Experience.”) 

ROI Public Forum attendees stated that iEdison is the most widely used reporting 

system, though users report that it is confusing and difficult to use, sometimes requiring 

professional assistance. The system has undergone few technical improvements since it 

was first implemented in 1995. NIH does not have a unique or explicit source of funding 

to maintain and update the system, and it must therefore compete with other NIH 

 

271 National Academies of Sciences, Engineering, and Medicine. 2016. Optimizing the Nation's 

Investment in Academic Research. Washington, DC: The National Academies Press. 175, 

Recommendation 10.2.

RFI Response on a Unified Federal Invention Reporting System

“[The University of California (UC)], like many universities, has experienced issues 

surrounding the process of required invention reporting under iEdison, an outdated system 

that could be more user-friendly. The fact that not all agencies use the same system is in itself 

problematic and inefficient. Inconsistencies in reporting requirements from one agency to the 

next (and even within agencies) lead to confusion and unnecessary time and effort that could 

better be spent engaged in the substance of technology transfer activities. UC strongly 

supports a single, consistent government-wide reporting process using a state-of-the-art, 

easy-to-use portal that is adequately funded and maintained. Agency requirements for 

invention reporting should be harmonized.” 

Source: RFI Response, University of California

RFI Response on Reporting System Experience

“Agencies should ensure that their staff are responsive when issues arise during reporting, 

especially while the current balky system remains in use. Metrics should be developed for the 

quality of the reporting system and agency responsiveness and should be disseminated 

regularly throughout the tech transfer community.”

Source: RFI Response, Massachusetts Institute of Technology and MIT Lincoln Laboratory
95

priorities. Inadequate funding rather than technical challenges or lack of capabilities was 

cited as the primary reason for the shortcomings of the iEdison infrastructure.272 This was 

noted in the RFI responses, which called for significant reforms to improve current 

invention reporting platforms. (Refer to “RFI Response on Improved Invention 

Reporting.”) 

Perhaps even more significant than internal reporting requirements for compliance 

are the multiple benefits for business partners to have a single, consistent, discoverable 

set of information. Businesses, especially small businesses, do not have the time to 

discover and use multiple government websites. Making information readily accessible is 

a key part of the technology transfer mission. 

3. INTENDED ACTION

Intended Action 13. Establish a secure and interoperable platform273 for 

reporting data on intellectual property 274 resulting from extramural and 

intramural Federal R&D that is easy to access, analyze, and use.

A. SECURE, INTEROPERABLE PLATFORM FOR FEDERAL IP DATA 

REPORTING

Develop, test, implement, and operate a modern platform government-wide for 

reporting data on intellectual property (IP) resulting from Federal R&D that is easy to 

 

272 National Academies of Sciences, Engineering, and Medicine. 2016. Optimizing the Nation's 

Investment in Academic Research. Washington, DC: The National Academies Press. 174.

273 At a minimum, the IP data platform should be interoperable with USPTO’s public searchable 

database, including the assignments data that contains information on government interest 

licenses: https://assignment.uspto.gov/patent/index.html#/patent/search

274 To include inventions, copyrights, and utilization metrics.

RFI Response on Improved Invention Reporting

“We suggest that the Federal government invests significant resources to modernize and 

improve the process used to report the status of technology and inventions via its iEdison 

interface to be improved for clarity and congruency with commercialization, patent 

prosecution and invention disclosure practices.”

Source: RFI Response, University of California, San Diego 
96

access, analyze, and use by extramural and intramural recipients of Federal R&D funding 

and those responsible for managing that IP data.

B. CONSISTENT FEDERAL IP DATA REPORTING REQUIREMENTS

Implement regulatory change under the Bayh-Dole Act with consistent and 

streamlined government-wide requirements and practices for timely and transparent

reporting of extramural Federal IP data, including inventions, responses from Federal 

agencies on waiver of invention rights, request for assignment of invention rights, U.S. 

manufacturing waiver requests, and exceptions to the standard patent rights clauses.

275

C. REPORTING FEDERAL IP DATA FROM INTRAMURAL R&D

Legislative change requiring Federal Laboratories to report data on IP resulting from 

intramural R&D. Implement regulations under the Stevenson-Wydler Act 276 with 

consistent and streamlined government-wide requirements for Federal Laboratories to 

report data on IP resulting from intramural R&D.

C. ACCESS TO FEDERAL R&D ASSETS

1. BACKGROUND

Aggregation and curation of Federal technology transfer information, resources, 

tools, and services is helpful for external stakeholders looking to engage in technology 

transfer. Harnessing these Federal data on a publicly accessible platform would increase 

visibility into the Federal innovation ecosystem and aid in opening access to Federal R&D 

resources, such as Federal Laboratories, expertise, and equipment, among others. 

The FLC was formally chartered by the Federal Technology Transfer Act of 1986 (15 

U.S.C. § 3710) as a cross-agency organization to foster opportunities for transferring 

innovative technologies from Federal Laboratories into the marketplace. As stated in 

FLC’s 2015-2019 strategic plan, its membership represents “virtually the entire extant 

body of experience and expertise on practical, successful approaches to Federal 

 

275 37 CFR §§ 401.14

276 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. 

The planned action is discussed under Strategy 1, Section G.
97

Laboratory technology transfer, and on its beneficial outcomes.” 277 Today, the FLC 

community is made up of over 300 Federal Laboratories, facilities, and research centers, 

as well as their parent agencies.

To fulfill its mission, the FLC provides a number of cross-agency tools, services, and 

educational resources, aimed at making the technology transfer process as accessible as 

possible for commercialization successes. 278 Specifically, the FLC serves as a 

clearinghouse for Federal technologies by providing the following tools and services:

• FLC Business279: a web-based platform providing a single extensive inventory of 

Federal Laboratory information, including member laboratories’ missions, 

capabilities, programs, facilities, equipment, and contacts; 

technologies available for licensing; funding opportunities; and publications; 

and

• Technology Locator280: a no-cost, personalized matching service that connects 

external users with an appropriate laboratory representative to further the 

user’s R&D goals.

In 2014, a GAO study recommended that the FLC “work collaboratively with agency 

and laboratory members to increase communication with potential customers and obtain 

feedback to improve its clearinghouse initiatives.” 281 This recommendation was 

considered in FLC’s development of FLC Business.com, which formally launched in April 

2014, and has since undergone significant public testing of its user interface and search 

capabilities. The most recent version of the site, FLC Business 3.0, was released in 

 

277 Federal Laboratory Consortium for Technology Transfer (FLC). 2015. “Strategic Plan 2015-

2019.”

https://www.federallabs.org/sites/default/files/FLC_Strategic_Plan.pdf

278 Federal Laboratory Consortium for Technology Transfer (FLC). n.d. “History.” Accessed 

October 5, 2018. https://www.federallabs.org/about/history.

279 Federal Laboratory Consortium for Technology Transfer (FLC). n.d. “FLC Business.” Accessed 

October 5, 2018. https://www.federallabs.org/FLC Business.

280 Federal Laboratory Consortium for Technology Transfer (FLC). n.d. “Technology Locator 

Service.” Accessed October 5, 2018. https://www.federallabs.org/t2-toolkit/technologylocator-service.

281 U.S. Government Accountability Office (GAO). 2014. Federal Laboratory Consortium Should 

Increase Communication with Potential Customers to Improve Initiatives. Washington, DC. 

https://www.gao.gov/assets/670/666361.pdf
98

September 2018 and has been updated with additional user capabilities, including refined 

search categories, advanced filtering options, a tech-locator chat service, upgraded editing 

capabilities for laboratory profile pages, and integrated success stories and awards with 

laboratory profiles.282 Still, FLC faces technical challenges in curating agency content, 

resulting in incomplete or out-of-date data on the platform. 

Federal agencies also provide information on agency- or laboratory-specific 

technology transfer programs, resources, opportunities, and available technologies 

through their own online platforms. For example, DOE has developed a suite of online 

applications through its Lab Partnering Service283 to connect external users with experts, 

projects, and patents from across the DOE and its National Laboratories. Another example

is the DHS Transition to Practice 284 program, which identifies the most promising 

cybersecurity projects across the Federal Government with a demonstrated potential for 

commercialization and introduces them to potential partners or investors. While these 

agency-specific sites can provide additional information related to technology transfer 

that goes beyond what FLC’s tools and services curate, they present a challenge for users 

who are interested in technologies from more than one agency. 

2. CHALLENGES 

Technology transfer information and opportunities are dispersed on individual 

agency websites and awareness may not flow out to potential partners. This sentiment was 

prevalent in the RFI responses, which pointed to lack of awareness and effective 

knowledge sharing as barriers for external parties engaging in the technology transfer 

process. RFI respondents recognized the need for a centralized repository of technology 

transfer information and opportunities across all agencies. Rather than visiting multiple 

sites to identify a technology or resource, researchers and entrepreneurs could benefit 

from a more complete inventory in a single source, displayed in a consistent format. 

 

282 Federal Laboratory Consortium for Technology Transfer (FLC). 2018. “FLC Business 3.0 is 

Here!” September 4, 2018. https://www.federallabs.org/news/flc-business-30-is-here.

283 U.S. Department of Energy (DOE). n.d. “Lab Partnering Service.” Accessed October 5, 2018. 

https://www.labpartnering.org/home.

284 U.S. Department of Homeland Security. n.d. “Transition to Practice.” Accessed October 5, 

2018. https://www.dhs.gov/science-and-technology/csd-ttp
99

To curate content for FLC Business, the FLC depends on information provided 

voluntarily by agency and laboratory members. To reduce the administrative burden on 

its members and ensure that information is up-to-date, the FLC automates this 

information exchange as much as possible. In 2015, the FLC contracted for the 

development of a web scraper tool285 to aggregate inconsistent, unstructured information 

with permission from agency and laboratory websites into a consistent schema for 

searching on FLC Business. The tool uses the visual attributes of the webpage, employing 

pattern recognition to gather text or downloading documents. Because the level of detail, 

accuracy, and accessibility of this information varies across agencies, data on FLC 

Business is sometimes incomplete, out-of-date, or inconsistent. It has also been noted that 

some information on agency websites is presented using software that is incompatible and 

inaccessible with this scraping method. 

Responses submitted to the RFI call for additional efforts beyond curation of content 

such as putting available technologies in the context of appropriate collaboration 

mechanisms and integrating modern capabilities such as semantic search and text analysis 

(Refer to “RFI Response on a Centralized Platform.”) RFI responses also suggested 

aligning tools and services with private sector needs, developing mechanisms for 

confidential interaction between agencies and users, and developing a government- or 

agency-wide technology transfer communications strategy.

 

285 Connotate. 2017. “Another Web Data Extraction Use Case: Consolidating Information Spread 

Across Dozens of Sites to Build a One-Stop Shop for Patent Information.” February 22, 2017. 

https://www.connotate.com/another-web-data-extraction-use-case-consolidatinginformation-spread-across-dozens-of-sites-to-build-a-one-stop-shop-for-patent-information/.

RFI Response on a Centralized Platform

“A renewed attempt to develop a cross-agency platform for searching, identifying, and 

licensing technologies should be undertaken to take advantage of modern technologies... 

Rather than building a centralized database of technologies, the Federal Government could 

create a federated search system where agencies expose their technology inventories to 

search and provide associated information that can be parsed and processed such that 

technologies are tagged with a consistent set of taxonomies.” 

Source: RFI Response, RTI International
100

3. INTENDED ACTION

Intended Action 14. Establish a federated data portal that is easy for the 

public to access, use, and analyze, which provides information on (i) IP 

resulting from extramural and intramural Federal R&D programs 

government-wide, and (ii) Federal R&D programs, facilities, equipment and 

tools, expertise, services, and other relevant assets.

A. FEDERATED DATA PORTAL FOR FEDERAL R&D ASSETS

Develop, test, implement, and operate a federated data portal that is easy for the 

public to access, use, and analyze with information on (i) IP resulting from extramural and 

intramural Federal R&D programs government-wide, and (ii) Federal R&D programs, 

facilities, equipment and tools, expertise, services, and other relevant assets.

B. REPORTING DATA ON FEDERAL R&D ASSETS

Legislative change requiring Federal Laboratories to report information on their 

R&D programs, facilities, equipment and tools, expertise, services, and other relevant 

assets. Implement regulations under the Stevenson-Wydler Act286 with consistent and 

streamlined government-wide requirements for Federal Laboratories to report up-to-date 

data on their R&D programs, facilities, equipment and tools, expertise, services, and other 

relevant assets.

 

286 Regulatory authority to implement the Stevenson-Wydler Act will require legislative change. 

The planned action is discussed under Strategy 1, Section G.
101

STRATEGY 5. IMPROVE UNDERSTANDING OF GLOBAL 

SCIENCE AND TECHNOLOGY TRENDS AND BENCHMARKS

The fifth strategy of the L2M CAP Goal is focused on improving understanding of 

global science and technology trends and benchmarks. The intended actions are designed 

to better capture, assess, and improve Federal R&D outcomes, impacts, and operational 

processes. This chapter discusses actions to determine, adopt, and use appropriate metrics 

to accelerate technology transfer, strengthen U.S. economic competitiveness and national 

security, and enable even greater return on investment to the American taxpayer. 

In today’s global economy, it is no longer enough to demonstrate effectiveness 

against past performance. Instead, performance must be measured against worldwide 

competition. It is important to look at the transfer of technology from a broad perspective. 

Technology transfer is not simply the licensing of patented inventions, but the full range 

of options available to achieve commercialization and economic development. For 

example, NIST defines technology transfer as: “the overall process by which NIST 

knowledge, facilities, or capabilities in measurement science, standards and technology 

promote U.S. innovation and industrial competitiveness to enhance economic security 

and improve quality of life.”287

A. INTRODUCTION

United States law states that “it is the continuing responsibility of the Federal

Government to ensure the full use of the results of the Nation’s Federal investment in 

research and development.”

288 Understanding and measuring R&D performance within 

the global context provides the foundation for informed decision-making and for assessing 

and improving the return on investment. Metrics, however, must be designed to advance 

the purpose of the Federal investment in R&D. These measurements are very difficult to 

make for immediate policy decisions because the actual impacts may take decades to occur 

 

287 Annual Report on Technology Transfer: Approach and Plans, Fiscal Year 2017 Activities and 

Achievements, U.S. Department of Commerce

https://www.nist.gov/sites/default/files/documents/2018/09/19/fy2017_doc_tech_trans_an

nual_report.pdf

288 Stevenson–Wydler Technology Innovation Act of 1980 as Amended through P.L. 114–329, 

Jan. 6, 2017 [15 U.S. Code § 3710].
102

and be measured. (Refer to “RFI Response on the Length of Time to Realize the 

Commercial Benefits of Research and Development.”) 

Innovation in science and technology has been a cornerstone of America’s progress 

since the Nation’s founding.

289 The Federal Government invests in basic research, earlystage applied research, and technology transfer efforts that will lead to the breakthroughs 

of the future. Federal R&D investment adapts to changing National priorities, with the 

expectation that this investment will strengthen the Nation's innovation base and position 

the United States for unparalleled job growth, continued prosperity, and national security. 

Current R&D priorities include security; artificial intelligence (AI), quantum information 

sciences, and strategic computing; connectivity and autonomy; manufacturing; space 

exploration and commercialization; energy; medical innovation; and agriculture. 290 

The R&D enterprise enables the creation and transfer of knowledge via complex 

pathways involving discovery, translation, and innovation.291 Intellectual property, in its 

most elemental form, protects the knowledge, innovations, and creations that hold 

significant strategic value for reasons such as national security, economic competitiveness, 

 

289 See, e.g., Office of Management and Budget, Budget of the United States Government, Fiscal 

Year 2019, Chapter 18 Research and Development, U.S. Government Publishing Office, 

Washington 2018.

290 See, e.g., Office of Management and Budget & Office of Science and Technology Policy, FY 

2020 Administration R&D Budget Priorities, Memorandum for the Heads of Executive 

Departments and Agencies, M-18-22, July 31, 2018.

291 See, e.g., Furthering America’s Research Enterprise, The National Academies Press, 2014.

RFI Response on the Length of Time to Realize the Commercial Benefits of 

Research and Development

“Research valuation is difficult because benefits are often unanticipated or unforeseen and 

may not be realized until the distant future. An example is Albert Einstein’s work on relativity 

more than a century ago to explain the relationship of space, time, and gravity. The first 

patented technology from this research came not from the former patent examiner, 

presumably because he did not envision an immediate commercial application. It was an 

invention of Ernest Lawrence for the particle accelerator, an instrument now extensively used 

in research, materials processing, and medicine...The first consumer product based on 

relativity is the Global Positioning System (GPS), patented in 1970...The particle accelerator 

and GPS systems are examples of unanticipated and unforeseen benefits of relativity 

research and have further led to new fields of research unimaginable to Einstein.”

Source: RFI Response, Jefferson Science Associates and Southeastern Universities Research 

Association
103

commercial innovation, and broad public good (e.g., healthcare, infrastructure). (Refer to 

“RFI Response on the Many Pathways of Technology Transfer.”)

The innovations created through Federal R&D investment must be managed in ways 

that maximize the ROI to the American taxpayer.292 These innovations, knowledge, and 

creations can be protected through intellectual property such as patents, copyrights, 

trademarks, and trade secrets. These intellectual property rights can then be leveraged 

through license agreements to create significant strategic value by controlling the 

distribution and transfer or release of assets through transaction, operation of law, or

passage of time. Though Federal agencies cannot sell intellectual property, non-federal 

owners can choose to sell or otherwise convey (e.g., license) their protected intellectual 

property. 

Critical and emerging technologies also hold significant strategic value for the 

Nation. While the contribution of international collaborations to the scientific and 

technological strength of the United States is widely acknowledged, the Federal 

Government has established various programs to identify critical technologies and the way 

in which they should be protected to ensure that they are provided to foreign entities only 

when doing so is consistent with U.S. interests. Export control laws and regulations, for 

example, are designed specifically to protect the national security, economic, and foreign 

 

292 See, e.g., Managing University Intellectual Property in the Public Interest, The National 

Academies Press, 2011.

RFI Response on the Many Pathways of Technology Transfer

“Agency emphasis on, and support for, technology transfer is a significant driver of success at 

the DOE National Laboratories. We define technology transfer in the broad sense as the 

process of transferring scientific discoveries, technologies and authored works from our 

laboratories to other organizations for the purposes of furthering research, development 

and/or for commercialization to benefit the U.S. The DOE National Laboratories use many 

pathways to carry out this responsibility, including: (a) publication of our research efforts; (b) 

hosting scientific users at our cutting-edge user facilities; (c) conducting research and 

development activities with industry, academia, and others; (d) exchange of personnel via joint 

appointments with academia or industry exchange; (e) licensing of patents and copyrights 

secured through our research efforts; (f) creation or support of start-up businesses that help to 

move our early stage science and technology into commercial applications; and (g) novel 

commercialization mechanisms sponsored by the DOE that leverage the use of laboratory 

expertise such as the Small Business Voucher Program, the Lab Embedded Entrepreneurship 

Program, and the Technology Commercialization Fund.”

Source: RFI Response, National Laboratory Directors Council
104

policy interests of the United States. The R&D enterprise is responsible for carefully 

balancing the need for openness with the need to adhere to export laws and regulations, 

including deemed exports, that protect critical technologies—which hold significant 

strategic value—from unauthorized transfer, such as theft, espionage, reverse engineering, 

or illegal export. 

B. BENCHMARKING AND METRICS

1. BACKGROUND

Metrics. Measuring the success of technology transfer and commercialization is not 

a new topic, and it has been widely studied.293 “Metrics” are employed as a figure of merit

and are often proxies for outputs or outcomes to better understand the performance of a 

system. Metrics should not become the goal itself but, rather, used to understand aspects

of a system.

Technology transfer metrics may be collected for multiple purposes. They can be 

motivated by a need to better manage activities internal to an organization or to better 

understand certain phenomena such as interactions between stakeholders. They can also 

be used to answer external stakeholder questions—ranging from industry to universities 

to Congress. Still another motivation to collect metrics is for larger studies, such as 

econometrics analyses, that showcase impacts. Table 1 shows different potential purposes 

with hypothetical examples.294

Ultimately, metrics can be an important source of information used by organizations 

to make decisions to improve effectiveness and efficiency. They can enable better 

management of the transfer of federally funded technologies for commercial and 

government applications. Metrics could be collected and analyzed for many aspects of 

Strategies 1 through 4. 

To effectively manage technology transfer, it is also necessary to evaluate the 

technology transfer process, outputs, outcomes, and impacts. One goal of substantiating 

technology transfer value is to ensure that it is based on measuring ROI as well as other 

qualitative benefits of federally funded R&D. 

 

293 See e.g. Hill, C. and J. Roessner. New directions in Federal laboratory partnerships with 

industry. Science and Public Policy 25: 297-304. 1998; Barry Bozeman. 2013. “Technology 

Transfer Research and Evaluation Implications for Federal Laboratory Practice,” April 4, 2013

294 Hughes, Mary E., Susannah V. Howieson, Gina Walejko, Nayanee Gupta, Seth Jonas et al. 

2011. Technology Transfer and Commercialization Landscape of Federal Laboratories, 

Washington, DC: IDA Science and Technology Policy Institute.
105

Table 1. Motivations for Technology Transfer 

Purpose Example

For internal management Identify specific activities that are contributing to 

the laboratory’s goals and identify those that are not

To understand specific 

phenomena

Assess the factors that affect laboratory-industry 

interactions

To answer stakeholder 

questions

Identify how many small businesses worked with the 

laboratories over the past year

To meet official requirements Report on the indicators required in the annual 

report on technology transfer activities

To promote interest and 

support

Highlight the effect that laboratories have on local 

economic development

Source: Hughes, M. et al. 2011

Framework for Metrics. Many Federal agencies have developed metrics and 

associated reporting requirements to assess the effectiveness and efficiency of Federal 

R&D to assist both those who fund and those who conduct R&D. There is general 

agreement that reporting requirements are inherently burdensome but are critically 

important in characterizing the outcomes, impacts, and operations of technology transfer 

and commercialization. 

A unifying framework is needed for assessing and improving the effectiveness and 

efficiency of the technology transfer system in a holistic manner that is aligned with the 

overall purpose of Federal R&D. The system should include three broad types of metrics: 

(1) operational processes, (2) R&D outcomes, and (3) R&D impacts. Examples of these 

three types of metrics are discussed below.

I. OPERATIONAL PROCESS METRICS

Operational metrics are needed to assess and improve the efficiency of the technology 

transfer process. Such metrics must be customer-focused and designed to develop and 

implement uniform processes and best practices,

295 consistent interpretation and 

application of authorities, timely government-university-industry partnerships, and a 

culture that values and incentivizes technology transfer through leadership, 

entrepreneurship, professional development, training, and marketing. Operational 

 

295 Including consistent and universal definitions as well as appropriately standardized and 

simplified processes.
106

metrics may also be used to track and assess the progress of the intended actions discussed 

in this document.

Operational efficiency metrics encompass transaction times (e.g., for CRADAs, 

licenses, and other partnership agreements), resource utilization (e.g., financial, labor, 

and ancillary costs), performance expectations (e.g., for R&D staff and managers as well 

as technology transfer professionals), and unified reporting requirements (e.g., ease of 

access, use, and search). The right set of operational metrics will help streamline and 

accelerate technology transfer processes and better align them with the speed of today’s 

market transforming innovations.

II. R&D OUTCOME METRICS

The R&D enterprise uses a variety of mechanisms to disseminate intellectual 

property. R&D outcome metrics are needed to assess and improve R&D effectiveness over 

the near term (e.g., within 3 years) to medium term (e.g., 3 to 8 years). The applicable time 

horizon will vary with the types of technologies and industries (e.g., mature versus 

emerging). 

Classically-focused outcome metrics encompass patents (e.g., disclosures, 

applications, issued), copyright and trademark registrations and disputes, trade secret 

assertions, licenses (e.g., fees, royalties, equity), start-ups (e.g., formation, financing, 

buyouts), and partnerships (e.g., CRADAs and other agreements). Additionally, measures 

such as the ratio of patents filed to patents issued, and the ratio of patents issued to patents 

licensed may give a better sense of the effectiveness of patenting than counting the

numbers of patents. Likewise, it might be useful to consider the percentage of start-ups 

that survive (e.g., beyond 5 years). 

Broader outcome metrics that may be used to more accurately and appropriately 

capture the full range of Federal R&D contributions to the Nation encompass publications 

(e.g., peer-reviewed journal articles, citations, impact factor of journals), placement of 

highly skilled students and postdoctoral associates (e.g., via employment in the private 

and public sectors), use of shared facilities, new and improved standards (e.g., testing, 

measurements, materials, products, process, interoperability), as well as new and 

improved technology services (e.g., reference materials and data, calibrations, 

accreditations).

III. R&D IMPACT METRICS

R&D impact metrics are needed to assess and improve R&D effectiveness over the 

medium (e.g., 3 to 8 years) to long term (e.g., beyond 8 years) to assess the impacts of 

federally funded R&D on national security, economic competitiveness, job creation, 

commercial innovation, and other areas of broad societal benefit (e.g., healthcare, 
107

infrastructure). Such metrics can be used retrospectively or prospectively to focus efforts 

on approaches proven to work. 

Utilization metrics encompass new and/or improved products and services on the 

market that use intellectual property resulting from Federal R&D, their uses, consumer

base, sales activity, time to market, and jobs created, including information related to 

whether the intellectual property used was protected (e.g., via patents and copyrights) or 

not (but still had commercial value). They represent an excellent measure of impact since 

they are fully aligned with the purpose of Federal R&D and technology transfer laws. Such 

metrics can also be tailored to measure the impact of Federal R&D on agency missions 

(e.g., national security, human health, agriculture, and infrastructure). 

Broader R&D impact metrics may be tied to the reputation and stature of scientists 

and engineers performing Federal R&D through prestigious awards such as the Nobel 

Prize, Fields Medal, National Medal of Science, and National Medal of Technology and 

Innovation.

Examples of Data Collection. An overview and select examples of how U.S. and 

global S&T metrics are applied in analyses are provided below. There is a broad 

community of stakeholders assessing domestic metrics, including agencies, NSF-funded 

researchers within the Science of Science Policy community, and other universities 

technology transfer offices, and local/regional economic development authorities. A 

number of these organizations provided feedback via the RFI on how to improve data 

collection for metrics.

I. U.S. DOMESTIC TECHNOLOGY TRANSFER METRICS

NIST prepares an annual summary report to the President and the Congress on 

Federal Laboratory technology transfer. 296 Several metrics are used in that report 

including new inventions disclosed, patent applications filed, start-ups, and patents 

issued. The patents issued by the USPTO are broken down by technology area. The report 

contains data on total active licenses, total active invention licenses, total active incomebearing licenses, new licenses, new invention licenses, income-bearing licenses, total 

income from all active licenses, licenses granted to small business, and total earned royalty 

 

296 National Institute of Standards and Technology (NIST) and U.S. Department of Commerce. 

2017. Federal Laboratory Technology Transfer, Fiscal Year 2015. Washington, DC: U.S. 

Department of Commerce.
108

income. In addition, metrics are shown for total active CRADAs, total active traditional 

CRADAs, new CRADAs, small business involvement in CRADAs, and other collaborative 

R&D relationships. Finally, the summary includes science and engineering articles and 

citations thereof by field. 

The Association of University Technology Managers (AUTM) conducts similar 

analyses for university research.297 AUTM conducts a voluntary licensing activity survey 

that includes information on research funding, patent activity, innovation impacts, 

licensing income, and other indicators. They also fund research in harnessing the inputoutput “I-O” approach to estimate the economic impact of academic licensing and 

summing that impact over 20 years of available data.298 Estimates of the total number of 

person-years of employment supported by licensed-product sales of U.S. universities,

hospitals, and research institutes are also developed. They also report AUTM-associated 

contributions to Gross Domestic Product (GDP), calculated using the I-O approach, are 

compared with U.S. GDP as a whole, and to selected industry, as defined by North 

American Industry Classification System codes, contributions to GDP.

The use of the I-O approach for R&D performed by Federal Laboratories provides

some interesting results. NIST funded a study using the same author and a similar 

approach to the AUTM analysis.

299 When viewed in isolation, the results look promising 

showing a range of economic impact up to $83.6 billion over the study period. These 

estimates, however, are lower than those from university research in the AUTM report. 

There are a variety of potential reasons for the difference, but one of the biggest drivers is 

license income, which typically has not been a priority for Federal Laboratories. Federal 

Laboratories tend to place greater emphasis on the agency’s R&D mission over technology 

transfer, including license income. While the results for Federal Laboratories may be 

explained in this context, there is considerable opportunity for improvement in economic 

impact, given the critical need to strengthen American innovation, economic 

competitiveness, and national security. 

 

297 AUTM 2018. “What is Tech Transfer, Anyways? https://autm.net/about-tech-transfer/whatis-tech-transfer

298 Pressman, Lori Mark Planting, Robert Yuskavage, Sumiye Okubo, Carol Moylan, and Jennifer 

Bond. 2017. The Economic Contribution of University/Nonprofit Inventions in the United 

States: 1996-2015. https://autm.net/AUTM/media/AboutAUTM/Documents/AUTM_BIO_Economic_Impact_Report_2017.pdf 

299 A Preliminary Application of an I-O Economic Impact Model to US Federal Laboratory 

Inventions: 2008-2015. 

https://www.nist.gov/sites/default/files/documents/2018/09/20/prelimappioeconimpactmo

delfedlabinventions2008-2015.pdf
109

II. GLOBAL S&T METRICS

International S&T comparisons offer policymakers the opportunity to compare a 

country’s competitiveness, particularly in terms of R&D and S&T activities. Any changes 

made to how the U.S. measures technology transfer and the corresponding health of the 

Nation’s technology transfer system needs to be comparable with how other nations are 

performing. Indicators that measure economic growth and competitiveness in the 

broadest sense capture aspects of technology transfer, but often do not offer direct 

measures of a nation’s technology transfer activities and downstream impacts. 

Investment in R&D is often cited as an input measure for international comparison 

of R&D capacity, both total R&D spending, and also R&D intensity, which is R&D as a 

percent of GDP. R&D indicators serve as a measure of “innovation infrastructure” or 

inputs to a country’s capacity to innovate. RFI respondents described how countries seek 

to increase their R&D efficiency by using existing funding for scientific research to 

incentivize universities to focus more on technology commercialization. 

Another set of metrics that capture the input of knowledge capacity of a country are 

human capital metrics—the number of first university degrees in STEM fields or the 

number of researchers in a country. The number of patents filed or granted are captured 

internationally, both using USPTO data and triadic patent families, which are a special 

class of patents reflecting a series of corresponding patents filed at the European Patent 

Office, USPTO, and the Japan Patent Office, for the same invention, by the same applicant 

or inventor.300 Similar to metrics collected for the Annual Federal Laboratory Technology 

Transfer Report in the U.S., the international metrics for innovation and competitiveness 

and loosely technology transfer, are counting inputs to the technology transfer system.301

Economic Impact Studies. Economic impact studies that focus on institutions or 

regions is another approach to measuring ROI. In contrast to metrics, economic impact 

studies identify and use indicators to assess the collective impact of a set of investments 

made by a group of stakeholders, which can be Federal Government, State and local 

 

300 National Science Board. 2018. Science and Engineering Indicators 2018. NSB-2018-1. 

Alexandria, VA: National Science Foundation. Available at 

https://www.nsf.gov/statistics/indicators/.

301 Caroline S. Wagner, Irene Brahmakulam, Brian Jackson, Amy Wong, Tatsuro Yoda; “Science 

and Technology Collaboration: Building Capacity in Developing Countries?” RAND 

Corporation, MR-1357.0-WB, March 2001.
110

governments, and corporations or private investment on a local economy. For example, 

the Mid-Region Council of Governments recently completed a study assessing the 

economic impact of Sandia Science and Technology Park in the local economy including 

the increase in tax revenue and the increase in wages.302 Other impact studies focus on 

the economic contributions of investments at Federal Laboratories. 

Economic impact metrics may be used to assess and improve the net benefits to 

society through transfer of technology resulting from Federal R&D. Measures of net 

benefits include net present value, social rate of return, and benefits to cost ratio. Using 

these measures correctly, however, depends on a choice of conceptual methods and the 

requirement for quality data.303The methods involve significant time and effort but serve

as useful estimates of the financial ROI. Three basic alternatives are available:

• Measures to guide public R&D policies such as allocation of resources, including

those that influence investment decisions by firms and businesses;

• Measures to guide private industry investments in R&D, such as net present

value, return on investment, and benefit-cost ratio; or

• Measures with which to evaluate the research and innovation systems, such as

productivity growth, employment growth, and other economic and societal

impacts.

2. CHALLENGES

Each stakeholder in the technology transfer process may have a different metric by

which to gauge value given and received. For example, government metrics that include a 

monetary return on investment in the form of royalties for patents licensed are used to 

understand the more valuable metrics for government performance in job creation, 

economic competitiveness, and national security capabilities. University metrics may 

include licensing fees, recruitment success, academic stature, and endowments. Private 

sector metrics typically include a return on investment commensurate with risk, in 

addition to growth, market position, and liquidity. 

The RFI responses and literature note that the current ways to collect technology 

transfer data and report and analyze metrics are problematic. There are inconsistent 

302 Sams, Rachel. “The impact Sandia Science and Technology Park has had over 20 years.” 

https://www.bizjournals.com/albuquerque/news/2018/08/24/the-impact-sandia-scienceand-technology-park-has.html; https://sstp.org/about-sstp/economic-impact (accessed 

October 10, 2018)

303 See, e.g., Furthering America’s Research Enterprise, The National Academies Press, 2014.
111

approaches among agencies, due to the differences in agency missions, technologies, and 

technology transfer activities. For example, the DOD may provide incentives and track 

metrics for transitioning technology back into the national security industrial base 

through procurement actions. In contrast, research at NSF, NIH, and DOE could lead to 

transitions into the private sector and public consumption. A report by the Institute for 

Defense Analyses found that the Annual Summary Report on Technology Transfer is not 

consistently interpreted by the agencies and laboratory-level analysis of technology 

transfer and commercialization are not feasible because the measures lack 

standardization.304

RFI respondents indicated that metrics requirements are inconsistent across Federal 

agencies and do not align with metrics used for evaluating university R&D. For example,

the reporting requirement for the Stevenson-Wydler Act is not equivalent to the BayhDole Act requirement. This misalignment creates metrics that are not comparable and do 

not provide a full characterization of the outcomes of Federal R&D. The creation of a broad 

framework to assess effectiveness and efficiency would ideally provide a holistic approach 

that aligns with the overall purpose of R&D and the need for prudent management of 

resulting intellectual property. It is important to note, however, that there is a difference 

in opinion about consistency. Because different organizations have different missions, it 

may be worthwhile to allow some variations in the metrics collected. (Refer to “RFI 

Response on Differences in Metrics Across Sectors and Activities.”

304 Hughes, Mary E., Susannah V. Howieson, Gina Walejko, Nayanee Gupta, Seth Jonas et al. 

2011. Technology Transfer and Commercialization Landscape of Federal Laboratories, 

Washington, DC: IDA Science and Technology Policy Institute.

RFI Response on Differences in Metrics Across Sectors and Activities

“Universities and medical schools have themselves worked to develop metrics for success of 

technology transfer and for proper contextualization of tech transfer in broader knowledge 

transfer and socio-economic development. As university-level efforts continue, we find that 

different and complimentary sets of measures emerge for technology commercialization, 

industry/entrepreneur engagement and partnerships, and economic development. Because all 

these activities and resulting outcomes measures are highly sensitive to individual universities’ 

missions, size, resources, geography, and a variety of other factors, it is most appropriate for 

further development of appropriate measures to happen at the individual university level.”

Source: RFI Response, Higher Education Associations
112

Meaningful effectiveness and efficiency metrics have the potential to assess and 

improve the ROI that accrues to the American taxpayer. However, current measures that 

are tracked and reported do not accurately reflect the impact or effectiveness of technology 

because they are counts of outputs, not measures resulting from analyses of the technology 

transfer system.305 RFI responses noted that there is not a set of consistent and universal 

definitions of success in technology transfer to guide metrics development. At the same 

time, agencies have been tasked with developing goals and metrics for measuring the 

needs of technology transfer and commercialization. Traditional metrics for success in 

technology transfer often focus on economic benefits, such as job creation or sales. 

Agencies with R&D missions that do not provide impacts in these traditional metrics often 

struggle to communicate their effectiveness. Developing broad definitions of success that 

recognize the diversity of agency R&D missions would enable technology transfer offices 

to craft metrics that more accurately describe the efficiency and effectiveness of their 

efforts at the cost of making cross-governmental comparisons impossible. (Refer to “RFI 

Response on Developing New Metrics and Measures.”)

A 2011 GAO report found that metrics focused on counting and reporting on the

number of patents, licenses, and startups means academic officials will emphasize those 

activities in their own activities, and may not see the bigger picture of technology 

 

305 U.S. Government Accountability Office (GAO), “Entrepreneurial Assistance: Efficiency and 

Effectiveness of Fragmented Programs are Unclear” 2012

RFI Response on Developing New Metrics and Measures

“Agencies have received numerous presidential and departmental directives on increasing the 

rate of technology transfer and economic and societal impact from Federal R&D investments. 

Each time the directives came with a goal of improving the results of technology transfer and 

commercialization activities. While agencies were tasked to develop goals and metrics, 

consistent and universal definitions have not been developed. Success should not be measured 

primarily by revenue, but by contributions to broader economic prosperity and societal 

impact. New methods and metrics with universal definitions should be developed to effectively 

capture impacts and improve measurements of effectiveness across the various recipients of 

Federal funding.”

Source: RFI Response, Association of University Technology Managers
113

transfer.

306 It has been suggested that university reporting about technology transfer and 

commercialization needs to provide more detailed financial and performance information 

and to think about the incentives its metrics provide to university administrators and 

faculty researchers 307 It has also been suggested that universities should publicize 

information on “money in versus money out” and citations to patents as a way to measure 

promulgation.

308 Many technology licensing offices do not provide adequate information 

to gauge their performance, and this makes it impossible to judge their initiatives.

309

Metrics can be helpful to both those who fund R&D and those who conduct R&D, but 

come with a set of challenges and tradeoffs. RFI respondents indicated that metrics should 

not distort behavior that lead to unintended consequences, but to transition new 

technologies into the marketplace as quickly and efficiently as possible to benefit society. 

Another challenge with developing and implementing metrics is they require stability and 

should not be altered frequently given the need to make comparisons over time. (Refer to 

“RFI Response on Measuring and Reporting on Effectiveness.”) Having stability as an 

absolute requirement, however, may not be best under all circumstances. Measurement 

error, bias, and variability are also important considerations. Furthermore, single metrics 

often do not portray the complete perspective; interrelating metrics may lead to improved 

insights.

 

306 U.S. Government Accountability Office (GAO), “Mechanisms for Collaboration and 

Technology Transfer Could Be Enhanced to More Fully Leverage Partner Agency and Industry 

Resources” 2011

307 West, Darrell. 2012. “Improving University Technology Transfer and Commercialization.” 

Issues in Technology Innovation, Num 20.

308 Ibid

309 U.S. Government Accountability Office (GAO), “Mechanisms for Collaboration and 

Technology Transfer Could Be Enhanced to More Fully Leverage Partner Agency and Industry 

Resources” 2011

RFI Response on Measuring and Reporting on Effectiveness

“There is no single, obvious way to measure the success of tech transfer that everyone has 

somehow been missing. Metrics themselves should be seen as experimental, and their impact 

needs to be monitored. At the same time, metrics should not be altered lightly because stability 

is needed to make comparisons over time.”

Source: RFI Response, Massachusetts Institute of Technology 
114

RFI respondents also indicated that data collection for metrics could be burdensome 

despite their value as important indicators of the success of Federal technology transfer. 

Accordingly, metrics-related reporting requirements and mandates should be kept to the 

minimum needed to provide the necessary information. Metrics, however, must be a good 

representation of the phenomena they measure, otherwise they drive sub-optimal 

behaviors. To minimize the burden, RFI respondents indicated that reporting 

requirements should be limited to only the information critical to evaluate technology 

transfer and commercialization. 

Spam et. al (1993) discussed how developers could improve their rate of technology 

transfer and adoption by using more measures of performance, particularly those oriented 

to commercial success and adopter benefits.

310 A recent forum involved discussion of how 

agencies and laboratory members could work collaboratively to develop performance 

goals and measures for FLC’s clearinghouse initiatives and use the results to evaluate 

progress toward meeting FLC’s goals on outreach and networking.311

RFI respondents suggested new metrics in terms of both measured parameters and 

timespans that more accurately reflect the range of benefits from federally funded R&D. 

RFI respondents noted that current metrics, such as number of licenses and start-ups 

created, do not fully reflect the range of socioeconomic benefits of federally funded R&D. 

Potential new metrics include a broader set of economic measurements and additional 

social measurements that more fully describe the outcomes, impacts, and operations of 

technology transfer and commercialization. 

Technology transfer varies across sectors in terms of the time required to execute 

licenses and move technology to market. Agencies often struggle to demonstrate return on 

investment when various stages of the technology transfer process delay outcomes. 

Furthermore, short timeframes for demonstrating ROI may deter experimentation in 

technologies that require more time to develop or drive similar disincentives. 

 

310 Spam, Adams and Souder, “Improving Federal Technology Commercialization: Some 

Recommendations from a Field Study” T2 Journal, 1993

311 U.S. Government Accountability Office (GAO). 2014. Federal Laboratory Consortium Should 

Increase Communication with Potential Customers to Improve Initiatives. Washington, DC. 

https://www.gao.gov/assets/670/666361.pdf
115

3. INTENDED ACTION

Intended Action 15. Establish metrics to better capture, assess, and 

improve Federal R&D outcomes and impacts as well as operational processes

underpinning technology transfer within the context of benchmarking with 

global science and technology trends and metrics.

312

A. MEANINGFUL OUTCOME AND IMPACT METRICS FOR FEDERAL R&D

Complete an authoritative analysis to provide a meaningful view of metrics for 

federally funded R&D that can be used to capture, assess, and improve R&D outcomes and 

impacts across the broad spectrum of applications and the time required to realize R&D 

impacts. Determine outcome and impact metrics beyond current practice and reporting 

requirements that can also be customized to better align with (i) the mission of Federal 

R&D agencies and laboratories, and (ii) global measures to better benchmark 

performance.

B. REPORTING METRICS FOR FEDERAL LABORATORIES

Develop, adopt, and use government-wide guidance for reporting broad-based R&D 

outcome and impact metrics at the Federal Laboratory level313 to facilitate comparison 

with universities. 

C. REPORTING EXTRAMURAL AND INTRAMURAL R&D METRICS

Legislative change requiring reporting of broad-based R&D outcome and impact 

metrics for extramural and intramural Federal R&D programs government-wide by 

amending the Bayh-Dole Act and Stevenson-Wydler Act statutes.

D. STANDARD PROTOCOL FOR ECONOMIC IMPACT STUDIES

Develop, adopt, and use a standard protocol government-wide for economic impact 

studies, including a standard data collection instrument (e.g., survey, questionnaire) preapproved by the Office of Management and Budget (OMB).

 

312 (a) Outcome metrics: consider current outcome metrics as well as broader outcome metrics to 

capture full range of Federal R&D contributions, (b) Impact metrics: consider utilization, 

economic impact, and broader R&D impact metrics, and (c) Operational process metrics: 

consider transaction times, resource utilization, performance expectations (e.g., for R&D staff 

and managers as well as technology transfer professionals), and unified reporting 

requirements (e.g., ease of access, use, and analysis).

313 Federal R&D agencies generally report aggregated metrics for multiple Federal Laboratories 

(e.g., at the department level).
116

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SUMMARY AND CONCLUSIONS

This ROI Green Paper outlines actions intended to streamline and accelerate the 

transfer and commercialization of technology resulting from federally funded research 

and development. The purpose of this green paper is to summarize stakeholder input, 

agency feedback, and literature related to advancing the President’s Management Agenda 

Lab-to-Market Cross Agency Priority Goal. 

This green paper highlights challenges and intended actions in the context of each of 

the five strategies inspired by the PMA L2M CAP Goal:

• Strategy 1: Identify regulatory impediments and administrative improvements

in Federal technology transfer policies and practices;

• Strategy 2: Increase engagement with private sector technology development

experts and investors;

• Strategy 3: Build a more entrepreneurial R&D workforce;

• Strategy 4: Support innovative tools and services for technology transfer; and

• Strategy 5: Improve understanding of global science and technology trends and

benchmarks.

The intended actions outlined in this green paper are designed to overcome systemic 

challenges raised by technology transfer stakeholders that will unleash American 

innovation and even greater return on investment to the American taxpayer. Table 2

provides a summary of intended actions.
118

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119

Table 2. Summary of Intended Actions for Return on Investment (ROI) Initiative to Advance 

the President’s Management Agenda and Unleash American Innovation 

PMA Lab-toMarket Strategy Intended Action

Action Type Regulationb Legislationb Otherc

Strategy 1. Identify 

regulatory 

impediments and 

administrative 

improvements in 

Federal 

technology 

transfer policies 

and practices. The 

Intended Actions are 

designed to make it 

easier for industry to 

work with Federal 

Laboratories and 

access federally 

funded R&D by 

removing real and/or 

perceived regulatory 

and administrative 

barriers.

Intended Action 1 – Government Use License. Define 

the scope of the “government use license” for use directly by 

the government—or a government contractor in the 

performance of an agreement with government—for a 

government purpose only, including continued use in 

research and development. The scope of the government use 

license should not extend to goods and services made, sold, or 

otherwise distributed by third parties if the government—or a 

government contractor in the performance of an agreement 

with government—does not directly use or consume those 

goods and services.

BD

SWa

Intended Action 2 – March-In Rights. Define the 

circumstances under which the government may exercise 

march-in rights consistent with the uses of march-in specified 

in statute and not as a regulatory mechanism for the Federal 

Government to control the market price of goods and 

services. Reserve march-in for a compelling national issue or 

declared national emergency when other remedies have 

failed. Clarify definition of “reasonable terms” consistent with 

original statutory intent.

BD

Intended Action 3 – Preference for U.S. 

Manufacturing. Protect and strengthen the statutory 

requirement that products embodying or using federally 

funded inventions be manufactured substantially in the 

United States. Streamline and implement a uniform waiver 

process government-wide in accordance with statutory 

requirements. Identify the pathway for expanding the 

preference for U.S. manufacturing to (i) all licenses rather 

than limiting this preference to exclusive licenses as it is in 

current statute and (ii) all contractors at any tier in addition 

to licensees.

BD

SWa

P

Intended Action 4 – Software Copyright. Establish 

copyright protection for software products of Federal 

Government R&D. This narrowly tailored change is 

consistent with original statutory intent to transfer IP created 

from R&D to the private sector to develop marketable goods 

and services. This will not affect most Government Works 

since they are not R&D inventions as defined in statute.

BD

Intended Action 5 – Trade Secrets. Establish clear and 

consistent definition as well as authorities required to protect 

the trade secrets of companies involved in R&D 

collaborations with Federal Laboratories. Extend potential 

CRADA information protection period to 10 years (from 5 

years specified in current statute) in cases where there is a 

demonstrable need for a business collaborator to achieve 

SWa SW
120

practical application of products that result from CRADA 

work.

Intended Action 6 – Strengthen Technology Transfer 

at Federal Laboratories. Authorize the Secretary of 

Commerce to issue regulations implementing consistent and 

streamlined policies and practices government-wide under 

the Stevenson-Wydler Act. Confirm the mission requirement 

of contributing to U.S. innovation for all government entities 

engaged in research and development. Develop and 

implement consistent policies for appropriate use of 

international intellectual property protections in support of 

U.S. innovation, manufacturing, and export. Legislative 

change is required to authorize royalty payments to Federal 

employees for non-invention forms of licensed intellectual 

property and to extend to Federal employees at all agencies 

the increase in royalty cap of up to $500,000 per year 

authorized in the FY 2018 National Defense Authorization 

Act (P.L. 115-91).

SWa SW

Intended Action 7 – Presumption of Government 

Rights to Employee Inventions. Provide for a present 

assignment of invention rights by Federal employees to the 

Federal Government and provide for streamlined rights 

determination processes for Federal employee inventions.

Implement regulatory change under Executive Order 10096; 

Legislative change is required to codify the Federal 

employee’s requirement to report inventions and assign all 

right, title, and interest in work related inventions to the 

Federal Government. 

EO

SWa

SW

Strategy 2. 

Increase 

engagement with 

private sector 

technology 

development 

experts and 

investors. The 

Intended Actions are 

designed to make it 

easier for the private 

sector to partner with 

Federal agencies and 

to attract private 

sector investment for 

translation R&D, 

technology 

maturation, and 

commercialization.

Intended Action 8 – Streamline Partnership 

Mechanisms. Establish consistency in legislative 

interpretation and use of best practices government-wide and 

implement streamlined, transparent partnership agreements, 

including licensing and indemnification terms. Develop, 

adopt, and use speed-of-business-based best practices and 

tools that deliver modern, streamlined, and responsive 

customer-experience government-wide. Consistent, 

transparent licensing policies and practices for federally 

funded inventions will maintain flexibility to tailor specific 

financial terms of each license, consistent with the statutory 

goal to promote commercial use of inventions. Consistent 

indemnification terms for Federal R&D contractors, grantees, 

and collaborators government-wide will consider the use of 

alternative terms, including disclaiming liability to the extent 

of the Federal Tort Claims Act. Use of license royalties will be 

clarified to primarily promote compliance to the terms of 

development and achieve practical application of technology. 

Statutory change is required to fix conflicting language in 

CRADA authority regarding who can be a CRADA partner.

SWa

BD

SW P

Intended Action 9 – New/Expanded Partnership 

Mechanisms. Authorize new and expanded mechanisms to 

establish partnership agreements at the speed of business and 

to attract private sector investment for translational R&D, 

technology maturation, and commercialization. 

• Expand use of Agreements for Commercializing

Technology (ACT) authority—which enables

partnerships with terms more compatible with industry

practices—to all GOCO Laboratories. Extend use of ACT

authority by GOGO Laboratories through partnership

intermediaries authorized by statute.

SWa SW P
121

• Establish Research Transaction Authority (RTA) to

support translational R&D collaborations by simplifying,

accelerating, tailoring, and executing partnership

agreements at the speed of business. Modeled after Other

Transaction Authority, uniform government-wide

implementing regulations will (i) limit the use of RTA to

R&D but not for use in procurement or financial assistance

actions, and (ii) ensure that the RTA appropriately conveys

intellectual property rights consistent with the Bayh-Dole

Act.

• Authorize all Federal R&D agencies to establish NonProfit Foundations that will advance their missions by

attracting private sector investment to accelerate

technology maturation, transfer, and commercialization.

Develop, adopt, and use consistent policies and practices to

establish and operate such nonprofit foundations.

• Expand Enhanced Use Lease Authority (EULA) to all

Federal Laboratories for leasing unused real property to the

private sector for use to support technology transfer and

commercialization activities.

Intended Action 10 – Technology Maturation 

Funding. Allow the limited use of R&D funds awarded 

through government grants, contracts, and cooperative 

agreements for technology transfer, specifically to secure the 

government’s right and interest to a patented invention. 

Provide a summary of public comments on SBIR/STTR 

technology maturation funding and related improvements to 

the U.S. Small Business Administration (SBA) for 

consideration, to develop follow up actions.

BD F

Strategy 3. Build a 

more 

entrepreneurial 

R&D workforce. 

The Intended Actions 

are designed to 

promote start-ups, 

job creation, and 

economic growth by 

facilitating 

technology transfer 

activities through an 

R&D workforce more 

knowledgeable about 

the needs of industry 

and with the 

flexibility to support 

industry’s needs.

Intended Action 11 – Technology Entrepreneurship 

Programs. Establish technology entrepreneurship programs 

at Federal R&D agencies government-wide. Federal R&D 

agencies will leverage entrepreneurship programs 

representing best practices, such as NSF’s I-CorpsTM program 

for extramural R&D programs and experiential training 

programs such as DOE’s Lab-Embedded Entrepreneurship 

Program for intramural R&D programs. Develop, adopt, and 

use consistent policies and practices government-wide to 

implement and operate technology entrepreneurship 

programs at Federal R&D agencies. A summary of public 

comments specific to NSF’s I-CorpsTM Program, DOE’s LabEmbedded Entrepreneurship Program, and others will be 

provided to the respective agencies for appropriate actions.

Establish a designated job series to recruit, develop, and 

retain well qualified professionals—with both business and 

scientific/technical backgrounds—to pursue a career in 

Federal technology transfer.

P

F

Intended Action 12 – Managing Conflicts of Interest.

(i) Implement harmonized and consistent government-wide

requirements to manage conflicts of interest involving

recipients of extramural Federal R&D funding, and (ii)

authorize scientists and engineers at Federal Laboratories to

engage in entrepreneurial activities that support technology

transfer and commercialization subject to harmonized and

consistent requirements for managing conflicts of interest,

including any financial interests, approved by the agency

head in consultation with the agency’s legal counsel.

Authorize Federal agencies to grant scientific and technical

professionals, including those who are senior executives, at

Federal Laboratories entrepreneurial leave and sabbatical

SWa SW P
122

absence to engage in compensated or uncompensated 

entrepreneurial activities that support technology transfer 

and commercialization for up to 3 years with full 

reinstatement privileges. 

Strategy 4. 

Support 

innovative tools 

and services for 

technology 

transfer. The 

Intended Actions are 

designed to make it 

easier to report 

intellectual property 

resulting from both 

extramural and 

intramural Federal 

R&D and for the 

public to access 

information on 

Federal R&D assets.

Intended Action 13 – Federal IP Data Reporting 

System(s). Establish a modern, secure, interoperable 

platform for reporting data on intellectual property 

(inventions, copyrights, and utilization metrics) resulting 

from Federal R&D government-wide that is easy to access, 

analyze, and use by extramural and intramural recipients of 

Federal R&D funding and those responsible for managing the 

IP data. Consistent and streamlined government-wide 

regulatory requirements and practices for timely and 

transparent reporting of extramural Federal IP data. Address 

statutory requirements and provide consistent, streamlined 

implementing regulations for Federal Laboratories to report 

data on IP resulting from intramural R&D. 

SWa BD

SW

T

Intended Action 14 – Access to Federal R&D Assets.

Establish federated data portal that is easy for the public to 

access, use, and analyze which provides information on (i) IP 

resulting from extramural and intramural Federal R&D 

programs government-wide, and (ii) Federal R&D programs, 

facilities, equipment and tools, expertise, services, and other 

relevant assets. Address statutory requirements and provide 

consistent, streamlined implementing regulations for Federal 

Laboratories to report up-to-date data on their R&D assets.

SWa SW T

Strategy 5. 

Improve 

understanding of 

global science and 

technology trends 

and benchmarks. 

The Intended Actions 

are designed to better 

capture, assess, and 

improve Federal R&D 

outcomes, impacts, 

and technology 

transfer operational 

processes. 

Intended Action 15 – Benchmarking and Metrics.

Establish metrics to better capture, assess, and improve 

Federal R&D outcomes and impacts as well as operational 

processes underpinning technology transfer within the 

context of benchmarking with global science and technology 

trends and metrics. 

• Complete an authoritative analysis to provide a meaningful

view of metrics for federally funded R&D that can be used

to capture, assess, and improve R&D outcomes and

impacts across the broad spectrum of applications and the

time required to realize R&D impacts. Determine outcome

and impact metrics beyond current practice and reporting

requirements that can also be customized to better align

with the mission of Federal R&D agencies.

• Develop, adopt, and use government-wide guidance for

reporting broad-based R&D outcome and impact metrics at

the Federal Laboratory level to facilitate comparison with

universities.

• Address statutory requirements for reporting broad-based

R&D outcome and impact metrics for extramural and

intramural Federal R&D programs government-wide.

• Develop, adopt, and use standard protocol governmentwide for economic impact studies, including a standard,

pre-approved data collection survey questionnaire.

BD

SW

A

P

T

a. Statutory authority is required to implement consistent and streamlined regulations under the

Stevenson-Wydler Act (see Intended Action 6).

b. BD=Bayh-Dole Act, SW=Stevenson-Wydler Act, EO=Executive Order.

c. Other Actions: P=Policy and Guidance, T=Tool Development, A=Analysis, and F=Forward Summary of

Agency-Specific Comments.
A-1

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Journal of Labor Economics, Vol. 20(3), pp. 629-660.
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ABBREVIATIONS

ACT Agreements for Commercializing Technology

AI Artificial Intelligence

API Application Programming Interface

ARL Army Research Lab

AURP Association of University Research Parks

AUTM Association of University Technology Managers

CAP Cross Agency Priority

COI Conflict of Interest

CRADA Cooperative Research and Development Agreement

CTSA Clinical and Translational Science Awards

DHS Department of Homeland Security

DOC Department of Commerce

DOD Department of Defense

DOE Department of Energy

DOJ Department of Justice

DTSA Defend Trade Secrets Act

e-NTR New Technology Reporting System

EIR Entrepreneur-in-residence

ERC Engineering Research Centers

FFMI Fast Forward Medical Innovation

FFRDC Federally Funded Research and Development Center

FLC Federal Laboratory Consortium for Technology Transfer

FNIH Foundation for the National Institutes of Health

FOIA Freedom of Information Act

FTE Full-time Employee

GAO Government Accountability Office

GDP Gross Domestic Product

GOCO Government-Owned, Contractor-Operated

GOGO Government-Owned, Government-Operated

IAWGBD Interagency Working Group on Bayh-Dole

IAWGTT Interagency Working Group on Technology Transfer

I-CorpsTM Innovation CorpsTM

IP Intellectual Property
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IPA Intergovernmental Personnel Act

IUCRC Industry-University Cooperative Research Centers

ManTech Manufacturing Technology

MBDA Minority Business Development Agency

MEP Manufacturing Extension Partnership

L2M Lab-to-Market

L2M SC Lab-to-Market Subcommittee

LANL Los Alamos National Laboratory

LWOP Leave Without Pay

NASA National Aeronautics and Space Administration

NIH National Institutes of Health

NIST National Institute of Standards and Technology

NSA National Security Administration

NSF National Science Foundation

NSTC National Science and Technology Council

OECD Organisation for Economic Cooperation and Development

OGE Office of Government Ethics

OMB Office of Management and Budget

OPM Office of Personnel Management

ORTA Office of Research and Technology Applications

OSTP Office of Science and Technology Policy

OTA Other Transaction Authority

PFI Partnerships for Innovation

PHS Public Health Service

PIs principal investigators

PIA partnership intermediary agreement

PMA President’s Management Agenda

PRA Paperwork Reduction Act

R&D Research and Development

RFI Request for Information

ROI Return on Investment

RTA Research Transaction Authority

S&T Science and Technology

SBA Small Business Administration
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SBIR Small Business Innovation Research

SPP Strategic Partnership Project

STEM Science, Technology, Engineering, and Math

STPI Science and Technology Policy Institute

STTR Small Business Technology Transfer

TRIPS Trade-Related Aspects of Intellectual Property Rights

UC University of California 

USAID United States Agency for International Development

USDA Department of Agriculture

USPTO United States Patent and Trademark Office
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Appendix 1. Select Technology Transfer Mechanisms in Use by Federal Agencies 

Mechanisms in Use by Agency

DHSDOCDODDOEDOTEPANASAHHSUSDAUSGSVA

Invention 

Protection

Invention Disclosures X X X X X X X X X X X

Patents X X X X X X X X X X X

Copyrights X* X X*

Property 

Transfers

Patent Licenses X X X X X X X X X X X

Material Transfer Agreements 

(MTA)

X X X X X

Email MTAs X

Research 

Partnership 

Agreements

CRADAs X X X X X X X X X X X

Other Transaction Authority X X

Space Act Agreements X

Resource Use 

Agreements

Commercial Test Agreement X

Facility Use Agreement X X

Test Service Agreements X

User Facilities Agreement X* X X

Work-For-Other Agreements X X

Educational 

Agreements

Educational Partnership 

Agreements

X

Intramural Research Training 

Award 

X

Personnel 

Exchange 

Agreements

Guest Researcher 

Agreement

X

Industrial Staff Member, 

Assignment, or Fellow 

Agreement

X

Intergovernmental Personnel 

Act 

X X X X X X X X X X X

Agreements with 

Intermediaries

Partnership Intermediary 

Agreements 

X X X

Other Types of Agreements 

with Partnership 

Intermediaries

X X X

*Represents a partial capacity limited to certain parts of an agency or fairly restricted areas of use.

Original Source: Hughes, Mary E., Susannah V. Howieson, Gina Walejko, Nayanee Gupta, Seth Jonas et al. 2011. 

Technology Transfer and Commercialization Landscape of Federal Laboratories, Washington, DC: IDA Science and 

Technology Policy Institute. Updated based on more current information.
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Appendix 2. Comparison of SPP, CRADA, and ACT Attributes 

Attribute Non-Federal SPP CRADA ACT

Parties Laboratory* and 

sponsor**

Laboratory* and 

sponsor**

M&O contractor* and sponsor

Approval DOE approves each 

SPP agreement, 

including SOW and 

contract terms***

DOE approves each 

CRADA, including SOW 

and contract terms

DOE approves each statement of work, 

plan to mitigate organizational conflicts 

of interest, if applicable, and SPP-like 

“checklist” but does not approve ACT 

agreement with sponsor

Performance 

guarantee

None None M&O contractor can commit to 

negotiated schedule or performance 

guarantee. Removes uncertainty for 

sponsor and adds risk for M&O 

contractor.

Advance 

payment

Sponsor provides 60-

day advance payment, 

with some DOEapproved 

exceptions 

Sponsor provides 60-day 

advance payment, with 

some DOE-approved 

exceptions** **

Negotiable; M&O contractor ensures 

funds are available before work is 

performed, can begin work before 

company transfers funds.

Indemnification Sponsor indemnifies 

both M&O contractor 

and government

Sponsor indemnifies both 

M&O contractor and 

government

M&O contractor indemnifies 

government; sponsor indemnification is 

negotiable. Reduces government risk, 

enables sponsor risk sharing.

Intellectual 

property

Sponsor may elect title 

to inventions with 

certain restrictions

Sponsor owns its 

inventions; laboratory 

owns its inventions

Undivided rights in joint 

patents; sponsor has 

option to license 

laboratory rights

Rights waived to “IP lead” designated in 

deal negotiation (either sponsor or M&O 

contractor); in some cases, M&O 

contractor can retain rights to some or 

all IP on M&O contract termination

Government use 

license

Negotiable; 

government may 

retain only a research 

license to intellectual 

property

Government always 

retains a use license to 

intellectual property

Negotiable; government may retain only 

a research license to intellectual 

property

3-Percent

Federal

Administrative

Fee

Waived for state and 

local governments, 

nonprofit 

organizations, and 

small businesses

Waived for state and local 

governments, nonprofit 

organizations, and small 

businesses

Never waived

Source: Adapted from K. Edmonds, “Energy Department Answering President’s Call on Commercialization,” 

Energy.Gov News, October 28, 2011, http://energy.gov/articles/energy-department-answering-presidents-callcommericalization, and M. Paulus “Agreement to Commercialize Technology (ACT): A New Technology Transfer 

Mechanism,” Oak Ridge, Tennessee: Oak Ridge National Laboratory, 2011. 

* Laboratory refers to the organization that DOE shares an interest and risk with; M&O contractor is the

organization that operates the laboratory.

** Sponsor funds work performed by the laboratory; also referred to as partner. 

*** DOE sometimes pre-approves certain model terms, which than allows the submission of a statement of work 

(SOW) without repeating an approval of the terms.

****DOE reduced the previous requirement for payment 90 days in advance to 60 days in 2011