Stop Federal Grants to Industry & Revoke the Bayh-Dole Act

Open e-mail to Rep. Neugebauer;

Randy,

Melody Bomgardner has an article entitled, "DOE Demands Solar Patents" in the October 17 issue of Chemical & Engineering News. It involves the bankruptcy of Evergreen Solar, a solar wafer manufacturer.

In the bankruptcy filing, Evergreen said that it would sell at auction its intellectual property rights related to solar wafer manufacturing. That technology includes three patents. The Department of Energy claims the title for the three patents, which would then not be available for auction by Evergreen.

The Bayh-Dole confirms intellectual property rights of the technology, including patents, to any small businesses which had obtained government financial support. The DOE says that Evergreen received $3 million in a government grant. However, to retain the property rights, a small business must adhere to nine requirements of the Bayh-Dole Act. Three of these requirements are:

1. Report each disclosed invention to the funding agency
2. Elect to retain title in writing within a statutorily prescribed timeframe
3. Grant the federal government a non-exclusive, non-transferable, irrevocable, paid-up license to practice or have practiced on its behalf throughout the world.

Evergreen didn't do the three.

In a single associated case, the court held that since the appellant failed to comply with the Bayh-Dole Act.invention disclosure provisions of a contract, the court upheld the transfer of an invention title to the U.S. Army.

Other than obtaining title transfer, the government can also obtain "march in" rights, which allows the funding agency to effectively ignore the exclusivity of a patent awarded under the act and grant additional licenses to other "reasonable applicants."

While it hurts me to say so, it looks like the DOE is within its rights to restrict Evergreen from selling patents and know-how under auction.

I am bothered in two ways. The DOE should never have granted $3 million of taxpayer money to Evergreen. It is not the responsibility of the federal government to dole out taxpayer money to private companies for anything it considers worthwhile at the time.

Evergreen is only another aspect of the Solyndra scandal and Congress should put a stop to it. It also appears to me that the Bayh-Dole Act was ill-conceived. My original thought was that Congress should modify it, but I now believe my first suggestion takes preference. That is, government should not be granting taxpayer funds to private industry, in which case the Bayh-Dole Act becomes moot. Bayh-Dole should only be wiped off the books for organization sake.