Overview
FAR 27.303 prescribes the specific patent rights clauses that must be included in solicitations and contracts for experimental, developmental, or research work, as well as certain architect-engineer and construction services involving novel designs or processes. It establishes the default position of contractor ownership of inventions (52.227-11) while defining the specific legal and security conditions under which the government may instead retain title (52.227-13).
Key Rules
- Mandatory Inclusion: A patent rights clause is required for all contracts involving experimental, developmental, or research work, including construction or A&E services that involve novel structures, processes, or test and evaluation studies.
- "Standard Construction" Exception: Clauses are prohibited in contracts for standard types of construction that use previously developed methods, variations in size/shape, or purely aesthetic architectural designs.
- Default Ownership (52.227-11): The clause at 52.227-11, Patent Rights—Ownership by the Contractor, is the standard default unless specific exceptions apply. Contracting officers may supplement this clause to require annual invention listings or reports prior to contract closeout.
- Government Ownership (52.227-13): The government retains title if the contractor is foreign-controlled, if there are "exceptional circumstances" determined by the agency head, for specific DOE naval nuclear/weapons programs, or for sensitive national security/intelligence activities.
- Small Business/Nonprofit Protections: If the government invokes "exceptional circumstances" to take title from a small business or nonprofit, the contracting officer must still use 52.227-11 with minimal modifications and provide "greater rights" determination procedures.
- Agency Specifics: Special procedures apply for DoD, DOE, and NASA when the contractor is a large business, and five distinct "Alternates" exist for 52.227-11 to handle treaties, CRADAs, and government-owned facilities.
Practical Implications
- Reporting Burdens: Contractors must be prepared for administrative requirements, such as disclosing subject inventions annually and providing filing dates or patent numbers to the government upon request.
- Eligibility for IP Title: Foreign firms or U.S. firms under foreign control should anticipate that the government will likely retain ownership of patents under 52.227-13 rather than the standard contractor-ownership model.
- A&E Scoping: Firms performing A&E services must carefully distinguish between "standard" designs and "novel" engineering; the latter triggers complex patent rights requirements that may not apply to routine structural variations.