1. Takahashi, “Osama bin Laden’s Death Reveals the Value of State-of-the-Art Technology.”
2. Drew, “Attack on Bin Laden Used Stealthy Helicopter That Had Been a Secret.”
3. Atherton, “New Details Emerge.”
4. White House, “Maintaining Military Advantage.”
5. White House, “Maintaining Military Advantage” (emphasis added).
6. “International Science and Technology Strategy for the United States Department of Defense,” April 2005 (emphasis added). https://www.hsdl.org/?view&did=698413.
7. Silberzahn, “Conference on Strategic Surprises at the CIA.”
8. Clinton, “National Security Science.”
9. Clinton, “National Security Science.”
10. White House, “Maintaining Military Advantage.”
11. Task Force on American Innovation, “American Exceptionalism, American Decline?” (emphasis added).
12. Task Force on American Innovation, “American Exceptionalism, American Decline?” (emphasis added).
13. National Research Council, Rising to the Challenge.
14. INCOSE, “Systems Engineer: Guru or Scientist?”
15. Carter and White, Keeping the Edge.
16. Quoted in Doyle, “Outside the Box.”
17. National Research Council, Rising to the Challenge.
1. Chesbrough, Open Innovation, xxiv.
2. X Prize Foundation, “Story Ideas.”
3. Ansari X Prize, “Mojave Aerospace Ventures Wins the Competition.”
4. Quirky, “Everything You Need to Know About Quirky.”
5. “How Quirky Turns Ideas into Inventions.”
6. Spradlin, “Innocentive.”
7. Birkinshaw and Goddard, “Combine Harvesting,” 15–18.
8. Spradlin, “Innocentive.”
9. Heredero, Open Innovation in Firms and Public Administrations, 177.
10. Lee, Hwang, and Choi, “Open Innovation.” Also see Conrad et al., who note that “only a fraction of innovation challenges have been systematically evaluated” (A Framework for Evaluating Innovation Challenges, 1).
11. Two examples include Peer-to-Patent, a way to enlist the public to help find and explain prior art during patent examinations, and Katrina PeopleFinder, a service to find information on people affected by Hurricane Katrina. See Lee, Hwang, and Choi, “Open Innovation.” In addition, Cleland, Galbraith, Quinn, and Humphreys note that “specific challenges of implementing Open Innovation in the public sector have not been adequately addressed” (“Platform Strategies for Open Government Innovation”).
12. Chesbrough, “Open Innovation and the Design of Innovation Work.”
13. Chesbrough, “Open Innovation and the Design of Innovation Work.”
14. DARPA, “DARPA Today.”
15. Hauser, Tellis, and Griffin, “Research on Innovation.”
16. U.S. Securities and Exchange Commission, “Updated Investor Bulletin.”
17. See von Hippel’s work on user-centered innovation, such as Democratizing Innovation.
18. Ling, “User Centered Innovation Is Dead.”
19. For further reading, consider concepts such “IP Modularity,” discussed by Baldwin and Henkel in “Modularity and Intellectual Property Protection.”
20. Currently the government reports only on its open innovation activities that follow the “Challenge” approach discussed above. See Office of Science and Technology Policy, “Implementation of Federal Prize Authority: Fiscal Year 2016 Progress Report.”
21. The DARPA Shredder Challenge called upon participants to reconstruct shredded documents. Some have speculated that the true purpose of this challenge was to demonstrate a vulnerability in secure government shredding mechanisms rather than to develop a visual computer algorithm for reconstructing shredded documents because the government did not specify how to reconstruct the documents. Among the participants was a team from UCSD that attempted to use crowdsourcing to solve the puzzle. However, an individual sabotaged the team’s efforts by logging in as one of the crowd and destroying all of the progress that was made in reconstructing the documents. Follow-up studies have been performed regarding crowdsourcing in an adversarial environment. Serbu, “DARPA Challenge.”
22. Info Security, “DARPA Says Goodbye to Hacker Friendly Cyber Fast Track Program.”
23. Gourley, “DARPA’s Cyber Fast Track Adds Agility to Research Funding.”
24. T. Webb, Guo, Lewis, and Egel, Venture Capital and Strategic Investment.
25. Gassman, Enkel, and Chesbrough, “The Future of Open Innovation.”
1. Sargent, “Federal Research and Development Funding: FY2013.”
2. Fossum et al., “Discovery and Innovation.”
3. Peck and Scherer, “The Weapons Acquisition Process,” and Driessnack, “Unique Transaction Costs in Defense Market(s).”
4. The DOD publishes its R&D priorities in the Quadrennial Defense Review (QDR), a legislatively mandated review of DOD strategies and priorities. The 2014 QDR recognizes this complexity and its impact on innovation: “Successful innovation, particularly for an organization as large and complex as the U.S. military, is difficult. It will require strong, courageous leadership within the military, as well as close collaboration with our elected leaders” (U.S. Department of Defense, “Quadrennial Defense Review 2014”).
5. Sargent, “Federal Research and Development Funding: FY2013.”
6. Sargent, “Federal Research and Development Funding: FY2018,” 5.
7. Proposal Exponent, “Federal R&D Funding.”
8. Information with which to analyze this complex landscape is largely dispersed and fragmented within various divisions and departments of U.S. government IT infrastructures. Figure 9 is based on both publicly available and non-publicly-available data.
9. Small Business Research and Development Enhancement Act of 1992; U.S. Small Business Administration, “Legal Business Size Standards.”
10. Small Business Research and Development Enhancement Act of 1992; U.S. Small Business Administration, “Legal Business Size Standards.”
11. Priest and Arkin, “Top Secret America.”
12. Priest and Arkin, “Top Secret America.”
13. Department of Homeland Security, Office of Inspector General, “Reducing Overclassification of DHS’ National Security Information.”
14. Sensors Directorate, Air Force Research Laboratory, Electronic Warfare Technology: Security Classification Guide.
15. Sensors Directorate, Air Force Research Laboratory, Electronic Warfare Technology.
16. 50 USC–Trading with the Enemy, Act of October 6, 1917 § 10, CH. 106, 40 STAT. 411.
17. The Invention Secrecy Act, 35 USC § 181-88, and the related agency regulation 37 CFR, 5.1-5.5.
18. These restrictions are specified in 10 USC § 130, “Authority to Withhold from Public Disclosure Certain Technical Data.”
19. Personnel and Document Security Division, “Protecting Classified Information.”
20. 18 USC § 793.
21. “Eligibility Guidelines for Gaining Security Clearance.”
22. U.S. Department of State, “All About Security Clearances.”
23. The U.S. government agency would complete DD Form 254, which is central to all security clearance discussions and processes. The form identifies the government’s requirements for security associated with a contract and specifies whether a facility clearance is required.
1. NASA Technology Transfer Program, “NASA Spinoff.”
2. Scott, “Sputnik—50 Years Later.”
3. Zacharias, “When Bomb Shelters Were All the Rage.”
4. Cropley, Creativity in Engineering.
5. Dugan and Gabriel, “‘Special Forces Innovation.’”
6. Kennedy, “John F. Kennedy Moon Speech.”
7. Quoted in Brinkley, “50 Years Ago.”
8. Quoted in Brinkley, “50 Years Ago,” and “NASA Budgets.”
9. Kennedy, “John F. Kennedy Moon Speech.”
10. Johnson, “The New Space Race.”
11. NASA, “Benefits from Apollo.”
12. Lexington Institute, “Dragons of Change.”
13. Axe, “Did the Marines’ 40-Year-Old ‘Amphibious Tractor’ Just Strike Again?”
14. Government Accountability Office, Amphibious Combat Vehicle.
15. Sack, “Amos Rejects Recent Critique of Amphibious Combat Vehicle.”
16. DARPA, “FAQs—Open Manufacturing,” and Doyle, “Outside the Box.”
17. Boyle, “How the First Crowdsourced Military Vehicle Can Remake the Future of Defense Manufacturing.”
18. Suh and de Weck, “Modeling Prize-Based Open Design Challenges.”
19. Fold It: Solve Puzzles for Science.
20. Cooper, Predicting Protein Structures with a Multiplayer Online Game.
21. 22 CFR § 120.3.
22. DARPA, “FAQs—Open Manufacturing.”
23. DARPA, “Component, Context, and Manufacturing Model Library 2,” 21.
24. 15 USC § 3719. This analysis does not presume that such restrictions are necessary or beneficial to national security but simply acknowledges that the restrictions limit the potential pool of innovators.
25. 15 USC § 3724.
26. DARPA, “Component, Context, and Manufacturing Model Library 2”; Innocentive, “Harvesting the Energy in Buildings.”
27. Suh and de Weck, “Modeling Prize-based Open Design Challenges.”
28. Eremenko and Wiedenman, Adaptive Vehicle Make (AVM).”
29. Elwell, “DARPA Offers $1 Million Prize for New Amphibious Armoured Vehicle Designs.”
30. The prize authority concept has evolved from the Stevenson-Wydler Technology Innovation Act of 1980 (15 USC § 3719), the America Competes Act of 2007 (20 USC § 9801), the Prize Authority (NASA) (51 USC § 20144), and the America Competes Reauthorization Act of 2010 to two 2017 laws supporting government open innovation: 15 USC § 3719—Prize Competitions and 15 USC § 3724—Crowdsourcing and Citizen Science.
This recent 2017 legislation is a stride forward in government open innovation. However, the legislation echoes the narrow view the government has had of open innovation strategies; it follows commercial industry and is limited to two strategies: prize competitions and crowdsourcing. The strategies have further restrictions: the crowdsourcing legislation prohibits the financial compensation of participants. The prize competition legislation also restricts participants to “U.S. persons or companies.”
Both new laws require agencies to prepare reports, and the contents are specified, such as identification of opportunities for future prize competitions. A broader view, such as the identification of opportunities for open innovation strategies, would encourage agencies to identify the appropriate strategy for each situation. I would also recommend that reports include challenges and issues so lessons learned can be shared.
31. DARPA, “After Successful Design Challenge Competition and Testing, DARPA Begins Early Transition of Adaptive Vehicle Make Technologies.”
32. Freedberg, “Amos Says Marines to Drop High Speed ACV”; Sack, “Amos Rejects Recent Critique of Amphibious Combat Vehicle.”
33. Snow, “The AAV Is Not Dead Yet.” Although ultimately FANG did not continue, its parent program, Advanced Vehicle Make (AVM), was transitioned successfully into the national Manufacturing USA initiative, where its outputs have been leveraged to enhance the competitiveness of U.S. manufacturing in non-military applications. Specifically AVM outputs have helped to digitize the supply chain with innovations in product design and systems engineering. AVM was transitioned into the Digital Manufacturing Design and Innovation Institute (DMDII), a cutting-edge, collaborative research institute that brings together industry, government, and academia to enhance the competitiveness of U.S. firms by accelerating innovation in manufacturing. DMDII is part of the national Manufacturing USA initiative, established by the Revitalize American Manufacturing and Innovation Act of 2014, 15 USC § 278s. DARPA, “After Successful Design Challenge Competition and Testing”; Manufacturing USA, “2016 Annual Report.”
1. Author interview with John Akula in 2014. Akula is senior lecturer at the MIT Sloan School of Management and has primary responsibility for the school’s business law curriculum.
2. Dwyer et al., “The Global Impact of ITAR.”
3. Satellite Industry Association, “2017 SIA State of Satellite Industry Report.”
4. Government Accountability Office, “Defense Contracting: Actions Needed to Increase Competition.”
5. Calandrelli, “An Evaluation of Short Innovation Contest Implementation.”
6. Obama, “Executive Order 13526: Classified National Security Information.”
7. 42 USC § 1861.
8. DARPA, “DARPA Today.”
9. Obama, “Executive Order 13526.”
10. 50 USC § 3002.
11. National Science Foundation, “Small Business Innovation Research Program.”
12. Kendall, “Public Access to the Results of Department of Defense–Funded Research.”
13. Drach-Zahavy, Understanding Team Innovation.
14. National Science Foundation, “Small Business Innovation Research Program.”
15. Gompers, The Venture Capital Cycle.
16. Gompers, The Venture Capital Cycle.
17. Calandrelli, “An Evaluation of Short Innovation Contest Implementation.”
18. DARPA, “FAQs—Open Manufacturing.”
19. Trimble, “First Foreign Firm Cracks U.S. Defense Industry’s ‘Big 5.’”
20. Excerpt from a “Big Five” training course on government IP regulations (emphasis added).
21. Anderson, “What Is the Difference in the DCAA and the DCMA?”
22. Brown, “Improving IP Protection for Small Businesses.”
23. In 1990 BAE was known as FMC and later as United Defense (UDI), a “large firm [that made] combat vehicles and missile launchers for the U.S. military.” When UDI was acquired by BAE in 2005, BAE became the “Pentagon’s sixth-largest contractor” and “the second-largest maker of armored vehicles behind Falls Church, Va.–based General Dynamics” (Defense Industry Daily, “BAE Closes United Defense LP Acquisition”).
24. Dalton, “A Case Study of the Advanced Amphibious Assault Vehicle (AAAV) Program.”
25. “General Dynamics Land Systems, under their subsidiary General Dynamics Amphibious Systems, Woodbridge, Va., is being awarded a $712,026,417 cost-reimbursable contract. . . . This contract was not competitively procured” (U.S. Department of Defense, “Contracts”).
26. Feickert, “Marine Corps Amphibious Combat Vehicle (ACV) and Marine Personnel Carrier (MPC).”
27. Freedberg: “Marines 2014” and “Amos Says Marines to Drop High Speed ACV”; General Dynamics, “General Dynamics to Continue Amphibious Combat Vehicle Testing.”
28. Bacon, “Inside the Amphibious Vehicles That Won the Marines’ $225m Contracts.”
29. Judson, “BAE Wins Marin Corps Contract to Build New Amphibious Combat Vehicle.”
30. Defense Acquisition University, “Omnibus Contracts.”
31. Aitoro, “Small Businesses Often Lose in GSA Schedule Contracts.”
32. DARPA Information Innovation Office (I2O), “Cyber Fast Track.”
33. SBIR feedback letter, 2010. It should be noted that the small business had included a letter of endorsement from a government contractor, but the contractor was not large enough to count as a “major military entity, certified government prime.”
34. A 2009 NDIA Small Business Division subcommittee survey showed that a vast majority of small businesses felt their IP was put at risk through the prime contract process. The subcommittee also found subcontractors being eliminated in the bid process if they “[didn’t] agree to prime conditions on IP rights even if statutory rights should be non-negotiable” (Brown, “Improving IP Protection for Small Businesses”).
35. Defense agencies “turned to the LSI concept in large part because they have determined that they lack the in-house, technical, and project-management expertise needed to execute large, complex acquisition programs” (Grasso, “Defense Acquisition”). However, the LSI concept faced criticism in many areas. For one, certain U.S. government agencies were becoming reliant on a single entity and single contract for the majority of their capabilities (e.g., U.S. Army on Future Combat Systems program, U.S. Coast Guard on Deepwater program). Another concern was a lack of transparency on selecting subcontractors: “In an LSI arrangement, the federal government has a contractual relationship with the LSI prime contractor, not with any subcontractors that report to the prime contractor” (Grasso, “Defense Acquisition”). Furthermore, programs such as Future Combat Systems experienced significant cost and schedule overruns and were eventually canceled (Srivastava, Arias, and Piper, “Future Combat Systems Case Study”).
36. Starting in 2006, legislation was enacted to move the U.S. government away from the LSI concept: 10 USC § 2410p, “Contracts: Limitations on lead system integrators”; Loudin, “Lead Systems Integrators”; Young, “Lead Systems Integrator Role for Government”; U.S. Department of Defense, Office of Small Business Programs, “Guidebook for Facilitating Small Business Team Arrangements.”
37. Zuberi, “SBIR/STTR Grants Are Great.”
38. Zuberi, “SBIR/STTR Grants Are Great.”
39. Small Business Association, “About SBIR.”
40. DOD, “SBIR/STTR Program Desk Reference” (emphasis in original).
41. Data are available at SBIR.gov.
42. 78 FR 48537.
1. Obama, “Executive Order 13526.”
2. Obama, “Executive Order 13526.”
3. 42 USC § 1861. 81st Congress. (1950). Public Law 507—National Science Foundation Act of 1950.
4. Dahlander and Gann, “How Open Is Innovation?”
5. Terweisch and Xu, “Innovation Contests.”
6. Frey and Haag,, “Whom Should Firms Attract to Open Innovation Platforms?”
7. DARPA sets time limits for technology development projects with the justification that innovators may be more likely to participate if they do not have to make long-term commitments. Shortly after they both left DARPA for Google, the former DARPA director and deputy director wrote in 2013 of this approach: “One of the most effective ways to attract talented performers from a wide array of disciplines, organizations, and backgrounds—and to keep them intensely focused—is to set a finite term for a project and staff it with people working under contracts that last only as long as the jobs they perform contribute to the overall goal.” When the finite-term approach was pioneered in the Google Advanced Technology and Projects (ATAP) group, it enabled the contracting of forty computer-vision experts from five different countries for a project that lasted fewer than six months. “We are convinced that we would not have been able to hire even a small fraction of them as permanent employees. Even if we could have, it would have taken more than a year to recruit them and get them working.” Dugan and Gabriel, “‘Special Forces Innovation.’”
8. Obama, “Executive Order 13526.”
9. Chesbrough, “Open Innovation and the Design of Innovation Work.”
10. U.S. Department of Defense, “DoDTechipedia.”
11. U.S. Department of Defense, “DoDTechipedia.”
12. U.S. Department of Defense, “DoDTechipedia.”
13. Defense Intelligence Agency, “NeedipeDIA.”
14. Priest and Arkin, “Top Secret America.”
15. Calandrelli, “An Evaluation of Short Innovation Contest Implementation.”
16. Government Accountability Office, “Defense Contracting: Actions Needed to Increase Competition.”
17. Government Accountability Office, “Contracting Data Analysis.”
18. Orszag, “Improving Government Acquisition.”
19. Government Accountability Office, “Federal Contracting: OMB’s Acquisition Savings Initiative Had Results.” The GAO notes, however, that its estimate was hampered in part by unreliable data. Further, “The potential of this [OMB 2009] initiative was hampered at the start with agencies’ general sense of confusion about the savings targets themselves and unclear guidance in a number of areas” (Government Accountability Office, “Defense Contracting: Actions Needed to Increase Competition”).
20. Government Accountability Office, “Defense Contracting: Improved Policies and Tools Could Help Increase Competition.”
21. Government Accountability Office, “Defense Contracting: Improved Policies and Tools Could Help Increase Competition.”
22. Government Accountability Office, “Defense Contracting: Improved Policies and Tools Could Help Increase Competition.”
23. Government Accountability Office, “Defense Contracting: Improved Policies and Tools Could Help Increase Competition.”
24. Government Accountability Office, “Defense Contracting: Improved Policies and Tools Could Help Increase Competition.”
25. The order cited 50 USC § 45b, a statute pertaining to photographing defensive installations (repealed in 1948).
26. Truman, “Executive Order 10290.”
27. Gidiere, The Federal Information Manual.
28. Elsea, “The Protection of Classified Information”; Pike, “Selected Executive Orders on National Security.”
29. Obama, “Executive Order 13526.”
30. Oliver, “Last Week Tonight with John Oliver.”
31. Elsea, “The Protection of Classified Information.”
32. Government Secrecy Reform Act of 1999 (1999). S. 712: 105th Cong.
33. The Supreme Court’s decision in Egan has been stretched to affirm the president’s broad scope of authority to classify information. Department of the Navy v. Egan, 484 U.S. 518, 527 (1988); see Fisher, “Judicial Interpretations of Egan.” But that portion of the Egan opinion is dicta—not a formal opinion—and does not have judicial precedential value. Further, the Supreme Court in Egan also acknowledged the authority of the legislative branch to influence the scope of the executive branch’s authority. In fact the judicial branch has not specifically ruled on the scope of the executive branch’s implied power to determine whether secrecy is required for national security or to define policies and guidance regarding same.
34. Knezo, “‘Sensitive but Unclassified’ Information and Other Controls.”
35. Public Citizen, “Analysis of Executive Order 13292.”
36. Bush, “Title 3—Executive Order 13292 of March 25, 2003.”
37. Moynihan and Combest, “Report of the Commission on Protecting and Reducing Government Secrecy.”
38. “Classified National Security Information.”
39. Reporters Committee for Freedom of the Press, “Statutory Exemption.”
40. Public Citizen, “Analysis of Executive Order 13292.”
41. Public Citizen, “Analysis of Executive Order 13292.”
42. Public Citizen, “Analysis of Executive Order 13292.”
43. The CIA claims this authority per the Central Intelligence Agency Act of 1949 (50 US.C., § 403g). For example, see Central Intelligence Agency, “[Redacted] ISCAP Number 2008-020.”
44. DOD, Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5–67.
45. 22 CFR § 120.10 Technical data, (3).
46. DOD, Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5–70.
47. DOD, Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5–71.
48. DOD, Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5–71.
49. Invention Secrecy Act, 35 USC § 181-88.
50. DOD, Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5–71
51. 5 USC § 552.
52. U.S. Department of Justice, “FOIA Guide.”
53. In FAA v. Robertson, 422 U.S. 255 (1975).
54. U.S. Department of Justice, “FOIA Guide.”
55. U.S. Department of Justice, “FOIA Guide.”
1. The government is able to incentivize employees at federal agencies directly and has defined these incentives in 15 USC § 3710b—Rewards for Scientific, Engineering, and Technical Personnel of Federal Agencies.
2. DOD Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5-1.
3. Maune, “Patent Secrecy Orders.”
4. T. Wyatt, “In Search of Reasonable Compensation,” 22.
5. T. Wyatt, “In Search of Reasonable Compensation,” 2.
6. T. Wyatt, “In Search of Reasonable Compensation,” 6.
7. Cramp & Sons v. International Curtis Marine Turbine Co., 246 U.S. 28 (1918)—a case involving a patent holder suing a government contractor for infringement in the course of executing a shipbuilding contract with the U.S. government.
8. The U.S. Supreme Court stated in its opinion, “Under proposals submitted by the Navy Department, the petitioner, the Cramp Company, in 1908 contracted to build two torpedo boat destroyers, Nos. 30 and 31, and in 1911 further contracted to build four such boats, Nos. 47, 48, 49 and 50.” Cramp & Sons v. International Curtis Marine Turbine Co., 246 U.S. 28 (1918).
9. An excerpt of FDR’s 1918 letter is included in the opinion of Richmond Screw Anchor Co., Inc., v. United States, 275 U.S. 331 (1928)—a case involving a patent holder suing the U.S. government after it contracted with a separate company to construct and install infringing technology; U.S. Government Accountability Office, “B-159356.”
10. DOD Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5-1.
11. T. Wyatt, “In Search of Reasonable Compensation,” 2.
12. T. Wyatt, “In Search of Reasonable Compensation,” 2–3.
13. Brown, “Improving IP Protection for Small Businesses.”
14. Quoted in Gaughran, “Whose Idea Was This, Anyway?”
15. Quoted in T. Wyatt, “In Search of Reasonable Compensation.”
16. DOD Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5-1.
17. DOD Acquisition Law Advisory Panel, Streamlining Defense Acquisition Laws, 5-1.
18. Government Accountability Office: “Contract Management,” and “Federal Contracting: Commercial Item Test Program Beneficial.”
19. FAR Clause 52.227–1.
20. FAR Clause 52.227–3; Stouck, “Right and Wrong Ways to Use Others’ Patents.”
21. FAR Clause 52.227–5.
22. T. Wyatt, “In Search of Reasonable Compensation,” 8.
23. T. Wyatt, “In Search of Reasonable Compensation,” 8.
24. Patent holders may argue that the selective application of the Authorization and Consent clause is unfair or not uniform, but it is unlikely that the Federal Circuit, or even the Court of Federal Claims, would find the application of Authorization and Consent to be arbitrary because the choice of when and which Authorization and Consent clauses to use is a matter committed to agency discretion. Congress did not prohibit the creation of variants of the clause. The government is often afforded the benefit of the doubt in matters where it has discretion, and therefore seemingly unfair application may be excused as long as there is a “rational basis” for the agency’s action.
Congress is often hesitant to provide specific guidance to agencies on the application of discretion under the law. Typically the guidance to act in the public interest is considered sufficient. In some cases Congress may specify that agencies should develop rules on the application of laws. The establishment of these rules, called rule-making, is often a cumbersome process, and it must adhere to the procedure specified in the Administrative Procedure Act, 5 USC Subchapter II. Though cumbersome, Congress should consider supplementing the Authorization and Consent law with such a rule-making mandate to provide more uniformity and guidance for agencies applying Authorization and Consent.
25. While this topic is often discussed as a type of “takings” issue, the U.S. Court of Appeals for the Federal Circuit has said that “patent infringement by the government was not a taking under the Fifth Amendment because patent rights, unlike other property rights, are created only by federal statute” (quoted in T. Wyatt, “In Search of Reasonable Compensation”). It is unclear how this squares with Art. I, Sec. 8 of the U.S. Constitution, which requires Congress to create some type of intellectual property rights, or with Justice Taft’s rationale in an earlier Supreme Court case of Richmond Screw Anchor Co. v. U.S., 275 U.S. 331 (1928). Regardless of whether such payment is required by the Constitution, however, the issues remain around the statutory requirement that some reasonable compensation be paid and whether that payment is sufficient to incentivize innovation.
26. Robishaw Engineering v. United States, 891 F. Supp. 1134 (E.D. Va. 1995); T. Wyatt, “In Search of Reasonable Compensation.”
27. T. Wyatt, “In Search of Reasonable Compensation.”
28. Gargoyles, Inc. v. United States, 113 F.3d 1572 (Fed. Cir. 1997)—a case involving a patent holder suing the U.S. government after it purchased infringing eyewear from an alternate manufacturer.
29. T. Wyatt, “In Search of Reasonable Compensation.”
30. Quoted in Gaughran, “Whose Idea Was This, Anyway?”
31. An IP Assertions Table is required by DFARS 252,227-7013(e).
32. Fleurant and Perlo-Freeman, “SIPRI Top 100”; Fryer-Biggs and Weisgerber, “U.S. Giants Skimp on Research, Development”; Raytheon, “Form 10-Q.”
33. Night Vision Corp. v. U.S., Case No. 06-5048 (Fed. Cir. 2006); Night Vision Corp. v. U.S., 469 F 3d, 1369 (Fed. Cir. 2006); Night Vision Corp. v. U.S., United States Court of Federal Claims, November 8, 2005, No. 03-1214C (Fed. Cl., November 8, 2005).
34. 15 USC § 638.
35. Government Accountability Office, “Military Acquisitions.”
36. DARPA Tactical Technology Office, “FANG”; see also DARPA Tactical Technology Office, “Manufacturing Experimentation and Outreach.”
37. Innocentive, “Multi-Scale Modeling of Tablet Dissolution” (emphasis added).
38. Author interview with Nathan Wiedenman, DARPA FANG program manager, 2014.
39. The recent 2017 legislation on prize competitions, 15 USC § 3719, provides only high-level guidance on IP policy. It is yet to be seen whether agencies will write new IP regulations or whether government program managers will be restricted to existing FAR/DFARS regulations.
40. Zoltek Corporation v. United States, 672 F.3d 1309, 1311 (Fed.Cir.2012).
41. The Zoltek case has bounced back and forth several times between the Court of Federal Claims and the Federal Circuit from its initiation in 1996 through today. Recently a Federal Circuit ruling of February 19, 2016, reversed rulings by the Court of Federal Claims and sent the case back to the latter court, where it is (as of this writing) ongoing. Obviously all this back and forth is very expensive for Zoltek and everyone else involved.
42. T. Wyatt, “In Search of Reasonable Compensation,” 17.
43. T. Wyatt, “In Search of Reasonable Compensation.”
44. Larson, in “Yesterday’s Technology, Tomorrow,” pointed to 15 USC § 3710c, which states that government-employed inventors should get 15 percent royalties for licensing their inventions to the government.
45. T. Wyatt, “In Search of Reasonable Compensation.”
46. Suh and de Weck, “Modeling Prize-Based Open Design Challenges.”