FAR 27.304-4—Appeals.
Plain-English Summary
FAR 27.304-4 explains how contractors may challenge certain patent-related decisions made by the Government and what the agency must provide when it takes those actions. It covers four specific actions: a refusal to extend the invention disclosure period under the patent rights clause at 52.227-11, a demand that the contractor convey title to the Government under 27.302(d)(1)(i) and (ii), a refusal to grant a waiver under the preference for United States industry at 27.302(g), and a refusal to approve an assignment under 27.304-1(h). The section requires the designated agency official to give the contractor a written statement explaining the basis and relevant facts for the action, so the contractor knows why the decision was made. It also allows agencies to establish appeal procedures, and those procedures should provide administrative due process and fact-finding standards. In practice, this section matters because it gives contractors a path to contest significant patent-rights decisions and requires agencies to make those decisions in a reasoned, reviewable way consistent with the policy goals of the Bayh-Dole Act, including 35 U.S.C. 200-206 and 210. If an action is already appealable under the Contract Disputes statute, that statute’s procedures satisfy the appeal requirement.
Key Rules
Written basis required
Before taking any of the listed actions, the designated agency official must give the contractor a written statement explaining the basis for the action, including relevant facts. This creates a record and gives the contractor enough information to understand and respond to the decision.
Four appealable actions
The section applies only to four specific patent-related actions: denial of an extension of the invention disclosure period, a demand for title conveyance, denial of a waiver for U.S. industry preference, and refusal to approve an assignment. Other patent administration actions are not covered by this section unless another rule makes them appealable.
Agency appeal procedures may be established
Each agency may publish procedures for appealing these actions. The rule is permissive on whether an appeal process exists, but if the agency creates one, it should be formal and publicly available.
Due process and fact-finding standards
Agency appeal procedures should include administrative due process and standards for fact-finding. That means the contractor should have a fair opportunity to present its case, and the agency should use a structured method for evaluating evidence and making findings.
Decision must align with Bayh-Dole policy
Any appeal resolution must consider both the factual and legal basis for the action and whether the action is consistent with the policy and objectives of 35 U.S.C. 200-206 and 210. The review is not just procedural; it must also account for the underlying patent policy goals.
Contract Disputes statute may control
If one of the listed actions is subject to appeal under the Contract Disputes statute, that statute’s procedures satisfy the appeal requirement in this section. In those cases, the agency does not need a separate appeal process to meet FAR 27.304-4(b).
Responsibilities
Designated Agency Official
Provide the contractor with a written statement of the basis for any covered action, including relevant facts, before taking the action. Ensure the decision is supportable and documented.
Agency
May establish and publish appeal procedures for the covered actions. If it does so, the procedures should provide administrative due process, standards for fact-finding, and review that considers both legal and factual issues as well as Bayh-Dole policy objectives.
Contractor
Review the written basis for the agency action, determine whether to appeal under the agency’s procedures or the Contract Disputes statute, and present factual and legal arguments challenging the action where permitted.
Appeal Authority or Reviewing Official
Evaluate the appeal by considering the factual record, legal basis, and consistency with 35 U.S.C. 200-206 and 210. Issue a resolution that is reasoned and consistent with the applicable procedures.
Practical Implications
Contractors should expect a written explanation before the Government takes one of these patent-rights actions, and they should use that document to assess whether the agency has a factual or legal weakness.
Agencies need to document their decisions carefully; vague or unsupported notices can undermine the action on appeal.
Because the section ties review to Bayh-Dole policy, a technically correct decision may still be vulnerable if it conflicts with the statute’s objectives, such as promoting utilization and protecting contractor rights where appropriate.
Contractors should watch for whether the dispute is handled under agency appeal procedures or the Contract Disputes statute, since the forum and deadlines may differ.
A common pitfall is treating these decisions as purely administrative when they can have major ownership and commercialization consequences for inventions developed under federal funding.
Official Regulatory Text
(a) The designated agency official shall provide the contractor with a written statement of the basis, including any relevant facts, for taking any of the following actions: (1) A refusal to grant an extension to the invention disclosure period under paragraph (c)(4) of the clause at 52.227-11 ; (2) A demand for a conveyance of title to the Government under 27.302 (d)(1)(i) and (ii); (3) A refusal to grant a waiver under 27.302 (g), Preference for United States industry; or (4) A refusal to approve an assignment under 27.304-1 (h). (b) Each agency may establish and publish procedures under which any of these actions may be appealed. These appeal procedures should include administrative due process procedures and standards for fact-finding. The resolution of any appeal shall consider both the factual and legal basis for the action and its consistency with the policy and objectives of 35 U.S.C. 200 - 206 and 2 10. (c) To the extent that any of the actions described in paragraph (a) of this section are subject to appeal under the Contract Disputes statute, the procedures under that statute will satisfy the requirements of paragraph (b).