FAR 27.305-2—Administration by the Government.
Plain-English Summary
FAR 27.305-2 explains how the Government administers patent rights clauses after award. It covers agency follow-up procedures, the contracting officer’s role in receiving and routing invention disclosures and related patent documents, escalation when contractors miss deadlines, coordination with legal counsel, broader compliance monitoring for subject inventions, and the use of patent personnel and technical staff to detect noncompliance. It also addresses how agencies should focus oversight on contracts most likely to produce subject inventions, including research, development, experimental, and high-dollar contracts, while using spot checks for others. In practice, this section is about making sure inventions are identified, disclosed, patented when appropriate, and that the Government’s rights are properly established and protected. It also gives the Government tools to correct contractor misunderstandings or failures, including explanation, follow-up requests, possible withholding of payments under the clause, and documentation of significant or repeated noncompliance in the contract file.
Key Rules
Agency follow-up required
Agencies should maintain procedures to protect the Government’s interest by ensuring subject inventions are identified, disclosed, and, when appropriate, patented. For contracts with clauses referenced in FAR 27.304-2, follow-up must be coordinated with the appropriate agency.
CO receives patent documents
The contracting officer administering the contract, or another specifically designated representative, is responsible for receiving invention disclosures, reports, confirmatory instruments, notices, requests, and other patent-rights-related submissions from the contractor.
Late submissions must be pursued
If the contractor misses required deadlines for documents or information other than confirmatory instruments, the contracting officer must promptly request the missing items and take appropriate action if the failure continues. For confirmatory instruments, the contracting officer must request them if they are not furnished within 6 months after filing each patent application, or within 6 months after submitting the invention disclosure if the application was already filed.
Legal counsel must be informed
The contracting officer must promptly furnish all invention disclosures, reports, confirmatory instruments, notices, requests, and other patent-rights-related documents and information to legal counsel so the Government can evaluate and protect its rights.
Compliance monitoring should be targeted
Contracting activities should establish procedures to detect and correct contractor failures to disclose and report subject inventions during and after performance. Oversight should focus primarily on contracts most likely to generate significant subject inventions, such as research, developmental, experimental, and large-dollar contracts, with spot checks used for other contracts as feasible.
Patent personnel may investigate
Where appropriate, Government patent personnel may interview technical staff, review technical reports, check patent publications and other sources for contractor patents, and have Government personnel interview contractor personnel, observe work, and inspect notebooks and records related to the contract.
Explain obligations and enforce compliance
If the contractor or subcontractor does not understand its obligations, or its compliance procedures are deficient, the contracting officer should explain the requirements. If the contractor still fails to comply, the withholding-of-payments provision in the patent rights clause may be used, and significant or repeated failures must be documented in the official file.
Responsibilities
Agency
Establish and maintain follow-up procedures that protect the Government’s patent interests, ensure subject inventions are identified and disclosed, and coordinate follow-up activities for contracts covered by clauses referenced in FAR 27.304-2.
Contracting Officer
Receive patent-rights submissions, request missing documents when deadlines are missed, take appropriate action to secure compliance if failures persist, promptly send patent-rights materials to legal counsel, explain obligations to contractors or subcontractors when needed, and document significant or repeated noncompliance in the contract file.
Other Designated Representative
If specifically designated in the contract, perform the contracting officer’s receipt function for invention disclosures, reports, confirmatory instruments, notices, requests, and related documents.
Legal Counsel
Review invention disclosures and related patent-rights documents provided by the contracting officer and advise on protection of the Government’s rights.
Contracting Activity
Set up procedures to detect and correct contractor noncompliance, prioritize oversight on contracts likely to produce subject inventions, and use spot checks or qualified reviewers as appropriate.
Government Patent Personnel
Support compliance reviews by interviewing technical personnel, reviewing technical reports, checking patent records and publications, and helping investigate contractor performance and records when appropriate.
Contractor
Timely disclose subject inventions, submit required reports and confirmatory instruments, file patent applications when appropriate, and maintain procedures that comply with the patent rights clause.
Subcontractor
Comply with applicable patent-rights obligations and understand disclosure and reporting requirements when subject to the clause.
Practical Implications
This section makes patent-rights administration an active follow-up function, not a passive paperwork function; agencies and contracting officers must monitor deadlines and disclosures, not just wait for contractor submissions.
A common pitfall is missing confirmatory instruments after a patent application is filed; the rule gives a specific 6-month trigger for the contracting officer to request them.
Oversight should be risk-based: research, development, experimental, and high-dollar contracts deserve closer review because they are more likely to generate subject inventions.
Contractors that do not understand their obligations should be educated first, but continued noncompliance can lead to withholding of payments under the clause and formal documentation in the file.
Coordination with legal counsel and patent personnel is important because invention disclosures can affect ownership, election of title, filing deadlines, and the Government’s ability to secure its rights.
Official Regulatory Text
(a) Agencies should establish and maintain appropriate follow-up procedures to protect the Government’s interest and to check that subject inventions are identified and disclosed, and when appropriate, patent applications are filed, and that the Government’s rights therein are established and protected. Follow-up activities for contracts that include a clause referenced in 27.304-2 should be coordinated with the appropriate agency. (b) (1) The contracting officer administering the contract (or other representative specifically designated in the contract for this purpose) is responsible for receiving invention disclosures, reports, confirmatory instruments, notices, requests, and other documents and information submitted by the contractor pursuant to a patent rights clause. (i) For other than confirmatory instruments, if the contractor fails to furnish documents or information as called for by the clause within the time required, the contracting officer shall promptly request the contractor to supply the required documents or information. If the failure persists, the contracting officer shall take appropriate action to secure compliance. (ii) If the contractor does not furnish confirmatory instruments within 6 months after filing each patent application, or within 6 months after submitting the invention disclosure if the application has been previously filed, the contracting officer shall request the contractor to supply the required documents. (2) The contracting officer shall promptly furnish all invention disclosures, reports, confirmatory instruments, notices, requests, and other documents and information relating to patent rights clauses to legal counsel. (c) Contracting activities should establish appropriate procedures to detect and correct failures by the contractor to comply with its obligations under the patent rights clauses, such as failures to disclose and report subject inventions, both during and after contract performance. Government effort to review and correct contractor compliance with its patent rights obligations should be directed primarily toward contracts that are more likely to result in subject inventions significant in number or quality. These contracts include contracts of a research, developmental, or experimental nature; contracts of a large dollar amount; and any other contracts when there is reason to believe the contractor may not be complying with its contractual obligations. Other contracts may be reviewed using a spot-check method, as feasible. Appropriate follow-up procedures and activities may include the investigation or review of selected contracts or contractors by those qualified in patent and technical matters to detect failures to comply with contract obligations. (d) Follow-up activities should include, where appropriate, use of Government patent personnel- (1) To interview agency technical personnel to identify novel developments made in contracts; (2) To review technical reports submitted by contractors with cognizant agency technical personnel; (3) To check the Official Gazette of the United States Patent and Trademark Office and other sources for patents issued to the contractor in fields related to its Government contracts; and (4) To have cognizant Government personnel interview contractor personnel regarding work under the contract involved, observe the work on site, and inspect laboratory notebooks and other records of the contractor related to work under the contract. (e) If a contractor or subcontractor does not have a clear understanding of its obligations under the clause, or its procedures for complying with the clause are deficient, the contracting officer should explain to the contractor its obligations. The withholding of payments provision (if any) of the patent rights clause may be invoked if the contractor fails to meet the obligations required by the patents rights clause. Significant or repeated failures by a contractor to comply with the patent rights obligation in its contracts shall be documented and made a part of the general file (see 4.801 (c)(3)).