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  • Question

    What does the PCO have to do once I forward the final patent report to him?


    Answer

    See DCMA contract closeout guidebook, paragraph 3.2.  Specifically, 3.2.1.2. Patents. When a contract/order contains a patent rights clause, FAR 52.227-11, FAR 52.227-13, or DFARS 252.227-7039 (References (i), (j), and (k)), the ACO shall obtain a final patent report from the contractor, as required by the clause, preferably on a DD Form 882, Report of Inventions and Subcontracts. The report should be submitted within 3 months after physical completion of the contract/order. The ACO shall forward the report to the buying activity for action. FAR 4.804-5(a)(2) (Reference (b)) states the final patent report should be cleared within 60 days of receipt and, if the patent report is not received, the contracting officer may proceed with closeout procedures upon consultation with agency legal counsel. The patent report should list all patent claims made under the contract/order or certify that there were no inventions (a negative report), and list all subcontracts which include a patents right clause or certify that no subcontracts were issued with this requirement.

     

    3.2.1.2.1. If the contract/order contains FAR 52.227-11, Patent Rights – Ownership by the Contractor (Reference (i)), a final patent report is required only if there is an invention. DCMA-INST 135 August 6, 2013 Administratively reissued, April 14, 2014 11

     

    3.2.1.2.2. If DFARS 252.227-7039, Patents – Reporting of Subject Inventions (Reference (k)), is also in the contract/order, a final report is required within 3 months after physical completion.

     

    3.2.1.2.3. The PCO should forward the clearance request and patent report to the cognizant patent counsel designated service representative for review and clearance.

     

    3.2.1.2.4. If the final patent report is negative, the ACO may include language in a letter to the PCO, including a statement such as “if the PCO fails to issue a response within 60 days, patent clearance shall be deemed to have been issued” (see exception at paragraph

     

    3.2.1.2.5. of this Instruction). If this letter option is pursued, prior to generation of this letter, the ACO should: 3.2.1.2.4.1. Proactively verify information on the negative DD Form 882, Report of Invention and Subcontracts, and include the basis for the opinion (progress report, labor report, interim patent reports, comments from quality assurance specialists/program integrators, final technical reports, etc.) in the request for patent clearance letter.

     

    3.2.1.2.4.2. Document aggressive follow-up on the status of the pending request for patent clearance during the 60-day period. 3.2.1.2.4.3. If desired, include an invitation to the PCO/patent counsel to provide an opportunity for them to voice their objection to the 60-day response.

     

    3.2.1.2.5. If the DD Form 882 contains a report of patentable subject inventions or if the ACO has reason to believe that a negative DD Form 882 has failed to disclose an invention, the ACO should not impose 60-day suspense for a patent clearance response.

     

    See https://www.dcma.mil/Portals/31/Documents/Policy/DCMA-INST-135.pdf

     

    The Acquisition Institute Contract Closeout Guidebook October 2007 also states,  “There is a general belief that a contract is completed when final delivery is made of the required goods and services and the Government has made acceptance and final payment to the contract. However, in the administrative contracting arena, a contract is not complete and ready for closeout until the contractor complies with all the terms of the contract. This includes those administrative actions that are contractually required; i.e. accounting, property, security, patents and royalties.” 

     

    Additionally,  “Regarding Final Patent/Royalty Reports.  See Page 13. “Have all final reports been obtained and forwarded to the buying activity? If the contract contains FAR 52.227-11, a final patent report is required only if there is an invention. If DFAR 252.227-7039 is also in the contract. 1. In accordance with contract provisions, the contractor will submit a final royalty and final report of inventions (DD Form 882 - Reports of Inventions and Subcontracts) to the ACO within 90 days following physical completion. Reminder! ACO must withhold final payment for nonreceipt of required clearances for large contractors only. 2. Upon receipt, the ACO will forward the report (including negative reports) to the PCO requesting that the report be sent to the program office and cognizant patent counsel for clearance. If clearance has not been received on a negative report within a reasonable timeframe, the ACO should inform the PCO of the impact on contract closeout and request a date by which the clearance will be provided.”

     

    See http://www.acqnotes.com/Attachments/Acquisition%20Institute%20Contract%20Closeout%20Guidebook%20Oct%2007.pdf

     

    FAR 52.227-11, “Patent Rights – Ownership by the Contractor”

    FAR 52.227-13, “Patent Rights – Ownership by the Government”

    DFARS 252.227-7039, “Patents – Reporting of Subject Inventions”

    FAR 4.804, “Closeout of Contract Files”

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