Exploring the Unknown - NASA's History Office

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SPACE AS AN INVESTMENT IN ECONOMIC GROWTH
NASA has also provided limited advice and technical assistance to ARC Technologies
in its attempt to develop a launch vehicle. The proposed ARC vehicle is based on propulsion
technology originally developed by the government but later abandoned. If successful,
ARC may add to America’s technological resources. In addition to NASA’s advice ARC
has requested tracking and data services from another government agency.
f. Other Transactions. NASA’s current and projected programs and policies can
facilitate commercial space ventures in a variety of ways.
(1) Patents. NASA views its patent program as an integral portion of its mission
responsibility to encourage new technology and foster the utilization and commercialization
of NASA supported technologies. The statutory basis for the agency’s patent policy is
Section 305 of the Aeronautics and Space Act of 1958. Accordingly, NASA acquires title to
all inventions under contract unless the Administrator decides that waiver of title to the
contractor would be in the public interest (sec. 305(f)). Thus, the agency was granted
broad waiver authority, but is required to retain a broad royalty-free license to all inventions
under contract so that the waiver of title in actuality amounts to a waiver of commercial
rights only. NASA patent regulations are found at Title 14 Code of Federal
Regulations, Part 1245.
(i) Patent Waivers.
There are two types of domestic waivers granted by NASA: (1) advance waivers which
are applicable to inventions made under a contract; and (2) waivers for inventions subsequently
reported under a contract. The granting of waivers is authorized by the
Administrator upon the recommendation of the Inventions and Contributions Board set
up under section 305(f) of the 1958 Act. However, all waivers are subject to the retention
of NASA of a broad, irrevocable royalty-free license and of “march-in rights.” March-in
rights permit the agency to intervene if it believes that inventions are being suppressed,
that there is a danger to the public health and safety, or that a company is not meeting
Government regulations. The agency also retains the authority to void waivers if a firm
fails to report on its commercialization activities.
Seventy-five percent of the requests for waiver have been granted. However, to date
this represents only a small number of waivers because there have been few requests.
(ii) Patent Licenses.
NASA patent licensing regulations were promulgated to use the patent system to promote
the utilization of inventions arising from NASA supported research and development.
An applicant is required to supply NASA with a satisfactory plan for development
or marketing of the licensed inventions, or both, and with information about the applicant’s
capability to fulfill the plan.
(iii) Protecting Intellectual Property Rights in Commercial Space Activities.
In recognition of the substantial investment necessary to develop the electrophoresis
experiment and other activities conducted as joint endeavors, NASA negotiated special
clauses dealing with inventions and technical data. Typical clauses provide that as long as
the party engaged in the joint endeavor with NASA continued to pursue the experiment,
that party would retain all rights to inventions and proprietary technical data. NASA
would not take a government license or any “march-in” rights to require licensing of others.
The only exception is if the NASA Administrator, in response to a national emergency,
determines that an invention made in the performance of the joint endeavor is urgently
needed for public health reasons. NASA intends to continue to use its flexibility to accord
full rights to inventions and proprietary technical information to private parties willing to
invest substantial sums in joint endeavor agreements.
(2) Privatization and Commercialization of Space Infra-structure. The transfer of
Government ELV systems based on a Presidential decision was described above and men-