FAR 52.227-11 (Patent Rights — Ownership by the Contractor)

FAR 52.227-11 (“Patent Rights—Ownership by the Contractor”) is the patent-rights clause used in federal procurement contracts, as distinct from grants and cooperative agreements. Most federally funded university research runs through the latter, using the Bayh-Dole Act‘s standard patent rights clause at 37 CFR 401.14. When a university or other small business/nonprofit contractor instead performs federally funded experimental, developmental, or research work under a procurement contract, FAR Part 27 requires the equivalent rights to be written in using 52.227-11 instead, since 37 CFR 401.14’s clause text is drafted for grant instruments and the FAR needs its own clause text for contract instruments. This is a citation/mechanism distinction, not a substantive-rights distinction — 52.227-11 exists specifically to carry Bayh-Dole policy into contracts, it is not a separate, competing patent-rights regime.

When it applies

FAR 27.303(b)(1) prescribes 52.227-11 as the default patent rights clause for contracts for experimental, developmental, or research work awarded to a small business firm or a nonprofit organization (universities and most university-affiliated research institutes qualify as nonprofit organizations for this purpose). This scenario arises most often for university research administrators when work is funded as a procurement contract rather than a grant or cooperative agreement — for example, certain agency-specific research task orders, or an SBIR Phase III award structured as a contract. See CASRAI’s Grant vs. Contract vs. Cooperative Agreement comparison and Federal Contracts vs. Grants for University Research guide for how to identify which instrument type a given award actually is, since the instrument determines which patent rights clause applies.

What it grants the contractor

Substantively, 52.227-11 mirrors the rights and obligations of the Bayh-Dole standard patent rights clause: the contractor must disclose each subject invention to the funding agency (within two months of an inventor’s written disclosure to the contractor’s patent staff), elect in writing whether to retain title (generally within two years of disclosure), and, if it elects to retain title, file a patent application within statutory/clause deadlines. In exchange, the contractor may keep title to inventions it makes in performing the contract, subject to the government retaining a nonexclusive, nontransferable, irrevocable, paid-up license to practice the invention for governmental purposes, march-in rights under 35 U.S.C. 203 if the invention is not adequately utilized, and a preference for U.S. manufacturing when the contractor grants an exclusive license to practice or sell the invention in the United States.

How it differs from the grant-context clause (37 CFR 401.14)

37 CFR 401.14 is the regulation (not a FAR clause) that agencies incorporate into grants and cooperative agreements to implement the same Bayh-Dole policy. The disclosure window, election timing, government license, march-in rights, and U.S. manufacturing preference are functionally parallel across both clauses — the difference that matters operationally for a research administrator is which document governs a specific award (the contract itself, under FAR Part 52, versus the grant’s terms and conditions, under 37 CFR 401), not a difference in what the contractor ultimately owns or owes the government.

The alternate clause for other contractors: FAR 52.227-13

52.227-11 is specific to small business and nonprofit contractors. For contracts with other-than-small-business, for-profit (large business) contractors, or in the specific circumstances listed at FAR 27.303(e) (for example, contracts primarily for the production or marketing of an end product, or where the agency has determined that government ownership better serves the public interest), the contracting officer instead prescribes FAR 52.227-13, “Patent Rights—Ownership by the Government,” under which the government, not the contractor, takes title to inventions made under the contract, subject to the contractor being able to request a license.

Why this distinction matters for research administrators

A university technology transfer office that only tracks grant-funded inventions under its 37 CFR 401.14 compliance processes can miss an invention made under a procurement contract that is instead governed by 52.227-11 — the disclosure deadlines, election windows, and reporting obligations are parallel but the governing document is different, and iEdison/agency invention-reporting workflows are typically keyed to the specific award and its incorporated clause, not to the funding mechanism generically. Confirming which clause a given federal award actually incorporates, by reading the award document itself rather than assuming based on the funding agency or program name, is the reliable way to avoid missing a disclosure or election deadline.