Rosemary:  per Steve's comments, perhaps all you need to do is modify
the company's language to ensure that the substituted definitions do
not apply to patent and data related clauses.  As Steve noted, the
company does not really have the legal right to substitute its name in
place of the Government's for these clauses.

In my experience, making the modification recommended above is usually
not an issue for the company; I tend to think they make blanket changes
to definitions without thinking through all the implications (or else
I'm just naive).

Rochelle Athey
Director, Sponsored Programs
Cal Poly State University Foundation
805-756-1123/805-756-5588 fax
http://www.cpfoundation.org/SP/

-----Original Message-----
From: rka2 [mailto:xxxxxx@PO.CWRU.EDU]
Sent: Monday, February 21, 2000 3:21 PM
To: RESADM-L
Cc: rka2
Subject: FAR guru's needed!

Dear FAR / DEAR guru's,

I would appreciate your help and further ask that if you know of some
other
listserv where my question is most likely to find a definitive answer,
please forward this posting to that listserv.  (In fact, please also
share
with me other listservs to which I should be subscribed.)

I  have a subcontract I am negotiating with an independent nonprofit
organization (non-university), "WXYZ", who has a R and D subsidiary.
WXYZ
received a DOE contract and wishes to subcontract to our university a
portion of the work.  Portions of our work are potentially patentable.
Not
surprisingly, the subcontract contains a thick general provisions
section of
the flow-through clauses.  Company WXYZ has incorporated and amended
these
clauses by substituting "WXYZ" for, or adding "and WXYZ" to, the words
"government", "contracting officer", "patent counsel" and "DOE"
(depending
upon the specific clause).  Specifically of concern to CWRU are the
incorporated clauses dealing with patent rights and rights in data (DEAR
952.227-11, FAR 52.227-14, FAR 52.227-17, FAR 52.227-23 and FAR
52.227-23).

CWRU has no problem giving the government its rights as dictated by
Bayh-Dole, but we have a problem giving up rights not apparantly
specified
by Bayh-Dole.  In addition, it seems that substituting "WXYZ" for
"government" takes away rights from the government as well.

I have two questions:

1.  Where in FAR and / or DEAR are the rights to make these
substitutions
given to these companies?

2.  How have other universities dealt with these clauses?

Thanks so much for your help.

Rosemary
****************************************
Rosemary K. Alexander
Assistant Director, Office of Research Administration
Case Western Reserve University
10900 Euclid Avenue
Cleveland, Ohio 44106-7015

xxxxxx@po.cwru.edu
Phone: 216-368-2008
Fax:     216-368-4679

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