Re: FAR guru's needed! Rochelle Athey 22 Feb 2000 14:40 EST
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 ====================================================================== Instructions on how to use the RESADM-L Mailing List, including subscription information and a web-searchable archive, are available via our web site at http://www.hrinet.org (click on "Listserv Lists") ======================================================================