advantages than our own domestic companies. As GAO's Report found, given staffing and space constraints that limit the number of outside researchers who can conduct R&D at federal laboratories, "the best way to control foreign participation is to stimulate U.S. participation." (Id., p. 52). Accordingly, even though the relative newness of the FTTA and the small number of agreements entered into thus far permit no conclusions to be drawn, it will be necessary to monitor the relative degree of foreign versus domestic interest in entering into collaborative arrangements under the FTTA. Because copyright law prohibits federal employees from obtaining copyright protection for works created in the course of their official duties, the incentives of proprietary protection and royalty sharing so vital in the case of inventions - are unavailable to spur the development of computer software that for legal or practical reasons cannot be patented. Such software can have substantial commercial value. DOE's GOCOs are not subject to this prohibition and their experience reveals just how important proprietary rights can be as a spur to the commercialization of software developed in connection with federal programs. A good example is DOE's encouragement of an Oak Ridge National Laboratory consortium. This consortium is a cooperative agreement between twelve sponsoring companies who are co-funding the development of user friendly and intelligent software systems for more easily accessing a highly complex set of finite element analysis models. GOGO research should yield equally satisfying results. The Department of Defense, for example, expends considerable effort in developing computer-based vocational training materials which may have significant commercial value for a wide range of vocations and disciplines. The Agriculture Department noted that virtually none of the cooperative agreements signed or under negotiation dealt with expert systems, artificial intelligence or other forms of knowledge engineering, even though the systems approach and software-derived technology reflected a growing portion of its research. Indeed, USDA also noted that this problem antedated the FTTA and that the government's inability to provide software protection had been a major factor in its inability to interest the private sector in its activities in such fields as crop production, forage-livestock interaction, and food processingquality interaction. It thus appears that the absence of an ability to convey proprietary rights might result in the loss of significant opportunities for federal-private sector cooperation in areas of significant commercial potential. Merely making software available without proprietary protection, may be insufficient to ensure its effective commercialization. Much of today's software is complex, containing thousands of lines of code. It is often useless to businesses unless they are willing to make substantial investments of time and money. For software to be commercially valuable, it has to be debugged, simplified and customized and training manuals must be available as well. Without an appropriate license, a firm could not be assured of recouping the necessary investment in providing such services. Simply stated, the plain fact is that without an appropriate policy dealing with the commercialization of federally-developed software, the prospects for its development and commercialization will probably be limited. The drafters of the FTTA were certainly aware of this. The legislation specifically required the Commerce Department to study the issue and make appropriate recommendations. In May 1988 then Secretary of Commerce C. William Verity submitted the required report recommending corrective legislation; at about the same time, the General Accounting Office issued a report to Congress (GAO/RCED-88-116BR) which also noted that the absence of copyright protection for computer software was perceived by laboratory and agency officials as a technology transfer constraint. The Department of Commerce, in consultation with other agencies, is developing suggestions for legislation that could be reviewed by the Administration. The Department and agencies will also consider the question of whether a similar limitation on the ability of federal scientists to obtain protection for semiconductor chip mask works should also be lifted. Such works are not protected by copyright but, rather, receive a sui generis form of protection under Title 17. Nevertheless, the same limitation applies. One major incentive for the establishment of cooperative relations between a private firm and the government is the existence of an expensive or unique research facility where federal scientists and scientists employed by a firm can work "shoulder to shoulder" on proprietary research. But, as GAO's March 1988 report found, the opportunities for this are limited at least in part by the government's inability to assure the firm that the results will not be made public to its foreign or domestic competitors under the Freedom of Information Act (FOIA). The experience of the federal laboratories since that report was Accordingly, the Department will continue to work with agencies to determine the extent to which FOIA may impede the negotiation of advantageous cooperative research and development agreements. Laboratory officials have informally advised the Department that they believe that the objectives of FOIA, the goal of preserving open scientific communication, and the proprietary interests of sponsoring partners can be balanced by offering the sponsoring partner a limited period of exclusivity after which the information would be subject to disclosure under FOIA. c. Personnel Matters. Personnel in federal laboratories often do not have the knowledge and skills essential for effectively negotiating complex agreements with the private sector. This limitation could undermine the FTTA's basic objective of encouraging the laboratories themselves to take an active role in promoting the transfer of federally funded technology. |