ROI Green Paper FAQs

Q1. Why is it a “green paper?”

A. A green paper is a discussion document that informs, but does not prescribe, policy recommendations or decisions by the federal government. Ours was based on an assessment of the feedback we received from stakeholders in industry, academia and across the federal government. It allows NIST to broadly communicate stakeholders’ views and perspectives on today’s lab-to-market system and to continue the conversation. The green paper is being issued as a NIST technical publication, NIST Special Publication 1234.

Q2. Why is this initiative important?

A. The United States spends more than any other nation on R&D each year, investing over $150 billion in federally funded R&D alone. Critical technologies such as life-saving drugs, vaccines, medical devices, the internet, GPS and countless other innovations underpinning every aspect of the American way of life are traceable to groundbreaking work at federal laboratories, federally funded universities and private-sector R&D organizations.

As part of the Lab-to-Market Cross Agency Priority (CAP) Goal in the President’s Management Agenda, the green paper’s findings can help to inform future deliberations, decision-making and possible actions that could maximize the return on taxpayer investment in federally funded R&D. This should, in turn, strengthen U.S. economic competitiveness and support U.S. national security needs.

Q3: Who provided input for these findings?

A: To create this green paper, NIST relied on extensive inputs from the private and public sectors, close coordination with OSTP and engagement with federal interagency working groups. Several hundred experts and organizations representing thousands of companies, universities and institutions provided thoughtful inputs at forums held across the nation and organized by NIST and the U.S. Patent and Trademark Office. A Request for Information published in the Federal Register in May 2018 and comments on the December 2018 draft green paper also informed the final ROI Initiative Green Paper, NIST Special Publication 1234.

Of course, stakeholders had a wide variety of opinions on the green paper topics. When the green paper mentions specific areas of stakeholder agreement on a given topic, this does not to mean that NIST found or sought to create consensus. It means that a number of individuals or stakeholder groups expressed a similar opinion.

Q4. What changes did the stakeholders propose?

A. The green paper includes 15 findings by NIST that were based on stakeholder inputs and can help inform future deliberations, decision-making and possible actions that could “unleash American innovation” by removing unwarranted systemic barriers and strengthening partnerships between government, industry and academia.

 For example, stakeholders stated that:

• streamlining federal regulations and improving flexibility for partnerships could make it easier for private businesses to partner with federal agencies to bring innovative technologies to market;
• granting reliable and predictable intellectual property rights to federal research and development results could encourage innovation and more private sector R&D investment; and
• updating requirements for how the government reports its intellectual property—including technologies, knowledge and capabilities—could make it easier for the private sector to identify promising partnership and commercialization opportunities.

Q5. What does the green paper say about “march-in rights” and “government use?”

A.  Some stakeholders expressed confusion over march-in rights and said that the government use license can be a deterrent to investment in federally funded R&D. The green paper highlights the fact that regulations include a rigorous process for agencies to exercise march-in rights, and that the government has never exercised these rights.

Some have argued that march-in rights should be used to control prices. However, the authors of the Bayh-Dole Act stated in 2002 that the act was not intended to set prices. In addition, the paper cites stakeholder inputs stating that an overly broad interpretation of the scope of the government use license would be contrary to the stated intent of the act. The paper notes that clarification of these terms could be made in the Bayh-Dole Act implementing regulations, in accordance with the act itself.  No findings in this final green paper would require legislative changes to the Bayh-Dole Act.

Q6. If these changes are implemented, what will be the impact?

A.  We can’t predict the future, but we expect actions based on the findings in the green paper to attract greater private sector partnering and investment that will create innovative products and services, as well as entirely new businesses and industries. If implemented, stakeholders contend, they could enable revolutionary advances in industries such as artificial intelligence, advanced manufacturing, quantum information science, and advanced communication technologies (e.g., 5G). In addition, the U.S. technology innovation system and its practices could be significantly better able to support the rapid pace of technology-based innovations needed to compete in a global marketplace of shorter product life cycles, disruptive business models, new partnering strategies and globalized R&D and supply chains.

Q7. Is legislation required for these changes to be implemented?

A. Much of the legal architecture around technology transfer is based on two transformational pieces of legislation from the 1980s: the Stevenson-Wydler Technology Innovation Act and the Bayh-Dole Act. To meet the economic competitiveness and national security needs of the 21st century, the green paper’s findings identify areas that could benefit from potential legislative amendments to the Stevenson-Wydler Act, for example, in expanding partnership opportunities, building a more entrepreneurial R&D workforce and reporting requirements for metrics. Any changes to policy, legislation or regulation would be advanced by the appropriate authorities, departments and agencies according to established processes. No findings in this final green paper would require legislative changes to the Bayh-Dole Act.

Q8. How were the findings developed, who was involved?

A. NIST implemented an open, inclusive and collaborative outreach effort to ensure that the federal R&D, intellectual property and technology transfer stakeholder communities had an opportunity to participate and provide inputs to inform the green paper. We obtained broad inputs from the public in response to a Request for Information published in the Federal Register, public meetings and multiple stakeholder engagement sessions, and conducted an extensive review of relevant prior reports and studies.  

We also incorporated input from key federal stakeholders, including the National Science and Technology Council’s (NSTC) Lab-to-Market Subcommittee, the Interagency Working Group on Technology Transfer, and the Federal Laboratory Consortium’s Executive Board. Additionally, NIST’s principal advisory board, the Visiting Committee on Advanced Technology (VCAT), formed a Subcommittee on Technology Transfer to provide the agency with additional expert input. NIST carefully considered the extensive stakeholder and interagency inputs, with support of the Science and Technology Policy Institute (STPI) in affiliation with the Office of Science and Technology Policy (OSTP).

Q9. What are the main problems with the existing tech transfer system?

A. The current system of moving federally funded R&D from the lab to the market has helped the U.S. lead the world in innovation for decades. Between 1996 and 2015, it resulted in more than $1 trillion in economic growth and millions of new jobs. But the Bayh-Dole, Stevenson-Wydler, and Federal Technology Transfer acts were written in the 1980s, long before today’s digital economy and today’s intense international competition. Therefore, the Lab-To-Market Cross Agency Priority (CAP) Goal of the President’s Management Agenda lists five strategies to increase the U.S. return on investment: reducing regulatory and administrative burdens; increasing private sector engagement through agile partnerships; building a more entrepreneurial R&D workforce; delivering innovative tech transfer tools and services; and measuring and benchmarking the outcomes and impacts of federal R&D.

The feedback we received from stakeholders throughout the process of developing the green paper will assist NIST and the broader Federal community in preserving the strong foundations provided by the 1980s legislation and modernizing the U.S. system to more easily move R&D from the laboratory to the marketplace.

Q10. What does the green paper say about copyright of government software?

A. The green paper notes that, according to some stakeholders, some types of software resulting from R&D performed by federal laboratories would be more likely to be commercialized if copyright protection were available.  

Under current law, universities and contractors that receive federal R&D funding, including all of the DOE national labs, have the ability to secure copyright protection for software. However, federal employees working at government laboratories do not since “government works” created by federal employees, including software from R&D, are automatically considered to be in the public domain.

Some stakeholders supported enabling Federal entities to secure software ownership rights, and some did not. (Several comments submitted following the release of the December draft of this green paper opposed the idea of providing copyright protection for software created by federal employees.) While not all government works that represent products of R&D would be appropriate for copyright, NIST found that this inconsistency with industry norms has created confusion in the private sector and served as an obstacle to commercialization.

The U.S. digital economy currently represents about 6.5. percent of the U.S. gross domestic product. As a result, policy makers may want to consider whether changes to copyright law could help ensure U.S. companies and taxpayers reap the economic benefits from software created by federal laboratories.

Q11.  What are the next steps?

A. The green paper notes that many of the issues or options suggested by stakeholders “fall within the primary shared responsibilities of other agencies and departments.”  The green paper is intended to “inform future deliberations, decision-making, and implementing actions by the relevant departments and agencies.”  Specific policy, legislative, and/or regulatory actions would be decided upon by the relevant departments and agencies using established processes including “appropriate interagency consultations, formal interagency review, and in many cases formal public comment.”