Executive Orders

Executive Order 9865--Providing for the protection abroad of inventions resulting from research financed by the Government

Source: The provisions of Executive Order 9865 of June 14, 1947, appear at 12 FR 3907, 3 CFR, 1943-1948 Comp., p. 651, unless otherwise noted.

Cross reference: Executive Order 10096 of Jan. 23, 1950, this chapter, modifies Executive Order 9865.

WHEREAS the Government of the United States now has and will hereafter acquire title to, or the right to file foreign patent applications for, numerous inventions arising out of scientific and technical research carried on by or for the Government; and

WHEREAS it is in the interest of the United States to acquire patent protection abroad on certain inventions resulting from government-financed research; and

WHEREAS it in the interest of the Government to foster, promote, and develop the foreign commerce of the United States:

NOW, THEREFORE, by virtue of the authority vested in me as President of the United States by the Constitution and statutes, and as Commander in Chief of the Army and Navy, and in the interest of the foreign affairs functions of the United States and internal management of the Government, it is hereby ordered as follows:

1. All Government departments and agencies shall, whenever practicable, acquire the right to file foreign patent applications on inventions resulting from research conducted or financed by the Government.

2. All Government departments and agencies which have or may hereafter acquire title to inventions or the right to file patent applications abroad thereon, shall fully and continuously inform the Department of Commerce concerning such inventions, except as provided in section 6 hereof, and shall make recommendations to the Department of Commerce as to which of such inventions should receive patent protection by the United States abroad and the foreign jurisdictions in which such patent protection should be sought. The recommendations of such departments and agencies shall indicate the immediate or future industrial, commercial or other value of the invention concerned, including its value to public health.

3. The Department of Commerce shall determine whether, and in what foreign jurisdictions, the United States should seek patents for such inventions and, to the extent of appropriations available therefore, shall procure patent protection for such inventions, taking all action, consistent with existing law, necessary to acquire and maintain patent rights abroad. Such determinations of the said Department shall be made after full consultation with United States industry and commerce, with the Department of State, and with other Government agencies familiar with the technical, scientific, industrial, commercial or other economic or social factors affecting the invention involved, and after consideration of the availability of valid patent protection in the countries determined to be immediate or potential markets for, or producers of, products, processes, or services covered by or relating to the invention.

4. The Department of Commerce shall administer foreign patents acquired by the United States under the terms of this order and shall issue licenses thereunder in accordance with law under such rules and regulations as the Secretary of Commerce shall prescribe. Nationals of the United States shall be granted licenses on a nonexclusive royalty free basis except in such cases as the Secretary shall determine and proclaim it to be inconsistent with the public interest to issue such licenses on a nonexclusive royalty free basis.

5. The Department of State, in consultation with the Department of Commerce, shall negotiate arrangements among governments under which each government and its nationals shall have access to the foreign patents of the other participating governments. Patents relating to matters of public health may be licensed by the Secretary of Commerce, with the approval of the Secretary of State, to any country or its nationals upon such terms and conditions as are in accordance with law and as the Secretary of Commerce determines to be appropriate, regardless of whether such country is a party to the arrangements provided for in this section.

6. There shall be exempted from the provisions of this order (a) all inventions within the jurisdiction of the Atomic Energy Commission¹ except in such cases as the said Commission specifically authorizes the inclusion of an invention under the terms of this order; and (b) all other inventions officially classified as secret or confidential for reasons of the national security. Nothing in this order shall supersede the declassification policies and procedures established by Executive Orders Nos. 9568 of June 8, 1945, 9604 of August 25, 1945, and 9809 of December 12, 1946.

¹Editorial note: The Atomic Energy Commission was abolished and its functions transferred to the Energy Research and Development Administration and the Nuclear Regulatory Commission by the Energy Reorganization Act of 1974 (88 Stat. 1233). The functions of the Energy Research and Development Administration were transferred to the Department of Energy by the Department of Energy Organization Act (91 Stat. 565, 42 U.S.C. 7151), effective October 1, 1977.