One of the principal means of technology transfer used by the U.S. Government, and frequently by the Department of Defense (DoD), is the Cooperative Research and Development Agreement (CRADA). It was created by the Stevenson-Wydler Technology Innovation Act of 1980, the first major U.S. technology transfer law. CRADA exists when a government laboratory enters into an agreement with a partner under the authority of the Federal Technology Transfer Act of 1986*. However, a CRADA is not a procurement contract, grant, or cooperative agreement, as those terms are used in 31 U.S.C. §§6303, 6304, and 6305, respectively. As a result, it is not subject to the Federal Acquisition Regulations (FAR) or the Defense FAR Supplement (DFARS), and a contracting officer does not sign the CRADA on the Government’s behalf. Instead, the agreement is signed by the director of the federal laboratory entering into the CRADA with the partner.
More specifically, a CRADA is a written agreement between a federal laboratory and a non-federal entity partner. This partner may be a for-profit business, university, non-profit organization, or state and local government. The agreement establishes a cooperative relationship between the parties to work together on the research and development (R&D) of new technologies and generate new intellectual property (IP). It contains a joint work statement that describes the cooperative R&D efforts to be performed by the parties. One necessary condition in all CRADAs is that the efforts agreed upon must be consistent with the mission of the federal laboratory, i.e., within the scope of the laboratory’s mission. For example, for a DoD lab, researching and developing a pattern-recognition device or software that can be used for more effective target acquisition on the battlefield would fall within the mission of that lab. So would the development of a sturdier helmet for the protection of the soldier, superior night vision goggles for night warfare operations, or ruggedized computer against sand for use in a desert environment. Another purpose of the agreement is to collaborate to produce useful, marketable products that achieve the non-federal party’s commercial goal while benefitting the public. In other words, develop dual-use technologies. For example, better target recognition technology could be useful in civil aviation in identifying objects and differentiating between them. Superior night vision goggles could aid hunters engaging in night-time hunting. Likewise, improvements in helmets would find application in various sports. Thus, CRADA is one of the most valuable tools for transferring technology from federal laboratories to the non-federal partner. It is intended to be flexible to adapt to various types of collaborative efforts between the federal and non-federal entities.
A federal laboratory is assisted by its Office of Research and Technology Applications (ORTA) in transferring technology and performing collaborative work. The ORTA negotiates with the partners and creates the CRADA containing the agreed-upon terms. The ORTA is frequently assisted by partnership intermediaries, which are defined under 15 U.S.C. §3715 as:
“a [S]tate or local government or a nonprofit entity owned in whole or in part by,
chartered by, funded in whole or in part by, or operated in whole or in part by or
on behalf of a State or local government, that assists, counsels, advises, evaluates,
or otherwise cooperates with small business firms, institutions of higher education
and educational institutions.”
In short, partnership intermediaries broker relationships between federal laboratories and industry and/or academia on the Government’s behalf to accelerate technology transfer and licensing.
Under a CRADA, as a part of collaborative R&D to accomplish the agreement’s objective, the government laboratory can provide the partner access to facilities, services, specialized equipment, government personnel possessing relevant technical expertise, IP, data, and/or other resources, with or without reimbursement. However, under the CRADA, the Government cannot provide any funding to the partner’s research efforts while the partner can provide all of the above plus funds to the laboratory. Since much intellectual property can be developed and/or involved in the performance of a CRADA, a typical agreement includes terms that are particularly designed to protect the parties’ pre-existing IP (including inventions) while allowing them to negotiate, unencumbered by mandatory DFARS or FAR provisions, the reporting and management of new IP that may result from the collaboration.
The CRADA provides many benefits, especially for small high-tech companies. When looking for partners, the rules governing the CRADA require federal laboratories to give special consideration to small businesses and U.S. businesses that will support American jobs by manufacturing any resulting inventions in the U.S. Under a CRADA, a small business partner can usually expect to receive the following benefits:
Access to the federal laboratory’s unique facilities, including special equipment, which may be beyond what the partner can afford to build or acquire on its own
Access to the Government’s technical expertise and experience relevant to the CRADA’s R&D objectives
Opportunity to be the first to negotiate an exclusive license in any invention/patent resulting from the collaborative efforts (subject to the Government’s retention of rights to use the invention for Government purposes)
Exclusive commercial rights to the technical data resulting from the collaboration for up to five years for an advantage over its competitors
Opportunity to learn more about DoD’s technical needs, how they are likely to be met and to develop a working relationship with the Government that may help in obtaining and performing future contracts
The CRADA is extremely useful for moving federally-funded R&D, subject to security considerations, into the private sector. To learn more about CRADAs and how your business can participate in this agreement with the federal government, contact us at Whitcomb Selinsky, PC. Our knowledgeable Government Contracting and IP attorneys will review your proposed CRADAs and help you build a cooperative relationship between your business and a government laboratory.