Bayh-Dole Scofflaws

FedInvent Patent Newsletter for September 28, 2021

Good Evening from FedInvent,

On Tuesday, September 28, 2021, USPTO granted 5,829 new patents. One hundred twenty-six (126) benefitted from federal R&D funding. A slow week in the federal innovation ecosphere.

The FedInvent Patent Report is available.  

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The Bayh-Dole Scofflaws — Read These Patents

This week we decided to highlight both ends of the Bayh-Dole reporting continuum. At one end, we have the Bayh-Dole scofflaws. On the other, the abundance of caution reporters. They make sure to report anything that might be taxpayer funding.

The Scofflaw

Each week we dig out the Bayh-Dole scofflaws — companies, universities, and inventors — that don't provide the statutorily required contract information on their patents and patent applications. For those of you who are new to FedInvent, the Bayh-Dole Act requires inventors and assignees who elect to keep the title to inventions made while working on government contracts include a government interest statement on the published patent applications and their patents. It's a straightforward statement, three pieces of data and about 25 words for a simple one :

The Data

  1. Contract Number

  2. Agency

  3. Government has certain rights in the invention.

The Words

Most of the Bayh-Dole scofflaws are defense and intelligence community contractors. Raytheon and its subsidiaries are our perennial favorite scofflaw. They have had a plethora of jet propulsion and gas turbine engine inventions—an impressive patent portfolio. DOD, the Navy, the Air Force, and DARPA are the FedInvent picks for their inventions.  

On Monday, September 27, 2021, the Department of Defense announced the successful test of its new hypersonic missile — Hypersonic Air-breathing Weapon Concept (HAWC). Hypersonic aircraft fly at speeds greater than Mach 5, or five times the speed of sound. Raytheon built the missile. DARPA announced the testing was done on behalf of the Air Force. Going forward, our Raytheon Bayh-Dole prognostications may have to lean Air Force and DARPA.

The FedInvent prognosticators had a new Bayh-Dole scofflaw challenge this Tuesday. IBM entered the fray with its newly granted patent 11132358, "Candidate Name Generation." This patent was funded by "The United States of America Defense agencies." It included an unfindable, mumbo-jumbo contract number.  

The '358 patent is a method for clustering documents using topics, entities, temporal information in a cognitive system. This invention uses natural language processing, like IBM Watson, to link entity names and documents, and topics. 

The Detailed Description section of the patent notes, "Cognitive systems can search unstructured documents for information about real-world entities and can identify documents that refer to a particular entity." In this case, the illustrative example entity is a person. The description continues, "For example, a cognitive system can identify a document that refers to a first entity (e.g., "John Doe" the musician) and can identify a document that refers to a second entity (e.g., "John Doe" the lawyer). The traditional mode of using the cognitive system is by the user entering the name of an individual. The cognitive system searches a plurality of documents for mentions of individuals that match the query and performs entity disambiguation by clustering the documents into an estimate of different identities reflected in the documents. For example, a first cluster can include a plurality of documents related to "John Doe," the musician. A second cluster can include a plurality of documents related to "John Doe," the lawyer. The cognitive system checks each cluster to determine whether the cluster matches a pre-defined set of topics (e.g., music) and labels the entity clusters accordingly."

First, the user probably is not looking for John Doe, the lawyer, or John Doe, the musician. They are looking for John Doe, the bomb maker, or John Doe, the Boko Haram jihadist. Intelligence analysts need to keep their dangerous John Doe's straight and the documents and information about these people organized and timely. 

Second, this invention is a valuable tool for Open Source Intelligence (OSINT) and anticipatory intelligence that lives under the acronym OSI (Open Source Indicators). Anticipatory intelligence is one of the next frontiers of "big data" research, where a myriad disparate data streams are fused together to generate predictions of critical societal events.

Both OSI and OSINT aim to develop continuous, automated analysis of publicly available data to anticipate and detect significant societal events. These events may include political crises, humanitarian crises, mass violence, riots, mass migrations, disease outbreaks, economic instability, resource shortages, and responses to natural disasters. OSINT systems ingest a broad spectrum of content — cellphone location data; Twitter's public API and processed Twitter feed; Healthmap's alerts and reports; RSS news and blog feeds; consumer intelligence data; weather data; financial news; TOR metrics and usage data; OpenTable's restaurant cancellation data; license plate data; web-pages referenced Tweets; and, cryptocurrency transaction information. OSI seeks to "beat the news" by fusing early indicators of events from multiple publicly available data sources and types. 

FedInvent did little of our OSINT on the IBM patent. This invention is the product of an accomplished team of linguistics, computer science, and machine learning scientists who have worked together on other inventions. There is a pile of patent applications floating around for inventions created by this team awaiting USPTO actions.

We learned from publicly available documents that inventors have publicly documented careers working on projects for the Intelligence Community. There are projects with IARPA, the Office of the Director of National Intelligence's advanced research organization. Work for DARPA. There are early-career stints working at the National Security Agency (NSA)

The inventors worked together on a project called EMBERS while they were at CACI, another defense contractor. EMBERS stands for Early Model Based Event Recognition using Surrogates. This system ingested an avalanche of publicly available information — news, blogs, tweets, machine-coded events, currency rates, and food prices to forecast population-level changes using open source data feeds. EMBERS project was an IARPA (Intelligence Advanced Research Projects Activity) OSI (Open Source Indicators) program. It looks like when the EMBERS program was winding down, the inventors made their way to IBM.  

Our prognostication. An Intelligence Community project funded this patent. The defense agencies can be any combination of DARPA, IARPA, DIA, NSA, pick your poison. We'll go with IARPA and NSA.

The IARPA or NSA guess if just that. IBM is a patent-generating machine. They know how to put the correct information on the patent application. You don't get a pass when you are the biggest patent owner on the block. 

In United States patent law, inequitable conduct is a breach of the applicant's duty of candor and good faith during patent prosecution or similar proceedings by misrepresenting or omitting material information with the specific intent to deceive the United States Patent and Trademark Office. We might add that misrepresenting and omitting material information deceives the public too. "Inequitable conduct" is a patent law doctrine that renders a patent unenforceable when the patentee is found to have acted improperly before the US Patent and Trademark Office. Fudging the information on who paid for the work that led to the taxpayer-funded patent doesn't count as inequitable conduct. Maybe it should. 


Before We Move On

One of the barometers of pending global events in McLean, Virginia outside the CIA headquarters is a sudden rush for a lot of pizza late at night.  

Contract Obfuscation — Another feature of the IC contracting world is contract number mumbo-jumbo like we have here. Then there's the use of other contracting operations within the federal government. For example, IARPA and DARPA have contracts that cite the Department of Interior/National Business Center. Just because the government interest statement contains an agency name, that's not always the agency that funded the work.

If you'd like another perspective on why OSINT is becoming an essential tool for the IC, read Martin Gurri's book, The Revolt of The Public and the Crisis of Authority in the New Millennium. Mr. Gurri is a geopolitical analyst and student of new media and information effects. He spent many years working in the corner of the CIA dedicated to analyzing open media-from that privileged perch where he watched the global information landscape evolve. It will give you a perspective on both the impact of social media and the challenges for intelligence organizations to deal with the explosion of new information.

A Curious Funder — The Tax Man

At the other end of the Bayh-Dole continuum is Biofluid Technology.

There is another government interest statement that required a rundown. US Patent 11129570, "Devices and Methods for Tissue Immobilization and Non-Invasive Lower Urinary Track Analysis," has a government interest statement indicating funding from the Internal Revenue Service. 

This invention was made with government support under Internal Revenue Service Qualifying Therapeutic Discovery Program ("QTDP") grant entitled "Non-invasive Urethro-cystometer." The government has certain rights in the invention.

This program is for a tax credit under the Affordable Care Act.

The Qualifying Therapeutic Discovery Project tax credit is provided under new section 48D of the Internal Revenue Code (IRC), enacted as part of the Patient Protection and Affordable Care Act of 2010 (PL 111-148) — the official name of the Affordable Care Act. The credit is a tax benefit targeted to therapeutic discovery projects that show a reasonable potential to:

  • Result in new therapies to treat areas of unmet medical need or prevent, detect or treat chronic or acute diseases and conditions,

  • Reduce the long-term growth of health care costs in the United States, or

  • Significantly advance the goal of curing cancer within 30 years.

The credit is only available to taxpayers with no more than 250 employees. The credit covers up to 50 percent of a taxpayer's qualified investment. To provide an immediate boost to US biomedical research, the credit is available for qualified investments made or to be made in 2009 and 2010. (There is link decay to program information at the IRS. The links throw 404 errors.) 

The inventors and their firm, Biofluid Technology Inc, were the recipients of this tax credit. 

Biofluid Technology's disclosure is probably out of scope for what needs to be reported for Bayh-Dole compliance. But it pays to be cautious with all things that involve the IRS.

Best of the Rest

There is something to be said about inventors who cut to the chase. Inventors from the University of Illinois were granted a new patent for PAC-1 Combination Therapy (11129830). What is this? Compositions and methods for the induction of cancer cell death. Bravo.

The Department of Veterans Affairs funded and worked with the University of Minnesota on 11129734, "Ankle-Foot Prosthesis for Automatic Adaption to Sloped Walking Surfaces." The invention puts a little spring in the step and is an improvement over existing prosthesis devices.

Elysium Therapeutics, Inc. was granted 11129825, "Polysubunit Opioid Prodrugs Resistant To Overdose and Abuse." The National Institutes of Health (NIH), National Institute on Drug Abuse (NIDA) funded this work. A needed innovation.

The Innovation Agenda

PCAST Members

President Biden announced 30 of America's most distinguished leaders in science and technology as members of his President's Council of Advisors on Science and Technology (PCAST). A direct descendant of the scientific advisory committee established by President Eisenhower in 1957 in the weeks after the launch of Sputnik, PCAST is the sole body of external advisors charged with making science, technology, and innovation policy recommendations to the President and the White House. The members include luminaries of American science and technology.

Arrest the Scientists?

The FedInvent September 24th patent application newsletter included an update on an invention funded by CONACYT. A patent application from Arizona State University for a new cattle ear tag system for real-time beef cattle management showed up in our government interest data because it contained National Science Foundation in the Bayh-Dole data. Consejo Nacional de Ciencia y Tecnología (Spanish for National Council of Science and Technology; abbreviated CONACYT) is Mexico's entity in charge of promoting scientific and technological activities, setting government policies for these matters, and granting scholarships for postgraduate studies. It is the equivalent of the US's National Science Foundation and Argentina's CONICET.

On Saturday, September 25th, things took a strange turn. The Wall Street Journal reported that Mexican prosecutors had asked a (Mexican) federal judge to jail 31 renowned Mexican scientists on organized crime and money laundering charges, part of a growing dispute between the leftist government and the country's leading academics and universities. Arresting scientists is a different nexus of science and politics. The government accused 31 scientists, researchers, and academics of organized crime, money laundering, and embezzlement. The prosecutors claim that $12 million in funding was misspent on unapproved luxury items. The scientists say that the charges were approved and audited, and the reports are available on the CONACYT website. The leadership says this is a disinformation campaign aimed at spreading "terror" in the scientific community.

A judge at the maximum-security Altiplano prison – from which Joaquín El Chapo Guzmán escaped in 2015 – denied granting the arrest warrants on Wednesday. But the federal prosecutor immediately announced plans to pursue arrest warrants for the third time. What is going on? 

You can read the WSJ article here. There is a paywall.

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Patents By the Numbers

On Thursday, September 28, 2021, USPTO granted 5,829 new patents. One hundred twenty-fix (126) of the patents benefitted from taxpayer funding. Of the 126 patents, 117 patents contain government interest statements, and 33 have federal government agencies as an assignee or applicant. In addition, these patents have 139 references to funding agencies.

Patent Count By Department

This Tuesday's FedInvent patents are the work of 448 inventors. The 422 American inventors come from 33 states and the District of Columbia. In addition, there are 26 foreign inventors from eight countries.  

The HERD, high education R&D from colleges and universities, are the assignees on 65 of Tuesday's patent applications. On Tuesday, 31 patents are assigned to companies. Twenty-one patents have a government assignee. Four patents are assigned to the inventors. Ten patents are assigned to Federally Funded Research and Development Centers (FFRDCs).

Patent Count By Technology Center

Here is the breakdown of Technology Centers this week.

Before We Go

In Washington, the government shutdown looms. The debt ceiling needs to be raised. But USPTO is a fee-based agency. USPTO usually doesn't close down during a government shutdown. They use their reserves to keep the examiners examining and the inventions coming.

That's this week's FedInvent patents update. Please explore the FedInvent Patent Report. There is much more information there than we could jam into a newsletter.

Please reach out if you have questions or suggestions. You can reach us at

Thanks for reading FedInvent. See you Friday for this week's patent application rundown.  


The FedInvent Team

About FedInvent

FedInvent tells the stories of inventors, investigators, and innovators. Wayfinder Digital's FedInvent Project follows the federal innovation ecosphere, taxpayer money, and the inventions it pays for.