“Roma locuta causa finita est” (Rome has spoken, therefore the case has been decided) was the maxim employed by medieval jurists to describe the absolute irrevocability of papal judgements in canon law. Today, in modern international trade law, the World Trade Organization’s (WTO) Appellate Body fulfills a similar function as the international trading system’s “Supreme Court”. In the words of the WTO,
[t]he Appellate Body was established in 1995 under Article 17 of the Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU). It is a standing body of seven persons that hears appeals from reports issued by panels in disputes brought by WTO Members. The Appellate Body can uphold, modify or reverse the legal findings and conclusions of a panel, and Appellate Body Reports, once adopted by the Dispute Settlement Body (DSB), must be accepted by the parties to the dispute. Source: (http://www.wto.org/english/tratop_e/dispu_e/appellate_body_e.htm)
On 12 March 2012, the Appellate Body circulated its report on the case entitled “United States — Measures Affecting Trade in Large Civil Aircraft — Second Complaint” (WT/DS353/AB/R). In the words of the WTO, in this dispute on large civil aircraft (LCA), the European Communities claimed that the United State provided subsidies to US producers of LCA, namely The Boeing Company, and that such subsidies were “prohibited and/or actionable under the Agreement on Subsidies and Countervailing Measures (the “SCM Agreement”).” (Source: http://wto.org/english/tratop_e/dispu_e/cases_e/ds353_e.htm)
In this WTO dispute relating to claims of multi-billion dollar aircraft subsidies, the issue of federally funded inventions and patent rights was an important dimension of the case. The EU argued that federally funded research of aerospace technology in the United States resulted in the transfer of patent rights from agencies such as the USDOD and NASA to Boeing constituting a “financial contribution” that would confer “benefits” pursuant to Article 1 of the SCM Agreement. In particular, the European Union (First Written Submission, 11 July 2007) asserted that NASA transferred 80 patents to Boeing and McDonnell Douglas and that the US Department of Defense transferred 148 patents to Boeing and McDonnell Douglas. According to the methodology employed by the EC, they estimated that the value of five patents (DOD/NASA patent waivers/transfers) that were “likely” used in the development of the 787 resulted in the financial contribution of $726.4 million USD to Boeing’s LCA division. The Boeing case saw both the US and the EU make creative claims about the consistency with WTO subsidy rules of US regulations for federally-funded research. An integral component of the EU’s argument held that the US government’s patent transfers and waivers to Boeing conferred a financial benefit and that that while the United States government retained march-in rights over patents developed through federal funding, the United States never exercised its march-in rights thus concluding that IPRs derived from US government funds “benefited only US industry.”
In short, the EU argued that the application of US rules and regulations on federally funded research which involved the allocation of patent rights (including the Bayh-Dole Act) in relation to USDOD and NASA patent waivers conferred a subsidy to Boeing. The Appellate Body ruled that within the meaning of Article 2.1(a) of the SCM Agreement, that “such subsidy is not explicitly limited to certain enterprises”, i.e. the aerospace sector. However, the Appellate Body did rule that the “Panel erred by failing to examine the European Communities’ arguments that such allocation” of patent rights were “in fact” specific under Article 2.1(c) of the SCM Agreement. Finally, that AB ruled that the Panel’s overall findings under Article 2.1 of the SCM Agreement “could not be sustained” but “declined to find that such allocation is specific within the meaning of Article 2.1(c) of the SCM Agreement”. Thus, it would appear that the Appellate Body has kicked the ball into the long grass and the question of whether the application of US rules and regulations governing the federally funded inventions (including patented inventions) in the aerospace sector constituted a subsidy within the meaning of WTO rules.
In the words of the WTO Secretariat’s own summary of the ruling,
[t]he Appellate Body found that the allocation of patent rights under contracts and agreements between NASA/USDOD and Boeing — on the assumption that such allocation is a self-standing subsidy — is not explicitly limited to certain enterprises within the meaning of Article 2.1(a). However, it found that the Panel erred by failing to examine the European Communities’ arguments that such allocation is “in fact” specific under Article 2.1(c) of the SCM Agreement. The Appellate Body thus found that the Panel’s overall finding under Article 2.1 could not be sustained, but declined to find that such allocation is specific within the meaning of Article 2.1(c) of the SCM Agreement.
On the question of patent rights, the Appellate Body found,
(c) with respect to the Panel’s findings regarding specificity:(i) in relation to the allocation of patent rights under contracts and agreements between NASA/USDOD and Boeing, and on the assumption that such allocation is a self-standing subsidy:
(A) finds that such subsidy is not explicitly limited to certain enterprises within the meaning of Article 2.1(a) of the SCM Agreement;
(B) finds that the Panel erred by failing to examine the European Communities’ arguments that such allocation is “in fact”
(C) declines to find that such allocation is specific within the meaning of Article 2.1(c) of the SCM Agreement; specific under Article 2.1(c) of the SCM Agreement and, therefore, finds that the Panel’s overall finding under Article 2.1 cannot be sustained;
The AB report and the the WTO Panel report on this case (WT/DS353/R) provide insight into precedent setting WTO jurisprudence on subsidies replete with references to march-in rights, cost-sharing with respect to ‘data rights’, Bayh-Dole, transfers of intellectual property rights including patents, rights to trade secrets, and rights to data and compulsory licensing (in relation to a footnote on the Space Act).
A major element of the European Union’s argument in the Boeing case was their assertion that the United States’ transfer of “valuable” patent rights (from agencies such as the Department of Defense and NASA) to Boeing, “including patents related to Boeing’s development of LCA” constituted “financial contribution” that conferred “benefits” pursuant to Article 1 of the WTO Agreement on Subsidies and Countervailing Measures (“SCM Agreement”) and “that such subsidies were “specific” within the meaning of Article 2.1 of the Agreement”. The United States argued that the “retention of patent rights by government contractors” was not a financial contribution, did not confer a benefit and was not “specific”.
The following piece will provide a brief walk through of the intellectual property dimensions of the Boeing case gleaned thus far from the 599 page Appellate Body report.
In its report, the Appellate Body described US policy on Bayh-Dole, government use and march-in rights in the following manner,
[i]n 1980, the US Government changed its policy so that government contractors obtained ownership of patents over any invention that they developed with federal funding under R&D contracts (with the government receiving a limited “government use” license to use the subject invention without having to pay the contractor royalties)….Under this policy, the US Government receives “a nonexclusive, nontransferable, irrevocable paid-up license to practice or have practiced for or on behalf of the United States any subject invention throughout the world”. The US Government also obtains certain “march-in” rights, which empower the relevant federal agency to compel the contractor, in certain limited circumstances, to grant a license to applicants on reasonable terms, or to grant the license itself.
With respect to compulsory licensing, footnote 961 of the Appellate Body report, in relation to NASA and the Space Act states: “The patent rights waived by NASA pursuant to their regulations are not unlimited, as NASA retains the right to use the patented technology for itself, or to issue compulsory licenses through “march-in” rights.”
The Appellate Body report reiterated the Panel’s observation that “{n}o U.S. government department or agency has ever exercised these march-in rights for any patent under any contract.” In the Boeing case, a central thrust of the EU’s argument that the US government’s patent transfers and waivers to Boeing conferred a financial benefit held that while the United States government retained march-in rights over patents developed through federal funding, the United States never exercised its march-in rights thus concluding that IPRs derived from US government funds “benefited only US industry.”
In the European Communities’ first written submission (11 July 2007), the EC claimed that NASA transferred 80 patents to Boeing and McDonnell Douglas and that the US Department of Defense transferred 148 patents to Boeing and McDonnell Douglas. According to the methodology employed by the EC, they estimated that the value of five patents (DOD/NASA patent waivers/transfers) that were “likely” used in the development of the 787 resulted in the financial contribution of $726.4 million USD to Boeing’s LCA division.
The EC noted that the DOD/NASA patent waivers conferred substantial advantages to Boeing’s LCA division on non-market terms. The EC stated that “[t]hese are rights that Boeing would not be able to obtain on the market without purchasing or licensing them for fair market value, and therefore represent “free” property rights for Boeing.”
The United States’ initial written submission (26 September 2007) on the Boeing case asserted that the
EC devotes most of its analysis to selective quotations regarding the policy underlying U.S. rules for the attribution of rights in patents conceived by persons working under contracts with the government. The EC is correct that 30 years ago, the United States had a general policy of taking all rights to patents conceived under government contracts, and then granting nonexclusive licenses to any applicant that wished to use a patent. The EC is also right that 27 years ago, as a result of the Bayh-Dole Act, the United States changed its general policy to allow contractors to retain their patent rights, while the government would acquire only those patent rights it needed. The government rights take the form of a license to use the patent for any “government use,” which includes use of the patent by any government contractor engaged in government business.
The EC highlighted the practice of the US DOD noting the DOD employees negotiating with a contractor
should emphasize to the contractor that these [march-in] rights have never been exercised by DoD, and that this extreme action is authorized only after a determination that specific criteria are met, and only after providing the contractor with written notice and an opportunity to comment. Ultimately, the likelihood of this action ever being taken is very remote.
The EC also noted that DOD practice encouraged
contracting officers and others to refrain from using the term “march-in rights,” as the phrase itself sounds threatening by invoking the image of a harsh, military-type action. This image can be intimidating to the commercial firms with which DoD would like to do business.
As compliance with the WTO Agreement on Subsidies and Countervailing Measures (SCM) lays at the heart of the Boeing case, it would perhaps be useful highlight the key provisions under contention between the EU and the United States.
Article 1.1(b) of the SCM Agreement reads, “1.1 For the purpose of this Agreement, a subsidy shall be deemed to exist if: (b) a benefit is thereby conferred.”.
Article 2.1 of the SCM Agreement on (specificity) states:
2.1 In order to determine whether a subsidy, as defined in paragraph 1 of Article 1, is specific to an enterprise or industry or group of enterprises or industries (referred to in this Agreement as “certain enterprises”) within the jurisdiction of the granting authority, the following principles shall apply:(a) Where the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such subsidy shall be specific.
(b) Where the granting authority, or the legislation pursuant to which the granting authority operates, establishes objective criteria or conditions(2) governing the eligibility for, and the amount of, a subsidy, specificity shall not exist, provided that the eligibility is automatic and that such criteria and conditions are strictly adhered to. The criteria or conditions must be clearly spelled out in law, regulation, or other official document, so as to be capable of verification.
(c) If, notwithstanding any appearance of non-specificity resulting from the application of the principles laid down in subparagraphs (a) and (b), there are reasons to believe that the subsidy may in fact be specific, other factors may be considered. Such factors are: use of a subsidy programme by a limited number of certain enterprises, predominant use by certain enterprises, the granting of disproportionately large amounts of subsidy to certain enterprises, and the manner in which discretion has been exercised by the granting authority in the decision to grant a subsidy(3). In applying this subparagraph, account shall be taken of the extent of diversification of economic activities within the jurisdiction of the granting authority, as well as of the length of time during which the subsidy programme has been in operation.
The Appellate Body, proceeding on the “Panel’s assumption that the allocation of patent rights is in some respects a self-standing subsidy that is separate from the payments and other support provided under the NASA/USDOD contracts and agreements to the extent that such self-standing subsidy could exist” ruled that they did “not see a basis to find that such subsidy is explicitly limited to certain enterprises, and therefore specific within the meaning of Article 2.1(a) of the SCM Agreement.” As mentioned before, one of the criteria in the SCM used to determine whether a subsidy “is specific to an enterprise or industry or group of enterprises or industries” is the language of Article 2.1(a) of the SCM which states, “[w]here the granting authority, or the legislation pursuant to which the granting authority operates, explicitly limits access to a subsidy to certain enterprises, such subsidy shall be specific”. Thus, the Appellate Body did not accept the EU’s claim that the allocation of patent rights under contracts and agreements between the NASA/USDOD and Boeing were “specific”.
The Appellate Body stated that,
the allocation of patent rights played a central role in the characterization of the contracts and agreements between NASA/USDOD and Boeing and this, in turn, was determinative for the conclusion that the payments and other support provided under the contracts and agreements constitute subsidies. The allocation of patent rights was also a central aspect of the European Communities’ arguments on benefit, as well as the Panel’s analysis of the issue.
With respect to resolving the question as to whether the allocation of patent rights under USDOD and NASA R&D contracts and agreements constituted a “financial contributions that conferred a benefit within the meaning of Article 1.1 of the SCM Agreement”, the Appellate Body cited the Panel’s view that “it was clear that the allocation of patent rights under NASA and USDOD contracts and agreements is not specific to a “group of enterprises or industries” within the meaning of Article 2 of the SCM Agreement.”
The Panel stated the allocation of patent rights in the United States is “”uniform under all U.S. government R&D contracts, agreements, and grants, in respect of all U.S. government departments and agencies, for all enterprises in all sectors”
With respect to federally funded inventions,
the Panel noted that, in all cases, the contractor owns any inventions—and the patent rights—that it conceives in the course of performing research funded by the US Government, whereas the US Government receives a royalty-free, “government use/purpose” licence to use the subject invention.
Prior to Bayh-Dole, the Panel noted that
the US Government had a general policy of taking all rights to patents over inventions produced by contractors under federally funded R&D contracts. The US Government would then grant non-exclusive licences to any applicant, including the contractor, that wished to use the subject invention. In 1980, however, the US Government changed its policy regarding the allocation of patent rights, and started granting ownership of patents to government contractors over any invention that they produced with federal funding under R&D contracts. In accordance with this new policy, the US Government would receive a limited “government use” licence to use the subject invention without having to pay the contractor any royalties. The Panel also acknowledged that this new policy originally applied only to non-profit organizations and small business firms, and that subsequently it was extended so as to accord the same treatment to all government contractors, regardless of size and profit/non-profit status.
With respect to how US laws and regulations actually operated with respect to federally funded inventions, the Panel stated that US laws and regulations
grant government contractors the option to retain patent rights, with some limitations, to inventions that arise from a funding agreement with the US Government. These patent rights authorize contractors to prevent all other entities from exploiting the technologies claimed by the patent and allow companies to grant commercial licences for the technology to others in exchange for compensation. The Panel noted that the government receives a “nonexclusive, nontransferable, irrevocable, paid-up licence to practice … for or on behalf of the United States any subject invention throughout the world”. Notably, this licence does not extend to any right to develop patented Panel technology for commercial sale but, rather, is limited to the use of the invention for any “government use”.
In the Appellate Body ruling, the AB examined whether, operating under the assumption the allocation of patent rights under NASA and DOD contracts and agreements were in some respects a self-standing subsidy, access to such subsidy was ” explicitly limited to certain enterprises in the light of the interpretation of Article 2.1(a) of the SCM Agreement that we have set out above”.
The AB noted that part of the European Union’s claim in its appeal focused on the US policy regarding the “allocation of patent rights when an invention is discovered in the course of R&D work being performed by an enterprise under a contract or agreement with the US Government, and more particularly with NASA and the USDOD”.
In the ruling, the AB reiterated the findings of the Panel with respect to the Bayh-Dole act noting the US policy post-1980 permitted “government contractors to retain ownership of patents over any invention that they produced with federal funding under R&D contracts (with the government receiving a “government use” licence to use the subject invention without having to pay the contractor any royalties) (Emphasis added).
The AB stated that while a contractor could file a patent application over the invention and “exercise all rights that this entails”, the US regulations provided that the “US Government shall receive at least a non-exclusive, non-transferable, irrevocable, paid-up license to practice, or have practiced for or on behalf of the United States, any subject invention throughout the world. The government also obtains “march-in” rights, which empower the federal department or agency to compel the contractor, in certain limited circumstances, to grant a license to applicants on terms that are reasonable under the circumstances, or to grant the license itself.” The AB included the Panel’s observation that “{n}o U.S. government department or agency has ever exercised these march-in rights for any patent under any contract.” (Emphasis added).
Further to the point of government use with respect to NASA and the DOD, the AB noted,
[a]s the titleholder, the contractor can exploit the invention commercially, for instance, by licensing the technology or incorporating it into its own products, without having to pay any royalties to the government. The contractor may also file for a patent that will give it the right to prevent others from using the technology without its permission. The government, for its part, obtains the right to use the invention free of charge for government use. The key point is that, both under the general regulations, which apply to the USDOD and other departments, and under a NASA waiver, ownership rights (title) over the invention will belong solely to the contractor through the allocation of patents under NASA and USDOD contracts and agreements, even though the mechanism for the initial allocation of patent rights is formally somewhat different.
Ultimately, on the question of operating under the Panel’s “assumption that the allocation of patent rights is in some respects a self-standing subsidy that is separate from the payments and other support provided under the NASA/USDOD contracts and agreements to the extent that such self-standing subsidy could exist”, the AB ruled that it did not see a basis to “find that such subsidy is explicitly limited to certain enterprises, and therefore specific within the meaning of Article 2.1(a) of the SCM Agreement”.
The AB noted the European Union’s claims that the “Panel erred by failing to adjudicate the European Communities’ arguments of de facto specificity under Article 2.1(c) of the SCM Agreement”. According to the AB, in the appeal,
the European Union has described what it considers to be the discretionary authority that NASA and the USDOD have with respect to the allocation of patent rights. For example, the European Union has referred to the authority that NASA has to deny a request for a waiver and to the USDOD’s authority to preclude a contractor from electing to retain patent rights over an invention. Yet, the European Union has not presented or pointed to the evidence on the Panel record showing that NASA or the USDOD have exercised their discretionary authority in such a manner…At the oral hearing, the European Union did not dispute that the USDOD had not exercised its discretion to preclude a particular contractor from electing to retain title, nor did it assert that NASA had denied a request for a waiver.
In relation to the European Union’s arguments related to Article 2.1(c) of the SCM Agreement, the AB ruled:
we have found that the Panel erred by failing to examine the European Communities’ arguments under Article 2.1(c) and therefore concluded that the Panel’s overall finding under Article 2.1 could not be sustained. However, on the basis of these arguments, we are not persuaded that, on the assumption that the allocation of patent rights is a self standing subsidy, it is, “in fact”, specific within the meaning of Article 2.1(c) of the SCM Agreement, and thus decline to make such a finding.
In examining the intersection of public policy and international trade rules governing the management of knowledge goods, much attention has been paid to the proceedings of the WTO TRIPS Council, the application and implementation of the WTO TRIPS Agreement, and specific WTO disputes citing the TRIPS Agreement. According to the WTO, 31 disputes thus far have specifically referenced the TRIPS Agreement including the following notable cases: DS50 India — Patent Protection for Pharmaceutical and Agricultural Chemical Products (Complainant: United States), DS114 Canada — Patent Protection of Pharmaceutical Products (Complainant: European Communities), DS160 United States — Section 110(5) of US Copyright Act (Complainant: European Communities), DS362 China — Measures Affecting the Protection and Enforcement of Intellectual Property Rights (Complainant: United States), DS408 European Union and a Member State — Seizure of Generic Drugs in Transit (Complainant: India), and DS435 Australia — Certain Measures Concerning Trademarks and Other Plain Packaging Requirements Applicable to Tobacco Products and Packaging (Complainant: Honduras).
The Appellate Body’s ruling on the Boeing case (WT/DS353/R) however, provides a glimpse into the world where Bayh-Dole, march-in rights and patents intersect with a long running dispute between the European Union and the United States on the question of subsidies in relation to large civilian aircraft.
A key assertion of the EU was that federally funded research of aerospace technology in the United States resulted in the transfer of patent rights from agencies such as the USDOD and NASA to Boeing constituting a “financial contribution” that would confer “benefits” pursuant to Article 1 of the SCM Agreement. As noted before, a key tenet of the EU’s argument held that the US government’s patent transfers and waivers to Boeing conferred a financial benefit and that that while the United States government retained march-in rights over patents developed through federal funding, the United States never exercised its march-in rights thus concluding that IPRs derived from US government funds “benefited only US industry.” In addition, the AB reiterated the Panel’s finding that “{n}o U.S. government department or agency has ever exercised these march-in rights for any patent under any contract.”
While the scope of this piece is too limited to do justice to the complexity of the AB’s ruling in the Boeing case in relation to federally funded research on large civilian aircraft, subsidies, patents, march-in rights, Bayh-Dole and government use, this author hopes that the reader delves further into this fascinating case.
For a further exposure to the lively nature of this dispute, please see the following extracts of legal arguments put forth by the United States and the European Union.
In its arguments defending its industrial policy, the US stated the following (Executive Summary of the First Written Submission of the United States, 07/16/2007):
The EC asserts that the U.S. government “transfers” or “waives” patent and data rights to its government contractors, and that this alleged transfer conveys a benefit specific to Boeing. It is wrong on all counts. Under U.S. law, an inventor is the initial holder of the rights to a patentable invention. This rule holds true whether the inventor conceives the patentable invention independently, under contract to a private partner, or under contract with the government. Thus, the question in a government contract is not whether the government will “transfer” or “waive” patent rights, but is instead what rights the government receives as part of the exchange of value under the contract, and what rights the inventor retains. Since the contracts themselves are subject to competitive bidding, or procurement rules designed to achieve a result equivalent to competitive bidding, the resulting allocation of patent rights is consistent with market considerations. Moreover, the ultimate assignment of patent rights that the EC attacks is, in fact, the general rule under U.S. government contracting law and, therefore, is not specific. As for data rights, the concept of “waiver” is not applicable. Data rights may be licensed, but the EC has not made any claims in this regard.The EC devotes most of its analysis to selective quotations regarding the policy underlying U.S. rules for the attribution of rights in patents conceived by persons working under contracts with the government. The EC is correct that 30 years ago, the United States had a general policy of taking all rights to patents conceived under government contracts, and then granting nonexclusive licenses to any applicant that wished to use a patent. The EC is also right that 27 years ago, as a result of the Bayh-Dole Act, the United States changed its general policy to allow contractors to retain their patent rights, while the government would acquire only those patent rights it needed. The government rights take the form of a license to use the patent for any “government use,” which includes use of the patent by any government contractor engaged in government business. The key point is that it was a general policy, available to any contractor under any contract with any agency. In the parlance of the SCM Agreement, the patent rules are not specific.
In the EU’s lively riposte of the US arguments, the EU (Second Written Submission by the European Communities, non-confidential version as of 13/04/2010) asserted the following:
The European Communities has demonstrated that NASA and DOD have provided and/or waived, at a minimum, hundreds of millions of dollars worth of valuable intellectual property rights to Boeing, including patents, rights to trade secrets, and data rights. The United States fails to counter these arguments, and instead tries to defend the practice of NASA and DOD through unsupported assertions, misleading statements about the relevant law and regulations, and references to aspects of NASA and DOD laws and regulations that the European Communities has not even challenged. Moreover, the United States’ arguments, particularly with respect to specificity, focus on issues and practices that are not relevant for the legal analysis required by the SCM Agreement..With respect to patents, the United States fails to rebut the EC arguments, instead trying to confuse the issue by relying on a portion of the US patent law that does not apply here. Specifically, the United States argues that, under US law, a person is entitled to a patent if that person, himself or herself, invented the subject matter sought to be patented. While this is theoretically true with respect to inventors operating independently of the US Government (although not generally true, as a practical matter, as inventors are typically employees who sign over their rights to their employers), it is certainly not the applicable law with respect to inventors that work with US Government funds. Consequently, as demonstrated below, the United States misreads its own law when it concludes that NASA and DOD patent waivers and provisions “do not constitute a financial contribution because the patent rights guaranteed to the contractor and its employees belonged to them in the first place.”
With respect to NASA, the European Communities has already explained that the relevant US law – i.e., the Space Act – provides that any invention made pursuant to a contract with NASA “shall be the exclusive property of the United States, and if such invention is patentable a patent therefore shall be issued to the United States [unless waived by NASA].” This provision is crystal clear, and the owner by default in US law is most certainly not the inventor. This default rule is incorporated into the contracts pursuant to NASA procurement regulations such as 48 C.F.R. § 1852.227-70, as is the cornerstone principle that NASA has full discretion in determining whether or not to waive its statutory rights to ownership of the intellectual property. Whether or not NASA will ultimately provide the title of the intellectual property to the contractor is a decision to be made by NASA, and the inventor has no power over this decision. When NASA’s Administrator does waive patent rights, it formally executes this waiver through an “instrument of waiver,” which states, for example, as follows:
[t]he Administrator waives the property rights of the United States Government in the United States of America and in the following countries: …, and hereby conveys to the waiver recipient the entire right, title, and interest in and to each invention which may be conceived or first actually reduced to practice in the performance of work under the above-identified contract …. [Italics added]Thus, there is no question that absent the waiver, the patent owner is the United States Government.
Consequently, the United States points the Panel in the wrong direction here, and presents a defence that is nothing less than a red herring. Moreover, to the extent that the practice of patent ownership outside of the context of government funding is at all relevant to the analysis of “financial contribution,” the United States fails to demonstrate that inventors, as a practical matter, generally receive full patent ownership in instances where they either created the invention during the course of their employment or pursuant to a private funding agreement. As detailed further below in the discussion on benefit, the default in the marketplace is certainly not that an inventor receives full ownership rights to anything that he or she invents in any instances other than the completely unrelated situations when they are self-employed or tinkering in their garage during free time.