The letter addresses concerns from the Bayh-Dole Coalition and allied organizations regarding the U.S. Department of Energy’s (DOE) recent “determination of exceptional circumstances” (DEC), which aims to promote domestic development of DOE-funded inventions. While the coalition appreciates the DOE's efforts to prevent the off-shoring of strategically important technologies, it raises significant issues about the implementation and communication of these new requirements. Specifically, the sudden inclusion of DEC provisions in funding agreements without prior stakeholder engagement has created confusion and uncertainty. The coalition highlights that requirements for DOE review and approval of mergers, acquisitions, and license transfers—including suspension of such transactions until written DOE approval—could discourage investment and hinder the commercialization of technologies, particularly for small businesses, potentially undermining the very objectives the Bayh-Dole Act was designed to achieve.
The coalition requests formal, written guidance from DOE to clarify the scope and application of the DEC, especially regarding the approval process for licenses, mergers, and waivers, and whether the new requirements would apply retroactively. The letter emphasizes that excessive government oversight could drive domestic companies away from commercializing DOE-funded innovations, contrary to U.S. competitiveness goals. The authors warn that micromanagement could keep important inventions “on the shelves” and push industry partners toward non-U.S. technologies. The coalition expresses willingness to collaborate with DOE in a way that aligns with legislative intent and assures that measures to protect national interests do not inadvertently stifle innovation or technology transfer critical to economic and national security.
