DOE is committed to research, development, and demonstration efforts that lead to the domestic manufacture of advanced energy technologies.

Recent Updates

April 25, 2022 DOE Letter to Stakeholders: Updates and Clarifications Regarding Certain U.S. Manufacturing Requirements in DOE Funding Agreements 

New Policy Extending U.S. Competitiveness to all DOE Science and Energy Programs to Support U.S. Job Creation and Supply Chains

On June 8, 2021, in connection with the 100-day review of critical supply chains as directed under E.O. 14017, America’s Supply Chains, the Science and Energy Determination of Exceptional Circumstances (S&E DEC) was announced as part of a series of new policy actions to support U.S. job creation and bolster the domestic manufacturing supply chain.  The S&E DEC expands on DOE’s many years of experience in strengthening U.S. manufacturing requirements in DOE-funded grants, cooperative agreements, and research and development contracts by extending the enhancement of U.S. manufacturing requirements to most of the DOE Programs.  The S&E DEC ensures that all innovations—including those relating to advanced batteries—developed with taxpayer dollars through DOE Science and Energy Programs are substantially manufactured in the U.S.  Specifically, the S&E DEC authorizes inclusion of the U.S. Competitiveness provision, which requires substantial U.S. manufacture of products embodying DOE-funded subject inventions, in agreements funded by DOE Science and Energy Programs.

DOE expects to release additional guidance on the implementation of the Science and Energy DEC in early FY2022.

  • Frequently Asked Questions (FAQs) for Applicants and Awardees of DOE Financial Assistance and R&D Contracts regarding the Department’s Determination of Exceptional Circumstances (DEC) for DOE Science and Energy Technologies issued in June of 2021.

 

DOE’s Commitment to Domestic Manufacturing for DOE-funded R&D

Given the importance of U.S. manufacturing to our national interests, consideration is given to options that would better ensure products derived from federally funded research and innovation are made here in the U.S. to help revitalize domestic manufacturing, secure U.S. supply chains, and create good-quality American Jobs. To that end, DOE includes domestic manufacture requirements for subject inventions in its funding agreements (e.g., financial assistance awards and Lab contracts) and CRADAs.

The authority for these U.S. manufacturing requirements is statutory. The U.S.  manufacturing requirements are typically either U.S. Preference, the baseline standard for federal agencies established in the Bayh-Dole Act, or U.S. Competitiveness, the requirements for CRADAs and entities obtaining patent waivers from DOE under DOE’s statutory patent waiver authority. Since 2013, DOE has also used the statutory determination of exceptional circumstances process in the Bayh-Dole Act (35 U.S.C. § 202(a)(ii)) to narrowly tailor a modification of the Bayh-Dole U.S. Preference clause by elevating the U.S. manufacturing requirement to U.S. Competitiveness for Bayh-Dole entities in select programs.

Below is a comparison of the two main types of U.S. manufacturing requirements:

U.S. Preference Provision

U.S. Competitiveness Provision

Standard Provision used by most federal agencies

Enhanced Protection Implemented by DOE in certain awards

Recipient agrees that neither it nor any assignee will: grant to any person the exclusive right to use or sell any subject invention in the United States unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the United States.

Any products embodying any waived invention or produced through the use of any waived invention will be manufactured substantially in the United States… In the event DOE agrees to foreign manufacture, there will be a requirement that the Government’s support of the technology be recognized in some appropriate manner.

 

A plain language reading of the provision does not impose any U.S. manufacturing commitment on the recipient itself, only on assignees or exclusive licensees of the subject inventions.

The U.S. manufacturing commitment applies to all products regardless of source.

Required by Bayh-Dole

 (35 U.S.C. § 204)

 

Modifications and Waivers of the U.S. Manufacturing Provision

The expectation is that most manufacturers of products incorporating a subject invention arising from DOE funding or produced using a subject invention arising from DOE funding will be able to comply with the relevant U.S. manufacturing provision. However, DOE recognizes the need to be flexible to promote commercialization of the DOE funded technology, such as to accommodate situations like the present lack of domestic manufacturing capacity and other business considerations in the global supply chain. In such cases, the recipient may request a specific, fact-based, and tailored modification to or waiver of the USM requirement. DOE is committed to a transparent, reasonable, and timely waiver/modification process, similar to how the waiver/modification process has worked for EERE and ARPA-E for many years. The general process for waiver/modification requests is shown here:

USM Picture

It is incumbent upon the requestor to provide DOE with the information necessary to evaluate the request for modification. DOE provides a suggested form to assist requestors in identifying and providing the necessary information. DOE may evaluate the modification requests according to various factors, which may include any of the following:

  • the extent to which the request supports the objectives of DOE’s mission;
  • the commercial feasibility of manufacturing the subject invention in the U.S., including the feasibility of developing all or part of the related supply chain(s) in the U.S.;
  • any reasonable efforts to substantially manufacture the subject invention in the U.S., including licensing U.S. firms for manufacturing;
  • legally enforceable commitments proposed by the recipient to provide alternative benefits to the U.S. economy and industrial competitiveness preferably related to the commercial use of the subject invention, e.g., direct or indirect investment in U.S.-based plant and equipment, creation of high-quality U.S.-based jobs, and further domestic development of the subject invention technology;
  • the geographic, technological, commercial, and temporal scope of the requested waiver compared to any proposed contractual or other benefits;
  • agreement to provide at least a non-exclusive license with commercially reasonable terms to any entity agreeing to the U.S. Competitiveness Provision; and
  • any other factors that may be relevant.

Additional Information

Many recipients have questions regarding the U.S. manufacturing commitments in their awards. Please consult our Frequently Asked Questions for the Science and Energy DEC, though many of the policies reflected in the FAQs are broadly applicable to all U.S. manufacturing requirements. If further assistance is required, please contact the Assistant General Counsel for Technology Transfer and Intellectual Property at GC-62@hq.doe.gov or, if you have a DOE financial assistance award, your program point of contact for the award.