| (a) Policy. The department may authorize the licensure of department
owned intellectual property. This section prescribes the procedure for obtaining
a license.
(b) Request. A person must submit a written request for a license
to the district engineer, division director, or office director with jurisdiction
over the intellectual property. A request must include, but is not limited
to:
(1) the name of the requestor and if an organization, the name
of the organization;
(2) the name or description of the intellectual property requested
to be licensed;
(3) the purpose for which the intellectual property will be
used;
(4) the plan of distribution and marketing, if applicable;
(5) the term of the license, if applicable; and
(6) a request for waiver of fees, if applicable.
(c) Approval. The district engineer, division director, or
office director with jurisdiction over the intellectual property will approve
the request if he or she determines that the granting of a license:
(1) is consistent with Transportation Code, §201.205,
and Government Code, §2054.115;
(2) will benefit the department; and
(3) does not conflict with department plans or activities.
(d) Disapproval. If the department denies the request, it will
provide the requestor with a written statement describing the reason for denial.
(e) Fees. The department will determine the monetary value
of department intellectual property, or an equivalent nonmonetary value, and
will set license fees.
(1) Amount of fee. In determining an appropriate fee for licensure
of department intellectual property, the department will consider the:
(A) commercial rates for comparable property;
(B) original development cost;
(C) intended use of the property;
(D) private or public status of the requestor; and
(E) primary beneficiary of the license.
(2) Waiver of fee. The department may waive or reduce the amount
of fees, royalties, or other monetary or nonmonetary value to be assessed
if the executive director or his or her designee determines that such waiver
or reduction will further the goals and missions of the department and result
in a net benefit to the state. In making this determination, the executive
director or designee will consider whether:
(A) the licensee is a governmental entity;
(B) the intellectual property will be used for a commercial
purpose;
(C) the department is the primary beneficiary of the licensee's
use of the intellectual property; and
(D) the department has an interest in maximizing the distribution
and use of the intellectual property.
(f) Agreement. Except as provided in subsection (g) of this
section, if the department approves the granting of a license, the requestor
must execute a written agreement with the department prior to any delivery
or use of the intellectual property. The agreement will contain terms and
conditions the department deems necessary to protect the department, including,
but not limited to:
(1) license term and geographical area;
(2) rights granted, including patent-rights;
(3) description of products utilizing the trademark;
(4) fees or royalties;
(5) inspection of licensee's books and records;
(6) policing of trademark or copyright infringement;
(7) prohibited uses; and
(8) indemnification of the department.
(g) Exception. A written license agreement is not required
for department intellectual property that is downloaded from the department's
Internet web site, or for the licensure of unregistered department intellectual
property that is generally available to the public, including articles, maps,
plans, and photographs. The department will insert in or otherwise include
with the intellectual property the appropriate notice of copyright, trademark,
or other notice of the department's ownership. The department may provide
a requestor with a written statement that includes permission to use the intellectual
property and any restrictions on the licensee's use of the intellectual property.
(h) Appeal. A requestor may appeal department denial of the
license request to the executive director or designee not below the level
of assistant executive director by submitting a written request for appeal.
The decision of the executive director or his or her designee will be final.
(i) Public information. Requests for the licensure of department
intellectual property that is determined to be public information under Government
Code, Chapter 552 will be processed in accordance with Chapter 3, subchapter
B of this title (relating to Public Information). Any release of intellectual
property is subject to compliance with subsections (f) and (g) of this section.
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