Investors need to be aware of the Bayh-Dole Act and the risks and requirements that the Act presents.  This is true whether investors are U.S.-based or based outside the U.S.

Reports are emerging, for example, that the Department of Energy is taking title to several solar patents previously owned by Evergreen Solar, which filed for bankruptcy earlier this year.  An October 7, 2011 letter from the DOE to Evergreen has been reported on web in which the government asserts its rights.  One report indicated that an auction of assets, including patent assets, was to be held November 1, 2011.  Another bankrupt solar company, Solyndra, apparently is also holding an auction for sale of assets.  Concern particularly is present about whether the patents, technology, jobs, and other benefits will be moved to China.

Time will tell whether the government claim for title is disputed.   Federal regulations specify what sorts of inventions are and are not covered by the Bayh-Dole Act.

The gist to be expected, however, is that if under the regulations federal government support was legally associated with technology development and patenting so that the Bayh-Dole Act applies, then the expectation will be from the federal government that jobs associated with the technology are directly created in the U.S., not outside the U.S.