(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.

Source Note: The provisions of this §22.22 adopted to be effective November 20, 1997, 22 TexReg 11093; amended to be effective February 20, 2002, 27 TexReg 1185