FHWA final rule rescinds restrictions on patented, proprietary materials

Sept. 30, 2019

The new policy aims to provide states with more flexibility for federally funded highway projects

The Federal Highway Administration recently published an updated federal rule that would allow states to use proprietary or patented materials on federally funded highway projects.

The agency says the goal of the change to this federal requirement aims to improve safety and increase efficiency while saving taxpayer dollars. The rule updates what the FHWA considers an "outdated" federal requirement that restricts the ability of states to use patented or proprietary technology for federal-aid highway projects.

“This final rule promotes innovation by empowering states to choose which state-of-the-art materials, tools, and products best meet their needs for the construction and upkeep of America’s transportation infrastructure,” Federal Highway Administrator Nicole Nason said in a statement.

Prior to the agency's change, federal regulations prohibited state contracting agencies from using federal funds to acquire patented or proprietary materials, products, or services, except under certain limited circumstances.

According to FHWA documents, the use of patented or proprietary materials has been limited by regulations for over a century, and the agency created the new rule in order to boost innovation and reduce regulatory burdens. As a result of the change, state DOTs will no longer be required to provide certifications, make public interest findings, or develop research or experimental work plans to use such materials on federally funded projects.

The new rule will go into effect on Oct. 28, 2019.