ties. Decisions of the Board will be made solely upon the record, as described in § 1241.113. The rules of the Board, all final orders and decisions, and other records of, or before, the Board shall be available for inspection at its offices to the extent permitted by, and subject to the exemptions of, 5 U.S.C. 552.

MOTION FOR RECONSIDERATION

§ 1241.129 Motion for reconsideration.

A motion for reconsideration, if filed by either party, shall set forth specifically the ground or grounds relied upon to sustain the motion, and shall be filed within 30 days from the date of the receipt of a copy of the decision of the Board by the party filing the motion.

DISMISSALS

§ 1241.130 Dismissal without prejudice.

In certain cases, appeals docketed before the Board are required to be placed in a suspense status and the Board is unable to proceed with disposition thereof for reasons not within the control of the Board. In any such case where the suspension has continued, or it appears that it will continue, for an inordinate length of time, the Board may, in its discretion, dismiss such appeals from its docket without prejudice to their restoration when the cause of suspension has been removed. Unless either party or the Board acts within three years to reinstate any appeal dismissed without prejudice, the dismissal shall be deemed with prejudice.

§ 1241.131 Dismissal for failure to prosecute.

Whenever a record discloses the failure of either party to file documents required by these rules, respond to notices

or correspondence from the Board, comply with orders of the Board, or otherwise indicates an intention not to continue the prosecution or defense of an appeal, the Board may issue an order requiring the offending party to show cause why the appeal should not be either dismissed or granted, as appropriate. If the offending party shall fail to show such cause,

§ 1245.101 Applicability.

The provisions of this subpart apply to all inventions made or which may be made under conditions enabling the Administrator to determine that the rights therein reside in the United States pursuant to section 305(a) of the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2457(a)).

§ 1245.102 Definitions and terms.

As used in this subpart:

(a) "Contract" means any actual or proposed contract, agreement, understanding, or other arrangement with the National Aeronautics and Space Administration (NASA) or another Government agency on NASA's behalf, including any assignment, substitution of parties or subcontract executed or entered into thereunder, and including NASA grants awarded under the authority of 42 U.S.C. 1891-1893.

(b) "Contractor" means the party who has undertaken to perform work under a contract or subcontract.

(c) "Invention" includes any art, method, process, machine, manufacture, design, or composition of matter, or any new and useful improvement thereof, or any variety of plant, which is or may be patentable under the Patent Laws of the United States of America or any foreign country.

(d) "Made," when used in relation to any invention, means the conception or first actual reduction to practice of such invention.

(e) "To the point of practical application" means to manufacture in the case of a composition or product, to practice in the case of a process, or to operate in the case of a machine, and under such conditions as to establish that the invention is being worked and that its benefits are reasonably assessible to the public.

(f) "Board" means the NASA Inventions and Contributions Board established by the Administrator of NASA within the Administration under section 305(f) of the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2457(f)).

(g) "Chairman" means Chairman of the NASA Inventions and Contributions Board.

(h) "Petitioner" means a contractor or prospective contractor who requests that the Administrator waive rights in an invention or class of inventions made or which may be made under a NASA contract. In the case of an identified invention, the petitioner may be the inventor(s).

(i) "Government agency" includes any executive department, independent commission, board, office, agency, administration, authority, Government corporation, or other Government establishment of the executive branch of the Government of the United States of America.

(j) "States and domestic municipal governments" means the States of the United States, the District of Columbia, Puerto Rico, the Virgin Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, and any political subdivision and agencies thereof.

(k) "Administrator" means the Administrator of the National Aeronautics and Space Administration or his duly authorized representative.

§ 1245.103 Policy.

(a) In implementing the provisions of section 305(f) of the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2457(f)) and in determining when the interests of the United States would be served by waiver of all or any part of the rights of the United States in inventions made in the performance of work under NASA contracts, the Administrator will be guided by the objectives set forth in the National Aeronautics and Space Act of 1958, as amended (42 U.S.C. 2451-2477) and by the basic policy of the revised Presidential Memorandum and Statement of Government Patent Policy issued August 23, 1971 (36 FR 16887-16892). Among the most important goals thereof are to provide incentives to foster inventiveness and encourage reporting of inventions made under NASA contracts, to provide for the widest practicable dissemination of new technology resulting from NASA's programs, and to promote early utilization, expeditious development, and continued availability of this new technology for commercial purposes and the public benefit.

In applying this regulation both the need for incentives to draw forth private initiatives and the need to promote healthy competition in industry must be weighed.

(b) Several different situations when waiver of all or any part of the rights of the United States may be requested are prescribed in §§ 1245.104-1245.106. Under 1245.104, advance waiver of rights to any or all of the inventions which may be made under a contract may be requested prior to the execution of the contract, or within 30 days after execution of the contract. Waiver of rights to an identified invention made and reported under a contract may be requested under any of these provisions even though a request under a different provision was not made, or if made, was not granted. Waiver of foreign rights under § 1245.106 may be requested concurrently with domestic rights or independently thereof.

(c) With respect to inventions which may be or are made or conceived in the course of or under contracts for research, development or demonstration work awarded by NASA on behalf of the Department of Energy (DOE) or in support of an DOE program, on a reimbursable basis pursuant to agreement between DOE and NASA, the waiver policy, regulations, and procedures of DOE will be applied. (See § 1245.110(e), § 1245.111(b).)

§ 1245.104 Advance waivers.

(a) The provisions of this § 1245.104 apply to petitions for waiver of domestic rights to any or all of the inventions which may be made under a contract. Such petitions may be submitted by the contractor prior to his execution of the contract or within 30 days thereafter.

(b)(1) The Board shall recommend to the Administrator that waiver of domestic rights to any or all of the inventions which may be made under the NASA contract involved be granted when the Board makes each of the findings of paragraphs (c) and (d) of this section and concludes that the interest of the United States would be served thereby. Such waiver shall apply to inventions reported under the terms of the contract and which are

designated at the time of reporting as being an invention on which the waiver recipient intends to file or has filed a U.S. patent application.

(2) When the Board is unable to make one or more of the findings of paragraph (c) of this section as to the contract, but nevertheless finds that exceptional circumstances exist so that the public interest would best be served by a waiver of rights to any or all of the inventions which may be made under the contract, the Board shall recommend to the Administrator, NASA, that waiver be granted (conditions of paragraph (d) of this section are not relevant to the Board's findings under this paragraph). A finding of exceptional circumstances shall be accompanied by a discussion of the rationale therefor. Examples of exceptional circumstances would include: A contract where participation of the contractor may only be secured through the grant of waiver and such contractor is deemed essential to a NASA program; a contract having as a principal objective the application of aerospace related technology to other uses in accordance with an established NASA technology application program and where the grant of waiver would materially advance this objective; or, a cooperative endeavor where the contract calls for a significant contribution of funds by the contractor to the work to be performed. In the case of an individual invention which is identified prior to execution of the contract, exceptional circumstances may also be found where waiver is a necessary incentive to call forth risk capital and expense to bring the invention to the point of practical or commercial application and where either (i) the contractor has established substantial equities at his own expense in the development of the invention; or, (ii) the grant of advance waiver will significantly advance the availability of the invention to the general public.

(c)(1) It is not a principal purpose of the contract to create, develop or improve products, processes, or methods which are intended for commercial use (or which are otherwise intended to be made available for use) by the general public at home or abroad, or which

will be required for such use by governmental regulations.

(2) It is not a principal purpose of the contract to explore into fields which directly concern the public health, public safety, or public welfare.

(3) The contract is not in a field of science or technology in which there has been little significant experience outside of work funded by the Government, or where the Government has been the principal developer of the field, and with respect to which the acquisition of exclusive rights at the time of contracting would not likely confer on the petitioner a preferred or dominant position.

(4) The contract is not for services of the petitioner for (i) the operation of a Government-owned research or production facility; or (ii) coordinating and directing the work of others.

(d)(1) The purpose of the contract is to build upon existing knowledge or technology, to develop information, products, processes, or methods for use by the Government.

(2) The work called for by the contract is in a field of technology in which the petitioner has acquired technical competence (demonstrated by factors such as know-how, experience, and patent position), and either (i) the work is directly related to an area in which the petitioner has an established nongovernmental commercial position; or (ii) the commercial position of the petitioner is not sufficiently established, but a special situation exists such that the public interest in the availability of inventions would best be served by a waiver of rights to the petitioner. Such special situations include, but are not limited to the following:

(i) A newly formed company having a definite program for establishing a nongovernmental commercial position in the field of the contract or in an area directly related thereto.

(ii) An established company lacking an established nongovernmental commercial position in the field of the contract or a directly related field, but having established plans and programs for achieving such a position.

(iii) An education or nonprofit institution having a promulgated policy

and an effective program for acquiring rights to inventions and for acting by itself or through others to bring the results of such inventions to commercial application.

(e) When a petition for waiver is submitted pursuant to paragraph (a) of this section, prior to contract execution, it will be processed expeditiously so that a decision on the petition may be reached prior to execution of the contract. However, if there is insufficient time or insufficient information is presented or for other reasons which do not permit a recommendation to be made without unduly delaying execution of the contract, the Board will inform the contracting officer that no recommendation has been made and the reason therefor. The contracting officer will then notify the petitioner of the Board's action.

(f) After notification by the contracting officer under paragraph (e) of this section, the petitioner may, upon its execution of the contract, or within 30 days thereof, request the Board to reconsider the matter under paragraph (b) of this section either on the record or with any additional statements submitted in support of the original petition.

(g) A waiver granted pursuant to a petition submitted under this § 1245.104 shall apply only to inventions reported under the terms of the applicable contract and which are designated at the time of reporting as being an invention on which the petitioner intends to file or has filed a U.S. patent application. The waiver shall extend to the claimed invention of any division or continuation of the patent application filed on the reported invention provided the claims of the subsequent application do not substantially broaden the scope of the reported invention.

(h) A waiver granted pursuant to a petition submitted under this § 1245.104 shall extend to any contract changes, modifications, or supplemental agreements, so long as the purpose of the contract or the scope of work to be performed is not substantially changed.

§ 1245.105 Waiver after reporting inventions.

this

(a)(1) The provisions of § 1245.105 apply to petitions for waiver of domestic rights to identified inventions which have been reported to NASA and to which a waiver of rights has not been granted pursuant to § 1245.104. A petition for waiver under this section should be filed promptly after the reporting of the invention to NASA, and must be submitted prior to the filing by NASA of a U.S. patent application claiming the reported invention.

(2) A waiver granted pursuant to this section shall extend to the claimed invention of any division or continuation of that patent application filed on the reported invention provided the claims of the subsequent application do not substantially change the scope of the reported invention.

(b) The Board shall recommend to the Administrator that waiver of domestic rights to an identified invention be granted where the Board makes all of the findings below and concludes that the interest of the United States would be served thereby:

(1) The invention is not directly related to a governmental program for creating, developing, or improving products, processes, or methods for use by the general public at home or abroad.

(2) The invention is not likely to be required by governmental regulations for use by the general public at home or abroad.

(3) The invention does not directly the public health, public safety, or public welfare.

concern

(4) The invention is not in a field of science or technology in which there has been little significant experience outside of work funded by the Government, or where the Government has been the principal developer of the field, and the acquisition of exclusive rights in the invention would not likely confer on the petitioner a preferred or dominant position.

Provided, That the Board also finds in view of the petitioner's plans and intentions to bring the invention to the