(d) The contractor licensing provisions of paragraph (g) of the Rights in Technical Data (long form) clause enable OWRT to require limited licenses in proprietary contract data to be granted to the Government and responsible parties in certain circumstances. Such a license may parallel or supplement a license obtained in Background Patents under the provisions of paragraph (k) of the Patent Rights clause of Subpart 14R-9.1. Paragraph (g) is included in contracts for research, development, or demonstration where the limited license afforded therein may be necessary to ensure widespread commercial use or practical utilization of a subject of the contract including any Subject Invention. As explained in § 14R-9.202-3(e)(1), paragraph (g) provides that upon request by the Government or responsible third parties the contractor will grant to the Government and such responsible third parties a license in proprietary data only where such data in the form of results obtained by its use, i.e., essential equipment, articles, products, and the like which were the subject of the contract or are necessary for the practice of a Subject Invention, are not otherwise available or cannot be made available in a reasonable time as set forth in paragraph (g). (e) It is the responsibility of prime contractors and higher-tier subcontractors, in meeting their obligations with respect to contract data, to obtain from their subcontractors the rights in, access to, and delivery of such data on behalf of the Government. Accordingly, subject to the policy set forth in these regulations, and subject to the approval of the Contracting Officer where required, selection of appropriate technical data provisions for subcontracts is the responsibility of the prime contractor or higher-tier subcontractor. In many, but not all, instances, inclusion in a subcontract of the Rights in Technical Data (long form) clause of § 14R9.202-3(e)(2) will suffice to obtain for the benefit of the Government the rights in and, if appropriate, access to technical data. Access by OWRT to technical data, i.e., the inspection rights afforded in paragraph (f) of the Rights in Technical Data (long form)

clause, § 14R-9.202-3(e)(2) normally should be obtained only in first tier subcontracts having as a purpose the conduct of research, development, or demonstration work or the furnishing of supplies for which there are substantial technical data requirements as reflected in the prime contract. If a subcontractor refuses to accept technical data provisions affording rights in and access to technical data on behalf of the Government, the contractor shall so inform the Contracting Officer in writing and not proceed with the subcontract without written authorization of the Contracting Officer. In prime contracts (or higher-tier subcontracts) which contain the Additional Technical Data Requirements clause, it is the further responsibility of the contractor (or higher-tier subcontractor) to determine whether inclusion of such clause in a subcontract is required to satisfy technical data requirements of the prime contract (or higher-tier subcontract). As is the case for OWRT in its determination of technical data requirements, the Additional Technical Data Requirements clause should not be used at any subcontracting tier where the technical data requirements are fully known, and normally the clause will be used only in subcontracts having as a purpose the conduct of research, development, or demonstration. Prime contractors and higher-tier subcontractor shall not use their power to award subcontracts as economic leverage to inequitably acquire rights in the subcontractor's proprietary data for their private use, and they shall not acquire rights on behalf of the Government to proprietary data for standard commercial items unless required by the prime contract.

(f) Related to the acquisition and use of technical data are the contractor's rights in contract data as well as technical data furnished to the contractor by OWRT or its contractors. These rights are set forth in paragraph (b)(2) of each Rights in Technical Data clause of this subpart and provide that the contractor may, subject to patent, security, and other provisions of the contract, use for its private purposes contract data it first produces in the performance of the

contract provided that the contractor has met its data requirements (e.g., delivery of data in the form of progress or status reports specified to be delivered) as of the date of the private use of such data. It is not necessary that a "Final Report" be submitted in order to privately use data if all required progress and interim reports and other technical data then due have been delivered. Paragraph (b)(2) further provides that technical or other data received by the contractor in the performance of the contract must be held in confidence by the contractor in accordance with restrictions accompanying the data.

(g) an additional clause in this subpart includes that of paragraph § 14R9.202-3(f)(2) entitled Rights in DataSpecial Works which is to be used in place of or in addition to the Rights in Technical Data clause in contracts where a purpose of the contract is the production of copyrightable material, a substantial portion of which is to be first produced in the performance of the contract, such as motion pictures, television recordings, books, histories, fine art, etc. Where, during contract negotiations, it may be determined to purchase, i.e., "specifically acquire," unlimited rights in technical data, or to lease or obtain a license therein, or to obtain rights in existing data, an appropriate clause therefor should be obtained from the Solicitor. In situations where technical data including computer software are to be leased or licensed, the terms of any agreement restricting the Government's rights will be included in the contract as either a special provision or an agreement annexed thereto. Another clause, the Rights in Technical Data (short form) clause of § 14R-9.2023(g)(2) is provided for use in research contracts with educational institutions and consultants. Such contracts may, for example, include those for conducting symposia, training or education, or other contracts not involving possible use of proprietary data.

§ 14R-9.202-2 Policy.

The technical data policy is directed toward achieving the following objectives:

(a) Making the benefits of the water research, development, and demonstration programs of OWRT widely available to the public for practical use in the shortest practicable time;

(b) Promoting the commercial utilization of the technology developed under OWRT programs;

(c) Encouraging participation by private persons in OWRT water research, development, and demonstration programs; and

(d) Fostering competition and preventing undue market concentration or the creation or maintenance of other situations inconsistent with the antitrust laws.

§ 14R-9.202-3 Procedures (supply, research, development, or demonstrations contracts).

(a) Known requirements for technical data. Technical data requirements are determined in relation to the intended use of that data, which in turn depends upon the intended use of the contract end item. In many contracts for research, the end item may often be a technical report or series of such reports, while in contracts beyond research the subject of the contract may be a feasibility model, an engineering or advance development model, or a prototype. The extent to which required technical data may be needed often depends on the level of maturity of design and perfection of the end item, and, for a demonstration plant or prototype may include data pertaining to performance, operational, and environmental testing, repair, maintenance, operation, quality assurance, detailed design, logistics, training, etc. Known technical data requirements shall be programmatically ascertained prior to contracting and shall be included in requests for proposals or disclosed during contract negotiations for incorporation as data requirements in the contract Statement of Work. In any event, the technical data actually delivered consonant with the requirements shall include, in addition to any progress or interim reports specified for delivery, a final report providing full coverage of the work done under the contract in the form specified by a paragraph to be added to the State

ment of Work or Specification as follows:

A complete technical report shall be submitted to the Contracting Officer summarizing the state of the art and covering all work accomplished and results achieved under this contract, and including conclusions and recommendations derived therefrom. The final report shall include a complete disclosure of all materials, processes, and equipment employed, and shall be in such full, clear, concise, and exact detail, including data such as mathematical, graphic, and written descriptive materials and other means of disclosure appropriate in the circumstances, to enable any person skilled in the art to achieve the results of the work performed under the contract to the extent that is commensurate with the scope of the work. The Contractor shall furnish, to the extent applicable, drawings, specifications, and necessary operating and maintenance instructions concerning any equipment, item, or process developed under the contract to enable any person skilled in the art to make and use such equipment and perform such process by application of the most advanced state of the art achieved in the performance of this contract. Where appropriate, the report shall include recommendations for further improvements which would advance the future state of the art based on knowledge acquired in the performance of this contract. If this contract is with an individual or an educational institution and the right to publish has not been reserved by the Government, the Contracting Officer may at his option accept as the final technical report a publication describing the results accomplished in the research under the contract together with a report setting forth such additional information as may be necessary to complete the information specified hereinabove; provided, however, that a copy of the manuscript for such publication must have been submitted to the Contracting Officer for informational purposes at least 90 days prior to the date of publication or such shorter period as may be agreed to by the Contracting Officer.

(b) Additional requirements for technical data. In contracts for research, development, or demonstration, it is not normally possible or appropriate for the Government to ascertain all actual needs for technical data in advance of contracting. Accordingly the Additional Technical Data Requirements clause in paragraph (c) of this section shall normally be used in such contracts (and, if appropriate, in subcontracts) to enable the ordering of technical data as the actual need and requirement therefor became known

during the course of the contract. If all technical data requirements are known in advance of contracting and are set forth in the contract Statement of Work, this clause need not be used. The Additional Technical Data Requirements clause should not normally be used in supply contracts because the required technical data therefor are ordinarily known in advance and thus are specified in the contract Statement of Work or Specification.

(c) Additional technical data requirement clause.

ADDITIONAL TECHNICAL DATA REQUIREMENTS

(a) In addition to the technical data specified elsewhere in this contract to be delivered, the Contracting Officer may at any time during the contract performance, or within one year after final payment, call for the Contractor to deliver any technical data first produced or specifically used in the performance of this contract except technical data pertaining to items of standard commercial design.

(b) The provisions of the "Rights in Technical Data" clause included in this contract are applicable to all technical data called for under this "Additional Technical Data Requirements" clause. Accordingly, nothing contained in this clause shall require the Contractor to actually deliver any technical data, the delivery of which is excused by paragraph (e) of the "Rights in Technical Data" clause.

(c) When technical data are to be delivered under this clause, the Contractor will be compensated for appropriate costs for converting such data into the prescribed form, for reproduction, and for delivery.

(d) Proposals. The policy and procedures for treatment of proposal information solicited and unsolicited proposals are contained in § 14-4.5101 of these regulations in which it is provided that proposals may be marked with the Notice set forth in § 144.5101-3. It is OWRT policy, in consideration of the contract award, to obtain unlimited rights in the technical data contained in the proposal unless the prospective contractor marks those portions of the technical information which he asserts as being proprietary data. If a contract is to be awarded based on a proposal even though it is marked with the Notice in § 14-4.5101-3, the prospective contractor is obliged under § 14-4.5101-3(a)(1)

and (2) to identify the portions thereof which contain proprietary data. Data identified as proprietary data does not constitute a stipulation by the Government that it is in fact proprietary data.

(e) Rights in technical data. (1) The Rights in Technical Data (long form) clause set forth in paragraph (2) below will be used in all contracts having as a purpose the conduct of research, development, or demonstration or in contracts for supplies, or in any other contract where technical data are expected to be first produced under the contract, e.g., technical or architectural specifications, and computer software (including computer programs, computer software data bases, and computer software documentation), or where technical data are specified to be delivered in the contract or where the contract contains the Additional Data Requirements clause. In many contracting situations, the achievement of OWRT's objectives would be frustrated if the Government at the time of contracting did not obtain on behalf of responsible third parties and itself limited license rights in and to proprietary contract data. Where, for example, the contractor is required to license Background Patents, consideration should be given to securing coextensive license rights to the Government and responsible third parties at reasonable royalties, and under appropriate restrictions, for contract data which are proprietary data in order to practice the technology which is a subject of the contract, including Subject Inventions. The Rights in Technical Data (long form) clause is therefore provided with paragraph (g), except when no need therefor is demonstrated. Paragraph (g) will normally be sufficient to cover proprietary contract data for items and processes that were used in the contract and are necessary in order to insure widespread commercial use of a subject of the contract including Subject Inventions. The expression "subject of the contract" is intended to limit the license required in clause (g) to the fields of technology specifically contemplated in the contract effort and may be replaced by a more specific statement of the fields of technolgy intended to be covered in

the manner described in § 14R-9.1075(b)(9) of these regulations pertaining to "Background Patents." Where, however, proprietary contract data cover the main purpose of basic technology of the research, development, or demonstration effort of the contract, rather than subcomponents, products, or processes which are ancillary to the contract effort, the limitations set forth in paragraphs (g)(1)–(4) of this section should be modified or deleted. Paragraph (g) further provides that technical data may be specified in the contract as being excluded from or not subject to the licensing requirements thereof. This exclusion can be implemented by limiting the applicability of the provisions of paragraph (g) to only those classes or categories of proprietary data determined as being essential for licensing. Although contractor licensing may be required under paragraph (g), the final resolution of questions regarding the scope of such licenses, the terms thereof, including provisions for confidentiality and reasonable royalties, is then left to the negotiation of the parties with resolution of the issues being made, if necessary, by a court of competent jurisdiction. Accordingly, all OWRT contracts for research, development, or demonstration will contain the Rights in Technical Data (long form) clause of paragraph (2) except as noted in § 14R-9.202-4 and § 14R9.202-3(f) and (g) and except contracts for standard commercial "off-theshelf" supplies where technical data such as operating or repair manuals are routinely furnished with the supplies.

(2) Rights in technical data clauses.

RIGHTS IN TECHNICAL DATA-LONG FORM

(a) Definitions. (1) "Technical Data" means recorded information, regardless of form or characteristic, of a scientific or technical nature. It may, for example, document research, experimental, developmental, demonstration, or engineering work, or be usable or used to define a design or process or to procure, produce, support, maintain, or operate materiel. The data may be graphic or pictorial delineations in media such as drawings or photographs, text in specifications or related performance or design type documents, or computer software (including computer programs, com

puter software data bases, and computer software documentation). Examples of technical data include test, sampling, research and engineering data, engineering drawings and associated lists, specifications, standards, process sheets, manuals, all technical reports, catalog item identification, and related information. Technical data as used herein does not mean financial reports, cost analyses, and other information incidental to contract administration.

(2) "Proprietary Data" means technical data which are trade secrets developed at private expense, such as may be included in design procedures or techniques, chemical composition of materials, or manufacturing methods, process, or treatments, including minor modifications thereof, or computer formatting, provided that such data are protectable as trade secret and accordingly:

(i) Are not generally known or available from other sources without obligation concerning their confidentiality,

(ii) Have not been made available by the owner to others without obligation concerning their confidentiality, and

(iii) Are not already available to the Government without obligation concerning their confidentiality.

(3) "Contract Data" means technical data first produced in the performance of the contract, technical data which are specified to be delivered in the contract, technical data that may be called for under the "Additional Technical Data Requirements" clause of the contract, if any, or technical data actually delivered in connection with the contract.

(4) "Unlimited Rights" means rights to use, duplicate, or disclose technical data, in whole or in part, in any manner and for any purpose whatsoever, and to permit others to do so.

(b) Allocation of rights. (1) The Government shall have:

(i) Unlimited rights in contract data except as otherwise provided below with respect to proprietary data.

(ii) The right to remove, cancel, correct, or ignore any marking not authorized by the terms of this contract on any technical data furnished hereunder, if upon delivery of the data the propriety of such markings is not substantiated by the Contractor, in writing, to the satisfaction of the Contracting Officer. The Contractor will be notified of any such action contemplated under this subparagraph (b)(ii), and which will be taken if the Contractor fails to respond thereto so as to substantiate the propriety of the markings within 60 days.

(2) The Contractor shall have:

(i) The right to withhold proprietary data in accordance with the provisions of this clause.

(ii) The right to use for its private purposes, subject to patent, security, or other

provisions of this contract, contract data it first produces in the performance of this contract provided the data requirements of this contract have been met as of the date of the private use of such data. The Contractor agrees that to the extent it receives or is given access to proprietary data or other technical, business, or financial data in the form of recorded information from OWRT or an OWRT Contractor or subcontractor, the Contractor shall treat such data in accordance with any restrictive legend contained thereon, unless use is specifically authorized by prior written approval of the Contracting Officer.

(3) Nothing contained in this "Rights in Technical Data" clause shall imply a license to the Government under any patent or be construed as affecting the scope of any licenses or other rights otherwise granted to the Government under any patent.

(c) Copyrighted material. (1) The Contractor agrees not to, without prior written authorization of the Contacting Officer, establish a claim to statutory copyright in any contract data first produced in the performance of the contract, and warrants that anyone who authors such contract data will have agreed, in writing, to the same. To the extent such authorization is granted, the Government reserves for itself and others acting on its behalf at least a nonexclusive, irrevocable, royalty-free, world-wide license for Governmental purposes to publish, distribute, translate, duplicate, exhibit, and perform any such data copyrighted by the Contractor.

(2) The Contractor agrees not to include in the technical data delivered under the contract any material copyrighted by the Contractor and not to knowingly include any material copyrighted by others without first granting or obtaining at no cost to the Government a license therein for the benefit of the Government of the same scope as set forth in paragraph (c)(1) above. If such royalty-free license is unavailable and the Contractor nevertheless determines that such copyrighted material must be included in the technical data to be delivered, rather than merely incorporated therein by reference, the Contractor shall request the written authorization of the Contracting Officer to include such copyrighted material in the technical data without a license.

(d) Subcontracting. It is the responsibility of the Contractor to obtain from its subcontractors technical data and rights therein, on behalf of the Government, necessary to fulfill the Contractor's obligations to the Government with respect to such data. In the event of refusal by a subcontractor to accept a clause affording the Government such rights, the Contractor shall:

(1) Promptly submit written notice to the Contracting Officer setting forth reasons