rendering his opinion on the matter. In the case of a contract, the Contracting Officer's decision shall be subject to the Disputes Clause of such contract, and in the case of a grant, the decision shall be subject to appeal to the Secretary or his duly authorized representative. The Contractor may furnish the information required under this paragraph (f) as Contractor confidential information, which shall be identified as such. (g) General provisions. (1) The Contractor shall obtain the execution of and deliver to the Contracting Officer any document relating to Subject Inventions as the Contracting Officer may require under the terms hereof to enable the Government to file and prosecute patent applications therefor in any country and to evidence and preserve its rights. Each party hereto agrees to execute and deliver to the other party on its request suitable documents to evidence and preserve license rights derived from this clause.

(2) The Government and the Contractor shall promptly notify each other of the filing of a patent application on a Subject Invention in any country, identifying the country or countries in which such filing occurs and the date and serial number of the application, and on request shall furnish a copy of such application to the other party and a copy of any action on such patent application by any Patent Office and the responses thereto. Any applications or responses furnished shall be kept confidential.

(3) Any other provisions of this clause notwithstanding, the Contracting Officer, or his authorized representative shall, until the expiration of three (3) years after final payment under this Contract, have the right to examine in confidence any books, records, documents, and other supporting data of the Contractor which the Contracting Officer or his authorized representative shall reasonably deem directly pertinent to the discovery or identification of Subject Inventions or to the compliance by the Contractor with the requirements of this patent clause.

(4) Notwithstanding the grant of a license under any patents to the Government pursuant to any provisions of this clause, the Government shall not be prevented from contesting the validity, enforceability, scope, or title of such licensed patent.

(5) The Contractor shall furnish to the Contracting Officer interim reports every 6 months, or such other time interval as may be required in this contract, the initial period of which shall commence with the date of this contract. Each report shall list all Subject Inventions required to be disclosed which were made during the interim reporting period or certify that there are no such unreported Inventions.

(6) The Contractor shall submit a final report under this contract listing all Subject Inventions required to be disclosed which were made in the course of the work performed under this contract, and all subcontracts entered into containing a patent

clause. If to the best of the Contractor's knowledge and belief, no Subject Inventions have resulted from this contract, the Contractor shall so certify to the Contracting Officer. If there are no such subcontracts, a negative report is required.

(7) The interim and final reports required under paragraph (g) (5) and (6) of this section shall be submitted on Form DI-1216 and Subject Invention disclosures required under paragraph (b)(1) of this section shall be submitted on Form DI-1217 or an equivalent approved by the Contracting Officer. Such reports and disclosures shall be submitted in triplicate to the Contracting Officer, who will furnish copies of the DI forms on request.

(8) Any action required by or of the Government under this clause shall be undertaken by the Contracting Officer as its duly authorized representative unless otherwise stated.

(9) The Government may duplicate and disclose reports and disclosures of Subject Inventions required to be furnished by the Contractor pursuant to this article without additional compensation.

(10) The Contractor shall furnish to the Contracting Officer, in writing, and as soon as practicable, information as to the date and identity of any first public use, sale or publication of any Subject Invention made by or known to the Contractor, of any contemplated publication of the Contractor.

(11) The Secretary shall determine the responsibility of an applicant for a license under any provision of this patent clause when this matter is in dispute and his determination thereof shall be final and binding.

(12) All information furnished in confidence pursuant to this patent clause shall be clearly identified by an appropriate written legend. Such information shall not be, or shall cease to be confidential if it is or becomes generally available to the public, or has been made or becomes available to the Government (1) from other sources, or (ii) by the Contractor without limitation as to use, or was already known to the Government when furnished to it.

(h) Withholding of payment. This section does not apply to a grant to, or a no-fee contract with, an educational institution. If the Contractor fails to deliver to the Contracting Officer the interim reports required by paragraph (g) (5) of this section or fails to furnish the written disclosures for all Subject Inventions required by paragraph (b)(1) of this section, shown to be due in accordance with any interim report delivered under paragraph (g) (5) of this section or otherwise known to be unreported, there shall be withheld from payment until the Contractor shall have corrected such failure either ten percent (10%) of the amount of this contract, as from time to time amended, or ten thousand dollars ($10,000), whichever is less. After payment of eighty percent (80%) of the amount of the contract, as from time to time

amended, payment shall be withheld until a reserve of either ten percent (10%) of the amount of this contract or ten thousand dollars ($10,000), whichever is less, shall have been set aside. Final payment under the contract shall not be made before the Contractor delivers to the Contracting Officer:

(1) The final report required by paragraph (g) (6) of this section;

(2) Written disclosures for all inventions required by paragraph (b) (1) of this section which are shown to be due in accordance with interim reports delivered under paragraph (g) (5) of this section or in accordance with such final report, or are otherwise known to be unreported; and

(3) The information as to subcontracts required by paragraph (e) (2) of this section. No amount shall be withheld under this subparagraph when the amount specified by this subparagraph is being withheld under other provisions of this contract. The withholding of any amount or subsequent payment thereof to the Contractor shall not be construed as a waiver of any rights accruing to the Government under this contract. This subparagraph shall not be construed as requiring the Contractor to withhold any amounts from a subcontractor to enforce compliance with the patent provision of a subcontract. In cost-type contracts, "amount of this contract" shall mean "estimated cost of this contract".

(1) Warranties. (1) The Contractor warrants that whenever he has divested himself of the right to license any Background Patent (or any invention owned by the Contractor which could become the subject of a Background Patent) prior to the date of this contract, such divestment was not done to avoid the licensing requirements set forth in paragraph (d) of this section. After a Background Patent, or invention which could become the subject of a Background Patent, is identified, the Contractor shall take no action which shall impair the performance of his obligation to issue Background Patent Licenses pursuant to this contract.

(2) The Contractor warrants that he will take no action which will impair his obligation to assign to the Government any invention first actually reduced to practice in the course of or under the contract.

(3) The Contractor warrants that he has full authority to make obligations of this article effective, by reason of agreements with all of the personnel, including consultants (other than subcontractor personnel and consultants) who might reasonably be expected to make inventions, and who will be employed in work on the project contemplated by this contract, to assign to the Contractor all discoveries and inventions made within the scope of their employment. Subpart 14R-9.2

§ 14R-9.200

Data

Scope of subpart.

This subpart prescribes the contract clauses and instructions which define and

implement the research and development data policies of the Office of Saline Water in the Department of the Interior. § 14R-9.201 Data requirements.

(a) All contracts which are in whole or in part for experimental, developmental or research work shall contain the data clause set forth in § 14R-9.202 which specifies that all data developed under the contract shall be delivered to the Government without any limitation as to its use. Certain proprietary data, however, need not be delivered, as set forth in paragraph (b)(2) of R14-9.202, of the Data clause, although licensing thereof may be required under particular circumstances, as set forth in paragraph (c)(3) of R14-9.202 of the Data clause. The schedule of the contract may contain such specific provisions for the furnishing of data as may have been requested by the cognizant technical office or the contracting officer. Where additional definition of the data is required, the schedule provisions may specify the specific data which the Government wants to have furnished.

(b) The contractor cannot be granted the right to obtain a copyright on any work produced under a contract awarded under the Saline Water Conversion Act, Public Law 87-295 as amended, 42 U.S.C. sections 1951-1958g, which requires all information, uses, products, patents or other developments resulting from research carried out under the authority of the Act to be available to the public.

(c) When computer software is to be generated under a contract, property rights of the Government therein must be suitably provided for. The Rights in Data provisions of the Data clause (14R9.202(c)) accomplishes this purpose.

§ 14R-9.202 Data clause.

(a) Definitions. For the purpose of the Data clause, the following terms have the meanings set forth below:

(1) "Data" means writings, recordings, pictorial reproductions, drawings, or other graphic representations and works of any similar nature whether or not copyrighted. The term includes computer information stored on computer listings, tapes, disks, cards and the like. However, it does not include information incident to contract administration such as financial reports and cost analyses.

(2) "Proprietary Data" means data developed at private expense providing information concerning the details of a contractor's secrets of manufacture, such as may be contained in, but not limited to, his manufac

turing methods or processes, treatment and chemical composition of materials, plant layout, and tooling, to the extent that such information is not readily disclosed by inspection or analysis of the product itself and to the extent that the contractor has protected such information from unrestricted use by unauthorized parties.

(3) "Subject Data" means data specified to be delivered or which in fact is delivered under this contract, other than Proprietary Data.

(4) As used in this clause "Standard Commercial Items" means supplies or services which are available commercially to the public by sale or otherwise.

(5) "Contract" and "contractor" are equivalent to "grant" and "grantee" respectively.

(6) "Specified Work Object" and "Subject Invention" are as defined in § 14R-9.1019(a) (11) and (14).

(b) Data and reporting. (1) (1) Commensurate with scope of the work and in the manner, at the times and in the number of copies specified in the schedule, the Contractor shall furnish the data required in the reports set forth herein to the extent the data are of the type which can reasonably be expected to be developed under the contract. If any of such data are in the public domain or copyrighted, it will be sufficient for the Contractor to identify the data and furnish a citation as to where they may be found. No material which is copyrighted by others shall be included in the reports furnished hereunder without written authorization of the Contracting Officer, unless such material is identified to the Contracting Officer and the Contractor secures from the copyright holder a worldwide irrevocable, royalty-free and nonexclusive license under the copyright for the Government to reproduce, translate, publish, use, dispose of and to authorize others to do the same.

(ii) Reports required:

(a) Progress reports as required in sufficient detail to disclose all work accompilshed and results achieved during the period concerned, including recommendations for any modification, extension or limitation of the work to be performed;

(b) A complete final technical report 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 a 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 possible. 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 nanuscript 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.

(c) An intermediate complete report of all work for the period concerned, of the character required under subdivision (a) of this subparagraph, shall be furnished when required by the Contracting Officer (1) upon completion of the work in each specified phase, (2) upon completion of all work performed up to the time of each contract amendment, if any, extending the period of performance, (3) upon termination, for whatever reason, prior to expiration of the time of performance, and (4) from time to time as may be directed by the Contracting Officer, provided however, that an adjustment in the contract price or fee may be made for the furnishing of such report under this provision (4).

(2) The following data need not be furnished in the reports required in paragraph (b)(1) of this section:

(i) Data for a Standard Commercial Item which is incorporated as a component part in or to be used with the product or process being developed if in lieu thereof the Contractor identifies the source and furnishes characteristics (including performance specifications, when necessary) sufficient to enable procurement of the part or an adequate substitute;

(ii) Proprietary Data which is used or to be used with the product or process being developed or used in the work performed under the contract, if in lieu thereof the Contractor shall identify such Proprietary Data to the Contracting Officer in a manner sufficient to enable use of such product or performance of such process, or the full comprehension of the work performed.

(3) The Contractor shall submit to the Contracting Officer, at his request, a report of all studies made in planning the work, and in developing background research for the

work, including citation references to all such background research compiled in connection with the performance of this contract; provided however, that an adjustment in the contract price or fee shall be made for the furnishing of such report.

(4) The complete final technical report submitted, or publication manuscript furnished in lieu thereof, as required in subparagraph (b) (ii) of this paragraph shall be accompanied by a transmittal letter advising if the report discloses any Subject Invention required to be reported under paragraph 9.101-9(b). The Department of the Interior and/or Contractor case number, or other suitable means shall be used to identify the invention. If the report does not disclose any Subject Invention, the transmittal letter shall so state.

(c) Rights in data. (1) The physical items by which the data produced under this contract are presented, as for example, the research reports, notebooks, recordings, photographs, computer information storage means and the like, shall become the property of the Government. The Contractor shall preserve and retain custody of the same at his own expense. The Government shall have the right to have access to them at all reasonable times and they may be used by the Government for any purpose whatsoever without any claim for compensation by the Contractor. The Contractor shall furnish such data items or copies thereof to the Contracting Officer at his request. The original data items shall not be destroyed by the Contractor without approval by the Contracting Officer or without giving the Government the opportunity to take over the retention of such originals.

(2) The Government may publish, reproduce, and use all Subject Data in any manner and for any purpose, without limitation and may authorize others to do the same. The Contractor agrees that he will not assert any copyright at common law or equity and will not establish any claim to a statutory copyright on such Subject Data.

(1) A contractor who is either an educational institution or an individual in the field of education may publish a report on the results of his work performed under this contract, provided that a manuscript of such report shall be submitted to the Contracting Officer for informational purposes at least ninety (90) days prior to publication on such shorter time as may be agreed to by the Contracting Officer. Other contractors, as for example, profit-making or not-for-profit

contractors, may publish such report after submitting the manuscript to the Contracting Officer and obtaining his written permission. All such publications shall give due credit to the Office of Saline Water unless otherwise requested by the Contracting Officer. A transmittal letter as set forth in paragraph (b) (4) of this section shall accompany the manuscript advising whether any Subject Invention is disclosed therein. The Contractor agrees to and hereby grants

to the Government a nonexclusive, irrevocable and royalty-free license to publish, reproduce and use such report in any manner and for any purpose without limitation, and to authorize or ratify publication, reproduction or use by others. The Contractor agrees not to make Subject Data available to others without the written approval of the Contracting Officer prior to disclosure of such Data by the Government or the publication thereof as set forth above, except to (a) representatives of the Contracting Officer and (b) other Office of Saline Water contractors for use solely in Office of Saline Water contracts. Any disclosures made under (b) above shall be reported pursuant to paragraph (b)(1) of § 14R-9-202 of the Data clause.

(3) If Proprietary Data as set forth in paragraph (b)(2) (ii) of this section is necessary for the efficient practice of a Subject Invention or a Specified Work Object, the Contractor agrees to grant a license for such practice of the Data in conjunction with a Subject Invention or a Specified Work Object for water desalination to any responsible applicant on his written request at reasonable terms and conditions, including reasonable restrictions against disclosure of the Proprietary Data: Provided, however, That such license need not be granted if at the time of the request the Proprietary Data are incorporated in a Standard Commercial Item in a form which can be employed in the practice of a Subject Invention or Specified Work Object for water desalination or can be so employed with relatively minor modifications. Any disputes as to the responsibility of an applicant or the necessity of the Proprietary Data shall be determined by the Secretary whose determination of fact in this regard shall be final and binding. It is agreed that any responsible applicant is a third party beneficiary under this clause.

(4) Nothing contained in this Data Clause shall be construed to imply a license under any patent, or be construed as altering the scope of any right of the Government in and to any invention whether or not patented.

(5) All Proprietary Data furnished the Contracting Officer shall be specifically identified by an appropriate written legend as being Contractor confidential. Such Data shall not be, or shall cease to be confidential, and the Government's confidentiality obligations with respect thereto shall terminate if the Data are or become generally available to the public, or have been made or become available to the Government (i) from other sources or (ii) from the Contractor without limitation as to use, or were already known to the Government when furnished to it.

(6) Notwithstanding any provisions of this contract concerning inspection and acceptance, the Government shall have the right at any time to modify, remove, obliterate, or ignore any marking not authorized by the terms of this contract on any piece of Subject Data furnished under this contract.