tion may grant any rights) such reservation as to any discovery or invention involving production or utilization of special nuclear material or atomic energy within the purview of the Atomic Energy Acts of 1946 and of 1954 (as amended): And, provided further, That in the absence of any request by the Agency for such an assignment and transfer of entire right, title, and interest, the Contractor agrees in any event that it will grant an irrevocable, nonexclusive, nontransferable, royalty-free license for the practice throughout the world, by or on behalf of the United States or by or on behalf of any foreign government or international organization pursuant to any treaty or other agreement with the Government of the United States, of each such discovery or invention.

(b) The Contractor warrants that it has or will obtain full authority to effectuate the purposes of paragraph (a) of this clause from all persons who perform any part of the work under this contract, except such clerical and manual labor personnel as will not have access to technical data.

(c) If to the best of the Contractor's knowledge and belief no inventions have been conceived or first actually reduced to practice during and as a result of the performance of the work under this contract, the Contractor shall so certify to the Contracting Officer upon conclusion of the work. Nothing contained in this or any other clause hereof shall be deemed to grant any rights to the Government under any invention other than an invention conceived or first actually reduced to practice during and as a result of the performance of the work under this contract.

(d) Except as otherwise authorized in writing by the Contracting Officer, the Contractor shall insert provisions similar to those contained in this clause in all subcontracts under this contract.

(e) No claim for pecuniary award or compensation under the provisions of the Atomic Energy Acts of 1946 and of 1954 (as amended) shall be asserted by the Contractor or his employees with respect to any discovery or invention covered by this clause.

(b) In appropriate cases, such as where an industry-wide cross-license is made as a common practice, the clause set forth in paragraph (a) of this section may be amended as a result of the contract negotiations to permit the contractor to reserve to himself a license broad enough to include such cross-licensing.

§ 23-52.105 Royalties.

(a) The term "royalties" refers to any costs or charges in the nature of

royalties, license fees, patent or license authorization costs, or the like, for the use of or for rights in patents or patent applications.

(b) Cost-type contracts shall include the clause set forth below, unless it has been determined that no royalties are likely to be paid by the contractor.

ROYALTIES

Payment by the Contractor of any sum for royalties or for patent rights not included in the ordinary purchase price of standard commercial supplies shall not constitute items of allowable cost hereunder, unless and until approved by the Contracting Officer. Reimbursement to the Contractor on account of any such payments shall not be construed as an admission by the Government of the enforceability, validity or scope of, or title to any of the patents involved, nor shall any such reimbursement constitute a waiver of any rights or defenses respecting such patents.

For the purposes of this subpart the following terms have the meanings set forth below:

(a) "Data" means writings, sound recordings, pictorial reproductions, drawings, or other graphic representations and works of similar nature, whether or not copyrighted. The term does not include financial reports, cost analyses, and other information incidental to contract administration.

(b) "Limited rights" means right to use, duplicate, or disclose subject or other specified data in whole or in part by or for the Government, with the express limitation that such data may not be released outside the Government except as may be specifically authorized in the contract or in another writing by the contractor.

(c) "Subject Data" means all writings, technical information, graphic or

recorded material; and all information as to uses, products, processes, patents, inventions, and other materials developed under the contract; specified to be delivered under the contract, whether or not copyrighted. The term does not include financial reports, cost analyses, and other information incidental to contract administration.

(d) "Unlimited rights" means rights to use, duplicate, or disclose subject or other specified data in whole or in part, in any manner and for any purpose whatsoever, and to have permit others to do so.

or

§ 23-52.202 Acquisition of rights in subject data.

§ 23-52.202-1 Background.

The Agency has a statutory obligation to insure the acquisition of a fund of theoretical and practical knowledge regarding arms control and disarmament particularly by means of research, development, and other studies. The acquisition of such a fund of knowledge is accomplished in part by contracting for research in a particular field of arms control or of disarmament which results in a final report. These reports, if unclassified or free of information authorized by law to be withheld from the general public, can be made available to the general public either by duplication or publication. Publications can be accomplished by the Government itself, or by Government consent to publication by the contractor. In the light of the foregoing, the need for acquisition of rights in data is clear.

§ 23-52.202-2 Policy.

(a) It is the policy of the United States Arms Control and Disarmament Agency to acquire such data and rights in data as will permit the Agency to fulfill its statutory obligations. Ordinarily these obligations will be satisfied by the acquisition of unlimited rights. However such unlimited rights are not normally incompatible with retention by the contractor of entitlement to any copyright that he may wish to seek.

(b) Commercial organizations may have a valid economic interest in data they have developed at their own expense for competitive purposes. Such data, particularly data which discloses details of design or manufacture is often closely held because its disclosure to competitiors could jeopardize the competitive advantage it was developed to provide. Public disclosure of such data can cause economic hardship to the originating organization.

(c) The Government must not be barred from acquiring such data and such rights therein, limited or unlimited, as it needs even though that data may normally not be disclosed in commercial practice. Moreover, when the Government pays for research and development which produces new knowledge, products or processes, it has an obligation to foster technological progress through wide dissemination of the new and useful information derived from such work and, where practicable, provide competitive opportunities for supplying the new products and utilizing the new processes.

(d) The Government and the contractor may enter into an agreement to be incorporated in the contract which shall list or describe that data which is proprietary and the specific rights therein being acquired by the Government.

§ 23-52.203 Contract clauses.

(a) The clause set forth in paragraph (b) shall be inserted in all contracts requiring the delivery of Subject Data. The clause is not applicable to the acquisition of rights in such special works as movies or video tape for television. Normally the Government will acquire all rights and title to such special works and be the sole proprietor.

(b) Basic subject data clause.

DATA

(a) The term "Subject Data" as used herein includes all writings, technical information, and graphic or recorded material; and all information as to uses, products, processes, patents, inventions, and other materials (developed under the contract) specified to be delivered under this contract, whether or not copyrighted. The term does not include financial reports, cost analyses,

and other information incidental to contract administration.

(b) The Contractor agrees to and does hereby grant to the Government a royaltyfree, nonexclusive, and irrevocable license throughout the world to publish, translate, reproduce, deliver, perform, dispose of, and to authorize others so to do, all Subject Data now or hereafter covered by copyright: Provided, That with respect to the Subject Data now or hereafter covered by copyright and not originated in the performance of this contract, such license shall be only to the extent that the Contractor, its employees, or any individual or concern specifically employed or assigned by the Contractor to originate and prepare such Data under this contract, now has, or prior to completion or final settlement of this contract may acquire, the right to grant such license without becoming liable to pay compensation to others solely because of such grant.

(c) The Government may use, duplicate, or disclose in any manner and for any purpose whatsoever, and have others so do, all or any part of the Subject Data delivered by the Contractor to the Government under this contract.

(d) The Contractor shall exert all reasonable effort to advise the Contracting Officer, at the time of delivery of such Subject Data, (i) of any invasions of the right of privacy contained therein and (ii) of all portions of such data copied from work not composed or produced in the performance of this contract. The Contractor shall also report to the Contracting Officer, promptly and in reasonably complete detail, each notice or claim of copyright infringement received by the Contractor with respect to all such Subject Data delivered under this contract.

(e) Nothing contained in this clause shall imply a license to the Government under any patent or be construed as affecting the scope of any license or any other right otherwise granted to the Government under any patent.

(f) The Government may modify, remove, obliterate, or ignore any marking not authorized by the terms of this contract on any subject data furnished hereunder, if

(i) The Contractor fails to respond within sixty (60) days to a written inquiry by the Government concerning the propriety of the use of the marking; or

(ii) The Contractor's response fails to substantiate his contention that the use of the marking is authorized, in which case the

Government shall give written notice to the Contractor.

(g) Inclusion in subcontracts. Except as otherwise authorized in writing by the Contracting Officer, the Contractor shall insert provisions identical to those contained in this clause in all subcontracts under this contract, unless previously authorized in writing by the Contracting Officer to vary the terms of the data clause to be included in the subcontract.

(c) The clause set forth in paragraph (b) of this section may be varied to permit the acquisition of limited rights in data in which an independent and valid proprietary interest exists.

(d) The clause set forth in paragraph (b) of this section may be amended by the addition of the following paragraph where publication by a third party of the subject data of the contract can be anticipated and where the third party will obtain the copyright. The clause, as amended, may be inserted in contracts where such use, in the opinion of the Contracting Officer, would be appropriate.

(h) The Contractor agrees that in the event of (i) an assignment of his rights in copyrighted matter hereunder to any third party or (ii) an assignment of rights in the subject data to any third party pursuant to which the assignee may secure a statutory copyright in his own name, the Contractor shall include in any such assignment provisions protecting the Government's rights in the subject data. Accordingly, the Contractor will not grant an exclusive license to the copyrighted matter to any third party, or assign the copyright to any third party without exempting therefrom and confirming therein the Government's existing license. In the event of the assignment of the Contractor's rights in the subject data hereunder which are not yet copyrighted, the Contractor will include provisions pursuant to which the assignee (i) will be notified of the Government's existing rights in the subject data under this contract and in addition, (ii) shall be obligated upon the issuance of any copyright to send to ACDA written confirmation of the Government's license to the copyrighted matter. This obligation of the Contractor to protect in any assignment the rights of the Government shall survive the expiration of the contract.