a timely invention disclosure, (2) to make a timely election to retain patent rights, or (3) to file a timely patent application; but only if he or she determines that such action is required to preserve patent rights.

(c) The NSF Intellectual Property Attorney will informally review any apparent failure by an awardee to comply with the requirements of paragraph c. of the Patent Rights clause in § 650.4(a). The interested institution, the inventor, the patentholder, and any other interested party will be given an opportunity to explain why a particular invention was not disclosed, why an election was not made, or why a patent application was not filed. If the Intellectual Property Attorney determines that a genuine dispute over material facts exists, a cross-directorate fact-finding panel will be appointed by the General Counsel. The panel will establish its own fact-finding procedures, within the requirements of part 13.e. of OMB Circular A-124, based on the dimensions of the particular dispute. Written findings of facts will be submitted to the Intellectual Property Attorney, sent by certified mail to the patentholder, and made available to all other interested parties.

(d) The NSF Intellectual Property Attorney will determine whether the Foundation should request conveyance of title or if it should retain title obtained under § 650.15(b).

§ 650.16 Appeals.

(a) All actions by the NSF Intellectual Property Attorney under § 650.8 denying a request for greater rights, under § 650.13 denying a request for waiver, under § 650.14(d) denying the existence of a material dispute, under § 650.15(e) requesting conveyance of title, or under § 650.19 refusing retroactive application of the Bayh-Dole Act may be appealed to the Director of the Foundation by an affected party within thirty days. A request under § 650.15(b) to immediately convey title to the Foundation may be appealed to the General Counsel by the titleholder within five days.

(b) In reviewing the actions of the NSF Intellectual Property Attorney, the Director, or his or her designee,

will consider both the factual and legal basis for the action or determination and its consistency with the policies and objectives of the Foundation and, if applicable, the Bayh-Dole Act (35 U.S.C. 200 to 206) and OMB Circular A-124.

§ 650.17 Background rights.

The Foundation will acquire rights to a research performer's pre-existing technology only in exceptional circumstances where, due to the nature of the research being supported, the Foundation requires greater control over resulting inventions. The NSF Intellectual Property Attorney, with the concurrence of the cognizant Program Manager and Grants or Contracts Officer, will negotiate the background rights provision. If the affected awarIdee is a small business firm or nonprofit organization, the provision will conform to the requirements of the Bayh-Dole Act (35 U.S.C. 202(f)) as implemented by part 15. of OMB Circular A-124.

§650.18 Subcontracts.

Awardees should normally use the appropriate clause from §650.4 in any subcontracts. At the request of the awardee or on recommendation from NSF staff, the Intellectual Property Attorney, with the concurrence of the cognizant Program Manager and Grants or Contracts Officer, may direct the awardee to insert into subcontracts relating to scientific research a patent provision other than that called for in § 650.4 of this regulation. Special patent provisions may be under negotiated for subcontracts § 650.5.

§ 650.19 Retroactive application.

The provisions of § 650.8 apply to all inventions disclosed after the effective date of this regulation under funding agreements that contain a deferred determination clause, including those awarded before July 1, 1981, to small business firms and nonprofit organizations. At the request of the awardee, the Intellectual Property Attorney, with the concurrence of the cognizant Program Manager and Grants or Contracts Officer, may also apply those

provisions to inventions disclosed under awards which contain special patent clauses or were covered by an Institutional Patent Agreement with the Foundation.

§ 650.20 Delegation of authority.

The General Counsel is responsible for implementing this regulation and is authorized to make any exceptions to or extensions of the NSF Patent Policy as may be required by particular circumstances. The General Counsel will designate persons to serve as the NSF Intellectual Property Attorney and Patent Paralegal. Those individuals are authorized to carry out the functions assigned them by this regulation.

APPENDIX A TO PART 650-OPTIONAL FORMAT FOR CONFIRMATORY LICENSE

The following format may be used for the confirmatory license to the Government required by subparagraph f(5) of the Patent Rights clause in § 650.4(a). The form given in 41 CFR 1-9.105(b) or any equivalent instrument may also be used.

License to the United States Government

This instrument confirms to the United States Government, as represented by the National Science Foundation, an irrevocable, nonexclusive, nontransferable, royaltyfree license to practice or have practiced on its behalf throughout the orld the following subject invention:

(invention title)

(inventor[s] name[s])

(patent application number and filing date) (country, if other than United States) ((NSF Disclosure No.).

This subject invention was made with NSF support through:

(grant or contract number) (grantee or contractor).

Principal rights to this subject invention have been left with the licensor.

Signed:

Name:

Title:

Date:

Accepted on behalf of the Government:

NSF Patent Paralegal Date:

As required by paragraph 7 of OMB Circular A-95 (Revised) (hereinafter referred to as "A-95") this part prescribes the regulations of the National Science Foundation (hereinafter referred to as "NSF") to implement the project notification and review system prescribed by Part I of A-95, including the use of Standard Form 424, Federal Assistance Preapplication, Application, Notification of Intent or Report of Federal Action (hereinafter referred to as "SF 424") in connection with proposals to NSF Programs subject to Part I requirements and for notification of action thereon. This part also describes NSF implementation of the supplemental reporting requirements of Treasury Circular 1082 (Revised) (hereinafter referred to as "TC 1082").

§ 660.2 Application of part.

This part applies to (a) any agency of State or local government, any academic institution, or any other organization or individual, undertaking to submit a proposal to NSF for support

of a project or major substantive modification thereto under a Federal program covered by Part I of A-95, and (b) NSF employees involved in the receipt, evaluation, or action taken on such proposals. Unless otherwise indicated, references to "A-95" used hereinafter mean Part I of that Circular as revised.

§ 660.3 Definitions.

Terms used in this part will have the meanings indicated below. Where the primary source of a term is Title I of PL 90-577, Part V of A-95, or Paragraph 4 of TC 1082, that fact is indicated parenthetically.

(a) State-Any of the several States of the United States, the District of Columbia, Puerto Rico, any territory or possession of the United States, or any agency or instrumentality of a State, but does not include the governments of the political subdivision of the State. (Pub. L. 90-577, Sec. 102)

(b) Local Government-a local unit of government, including specifically a county, municipality, city, town, township, or a school or other special district political subdivisions of the State. (Pub. L. 90-577, Sec. 103)

(c) Unit of general local government-any city, county, town, parish, village, or other general purpose political subdivision of a State. (Pub. L. 90577, Sec. 104)

(d) Special-purpose unit of local government-any special district, public purpose corporation, or other strictly limited-purpose political subdivision of a State, but shall not include a school district. (Pub. L. 90-577, Sec. 105)

(e) Grant-in-Aid-money, or property provided in lieu of money, paid or furnished by the United States under a fixed annual or aggregate authorization

(ii) specifies directly, or establishes by means of a formula, the amounts which may be paid or furnished to States or political subdivisions, or the amounts to be allotted for use in each of the States by the States, political subdivisions, or other beneficiaries. The term does not include payments under research and development contracts or grants which are awarded directly and on similar terms to all qualifying organizations, whether public or private (Pub. L. 90-577, Sec. 106).

(f) Federal assistance-programs that provide assistance through grant or contractual agreements. (Pub. L. 90-577, Sec. 107)

(g) Clearinghouse—includes:

(1) State Clearinghouse-an agency of the State Government designated by the Governor or by State law to carry out the requirements of Part I of A-95.

(2) Areawide Clearinghouse-(i) In nonmetropolitan areas, a comprehensive planning agency designated by the Governor (or Governors in the case of regions extending into more than one State) or by State law to carry out requirements of A-95; or

(ii) In metropolitan areas, an areawide agency that has been recognized by the Office of Management and Budget as an appropriate agency to perform review functions under A95. (A-95, V. 10)

(h) State central information reception agency (SCIRA)—the State agency which has been designated by the Governor, in consultation with the legislature, to serve as the central reception point for Federal grant-in-aid information furnished under section 201 of the Intergovernmental Cooperation Act of 1968. (TC 1082, 4 F)

(i) Covered Program-Any NSF Program listed in Attachment D to A-95 or in Appendix I to the Catalog of Federal Assistance, whichever is later.

(j) Project-A definitely formulated research activity or other planned scientific undertaking. Excludes international travel grant activities.

(k) Exempt Project-(1) A project proposed for support under an NSF program not covered by A-95 (see also § 660.5); or (2) A proposed project, for support under a covered program,

which is national in scope and would not impact on the development of the particular State, area, or locality in which it is being conducted. (See § 660.4).

(1) Major Substantive Modification— (1) Any change in the nature or scope of the project which might result in a funding change, considered to be a "revision" for the purposes of SF 424; or (2) Any proposal for renewed support of a project beyond the period contemplated in the original proposal, considered to be a "renewal" for the purposes of SF 424.

(m) Proposal-An application for NSF support of a project.

§ 660.4 Notification of intent (NOI) and consultation and review procedures.

(a) Any individual, organization, or association planning to submit a proposal for NSF support of a project, or major substantive modification thereto, which is not exempt from the provisions of this part, must notify the State clearinghouse of its intent. In the event a national organization or association intends to submit a proposal which it believes to be exempt under § 660.3(k)(2), the prospective applicant should consult with the appropriate NSF Program Officer prior to concluding that a notification intent (NOI) is not required.

of

(b) Unless requested to do so by the clearinghouse in accordance with subparagraph 4 g of A-95, NSF grantees or contractors need not send an NOI to the clearinghouse prior to submitting a proposal either for supplemental support of a project during the currently approved period of support, considered to be an “augmentation" for the purposes of SF 424, or for continued support of a project beyond the current period of support if the project was proposed and has been approved for such longer period of support and no major substantive modification is contemplated, considered to be a "continuation" for the purposes of SF 424.

(c) If the project has specific applicability to or would affect local or areawide planning or programs, the governmental unit(s) where such impact would occur shall be identified and the notification also shall be sent

(d) Unless an applicable clearinghouse has prescribed some other form, SF 424 (Attachment E to A-95) may be used as the NOI required by subparagraph 2a of that Circular, by completion of Section I, Applicant/Recipient Data, as prescribed in "Applicant Procedures for Section I." The legal applicant/recipient described in item 4 of SF 424 should establish such internal control procedures as may be appropriate to ensure that the NOI adequately describes a project which the organization will conduct, if ultimately approved. Item 2 may be used for this purpose. Section 660.5(c), below, provides amplifying instructions for the subsequent use of the same form as the face sheet for the proposal to a covered NSF program.

(e) The NOI should be sent at the earliest feasible time, to permit the clearinghouse(s) to perform the functions prescribed in paragraph 3 of A95. As indicated in subparagraph 4a of A-95, clearinghouses normally have 30 days to coordinate the NOI with appropriate State, multi-State, local, or regional governments or agencies, and to furnish comments to the applicant. If the review is not completed during this period, subparagraph 4b of A-95 provides for a clearinghouse to assist the applicant, during the proposed preparation phase, in the resolution of any problems raised by the NOI. If the clearinghouse so requires, it may have 30 days to review the completed application.

(f) A clearinghouse may request information beyond that contained in the NOI. If the requested information is required by NSF in its proposal submission guidelines, it, or the proposal itself, should be furnished to the clearinghouse. If the requested information is not so required, the applicant is encouraged to supply it to the clearinghouse if it is readily at hand and will not entail any extra expenditures of time or resources. In either event, the proposing institution or organization may omit confidential information of the types described in subparagraph 4e of A-95.

§ 660.5 State requirements.

Subparagraph 8g of A-95 recognizes that some States may have laws, executive orders, or administrative regulations which require review of applications for Federal assistance under various programs not covered by A-95. Proposing institutions or organizations are encouraged to ascertain the existence of such State requirements and to acquaint themselves with applicable State procedures. However, implementation of any such requirements is enforced through State laws and regulations. Nothing in this regulation shall be construed as an NSF requirement to extend the provisions of A-95 to any proposal for support of a project not covered thereby nor to enforce the rules and regulations of any of the several States concerning review of applications for Federal assistance.

(b) SF 424 provides a standardized means of evidencing compliance with the consultation and review procedures and is the required face sheet for proposals to covered programs. Proposing institutions or organizations are encouraged to begin using that form as soon as feasible, but shall do so in connection with any proposals submitted to covered programs on and after April 29, 1976. If the State clearinghouse has returned the SF 424 used as the NOI, the same form (or reproduced copies thereof) may be used by the proposing institution or organization to satisfy this requirement by (1) checking “application” in Section I, (2) completing Sections I and II in accordance with the applicant procedures prescribed on the form, as amplified in (c) below, and (3) attaching to the signed original any written comments received by or through clearinghouse(s). If more than 30 days

(plus round trip mail time) have elapsed since the NOI was submitted with no comments from the clearinghouse(s), the proposing institution or organization may prepare a new SF 424, certifying that there has been no response. However, the State Application Identifier (SAI) must be shown. In either event, the completed SF 424 should be reproduced in sufficient copies to be used in lieu of the proposal cover page traditionally required by NSF.

(c) The applicant procedures for Sections I and II of SF 424 are amplified as follows for proposals for NSF support of projects under covered programs:

(1) Item 4, Legal Applicant Recipient

(i) Applicant Name-list the commonly used name of the institution or organization which will provide the facilities and logistic support for the proposed project. (Normally, this is the employer of the principal investigator or project director.) In the event the grant or contract should be awarded to a different organization, check item 21, and, in Section IV add: "4 i, Grantee" (or contractor, if appropriate), and list the commonly used name of the organization to which the grant (or contract) should be awarded, if the project is approved for NSF support, and the address if different from that shown in (c) through (g).

(ii) Organization Unit-for any proposal, list the agency, department, or school, to which the principal investigator or project director is assigned; if the proposal is from a branch or campus of a statewide institution of higher education, list such branch or campus.

(iii) Address-list the mailing address of the organizational unit in (b).

(iv) Contact Person-list the name, title, and telephone number of the prospective principal investigator or project director, whose signature must be added to the original of the SF 424 used as the face sheet for the original proposal. Such signature signifies the agreement of the signor to assume responsibility for the scientific or technical direction of the project if NSF agrees to support it and for the preparation of required technical reports.