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.

(1)

(2) Rights in technical data clauses. RIGHTS IN TECHNICAL DATA-LONG FORM (a) Definitions. “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

for the subcontractor refusal and other pertinent information which may expedite disposition of the matter; and

(2) Not proceed with the subcontract without the written authorization of the Contracting Officer.

(e) Withholding of proprietary data. Notwithstanding the inclusion of the "Additional Technical Data Requirements" clause in this contract or any provision of this contract specifying the delivery of technical data, the Contractor may withhold proprie. tary data from delivery, provided that the Contractor furnishes in lieu of any such proprietary data so withheld technical data disclosing the source, size, configuration, mating, and attachment characteristics, functional characteristics and performance requirements ("Form, Fit, and Function" data, e.g., specification control drawings, catalog sheets, envelope drawings, etc.) or a general description of such proprietary data where "Form, Fit, and Function" data are not applicable. The Government shall acquire no rights to any proprietary data so withheld except that such data shall be subject to the "inspection rights" provision of paragraph (f), the "Contractor licensing" provision of paragraph (g), and, if included, the "Limited rights in proprietary data" provisions of paragraph (h).

(f) Inspection rights. Except as may be otherwise specified in this contract for specific items of proprietary data which are not subject to this paragraph, the Contracting Officer's representatives, at all reasonable times up to three (3) years after final payment under this contract, may inspect at the Contractor's facility any proprietary data withheld under paragraph (e) and not furnished under paragraph (h) for the purposes of verifying that such data properly fell within the withholding provision of paragraph (e), or for evaluating work performance.

(g) Contractor licensing. Except as may be otherwise specified in this contract as technical data not subject to this paragraph, the Contractor agrees that upon written application, it will grant to the Government and responsible third parties, for purposes of practicing a subject of this contract, a nonexclusive license in any contract data which are proprietary data on terms and conditions reasonable under the circumstances including appropriate provisions for confidentiality. "A subject of this contract" as used in this provision (g) means any product, item of manufacture, or process which was used in the effort covered by the contract's Statement of Work or Specification, and it includes Subject Inventions made under the contract. The licensing required may be limited to the field or fields of technology contemplated for this contract. Contractor shall not be obligated to license any

data if the Contractor demonstrates to the satisfaction of the Solicitor that:

(1) Such data are not essential to the manufacture or practice of hardware designed or fabricated, or processes developed under this contract;

(2) Such data, in the form of results obtained by their use, have a commercially competitive alternative available.

(3) Such data, in the form of results obtained by their use, are being supplied by the Contractor or its licensees in sufficient quantity and at reasonable prices to satisfy market needs, or the Contractor or its licensees have taken effective steps or within a reasonable time are expected to take effective steps to so supply such data in the form of results obtained by its use within a period of time set by the Solicitor upon a written request therefor by the Contractor.

(3) Optional clause-limited rights in proprietary data. In research, development, or demonstration contracts and supply contracts where it is determined that delivery of proprietary data is necessary with limited rights in the Government, the Rights in Technical Data (long form) clause shall be supplemented by the additional paragraph (h) set forth below. It should be noted that this paragraph does not entitle the contractor to place a Limited Rights Legend on any technical data furnished to the Government under paragraph (h) below unless the Contracting Officer requests in writing delivery of identified technical data previously withheld under paragraph (e) of the rights in Technical Data clause. Paragraph (h) provides that proprietary data may be specified in the contract as being excluded from the delivery requirement of paragraph (h). Alternatively, the Limited Rights Legend specified in paragraph (h) may be made applicable to only those classes of proprietary data determined as being necessary for delivery with limited rights. In addition, when furnishing proprietary data with the Limited Rights Legend, subparagraphs (a), (b), and (c) thereunder may be modified as follows. When proprietary data is to be furnished only for evaluation, subparagraph (a) of the Limited Rights Legend shall be used, and subparagraphs (b) and (c), if otherwise inapplicable, may be deleted. When there is a programmatic requirement that proprietary data be disclosed to other

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OWRT contractors only for information or use in connection with work performed under their contracts, subparagraph (b) of the Limited Rights Legend shall be used, and subparagraphs (a) and (c) may be deleted, if otherwise inapplicable. In either of the foregoing examples, the contractor may, if he can show the possibility of a conflict of interest because of disclosure of such data to certain contractors or evaluators, exclude such contractors or evaluators from subparagraphs (a) or (b). If the data is required solely for emergency repair or overhaul, subparagraph (c) of the Limited Rights Legend shall be retained, and subparagraphs (a) and (b) may, unless otherwise applicable, be deleted. In the event it is determined that all of the subparagraphs (a), (b), and (c) of the Limited Rights Legend are to be deleted, the word "none" shall be inserted in the Legend after the colon (:).

(h) Limited rights in proprietary data. Except as may be otherwise specified in this contract as technical data which are not subject to this paragraph, the Contractor shall, upon written request from the Contracting Officer at any time prior to three (3) years after final payment under this contract, promptly deliver to the Government any "proprietary data" withheld pursuant to paragraph (e) of the "Rights in Technical Data" clause of this contract. The following legend and no other is authorized to be affixed on any "proprietary data" delivered pursuant to this provision, provided the "proprietary data" meets the conditions for initial withholding under paragraph (e) of the "Rights in Technical Data" clause. The Government will thereafter treat the "proprietary data" in accordance with such legend. However, at the written request of the Contractor, the restrictive period for the proprietary data of three (3) years, as appears in the legend, may be made a longer time upon approval thereof in writing by the Contracting Officer when found warranted by the Contractor's justification therefor in negotiations before submittal of such data under this provision.

LIMITED RIGHTS LEGEND

This "proprietary data," is a trade secret of and is submitted in confidence on under Contract No. (and Sub

contract -if appropriate) with the Office of Water Research and Technology, United States Department of the Interior (and Purchase Order No. —— if applicable). It may be duplicated and used by the

Government with the express limitations that it may not be disclosed outside the Government or be used for purposes of manufacture without prior permission of the Contractor, except that further disclosure or use may be made solely for the following purposes:

(a) This "proprietary data" may be disclosed for evaluation purposes under the restriction that the proprietary data be retained in confidence and not be further disclosed;

(b) This "proprietary data" may be disclosed to other Contractors participating in the Government's program of which this contract is a part for information or use in connection with the work performed under their contracts and under the restriction that the "proprietary data" be retained in confidence and not be further disclosed; or

(c) This "proprietary data" may be used by the Government or others on its behalf for emergency repair or overhaul work, or other purpose(s) specified as follows (if no other, enter "NONE"): under the restriction that the "proprietary data" be retained in confidence and not be further disclosed.

These restrictions shall terminate three (3) years from the date of submittal stated in this notice.

This legend shall be marked on any reproduction of this data in whole or in part.

(4) Acquisition of proprietary datacomputer software. Where it has been determined that delivery of proprietary computer software is necessary with limited rights in the Government, the Rights in Technical Data (long form) clause shall be supplemented by the addition of paragraph (h) set forth below. The Limited Rights Legend specified in paragrah (h) is applicable only to the proprietary computer software determined to be necessary for delivery with limited rights. Government acquisition of any rights in the software greater than the rights appearing from the numbered subparagraph of the Legend shall be specified in the contract, and, unless found impractical, stated on the Legend in additional subparagraphs.

(h) Acquisition of proprietary data-computer software. Upon written request of the Contracting Officer for any computer software which has been data withheld pursuant to paragraph (e) of this clause, the Contractor shall promptly furnish (including any data specifically identified in the contract as required to be furnished under this paragraph) such data. The following notice is authorized to be affixed to the data furnished and the Government will thereafter

treat the data in accordance with such notice:

RESTRICTED RIGHTS NOTICE

This computer software is the property of and is furnished under OWRT Contract No. (and subcontract if appropriate). It may not be used, duplicated, nor disclosed by the Government except as provided below or as otherwise stated in the contract.

The Government may:

(i) use this computer software with the computer for which it was acquired, including use at any Government installation to which the computer may be transferred;

(ii) use this computer software with a backup computer if the computer for which it was acquired is inoperative;

(iii) copy this computer software for safekeeping (archives) or backup purposes;

(iv) modify this computer software or combine it with other software, subject to the provision that where the derivative software contains portions which remain identifiable as proprietary data, such portions shall be subject to the same restricted rights;

(v) disclose this computer software for use by on-site employees of support service Contractors providing such Contractors agree to protect such computer software from unauthorized use or disclosure; and

(vi) treat this computer software, if it bears a copyright notice, as a published Copyrighted work licensed without disclosure prohibitions to the Government with minimum rights in accordance with subparagraphs (i) through (iv) above.

Any greater rights which the Government may have acquired in this computer software are stated in the contract. This Notice shall be marked on any reproduction of this computer software, in whole or in part.

Where it is impractical to include the above notice on computer software in machine readable form, the following short form notice may be used in lieu thereof:

RESTRICTED RIGHTS NOTICE (SHORT FORM) Duplication, use, or disclosure is subject to restrictions stated in Contract No. with (name of Contractor)

(f) Rights in data-special works. (1) The clause set forth in paragraph (f)(2) below shall be used in all contracts where the principal purpose or task of the contract is the production of copyrightable works, even though such works may incorporate uncopyrighted material or material previously copyrighted by the contractor or others. Such contracts include those:

(i) Primarily for production of motion pictures, or other audio-visual

works, television recordings or scripts, musical compositions or arrangements, sound tracks or recordings, sculptures, paintings and other fine arts, photographs and other pictorial works, translations, adaptations, and the like; (ii) For books, compilations, surveys, histories, or technology information pamphlets;

(iii) For works pertaining to management studies, support services, training, career guidance, or similar functions of a Government agency; and

(iv) For works pertaining to guidance or instruction of Government officials or employees in the discharge of official duties.

The clause in paragraph (f)(2) below should be modified with the assistance of the Solicitor where the contract calls for the editing, translation, addition, or other modification of the subject matter of an existing work.

(2) Rights in data-special works clause.

RIGHTS IN DATA-SPECIAL WORKS

(a) The term "Data" as used herein means recorded information regardless of form or characteristics, such as writings, musical and dramatic works, motion pictures, television and other audio-visual works, sound recordings, sculptures, paintings and other fine arts, or other pictorial works or reproductions, drawings or other graphic representations, and works of similar nature (whether or not copyrighted) which are to be delivered under this contract. The term includes data such as management studies and data produced under support services contracts but does not include financial reports, cost analyses, and other information incidental to contract administration.

(b) All data first produced or composed in the course of or under this contract shall be the sole property of the Government. Except with the prior written permission of the Contracting Officer, the Contractor agrees not to assert any rights at common law or in equity or establish any claim to statutory copyright in such data and warrants that anyone who authors such data will have agreed, in writing, to the same. The Contractor shall not publish or reproduce such data in whole or in part or in any manner or form, or authorize others so to do, without the written consent of the Contracting Officer until such time as the Government may have released such data to the public.

(c) The Contractor hereby grants to or will obtain for the Government a nonexclusive, irrevocable, royalty-free license