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(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.
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 uch 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-9.202-3 Procedures (supply, re
search, development, or demonstra
tions contracts). (a) Known requirements for techni. cal 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 require ents 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
8 14R-9.202-2 Policy.
The technical data policy is directed toward achieving the following objectives:
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.
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
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, computer 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 Con. tracting 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 proprietary 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