(a) The NSF Procurement Regulations employ the same numbering system and nomenclature used in the Federal Procurement Regulations and conform with FEDERAL REGISTER standards approved for the FPR.

(b) Where the NSFPR implements a part, subpart, section, or subsection of the FPR, the implementing part, subpart, section, or subsection of the NSFPR will be numbered and captioned to correspond to the FPR part, subpart, section, or subsection.

(c) Where the NSFPR supplements the FPR, the numbers 50 and up will be assigned to the parts, subparts, or sections involved.

(d) Where the subject matter contained in a part, subpart, section, or subsection of the FPR requires no implementation, the NSFPR will contain no corresponding part, subpart, section, or subsection number.

§ 25-1.108 Implementation and supplementation.

The NSF Procurement Regulations "implement" and "supplement" the FPR. The meaning of these terms includes the following:

(a) Implementation may have either of the following meanings:

(1) A part, subpart, section, etc., which treats a similarly numbered portion of the FPR in greater detail or indicates the manner of compliance, including any deviations.

(2) The absence of a corresponding part, subpart, section, etc., in the NSFPR indicates that the FPR is applicable as

The term "deviation" includes any of the following actions:

(a) When a prescribed contract clause is set forth verbatim, use of a contract clause covering the same subject matter which varies from that set forth.

(b) When a standard or other form is prescribed, use of any other form for the same purpose.

(c) Alteration of a prescribed standard or other form, except as may be authorized in the regulations.

(d) The imposition of lesser or, where the regulation expressly prohibits, greater limitations than are imposed upon the use of a contract clause, form, procedure, type of contract, or upon any other procurement action, including but not limited to, the making or amendment of a contract, or actions taken in connection with the solicitation of bids or proposals, award, administrative, or settlement of contracts.

(e) When a policy or procedure is prescribed, use of any inconsistent policy or procedure.

In the interest of establishing and maintaining uniformity to the greatest extent feasible, deviations from the FPR and NSFPR shall be kept to a minimum and controlled as follows:

(a) In individual cases, deviations from the FPR and NSFPR may be authorized by the Deputy Director. This authority may not be redelegated.

(1) A supporting statement for each individual deviation, which indicates briefly the nature of the deviation and the reasons for such special action shall be included in the contract file.

(b) In classes of cases, requests for deviations from the FPR and NSFPR shall be forwarded to the Deputy Director and shall be accompanied by an appropriate supporting statement.

(c) If a requested deviation is considered appropriate, approval will be accomplished as follows:

(1) Where the deviation applies to an individual case, approval will be granted by memorandum addressed to the Contracting Officer. The contract file shall

AUTHORITY: Secs. 11(e) and 12(a) of the National Science Foundation Act, as amended (42 USC 1870 (e) and 1871(a)). SOURCE: 39 FR 41977, Dec. 4, 1974, unless otherwise noted.

Subpart 25-9.1-Patents

§ 25-9.100 Scope of Subpart.

This subpart sets forth policies, procedures, and clauses with respect to rights in inventions made in the course of or under contracts subject to Title III of the Federal Property and Administrative Services Act of 1949, as amended, entered into by the National Science Foundation. Policies, procedures, and clauses with respect to rights in inventions under awards other than the above are set forth in 45 CFR Part 650.

contract requires, include subcontractors of a contractor at any tier;

(e) The term "invention" includes any art, method, process, machine, manufacture, design, or composition of matter, or any new and useful improvement thereof, or any variety of plant, which is or may be patentable under the Patent Laws of the United States of America or any foreign country;

(f) The term "to the point of practical application" means to manufacture in the case of a composition or product, to practice in the case of a process, or to operate in the case of a machine and under such conditions as to establish that the invention is being worked and that its benefits are reasonably accessible to the public;

(g) The term "President's Policy" means the President's Statement of Government Patent Policy issued August 23, 1971 (36 FR 16887, August 26, 1971); and

(h) The term "Patent Policy Review Committee" refers to a committee made up of Foundation personnel and established by the Director to administer certain aspects of Foundation patent policy.

§ 25-9.102 Source of authority.

(a) Section 12(a) of the National Science Foundation Act of 1950, as amended (42 U.S.C. 1871(a)), provides as follows:

Each contract or other arrangement executed pursuant to this Act which relates to scientific research shall contain provisions governing the disposition of inventions produced thereunder in a manner calculated to protect the public interest and the equities of the individual or organization with which the contract or other arrangement is executed; Provided, however, That nothing in this Act shall be construed to authorize the Foundation to enter into any contractual or other arrangement inconsistent with any provisions of law affecting the issuance or use of patents.

(b) Section 11(e) of the same Act provides as follows:

The Foundation shall have the authority, within the limits of available appropriations, to do all things necessary to carry out the provisions of this Act, including, but without being limited thereto, the authority *

(e) to acquire by purchase, lease, loan, gift, or condemnation, and to hold and dispose of by grant, sale, lease, or loan, real and personal property of all kinds necessary for, or resulting from, the exercise of authority granted by this Act.

The President's Policy provides guidance as to basic policies to be followed by executive agencies with respect to inventions or discoveries made in the course of their awards. The provisions set forth in this subpart are intended to implement the National Science Foundation Act in accordance with the basic guidelines and philosophy of the President's Policy.

§ 25-9.103

Procedures for selection of contract clauses.

(a) Except as provided in paragraphs (b) and (c) of this section, all Foundation contracts shall contain the following clause:

PATENT RIGHTS—OPTION IN THE GOVERNMENT (a) Definitions.

(1) "Subject Invention" means any invention or discovery of the Contractor conceived or first actually reduced to practice in the course of or under this contract, and includes any art, method, process, machine, manufacture, design, or composition of matter, or any new and useful improvement thereof, or any variety of plant, which is or may be patentable under the Patent Laws of the United States of America, or any foreign country.

(2) "Contract" means any contract, agreement, grant, or other arrangement, or subcontract entered into with or for the benefit of the Government where a purpose of the contract is the conduct of experimental, developmental, or research work.

(3) "States and domestic municipal governments" means the States of the United States, the District of Columbia, Puerto Rico, the Virginia Islands, American Samoa, Guam, the Trust Territory of the Pacific Islands, and any political subdivision and agencies thereof.

(4) "Government agency" includes an executive department, independent commission, board, office, agency, administration, authority, Government corporation, or other Government establishment of the executive branch of the Government of the United States of America.

(5) "To the point of practical application" means to manufacture in the case of a composition or product, to practice in the case of a process, or to operate in the case of a machine and under such conditions as to establish that the invention is being worked and that its benefits are reasonably accessible to the public.

(6) "Foundation" means the National Science Foundation.

(b) Disposition of principal rights-(1) Assignment to the Government. The Contractor agrees to assign to the Government when requested, the entire right, title, and interest throughout the world in and to each Subject Invention, except to the extent that rights are retained by the Con

tractor under paragraphs (b) (2) and (d) of this clause.

(2) Greater Rights Determinations. The Contractor, or the employee-inventor with authorization of the Contractor, may retain greater rights than the nonexclusive license provided in paragraph (d) of this clause in accordance with the procedure and criteria of 41 CFR 25-9.104. A request for a determination as to whether the Contractor or the employee-inventor is entitled to retain such greater rights must be submitted to the Foundation at the time of the first disclosure of the invention pursuant to paragraph (e) (2) (i) of this clause, or not later than 3 months thereafter or such longer period as may be authorized by the Foundation for good cause shown in writing by the Contractor. The information to be submitted for a greater rights determination is specified in 41 CFR 25-9.104. Each determination of greater rights under this contract normally shall be subject to paragraph (c) of this clause and to such reservations and conditions as may be deemed to be appropriate by the Foundation.

(c) Minimum rights granted to the Government. With respect to each Subject Invention to which the Contractor retains principal or exclusive rights, the Contractor:

(1) Hereby grants to the Government a nonexclusive, nontransferable, paid-up license to make, use, and sell each Subject Invention throughout the world by or on behalf of the Government of the United States (including any Government agency), States and domestic municipal governments, unless the Director of the Foundation determines after the invention has been identified that it would not be in the public interest to acquire the license for States and domestic municipal governments;

(2) Agrees to grant, upon request of the Government, a license on terms that are reasonable under the circumstances to responsible applicants;

(i) Unless the Contractor, his licensee, or his assignee demonstrates to the Government that effective steps have been taken within 3 years after a patent issued on such invention to bring the invention to the point of practical application or that the invention has been made available for licensing royalty-free or on terms that are reasonable in the circumstances, or can show cause why the principal or exclusive rights should be retained for a further period of time; or

(ii) To the extent that the invention is required for public use by governmental regulations or as may be necessary to fulfill public health or safety needs, or for other public purposes stipulated in this contract;

(3) Shall submit written reports at reasonable intervals, upon request of the Government, during the term of the patent on the Subject Invention regarding

(1) The commercial use that is being made or is intended to be made of such invention; and

(11) The steps taken by the Contractor or his transferee to bring the invention to the point of practical application or to make the invention available for licensing;

(4) Agrees to refund any amounts received as royalty charges on any Subject Invention in procurements for or on behalf of the Government and to provide for that refund in any instrument transferring rights to any party in the invention; and

(5) Agrees (1) to provide for the Government's paid-up license pursuant to paragraph (c) (1) of this clause in any instrument transferring rights in a Subject Invention and (ii) to provide for the granting of licenses as required by (c) (2) of this clause and for the reporting of utllization information as required by paragraph (c)(3) of this clause whenever the instrument transfers principal or executive rights in any Subject Invention.

(d) Minimum rights to the Contractor. (1) The Contractor reserves a revocable, nonexclusive, paid-up license in each patent application, filed in any country on a Subject Invention and any resulting patent in which the Government acquires title. The license shall extend to the Contractor's domestic subsidiaries and affiliates, if any, within the corporate structure of which the Contractor is a part and shall include the right to grant sublicenses of the same scope to the extent the Contractor was legally obligated to do so at the time the contract was awarded. The license shall be transferable only with approval of the Foundation except when transferred to the successor of that part of the Contractor's business to which the invention pertains.

(2) The Contractor's nonexclusive domestic license retained pursuant to paragraph (d)(1) of this clause may be revoked or modified by the Foundation, either in whole or in part, as to the United States, its territories and possessions, Puerto Rico, and the District of Columbia to the extent necessary to achieve expeditious practical application of the Subject Invention under 41 CFR 101-4.103-3 pursuant to an application for exclusive license submitted in accordance with 41 CFR 101-4-104-3. This license shall not be revoked in that field of use and or the geographical areas in which the Contractor has brought the invention to the point of practical application and continues to make the benefits of the invention reasonably accessible to the public. The Contractor's nonexclusive license in any foreign country reserved pursuant to paragraph (d)(1) of this clause may be revoked or modified, either in whole or in part, in the discretion of the Foundation to the extent the Contractor or his domestic subsidiaries or affiliates have failed to achieve the practical application of the invention in that foreign country.

(3) Before modification or revocation of the license, pursuant to paragraph (d) (2) of this clause, the Foundation shall furnish to the Contractor a written notice of its intention to modify or revoke the license and the Contractor shall be allowed 30 days (or such longer period as may be authorized by the Foundation for good cause shown in writing by the Contractor) after such notice to show cause why the license should not be modified or revoked.

(e) Invention identification, disclosure and reports. (1) The Contractor shall establish and maintain active and effective procedures to assure that Subject Inventions are promptly identified and timely disclosed. These procedures shall include the maintenance of laboratory notebooks or equivalent records and other records as are reasonably necessary to document the conception and/or the first actual reduction to practice of Subject Inventions and records which show that the procedures for identifying and disclosing the inventions are followed. Upon request, the Contractor shall furnish to the Contracting Officer a description of such procedures so that he may evaluate and determine their effectiveness.

(2) The Contractor shall furnish to the Contracting Officer:

(i) A complete disclosure of each SubJect Invention, within 6 months after conception or first actual reduction to practice, whichever occurs first in the course of or under the contract, but in any event prior to any sale, public use, or publication of such invention known to the Contractor. The disclosure shall identify the contract and inventor and be sufficiently complete in technical detail and appropriately illustrated by sketch or diagram to convey to one skilled in the art to which the invention pertains a clear understanding of the nature, purpose, operation, and, to the extent known, the physical, chemical, biological, or electrical characteristics of the invention;

(ii) Interim reports at least every 12 months from the date of the contract listing Subject Inventions for that period and certifying that;

(A) The Contractor's procedures for identifying and disclosing Subject Inventions as required by this paragraph (e) have been followed throughout the reporting period; and

(B) All Subject Inventions have been disclosed or that there are no such inventions; and

(iii) An acceptable final report, within 3 months after completion of the contract work, listing all Subject Inventions or certifying that there were no such inventions.

(3) The Contractor shall obtain patent agreements to effectuate the provisions of this clause from all persons in his employ who perform any part of the work under this contract except nontechnical personnel,