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U.S. DEPARTMENT OF ENERGY
(d) The contractor licensing provisions of optional paragraph (h) of the Rights in Technical Data (long form) clause enable DOE to require limited licenses in proprietary contract data to be granted to the Government and responsible parties in certain circumstances. Such a license may parallel or supplement the license obtained in background patents under the provisions of paragraph (k) of the Patent Rights clause of Subpart 9-9.1. Paragraph (h) is normally to be included in contracts for research, development or demonstration where it is deemed by DOE that the limited license afforded therein is necessary to ensure widespread commercial use or practical utilization of a subject of the contract. As explained in 89-9.202–3(e)(4), paragraph (h) provides that upon request by DOE, the contractor will grant to the Government and responsible third parties a license in proprietary data oniy where such data in the form of results obtained by its use, i.e., essential equipment, articles, products, and the like which were the subject of the contract, are not otherwise available, or cannot be made available in a reasonable time as set forth in paragraph (h).
(e) It is the responsibility of prime contractors and highertier subcontractors, in meeting their obligations with respect to contract data, to obtain from their subcontractors the rights in, access to, and delivery of such data on behalf of the Government. Accordingly, subject to the policy set forth in these regulations, and subject to the approval of the Contracting Officer where required, selection of appropriate technical data provisions for subcontracts is the responsibility of the prime contractor or higher-tier subcontractor. In many but not all instances, inclusion in a subcontract of the Rights in Technical Data (long form) clause of 89-9.202–3(e)(2) will suffice to obtain for the benefit of the Government the rights in and, if appropriate, access to technical data. Access by DOE to technical data, i.e., the inspection rights afforded in paragraph (f) of the Rights in Technical Data (long form) clause, 89-9.202–3(e)(2), normally should be obtained only in first-tier subcontracts having as a purpose the conduct of research, development, or demonstration work or the furnishing of supplies for which there are substantial technical data requirements as reflected in the prime contract. If a subcontractor refuses to accept technical data provisions affording rights in and access to technical data on behalf of the Government, the contractor shall so inform the Contracting Officer in writing and not proceed with the subcontract without written authorization of the Contracting Officer. In prime contracts (or higher-tier subcontracts) which contain the Additional Technical Data Requirements clause, it is the further responsibility of the contractor (or higher-tier subcontractor) to determine whether inclusion of such clause in a subcontract is required to satisfy technical data requirements of the prime contract (or higher-tier subcontract). As is the case for DOE in its determination of technical data requirements, the Additional Technical Data Requirements clause should not be used at any subcontracting tier where the technical data requirements are fully known, and normally the clause will be used only in subcontracts having as a purpose the conduct of research, development, or demonstration. Prime contractors and higher-tier subcontractors shall not use their power to award subcontracts as economic leverage to inequitably acquire rights in the subcontractor's proprietary data for their private use, and they shall not acquire rights on behalf of the Government to proprietary data for standard commercial items unless required by the prime contract.
(1) Related to the acquisition and use of technical data are the contractor's rights in contract data as well as technical data furnished to the contractor by DOE or its contractors. These rights are set forth in paragraph (b)(2) of each Rights in Technical Data clause of this subpart and provide that the contractor may, subject to patent, security and other provisions of the contract, use for its private purposes contract data it first produces in the performance of the 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 such 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 viher data received by the contractor in the performance of the contract must be held in contience ry:he contractor in.c.or.
dance with restrictions accompanying the data.
(g) An additional clause in this subpart includes that of paragraph 89-9.202-3(1)(2) entitled Rights in Data - Special Works, which is to be used in place of or in addition to the Rights in Technical Data (long form) 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, 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 Patent Counsel. 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 89-9.202-3(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.
(h) In contracts involving access to certain categories of DOE-owned restricted data, as set forth in 10 CFR Part 725, DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including its related data and technology. Accordingly, in contracts where access to such restricted data is to be provided to contractors, the following parenthetical phrase shall be inserted after “contract data" in paragraph (b)(2)(ii) of the clause in 89-9.202–3(e)(2), after “technical data” in paragraph (b)(2) of the clause in 899.202-3(g)(2), or after “technical data" in paragraph (b)(2)(ii) of the clause in 89-9.202-4(c)(2) as appropriate: (except Restricted Data in category C-24, 10 CFR 725, in which DOE has reserved the right to receive reasonable compensation for the use of its inventions and discoveries, including related data and technology). In addition, there are other types of contract situations (e.g., no cost contracts for studies or evaluation) wherein the contractor is given access to restricted data. In such contract situations, limitations on the use of such data may be appropriate.
(a) Making the benefits of the energy research, development and demonstration programs of DOE widely available to the public in the shortest practicable time;
(b) Promoting the commercial utilization of the technology developed under DOE programs;
(c) Encouraging participation by private persons in DOE energy 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.
89-9.202-3 Procedures (supply, research, development, or demonstration contracts).
(a) Known requirements for technical data. Technical data requirements are determined in relation to the intended use of the 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 in
U.S. DEPARTMENT OF ENERGY
cluded in requests for proposals or disclosed during contract negotiations for incorporation as data requirements in the contract statement of work.
(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 (c) below, 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 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 Requirements clause.
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.
(6) 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 pre
scribed form for reproduction, and for delivery. (d) Proposals.
The policy and procedures for treatment of proposal information in solicited and unsolicited proposals are contained in 89–3.150 of these regulations in which it is provided that proposals may be marked with the notice set forth in 89-3.150-2(a). It is DOE 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 89-3.150-2(a), the prospective contractor is obliged under $93.150–2 (b) to identify the portions thereof which contain proprietary data, and the contract in such instance shall contain the Rights to Proposal Data clause set forth in 89–3.150-2(c) identifying data asserted to be proprietary data by page number. Under $9-3.150-2(b) and 893.151-1 which set forth procedures for identifying proprietary data, it is provided that, subject to the concurrence of the Contracting Officer, the proposer may delete proposal information unrelated to the contract, identify the proprietary data in his proposal, or state that there is no proprietary data in the proposal. Data identified as proprietary 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, where technical data are specified to be delivered in the contract, or where the contract contains the Additional Technical Data Requirements clause. Accordingly, all such contracts will contain the Rights in Technical Data (long form) clause of paragraph (2) below, except as noted in 89-9.202-4 and 89-9.202-3(1) and (g) and
· PROCUREMENT REGULATIONS
except contracts for standard commercial off-the-shelf supplies where technical data such as operating or repair manuals are routinely furnished with the supplies.
(2) Rights in Technical Data clause.
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, or demonstration, or engineering work, or be usable or used to define a design or process, or to procure, produce, support, main. tain, or operate material. 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 research and engineering data, engineering drawings and associated lists, specifications, standards, process sheets, manuals, technical reports, catalog item identification, and related information. Technical data as used herein do not include financial reports, cost analyses, and other information incidental to contract administration.
(2) “Proprietary data" means technical data which embody trade secrets developed at private expense, such as design procedures or techniques, chemical composition of materials, or manufacturing methods, processes, or treatments, including minor modifications thereof, provided that such data:
(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 its 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 perfor. mance of the contract, technical data which are specified to be delivered under 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
(6) Allocation of rights.
(i) Unlimited rights in contract data except as otherwise provided be-
(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 in response to a written inquiry by DOE concerning the proprietary nature of the markings, the contractor fails to respond thereto within 60 days or fails to substantiate the proprietary nature of the markings. In either case, DOE will notify the contractor of the action taken;
(iii) No rights under this contract in any technical data which are not contract data.
(2) The contractor shall have:
(i) The right to withhold proprietary data in accordance with the provisions of this clause; and
(ü) 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 DOE or a DOE contractor or subcontractor, the contractor shall treat such data in accordance with any restrictive legend contained thereon, unless use is specitically authorized by prior writieu ap
U. S. DEPARTMENT OF ENERGY
proval 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 shall not, without prior written authorization of the Contracting Officer, establish a claim to statutory copyright in any contract data first produced in the performance of the contract. To the extent such authorization is granted, the Government reserves for itself and others acting on its behalf a royalty-free, nonexclusive, irrevocable, 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 conti any material copyrighted by the contractor and not to knowingly include any material copyrighted by others, without first granting or obtaining at no cost 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 obtain the written authorization of the Contracting Officer to include such copyrighted material in the technical data prior to its deliv. ery.
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 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" provisions of paragraph (1), and, if included, the "Limited rights in proprietary data" provisions of paragraph (8) and the “Contractor licensing” provisions of paragraph (h). ·
(1) 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 years after final payment under this contract, may inspect at the contractor's facility any proprietary data withheld under paragraph (e) for the purposes of verifying that such data properly fell within
the withholding provision of paragraph (e), or for evaluating work performance. (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 shail be supplemented by the additional para