[Federal Register Volume 62, Number 61 (Monday, March 31, 1997)]
[Proposed Rules]
[Pages 15138-15150]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-7327]
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DEPARTMENT OF ENERGY
48 CFR Parts 915, 927, 952, and 970
RIN 1991-AB33
Revisions to Rights in Data Regulations
AGENCY: Department of Energy.
ACTION: Proposed rule.
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SUMMARY: The Department of Energy (DOE) proposes to amend its
Acquisition Regulation to effect changes to its rights in technical
data regulations to reflect a greater reliance upon the rights in
technical data coverage in the Federal Acquisition Regulation and the
requirements relating to technology transfer activities at certain DOE
laboratories.
DATES: Written comments must be submitted no later than May 30, 1997.
ADDRESSES: Comments (three copies) should be addressed to: Robert M.
Webb, U.S. Department of Energy, Office of Procurement and Assistance
Management, Office of Policy, HR-51, Room 8H-023, 1000 Independence
Avenue, SW., Washington, D.C. 20585.
FOR FURTHER INFORMATION CONTACT:
Robert M. Webb, U.S. Department of Energy, Office of Procurement and
Assistance Management, 1000 Independence Avenue, SW., Washington, D.C.
20585, (202) 586-8264
Judson Hightower, U.S. Department of Energy, Office of Assistant
General Counsel for Technology Transfer and Intellectual Property, 1000
Independence Avenue, SW., Washington, D.C. 20585, (202) 586-2813.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Discussion.
III. Public Comments.
A. Consideration and Availability of Comments.
B. Public Hearing Determination.
IV. Procedural Requirements.
A. Review Under Executive order 12866.
B. Review Under Executive order 12988.
C. Review Under the Regulatory Flexibility Act.
D. Review Under the Paperwork Reduction Act.
[[Page 15139]]
E. Review Under the National Environmental Policy Act.
F. Review Under Executive Order 12612.
I. Background
The Department has in place policy, reflected in Acquisition Letter
87-5, instructing its contracting officers to rely substantially on the
rights in technical data coverage in the Federal Acquisition Regulation
(FAR).
Congress enacted the National Competitiveness Technology Transfer
Act of 1989 (Pub. L. 101-189) which had the effect of establishing
technology transfer missions for certain of DOE's management and
operating contractors. Acquisition Letters 88-1 and 91-8 were issued on
this subject, and on December 22, 1995 (60 FR 66510), the Department
promulgated technology transfer regulations to implement that Act.
The purpose of this proposed rule is to codify the policies in the
acquisition letters and provide an up-to-date uniform treatment of the
subject of rights in technical data, including provision for technology
transfer.
II. Discussion
a. General
This proposed rule proposes to delete the existing coverage of
rights in technical data, including regulations, solicitation
provisions, and contract clauses currently in the Department of Energy
Acquisition Regulation (DEAR). The proposed coverage would rely
substantially on the rights in technical data regulations, provisions,
and clauses in the Federal Acquisition Regulation (FAR), except where
additional coverage would be necessary to fulfill DOE's statutory
duties to disseminate data produced in its research, development and
demonstration programs. Also, the coverage in Subpart 970.27 of the
DEAR is proposed to be rewritten to reflect the considerations relating
to and use of proposed versions of the two alternate rights in
technical data clauses intended for DOE's management and operating
contracts.
b. Section-by-Section Analysis
The proposed rule would amend subpart 915.4 of the DEAR by revising
subsection 915.413-2 to provide for the use of non-Federal personnel in
the evaluation of competitive proposals. That subsection would
implement the provisions of subsection 15.413-2 of the FAR. In
addition, that subsection would supplement the FAR coverage at 37.204,
which implements sec. 6002 of Pub. L. 103-355, the Federal Acquisition
Streamlining Act of 1994, to provide DOE's process for determining that
neither sufficient DOE personnel nor personnel from other Federal
agencies are available to evaluate proposals, leading to the use of
non-Federal personnel for that purpose. The coverage would include a
standard agreement to be executed by the non-Federal evaluator, stating
his or her responsibilities in the treatment of proposal data. The
current source of regulatory coverage on this subject, Subpart 927.70,
would be deleted. That same subpart also contains provisions dealing
with the Government's rights in proposal data and holding proposal data
in confidence. The proposed rule would rely on the FAR coverage on
these subjects.
Subsection 915.608(d) would be added to provide a reference to the
DEAR provision proposed to deal with the use of non-Federal evaluators.
Subsection 927.303(b) is proposed to be amended to include reference to
DOE's patent waiver regulations now promulgated at 10 CFR Part 784. In
this latter regard, section 927.370 has been deleted because it is
duplicative of those patent waiver regulations. Portions of sections
927.401 through 927.403 have been proposed for deletion. A new section
927.404 has been proposed to be added. It would supplement the FAR
coverage at 27.404 by adding a paragraph (k) on the subcontract
flowdown obligations under the rights in technical data clause at FAR
52.227-14, adding paragraph (l) to obtain, in appropriate situations,
the right for DOE to require the contractor to license proprietary data
relating to the subject of an individual contract to DOE or others and
adding (m) dealing with a modification of the FAR clause in contracts
where access to DOE restricted data is contemplated.
The proposed rule would add a section 927.408 to make clear that,
as a result of DOE's statutes that require dissemination, this
Department may not apply the provisions of FAR 27.408 to cosponsored or
cost shared contracts. The proposed rule would also add a section
927.409 to supplement the FAR with regard to the requirement of
contracting officers to include the FAR rights in technical data clause
at 52.227-14. In the Department of Energy, Alternates I and V will
always be used. The proposed rule would substitute definitions for use
by DOE that simplify and shorten the FAR definitions. The only change
to the definitions worthy of note is that computer data bases would be
considered technical data and not computer software. This reflects more
accurately the nature of computer data bases. They are, in fact, a form
of technical data. The accurate depiction of computer data bases
becomes increasingly important as a result of DOE's, the Government's,
and our society's increasing reliance on computers and computer
software. This change has a beneficial result in that it would create
an enhanced opportunity to prepare data bases in common languages, not
computer program dependent. As a result more data bases created under
DOE contracts may receive wider dissemination than when data bases are
considered computer software. We have also proposed a minor change to
the definition of unlimited rights, also taking into account our
increasing dependence on computer networks, stating expressly, what is
implicit, that unlimited rights include the right to disseminate data
by electronic means.
The Additional Data Requirements clause at FAR 52.227-16 would be
required for use in all contracts for research, development, and
demonstration except those with universities or colleges for basic or
applied research of $500,000 or less.
The various existing provisions and clauses from 952.227 would be
deleted from the DEAR with the intention that DOE's Contracting
Officers use the provisions and clauses on the same subject that appear
in FAR Subpart 52.227.
The proposed rule would insert into the DEAR Alternate VI, dealing
with contractor licensing and Alternate VII, dealing with contractor
access to DOE restricted data. Those alternates would be used in
conjunction with the FAR Rights in Technical Data clause at 52.227-14.
The solicitation provision at Subsection 952.227-84 would be
amended to make references consistent with the DEAR.
In DEAR part 970 sections 970.2705 and 970.2706 would be revised to
describe the use of and the general content of the two rights in
technical data clauses that would be used alternatively in DOE
management and operating contracts.
The proposed rule would add a new section 970.2707 to instruct the
appropriate use of the management and operating contract rights in
technical data clauses.
Finally, the proposed rule would add a rights in technical data
clause, 970.5204-XX, for DOE management and operating contracts that do
not have a technology transfer mission and another, 970.5204-YY, for
those management and operating contracts that do have a technology
transfer mission.
[[Page 15140]]
III. Public Comments
A. Consideration and Availability of Comments
Interested persons are invited to participate by submitting data,
views, or arguments with respect to the proposed Department of Energy
Acquisition Regulation amendments set forth in this notice. Three
copies of written comments should be submitted to the address indicated
in the ADDRESS section of this notice. All written comments received by
the date indicated in the DATES section of this notice and all other
relevant information in the record will be carefully assessed and fully
considered prior to publication of the final rule. All comments
received will be available for public inspection in the DOE Reading
Room, Room 1E-190, Forrestal Building, 1000 Independence Avenue, SW.,
Washington, D.C. 20585, between the hours of 9 am and 4 pm, Monday
through Friday, except Federal holidays. Any information considered to
be confidential must be so identified and submitted in writing, one
copy only. DOE reserves the right to determine the confidential status
of the information and to treat it according to our determination (See
10 CFR Part 1004.11).
B. Public Hearing Determination
The Department has concluded that this proposed rule does not
involve a substantial issue of fact or law and that the proposed rule
should not have substantial impact on the nation's economy or a large
number of individuals or businesses. Therefore, pursuant to Public Law
95-91, the DOE Organization Act, and the Administrative Procedure Act
(5 U.S.C. 553), the Department does not plan to hold a public hearing
on this proposed rule. However, should a sufficient number of people
request a public hearing, the Department will reconsider its
determination.
IV. Procedural Requirements
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review under that Executive
Order by the Office of Information and Regulatory Affairs of the Office
of Management and Budget (OMB).
B. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to the review
required by section 3(a), section 3(b) of Executive Order 12988
specifically requires that Executive agencies make every reasonable
effort to ensure that the regulation: (1) clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; and (6) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of them. DOE has completed the
required review and determined that, to the extent permitted by law,
the proposed regulations meet the relevant standards of Executive Order
12988.
C. Review Under the Regulatory Flexibility Act
This proposed rule has been reviewed under the Regulatory
Flexibility Act of 1980, Public Law 96-354, that requires preparation
of an initial regulatory flexibility analysis for any rule that is
likely to have significant economic impact on a substantial number of
small entities. The contracts to which this rulemaking would apply are
agreements that contemplate the creation of technical data. Normally,
such contracts, and any resulting subcontracts, would be cost
reimbursement type contracts. Thus, there would not be an adverse
economic impact on contractors or subcontractors. Accordingly, DOE
certifies that this proposed rule, if adopted, would not have a
significant economic impact on a substantial number of small entities,
and, therefore, no regulatory flexibility analysis has been prepared.
D. Review Under the Paperwork Reduction Act
No additional information or recordkeeping requirements are
proposed to be imposed by this rulemaking. Accordingly, no OMB
clearance is required under the Paperwork Reduction Act of 1980 (44
U.S.C. 3501 et seq.).
E. Review Under the National Environmental Policy Act
DOE has concluded that promulgation of this proposed rule falls
into a class of actions which would not individually or cumulatively
have significant impact on the human environment, as determined by
DOE's regulations (10 CFR Part 1021, Subpart D) implementing the
National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 4321 et
seq.). Specifically, this proposed rule is categorically excluded from
NEPA review because the proposed amendments to the DEAR would be
strictly procedural (categorical exclusion A6). Therefore, this
proposed rule does not require an environmental impact statement or
environmental assessment pursuant to NEPA.
F. Review Under Executive Order 12612
Executive Order 12612, (52 FR 41685, October 30, 1987), requires
that regulations, rules, legislation, and any other policy actions be
reviewed for any substantial direct effects on States, on the
relationship between the Federal government and the States, or in the
distribution of power and responsibilities among the various levels of
Government. If there are sufficient substantial direct effects, then
the Executive Order requires the preparation of a federalism assessment
to be used in all decisions involved in promulgating and implementing a
policy action. This proposed rule, when finalized, would merely reflect
current practice relating to rights in technical data. States which
contract with DOE will be subject to this rule. However, DOE has
determined that this rule will not have a substantial direct effect on
the institutional interests or traditional functions of the States.
List of Subjects in 48 CFR Parts 915, 927, 952, and 970
Government Procurement.
Issued in Washington, D.C. on March 18, 1997.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Chapter 9 of Title 48 of
the
[[Page 15141]]
Code of Federal Regulations is proposed to be amended as set forth
below.
PART 915--CONTRACTING BY NEGOTIATION
1. The authority citation for Part 915 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
2. Subsection 915.413-2 is revised to read as follows:
915.413-2 Evaluation of Proposals. (DOE coverage-paragraphs (e) and
(f))
(e) In order to maintain the integrity of the procurement process
and to assure that the propriety of proposals will be respected, the
notice at FAR 15.413-2(e) for solicited proposals and FAR 15.509(d) for
unsolicited proposals shall be affixed to a cover sheet attached to
each proposal upon receipt by DOE. Use of the notice neither alters any
obligation of the Government, nor diminishes any rights in the
Government to use or disclose data or information.
(f)(1) Normally, evaluations of proposals shall be performed only
by employees of the Department of Energy. As used in this section,
``proposals'' includes the offers in response to requests for
proposals, sealed bids, program opportunity announcements, program
research and development announcements, or any other method of
solicitation where the review of proposals or bids is to be performed
by other than peer review. In certain cases, in order to gain necessary
expertise, employees of other agencies may be used in instances in
which they will be available and committed during the period of
evaluation. Evaluators or advisors who are not Federal employees,
including employees of DOE management and operating contractors may be
used where necessary. Where such non-Federal employees are used as
evaluators, they may only participate as members of technical
evaluation committees. They may not serve as members of the Source
Evaluation Board or equivalent board or committee.
(2)(i) Pursuant to section 6002 of Public Law 103-355, a
determination is required for every competitive procurement as to
whether sufficient DOE personnel with the necessary training and
capabilities are available to evaluate the proposals that will be
received. This determination, discussed at FAR 37.204, shall be made in
the memorandum appointing the technical evaluation committee by the
Source Selection Official, in the case of Source Evaluation Board
procurements, or by the Contracting Officer in all other procurements.
(ii) Where it is determined such qualified personnel are not
available within DOE but are available from other Federal agencies, a
determination to that effect shall be made by the same officials in the
same memorandum. Should such qualified personnel not be available, a
determination to use non-Federal evaluators or advisors must be made in
accordance with paragraph (f)(3) of this subsection.
(3) The decision to employ non-Federal evaluators or advisors,
including employees of DOE management and operating contractors, in
Source Evaluation Board procurements must be made by the Source
Selection Official with the concurrence of the Head of the Contracting
Activity. In all other procurements, the decision shall be made by the
senior program official or designee with the concurrence of the Head of
the Contracting Activity. In a case where multiple solicitations are
part of a single program and would call for the same resources for
evaluation, a class determination to use non-Federal evaluators may be
made by the DOE Procurement Executive.
(4) Where such non-Federal evaluators or advisors are to be used,
the solicitation shall contain a provision informing prospective
offerors that non-Federal personnel may be used in the evaluation of
proposals.
(5) The nondisclosure agreement as it appears in paragraph (f)(6)
of this subsection shall be signed before DOE furnishes a copy of the
proposal to non-Federal evaluators or advisors, and care should be
taken that the required handling notice described in paragraph (e) of
this subsection is affixed to a cover sheet attached to the proposal
before it is disclosed to the participant. In all instances, such
persons will be required to comply with nondisclosure of information
requirements and requirements involving Procurement Integrity, see FAR
3.104; with requirements to prevent the potential for personal
conflicts of interest; or, where a non-Federal evaluator or advisor are
acquired under a contract with an entity other than the individual,
with requirements to prevent the potential for organizational conflicts
of interest.
(6) Non-Federal evaluators or advisors shall be required to sign
the following agreement prior to having access to any proposal:
Nondisclosure Agreement
Whenever DOE furnishes a proposal for evaluation, I, the
recipient, agree to use the information contained in the proposal
only for DOE evaluation purposes and to treat the information
obtained in confidence. This requirement for confidential treatment
does not apply to information obtained from any source, including
the proposer, without restriction. Any notice or restriction placed
on the proposal by either DOE or the originator of the proposal
shall be conspicuously affixed to any reproduction or abstract
thereof and its provisions strictly complied with. Upon completion
of the evaluation, it is agreed all copies of the proposal and
abstracts, if any, shall be returned to the DOE office which
initially furnished the proposal for evaluation. Unless authorized
by the contracting officer, I agree that I shall not contact the
originator of the proposal concerning any aspect of its elements.
Recipient:-------------------------------------------------------------
Date:------------------------------------------------------------------
(End of Agreement)
3. Subpart 915.6, Source Selection, is added to read as follows:
Subpart 915.6--Source Selection
915.608 Proposal evaluation. (DOE coverage-paragraph (d))
(d) Personnel from DOE, other Government agencies, consultants, and
contractors, including those who manage or operate Government-owned
facilities, may be used in the evaluation process as advisors when
their services are necessary and available. When personnel outside the
Government, including those of contractors who operate or manage
Government-owned facilities, are to be used as advisors or as
evaluators, approval and nondisclosure procedures as required by 48 CFR
(DEAR) 915.413-2 shall be followed and a notice of the use of non-
Federal evaluators shall be included in the solicitation. In all
instances, such personnel will be required to comply with DOE conflict
of interest and nondisclosure requirements.
PART 927--PATENTS, DATA, AND COPYRIGHTS
4. The authority citation for Part 927 continues to read as
follows:
Authority: Sec. 644 of the Department of Energy Organization
Act, Pub. L. 95-91 (42 U.S.C. 7254); Sec. 148 of the Atomic Energy
Act of 1954, as amended (42 U.S.C. 2168); Federal Nonnuclear Energy
Research and Development Act of 1974, Sec. 9, (42 U.S.C. 5908);
Atomic Energy Act of 1954, as amended, Sec. 152, (42 U.S.C. 2182);
Department of Energy National Security and Military Applications of
Nuclear Energy Authorization Act of 1987, as amended, Sec. 3131(a),
(42 U.S.C. 7261a.)
927.300 [Amended]
5. Section 927.300(b) is amended by replacing the phrase ``41 CFR
9-9.109''
[[Page 15142]]
as it appears in the second sentence with ``10 CFR part 784.''
927.303 [Amended]
6. Section 927.303(b) is amended by inserting the phrase ``,
pursuant to 10 CFR part 784,'' after ``advance waiver'' in the first
sentence and after ``identified invention'' in the second sentence.
927.370 [Removed and reserved]
7. Remove and reserve section 927.370.
927.401 [Removed]
8. Section 927.401 is removed.
927.402-1 [Amended]
9. In section 927.402-1, paragraphs (c) through (g) are removed,
and paragraph (h) is redesignated as paragraph (c).
927.402-3 [Removed]
10. Section 927.402-3 is removed.
11. Section 927.404 is added to read as follows:
927.404 Rights in Technical Data in Subcontracts. (DOE coverage--
paragraphs (g), (k), (l), and (m))
(g)(4) Contractors are required by paragraph (d)(3) of the clause
at FAR 52.227-14, as modified pursuant to 48 CFR 927.409(a)(1) to
acquire permission from DOE to assert copyright in any computer
software first produced in the performance of the contract. This
requirement reflects DOE's established software distribution program,
recognized at FAR 27.404(g)(2), and the Department's statutory
dissemination obligations. When a contractor requests permission to
assert copyright in accordance with paragraph (d)(3) of the Rights in
Data-General clause as prescribed for use at 48 CFR 927.409(a)(1),
patent counsel shall predicate its decision on the policy and
procedures reflected in paragraph (e) of the clause at 48 CFR 970.5204-
YY Rights in Data-Technology Transfer.
(k) Subcontracts. (1)(i) It is the responsibility of prime
contractors and higher tier subcontractors, in meeting their
obligations with respect to contract data, to obtain from their
subcontractor the rights in, access to, and delivery of such data on
behalf of the Government. Accordingly, subject to the policy set forth
in this section, 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
contractors or higher-tier subcontractors. In many but not all
instances, use of the Rights in Technical Data clause of FAR 52.227-14
in a subcontract will provide for sufficient Government rights in and
access to technical data. The inspection rights afforded in Alternate V
of that clause 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.
(ii) 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 award of the subcontract without
written authorization of the Contracting Officer.
(iii) In prime contracts (or higher-tier subcontracts) which
contain the Additional Technical Data Requirements clause at FAR
52.227-16, 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).
(2) As is the case for DOE in its determination of technical data
requirements, the Additional Technical Data Requirements clause at FAR
52.227-16 should not be used at any subcontracting tier where the
technical data requirements are fully known. Normally the clause will
be used only in subcontracts having as a purpose the conduct of
research, development, or demonstration work. 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 confidential data developed at private expense for
their private use, and they shall not acquire rights to confidential
data developed at private expense on behalf of the Government for
standard commercial items unless required by the prime contract.
(l) Contractor licensing. In many contracting situations the
achievement of DOE'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 confidential
data developed at private expense necessary to the practice of subject
inventions or data first produced or delivered in the performance of
the contract. Where the purpose of the contract is research,
development, or demonstration, contracting officers should consult with
program officials and patent counsel to consider whether such rights
should be acquired. No such rights should be obtained from a small
business or non-profit organization, unless similar rights in
background inventions of the small business or non-profit organization
have been authorized. In all cases when the contractor has agreed to
include a provision assuring commercial availability of background
patents, consideration should be given to securing for the Government
and responsible third parties at reasonable royalties and under
appropriate restrictions, co-extensive license rights for data which
are proprietary data. When such a license right is deemed necessary,
the Rights in Data-General clause at FAR 52.227-14 should be
supplemented by the addition of Alternate VI as provided at 48 CFR
952.227-14. Alternate VI 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
or practical utilization of a subject of the contract. The expression
``subject of the contract'' is intended to limit the licensing required
in Alternate VI to the fields of technology specifically contemplated
in the contract effort and may be replaced by a more specific statement
of the fields of technology intended to be covered in the manner
described in the patent clause at 48 CFR 952.227-13 pertaining to
``Background Patents.'' Where, however, proprietary contract data cover
the main purpose or 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 (j)(1) through (j)(4) of Alternate
VI of 48 CFR 952.227-14 should be modified or deleted. Paragraph (j) of
48 CFR 952.227-14 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 (j) of 48 CFR 952.227-14
to only those classes or categories of proprietary data determined as
being essential for licensing. Although contractor licensing may be
required under paragraph (j) of FAR 52.227-14, 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.
[[Page 15143]]
(m) Access to restricted data. In contracts involving access to
certain categories of DOE-owned Category C-24 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,
Alternate VII shall be incorporated into the appropriate rights in
technical data clause of the contract in accordance with the
instructions at 48 CFR 952.227-14. In addition, in any other types of
contracting situations in which the contractor may be given access to
restricted data, appropriate limitations on the use of such data must
be specified.
12. Subsection 927.404-70 is added to read as follows:
927.404-70 Statutory Programs.
Occasionally Congress enacts legislation that authorizes or
requires the Department to protect from public disclosure specific data
first produced in the performance of the contract. Examples of such
programs are ``the Metals Initiative'' and section 3001(d) of the
Energy Policy Act. In such cases DOE Patent Counsel is responsible for
providing the appropriate contractual provisions for protecting the
data in accordance with the statute. Generally, such clauses will be
based upon the Rights in Data-General clause prescribed for use at 48
CFR 927.409(a) with appropriate modifications to define and protect the
``protected data'' in accordance with the applicable statute. When
contracts under such statutes are to be awarded, contracting officers
must acquire from patent counsel the appropriate contractual
provisions. Additionally, the Contracting Officer must consult with DOE
program personnel and patent counsel to identify data first produced in
the performance of the contract that will be recognized by the parties
as protected data and what protected data will be made available to the
public notwithstanding the statutory authority to withhold the data
from public dissemination.
13. Section 927.408 is added to read as follows:
927.408 Cosponsored research and development activities.
Because of the Department of Energy's statutory duties to
disseminate data first produced under its contracts for research,
development, and demonstration, the provisions of FAR 27.408 do not
apply to cosponsored or cost shared contracts.
14. Section 927.409 is added to read as follows:
927.409 Solicitation provisions and contract clauses. (DOE coverage--
paragraphs (a), (h), (s), and (t)).
(a)(1) The contracting officer shall insert the clause at FAR
52.227-14, Rights in Data-General, substituting the following paragraph
(a) and including the following paragraph (d)(3), Alternate I, and
Alternate V in solicitations and contracts if it is contemplated that
data will be produced, furnished, or acquired under the contract:
(a) Definitions.
(1) Computer data bases, as used in this clause, means a
collection of data in a form capable of, and for the purpose of,
being stored in, processed, and operated on by a computer. The term
does not include computer software.
(2) Computer software, as used in this clause, means (i)
computer programs which are data comprising a series of
instructions, rules, routines, or statements, regardless of the
media in which recorded, that allow or cause a computer to perform a
specific operation or series of operations and (ii) data comprising
source code listings, design details, algorithms, processes, flow
charts, formulae, and related material that would enable the
computer program to be produced, created, or compiled. The term does
not include computer data bases.
(3) Data, as used in this clause, means recorded information,
regardless of form or the media on which it may be recorded. The
term includes technical data and computer software.
(4) Limited rights data, as used in this clause, means data,
other than computer software, developed at private expense that
embody trade secrets or are commercial or financial and confidential
or privileged. The Government's rights to use, duplicate, or
disclose limited rights data are as set forth in the Limited Rights
Notice of paragraph (g)(2) if included in this clause.
(5) Restricted computer software, as used in this clause, means
computer software developed at private expense and that is a trade
secret; is commercial or financial and is confidential or
privileged; or is published copyrighted computer software, including
minor modifications of any such computer software. The Government's
rights to use, duplicate, or disclose Restricted Computer Software
are as set forth in the Restricted Rights Notice of subparagraph
(g)(3) if included in this clause.
(6) Technical data, as used in this clause, means recorded data,
regardless of form or characteristic, that are of a scientific or
technical nature. Technical data does not include computer software,
but does include manuals and instructional materials and technical
data formatted as a computer data base. Technical data does not
include data incidental to the administration of this contract, such
as financial, administrative, cost and pricing, or management
information.
(7) Unlimited rights, as used in this clause, means the rights
of the Government to use, disclose, reproduce, prepare derivative
works, distribute copies to the public, including by electronic
means, and perform publicly and display publicly, in any manner,
including by electronic means, and for any purpose whatsoever, and
to have or permit others to do so.
* * * * *
(d)(3) The Contractor agrees not to establish claim to copyright
in computer software first produced in the performance of this
contract without prior written permission of the patent counsel
assisting the contracting activity. When such permission is granted,
the patent counsel shall specify appropriate terms, conditions, and
submission requirements to assure utilization, dissemination, and
commercialization of the data. The Contractor, when requested, shall
promptly deliver to patent counsel a duly executed and approved
instrument fully confirmatory of all rights to which the Government
is entitled.
(2) However, rights in data in these specific situations will be
treated as described, where the contract is--
(i) For the production of special works of the type set forth in
FAR 27.405(a), but the clause at FAR 52.227-14, Rights in Data-General,
shall be included in the contract and made applicable to data other
than special works, as appropriate (See paragraph (i) of FAR 27.409);
(ii) For the acquisition of existing data works, as described in
FAR 27.405(b) (See paragraph (j) of FAR 27.409);
(iii) To be performed outside the United States, its possessions,
and Puerto Rico, in which case agencies may prescribe different clauses
(See paragraph (n) of FAR 27.409);
(iv) For architect-engineer services or construction work, in which
case contracting officers shall utilize the clause at FAR 52.227-17,
Rights in Data-Special Works;
(v) A Small Business Innovation Research contract (See paragraph
(l) of FAR 27.409);
(vi) For management and operating of a DOE facility or the
production of data necessary for the management or operation of a DOE
facility (See 970.2705); or
(vii) Awarded pursuant to a statute expressly providing authority
for the protection of data first produced thereunder from disclosure or
dissemination. (See 927.404-70).
(h) The contracting officer shall insert the clause at FAR 52.227-
16, Additional Data Requirements, in solicitations and contracts
involving experimental, developmental, research, or demonstration work
(other than basic or applied research to be performed solely by a
university or college where the contract amount will be $500,000 or
less) unless all the requirements for data are believed to be known at
the time of contracting and specified in the
[[Page 15144]]
contract. See FAR 27.406(b). This clause may also be used in other
contracts when considered appropriate.
* * * * *
(s) Contracting officers shall incorporate the solicitation
provision at FAR 52.227-23, Rights to Proposal Data (Technical), in all
requests for proposals.
(t) Contracting officers shall include the solicitation provision
at 952.227-84 in all solicitations involving research, development, or
demonstration work.
Subpart 927.70 [Removed and Reserved]
15. Subpart 927.70 (Secs. 927.7000 through 927.7005) is removed and
reserved.
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
16. The authority citation for Part 952 continues to read as
follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Sec. 952.227-13 [Amended]
17. Subsection 952.227-13 is amended in paragraph (a) of the clause
by inserting the sentence ``See 10 CFR part 784.'' at the end of the
definition of ``DOE patent waiver regulations'' and in paragraph
(c)(1)(ii) of the clause by inserting ``(10 CFR part 784)'' after the
phrase ``patent waiver regulations''.
18. Subsection 952.227-14 of part 952 is added to read as follows:
952.227-14 Rights in data--general. (DOE coverage alternates VI and
VII)
Alternate VI (XXX 1997)
As prescribed at 48 CFR 927.404(l) insert Alternate VI to
require the contractor to license data regarded as limited rights
data or restricted computer software to DOE and third parties at
reasonable royalties upon request by the Department of Energy.
(j) Contractor Licensing. Except as may be otherwise specified
in this contract as data not subject to this paragraph, the
contractor agrees that upon written application by DOE, it will
grant to the Government and responsible third parties, for purposes
of practicing a subject of this contract, a nonexclusive license in
any limited rights data or restricted rights software on terms and
conditions reasonable under the circumstances including appropriate
provisions for confidentiality; provided, however, the contractor
shall not be obliged to license any such data if the contractor
demonstrates to the satisfaction of the Secretary of Energy or
designee 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 alternate available or readily
introducible from one or more other sources;
(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 their use; or
(4) Such data, in the form of results obtained by their use, can
be furnished by another firm skilled in the art of manufacturing
items or performing processes of the same general type and character
necessary to achieve the contract results.
(End of Alternate)
Alternate VII (XXX 1997)
As prescribed in 48 CFR 927.404(m) insert Alternate VII to limit
the contractor's use of DOE restricted data.
Insert the parenthetical phrase ``(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).'' after the
phrase ``data first produced or specifically used by the Contractor
in the performance of this contract'' in paragraph (b)(2)(i) of the
clause at FAR 52.227-14.
(End of Alternate)
952.227-73 through 952.227-83 [Removed]
19. In part 952, subsections 952.227-73, 952.227-75, 952.227-76,
952.227-77, 952.227-78, 952.227-79, 952.227-80, 952.227-81, 952.227-82,
and 952.227-83 are removed.
20. Subsection 952.227-84 is revised to read as follows:
952.227-84 Notice of right to request patent waiver.
Include this provision in all appropriate solicitations in
accordance with 48 CFR 927.409(t).
Right To Request Patent Waiver (XXX 1997)
Offerors have the right to request a waiver of all or any part
of the rights of the United States in inventions conceived or first
actually reduced to practice in performance of the contract that may
be awarded as a result of this solicitation, in advance of or within
30 days after the effective date of contracting. Even where such
advance waiver is not requested or the request is denied, the
contractor will have a continuing right under the contract to
request a waiver of the rights of the United States in identified
inventions, i.e., individual inventions conceived or first actually
reduced to practice in performance of the contract. Domestic small
businesses and domestic nonprofit organizations normally will
receive the patent rights clause at 952.227-13 which permits the
contractor to retain title to such inventions, except under
contracts for management or operation of a Government-owned research
and development facility or under contracts involving exceptional
circumstances or intelligence activities. Therefore, small
businesses and nonprofit organizations normally need not request a
waiver. See the patent rights clause in the draft contract in this
solicitation. See DOE's patent waiver regulations at 10 CFR part
784.
(End of Provision)
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
21. The authority citation for Part 970 continues to read:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act, Pub.
L. 95-91 (42 U.S.C. 7254).
22. Section 970.2705 is revised to read as follows:
970.2705 Rights in Data--General.
(a) Rights in data relating to the performance of the contract and
to all facilities are significant in assuring continuity of the
management and operation of DOE facilities. It is crucial in assuring
DOE's continuing ability to perform its statutory missions that DOE
obtain rights to all data produced or specifically used by its
management and operating contractors and their subcontractors. In order
to obtain the necessary rights in technical data, DOE contracting
officers shall assure that management and operating contracts contain
either the Rights in Data clause at 48 CFR 970.5204-XX or the clause at
48 CFR 970.5204-YY. Selection of the appropriate clause is dependent
upon whether technology transfer is a mission of the management and
operating contract. If technology transfer is not a mission of the
management and operating contractor, the clause at 48 CFR 970.5204-XX
will be used. In those instances in which technology transfer is a
mission, the clause at 48 CFR 970.5204-YY will be used.
(b) Employees of the management and operating contractor may not be
used to assist in the preparation of a proposal or bid for the
performance of services, which are similar or related to those being
performed under the contract, by the contractor or its parent or
affiliate organization for commercial customers unless the employee has
been separated from work under the DOE contract for such period as the
Head of the Contracting Activity or designee shall have directed.
(c) Management and operating contractors shall not use data
acquired from other Government agencies or private entities in the
performance of their contracts for the private purposes of the
contractor unless the agency or entity authorizes such use.
23. Revise Section 970.2706 as follows:
[[Page 15145]]
970.2706 Rights in Technical Data--Procedures.
(a) The clauses at 48 CFR 970.5204-XX and 48 CFR 970.5204-YY both
provide generally for Government ownership and for unlimited rights in
the Government for all data first produced in the performance of the
contract and unlimited rights in data specifically used in the
performance of the contract. Both clauses provide that, subject to
patent, security, and other provisions of the contract, the contractor
may use contract data for its private purposes. The contractor, under
either clause, must treat any data furnished by DOE or third parties in
accordance with any restrictive legends contained therein.
(b) Since both clauses secure access to and, if requested, delivery
of technical data used in the performance of the contract, there is
generally no need to use the Additional Technical Data Requirements
clause at FAR 52.227-16 in the management and operating contract.
(c)(1) Paragraph (d) of the clause at 48 CFR 970.5204-XX and
paragraph (f) of the clause at 48 CFR 970.5204-YY provide for the
inclusion of the Rights in Technical Data-General clause at FAR 52.227-
14, with Alternates I and V, and, as appropriate and with DOE's prior
approval, Alternates II, III, and IV, and the Additional Technical Data
Requirements clause at FAR 52.227-16 in all subcontracts for research,
development, or demonstration and all other subcontracts having special
requirements for the production or delivery of data, except in those
subcontracts, including subcontracts for related support services,
involving the design or operation of any plants or facilities or
specially designed equipment for such plants or facilities that are
managed or operated by the contractor under its contract with DOE. In
those latter subcontracts, the management and operating contractor
shall include the Rights in Data-Facilities clause at 48 CFR 970.5204-
XX.
(2) Where, however, a subcontract is to be awarded by the
management and operating contractor in connection with a program, as
discussed at 927.404-70, which provides statutory authority to protect
from public disclosure, data first produced under contracts awarded
pursuant to the program, contracting officers shall ensure that the M&O
contractor includes in that subcontract the rights in data clause
provided by DOE Patent Counsel, consistent with any accompanying
guidance.
(d) Paragraphs (e) and (f) of the clause at 48 CFR 970.5204-XX and
paragraphs (g) and (h) of the clause at 48 CFR 970.5204-YY provide for
the contractor's granting a nonexclusive license in any limited rights
data and restricted computer software specifically used in performance
of the contract.
(e) The Rights in Data-Technology Transfer clause at 48 CFR
970.5204-YY differs from the clause at 48 CFR 970.5204-XX in the
context of its more detailed treatment of copyright. In management and
operating contracts that have technology transfer as a mission, the
right to assert copyright in data first produced under the contract
will be a valuable right, and commercialization of such data, including
computer software, will assist the M&O contractor in advancing the
technology transfer mission of the contract.
(f) Contracting officers should consult with patent counsel to
assure that requirements regarding royalties and conflicts of interest
associated with asserting copyright in data first produced under the
contract are appropriately addressed in the Technology Transfer Mission
clause of the management and operating contract. Where it is not
otherwise clear which DOE contractor funded the development of a
computer software package, such as where the development was funded out
of a contractor's overhead account, the DOE program which was the
primary source of funding for the entire contract is deemed to have
administrative responsibility. This issue may arise, among others, in
the decision whether to grant the contractor permission to assert
copyright. See paragraph (e) of the Rights in Data-Technology Transfer
clause at 970.5204-YY.
(g) In management and operating contracts involving access to DOE-
owned Category C-24 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 restricted
data and technology. Alternate I to each clause shall be used where
access to Category C-24 restricted data is contemplated in the
performance of a contract.
24. Section 970.2707 is added to read as follows:
970.2707 Rights in Data Clauses.
(a) Contracting officers shall insert the clause at 48 CFR
970.5204-XX, Rights in Data-Facilities, in management and operating
contracts which do not contain the clause at 48 CFR 970.5204-40,
Technology Transfer Mission.
(b) Contracting officers shall insert the clause at 970.5204-YY,
Rights in Data-Technology Transfer, in management and operating
contracts which contain the clause at 970.5204-40, Technology Transfer
Mission.
(c) In accordance with 48 CFR 970.2706(f), in contracts where
access to Category C-24 restricted data, as set forth in 10 CFR part
725, is to be provided to contractors, Contracting Officers shall
incorporate Alternate I of the appropriate rights in data clause
prescribed in paragraph (a) or (b) of this section.
22. Subsection 970.5204-XX is added to read as follows:
970.5204-XX Rights in Data-Facilities.
Insert the following clause in the management and operating
contracts in accordance with 48 CFR 970.2707.
Rights in Data-Facilities (XXX 1997)
(a) Definitions.
(1) Computer data bases, as used in this clause, means a
collection of data in a form capable of, and for the purpose of,
being stored in, processed, and operated on by a computer. The term
does not include computer software.
(2) Computer software, as used in this clause, means (i)
computer programs which are data comprising a series of
instructions, rules, routines, or statements, regardless of the
media in which recorded, that allow or cause a computer to perform a
specific operation or series of operations and (ii) data comprising
source code listings, design details, algorithms, processes, flow
charts, formulae, and related material that would enable the
computer program to be produced, created, or compiled. The term does
not include computer data bases.
(3) Data, as used in this clause, means recorded information,
regardless of form or the media on which it may be recorded. The
term includes technical data and computer software.
(4) Limited rights data, as used in this clause, means data,
other than computer software, developed at private expense that
embody trade secrets or are commercial or financial and confidential
or privileged. The Government's rights to use, duplicate, or
disclose limited rights data are as set forth in the Limited Rights
Notice of subparagraph (e) of this clause.
(5) Restricted computer software, as used in this clause, means
computer software developed at private expense and that is a trade
secret; is commercial or financial and is confidential or
privileged; or is published copyrighted computer software, including
minor modifications of any such computer software. The Government's
rights to use, duplicate, or disclose Restricted Computer Software
are as set forth in the Restricted Rights Notice of paragraph (f) of
this clause.
(6) Technical data, as used in this clause, means recorded data,
regardless of form or characteristic, that are of a scientific or
technical nature. Technical data does not include computer software,
but does include manuals and instructional materials and technical
data formatted as a computer data
[[Page 15146]]
base. Technical data does not include data incidental to the
administration of this contract, such as financial, administrative,
cost and pricing, or management information.
(7) Unlimited rights, as used in this clause, means the rights
of the Government to use, disclose, reproduce, prepare derivative
works, distribute copies to the public, including by electronic
means, and perform publicly and display publicly, in any manner,
including by electronic means, and for any purpose whatsoever, and
to have or permit others to do so.
(b) Allocation of Rights.
(1) The Government shall have:
(i) Ownership of all technical data and computer software first
produced in the performance of this Contract;
(ii) Unlimited rights in technical data and computer software
specifically used in the performance of this Contract, except as
provided herein regarding copyright;
(iii) The right to inspect technical data and computer software
first produced or specifically used in the performance of this
Contract at all reasonable times. The Contractor shall make
available all necessary facilities to allow DOE personnel to perform
such inspection;
(iv) The right to have all technical data and computer software
first produced or specifically used in the performance of this
Contract delivered to the Government or otherwise disposed of by the
Contractor, either as the Contracting Officer may from time to time
direct during the progress of the work or in any event as the
Contracting Officer shall direct upon completion or termination of
this Contract. The Contractor agrees to leave a copy of such data at
the facility or plant to which such data relate, and to make
available for access or to deliver to the Government such data upon
request by the Contracting Officer. If such data are limited rights
data or restricted computer software, the rights of the Government
in such data shall be governed solely by the provisions of paragraph
(e) of this clause (``Rights in Limited Rights Data'') or paragraph
(f) of this clause (``Rights in Restricted Computer Software'');
(v) The right to remove, cancel, correct, or ignore any markings
not authorized by the terms of this Contract on any data furnished
hereunder if, in response to a written inquiry by DOE concerning the
propriety of the markings, the Contractor fails to respond thereto
within 60 days or fails to substantiate the propriety of the
markings. In either case DOE will notify the Contractor of the
action taken.
(2) The Contractor shall have:
(i) The right to withhold limited rights data and restricted
computer software 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, data it first
produces in the performance of this Contract, except for data in
DOE's Uranium Enrichment Technology, including diffusion,
centrifuge, and atomic vapor laser isotope separation, provided the
data requirements of this Contract have been met as of the date of
the private use of such data; and
(3) The Contractor agrees that for limited rights data or
restricted computer software or other technical, business or
financial data in the form of recorded information which it receives
from, or is given access to by, DOE or a third party, including a
DOE Contractor or subcontractor, and for technical data or computer
software it first produces under this Contract which is authorized
to be marked by DOE, the Contractor shall treat such data in
accordance with any restrictive legend contained thereon.
(c) Copyrighted Material.
(1) The Contractor shall not, without prior written
authorization of the Patent Counsel, establish a claim to statutory
copyright in any technical data first produced in the performance of
this 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 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 a license
therein for the benefit of the Government of the same scope as set
forth in paragraph (c)(1) of this clause. If the Contractor believes
that such copyrighted material for which the license cannot be
obtained 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 08347material in the technical data prior to its
delivery.
(d) Subcontracting.
(1) Unless otherwise directed by the Contracting Officer, the
Contractor agrees to use in subcontracts in which technical data is
expected to be produced or in subcontracts for supplies that contain
a requirement for production or delivery of data in accordance with
the policy and procedures of 48 CFR (FAR) subpart 27.4 as
supplemented by 48 CFR (DEAR) 927.401 through 927.409, the clause
entitled ``Rights in Data''--General at 48 CFR 52.227-14 with the
paragraph (a) of this clause substituted for paragraph (a) of that
clause and including Alternates I & V, including its use with
Alternate II through Alternate IV as may be required or authorized
pursuant to FAR 27.409. Prior to using Alternate II, Alternate III,
or Alternate IV, the Contractor shall consult with the DOE Patent
Counsel.
(2) 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:
(i) Promptly submit written notice to the Contracting Officer
setting forth reasons or the Subcontractor's refusal and other
pertinent information which may expedite disposition of the matter,
and
(ii) Not proceed with the subcontract without the written
authorization of the Contracting Officer.
(e) Rights in Limited Rights Data.
Except as may be otherwise specified in this Contract as data
which are not subject to this paragraph, the Contractor agrees to
and does hereby grant to the Government an irrevocable,
nonexclusive, paid-up license by or for the Government, in any
limited rights data of the Contractor specifically used in the
performance of this Contract, provided, however, that to the extent
that any limited rights data when furnished or delivered is
specifically identified by the Contractor at the time of initial
delivery to the Government or a representative of the Government,
such data shall not be used within or outside the Government except
as provided in the ``Limited Rights Notice'' set forth below. All
such limited rights data shall be marked with the following
``Limited Rights Notice'':
Limited Rights Notice
These data contain ``limited rights data,'' furnished under
Contract No. ________ with the United States Department of Energy
which may be duplicated and used by the Government with the express
limitations that the ``limited rights data'' 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) Use (except for manufacture) by support services contractors
within the scope of their contracts;
(b) This ``limited rights data'' may be disclosed for evaluation
purposes under the restriction that the ``limited rights data'' be
retained in confidence and not be further disclosed;
(c) This ``limited rights data'' may be disclosed to other
Contractors participating in the Government's program of which this
Contract is a part for information or use (except for manufacture)
in connection with the work performed under their contracts and
under the restriction that the ``limited rights data'' be retained
in confidence and not be further disclosed; and
(d) This ``limited rights data'' may be used by the Government
or others on its behalf for emergency repair or overhaul work under
the restriction that the ``limited rights data'' be retained in
confidence and not be further disclosed. This Notice shall be marked
on any reproduction of this data in whole or in part.
(e) Release to a foreign government, or instrumentality thereof,
as the interests of the United States Government may require, for
information or evaluation, or for emergency repair or overhaul work
by such government.
(End of Notice)
(f) Rights in Restricted Computer Software.
(1) Except as may be otherwise specified in this Contract as
data which are not subject to this paragraph, the Contractor agrees
to and does hereby grant to the Government an irrevocable,
nonexclusive, paid-up, license by or for the Government, in any
restricted computer software of the Contractor specifically used in
the performance of this Contract, provided, however, that to the
[[Page 15147]]
extent that any restricted computer software when furnished or
delivered is specifically identified by the Contractor at the time
of initial delivery to the Government or a representative of the
Government, such data shall not be used within or outside the
Government except as provided in the ``Restricted Rights Notice''
set forth below. All such restricted computer software shall be
marked with the following ``Restricted Rights Notice'':
Restricted Rights Notice--Long Form
(a) This computer software is submitted with restricted rights
under Government Contract No. ________. It may not be used,
reproduced, or disclosed by the Government except as provided in
paragraph (b) of this notice.
(b) This computer software may be:
(1) Used, or copied for use, in or with the computer or
computers for which it was acquired, including use at any Government
installation to which such computer or computers may be transferred;
(2) Used, copied for use, in a backup or replacement computer if
any computer for which it was acquired is inoperative or is
replaced;
(3) Reproduced for safekeeping (archives) or backup purposes;
(4) Modified, adapted, or combined with other computer software,
provided that only the portions of the derivative software
consisting of the restricted computer software are to be made
subject to the same restricted rights; and
(5) Disclosed to and reproduced for use by contractors under a
service contract (of the type defined in FAR 37.101) in accordance
with subparagraphs (b) (1) through (4) of this Notice, provided the
Government makes such disclosure or reproduction subject to these
restricted rights.
(c) Notwithstanding the foregoing, if this computer software has
been published under copyright, it is licensed to the Government,
without disclosure prohibitions, with the rights set forth in the
restricted rights notice above.
(d) This Notice shall be marked on any reproduction of this
computer software, in whole or in part.
(End of Notice)
(2) Where it is impractical to include the Restricted Rights
Notice on restricted computer software, the following short-form
Notice may be used in lieu thereof:
Restricted Rights Notice--Short Form
Use, reproduction, or disclosure is subject to restrictions set
forth in the Long Form Notice of Contract No. ________ with (name of
Contractor ).
(End of Notice)
(3) If the software is embedded, or if it is commercially
impractical to mark it with human readable text, then the symbol R
and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may
be used. This will be read to mean restricted computer software,
subject to the rights of the Government as described in the Long
Form Notice, in effect as of the date indicated next to the symbol.
The symbol shall not be used to mark human readable material. In the
event this Contract contains any variation to the rights in the Long
Form Notice, then the contract number must also be cited.
(4) If restricted rights computer software is delivered with the
copyright notice of 17 U.S.C. 401, the software will be presumed to
be published copyrighted computer software licensed to the
Government without disclosure prohibitions, unlimited rights, unless
the Contractor includes the following statement with such copyright
notice ``Unpublished--rights reserved under the Copyright Laws of
the United States.''
(g) Relationship to patents.
Nothing contained in this clause creates or is intended to imply
a license to the Government in any patent or is intended to be
construed as affecting the scope of any licenses or other rights
otherwise granted to the Government under any patent.
(End of Clause)
Alternate I (XXX 1997)
In accordance with 48 CFR 970.2706(f), insert the parenthetical
phrase ``(except Restricted Data in category C-24, 10 CFR part 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)'' after ``technical data'' in
paragraph (b)(2)(ii) of the clause at 48 CFR 970.5204-XX, as
appropriate.
(End of Alternate)
26. Subsection 970.5204-YY is added to read as follows:
970.5204-YY Rights in Data-Technology Transfer.
Insert the following clause in management and operating contracts
in accordance with 48 CFR 970.2707.
Rights in Data-Technology Transfer (XXX 1997)
(a) Definitions.
(1) Computer data bases, as used in this clause, means a
collection of data in a form capable of, and for the purpose of,
being stored in, processed, and operated on by a computer. The term
does not include computer software.
(2) Computer software, as used in this clause, means (i)
computer programs which are data comprising a series of
instructions, rules, routines, or statements, regardless of the
media in which recorded, that allow or cause a computer to perform a
specific operation or series of operations and (ii) data comprising
source code listings, design details, algorithms, processes, flow
charts, formulae, and related material that would enable the
computer program to be produced, created, or compiled. The term does
not include computer data bases.
(3) Data, as used in this clause, means recorded information,
regardless of form or the media on which it may be recorded. The
term includes technical data and computer software.
(4) Limited rights data, as used in this clause, means data,
other than computer software, developed at private expense that
embody trade secrets or are commercial or financial and confidential
or privileged. The Government's rights to use, duplicate, or
disclose limited rights data are as set forth in the Limited Rights
Notice of paragraph (g) of this clause.
(5) Restricted computer software, as used in this clause, means
computer software developed at private expense and that is a trade
secret; is commercial or financial and is confidential or
privileged; or is published copyrighted computer software, including
minor modifications of any such computer software. The Government's
rights to use, duplicate, or disclose Restricted Computer Software
are as set forth in the Restricted Rights Notice of subparagraph (h)
of this clause.
(6) Technical data, as used in this clause, means recorded data,
regardless of form or characteristic, that are of a scientific or
technical nature. Technical data does not include computer software,
but does include manuals and instructional materials and technical
data formatted as a computer data base. Technical data does not
include data incidental to the administration of this contract, such
as financial, administrative, cost and pricing, or management
information.
(7) Unlimited rights, as used in this clause, means the rights
of the Government to use, disclose, reproduce, prepare derivative
works, distribute copies to the public, including by electronic
means, and perform publicly and display publicly, in any manner,
including by electronic means, and for any purpose whatsoever, and
to have or permit others to do so.
(b) Allocation of Rights.
(1) The Government shall have:
(i) Ownership of all technical data and computer software first
produced in the performance of this Contract;
(ii) Unlimited rights in technical data and computer software
specifically used in the performance of this Contract, except as
provided herein regarding copyright, subject to the withholding
provisions for protected CRADA information in accordance with
Technology Transfer actions under this Contract;
(iii) The right to inspect technical data and computer software
first produced or specifically used in the performance of this
Contract at all reasonable times. The Contractor shall make
available all necessary facilities to allow DOE personnel to perform
such inspection;
(iv) The right to have all technical data and computer software
first produced or specifically used in the performance of this
Contract delivered to the Government or otherwise disposed of by the
Contractor, either as the Contracting Officer may from time to time
direct during the progress of the work or in any event as the
Contracting Officer shall direct upon completion or termination of
this Contract. The Contractor agrees to leave a copy of such data at
the facility or plant to which such data relate, and to make
available for access or to deliver to the Government such data upon
request by the Contracting Officer. If such data are limited rights
data or restricted computer software the rights of the Government in
such data shall be governed solely by the provisions of paragraph
(e) of this clause (``Rights in Limited Rights Data'') or
[[Page 15148]]
paragraph (f) of this clause (``Rights in Restricted Computer
Software'');
(v) The right to remove, cancel, correct, or ignore any markings
not authorized by the terms of this Contract on any data furnished
hereunder if, in response to a written inquiry by DOE concerning the
propriety of the markings, the Contractor fails to respond thereto
within 60 days or fails to substantiate the propriety of the
markings. In either case DOE will notify the Contractor of the
action taken.
(2) The Contractor shall have:
(i) The right to withhold limited rights data and restricted
computer software 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, data it first
produces in the performance of this Contract, except for data in
DOE's Uranium Enrichment Technology, including diffusion,
centrifuge, and atomic vapor laser isotope separation, provided the
data requirements of this Contract have been met as of the date of
the private use of such data; and
(iii) The right to assert copyright subsisting in scientific and
technical articles as provided in paragraph (d) of this clause and
the right to request permission to assert copyright subsisting in
works other than scientific and technical articles as provided in
paragraph (e) of this clause.
(3) The Contractor agrees that for limited rights data or
restricted computer software or other technical, business or
financial data in the form of recorded information which it receives
from, or is given access to by, DOE or a third party, including a
DOE Contractor or subcontractor, and for technical data or computer
software it first produces under this Contract which is authorized
to be marked by DOE, the Contractor shall treat such data in
accordance with any restrictive legend contained thereon.
(c) Copyright (General).
(1) The Contractor agrees not to mark, register, or otherwise
assert copyright in any data in a published or unpublished work,
other than as set forth in paragraphs (d) and (e) of this clause.
(2) Except for material to which the Contractor has obtained the
right to assert copyright in accordance with either paragraph (d) or
(e) of this clause, the Contractor agrees not to include in the data
delivered under this 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 a license
therein for the benefit of the Government of the same scope as set
forth in paragraph (d) of this clause below. If the Contractor
believes that such copyrighted material for which the license cannot
be obtained must be included in the 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 material in the data prior to its delivery.
(d) Copyrighted works (scientific and technical articles).
(1) The Contractor shall have the right to assert, without prior
approval of the Contracting Officer, copyright subsisting in
scientific and technical articles composed under this contract or
based on or containing data first produced in the performance of
this Contract, and published in academic, technical or professional
journals, symposia, proceedings, or similar works. When assertion of
copyright is made, the Contractor shall affix the applicable
copyright notice of 17 U.S.C. 401 or 402 and acknowledgement of
Government sponsorship (including contract number) on the data when
such data are delivered to the Government as well as when the data
are published or deposited for registration as a published work in
the U.S. Copyright Office. The Contractor grants to the Government,
and others acting on its behalf, a paid-up, nonexclusive,
irrevocable worldwide license in such copyrighted data to reproduce,
prepare derivative works, distribute copies to the public, and
perform publicly and display publicly, by or on behalf of the
Government.
(2) The contractor shall mark each scientific or technical
article first produced or composed under this contract and submitted
for journal publication with a notice, similar in all material
respects to the following, on the front reflecting the Government's
non-exclusive, royalty free, world-wide license in the copyright.
This manuscript has been authored by [insert the name of the
contractor] under contract no. [insert the contract number] with the
U.S. Department of Energy. The United States Government retains and
the publisher, by accepting the article for publication,
acknowledges that the United States Government retains a non-
exclusive, royalty-free, world-wide license to publish or reproduce
the published form of this manuscript, or allow other to do so, for
United States Government purposes.
(End of notice)
(3) The title to the original of unclassified graduate theses
and the original of related unclassified scientific papers shall
vest in the author thereof, subject to the right of DOE to retain
duplicates of such documents and to use such documents for any
purpose whatsoever without any claim on the part of the author or
the contractor for additional compensation.
(e) Copyrighted works (other than scientific and technical
articles).
The Contractor may obtain permission to assert copyright
subsisting in technical data and computer software first produced by
the Contractor in performance of this Contract, where the Contractor
can show that commercialization would be enhanced by such copyright
protection, subject to the following:
(1) Contractor Request to Assert Copyright.
(i) For data other than scientific and technical articles, the
Contractor shall submit in writing to Patent Counsel its request to
assert copyright in data first produced in the performance of this
Contract pursuant to this clause. Each request by the Contractor
must include:
(A) the identity of the data (including any computer program)
for which the Contractor requests permission to assert copyright, as
well as an abstract which is descriptive of the data and is suitable
for dissemination purposes, (B) the program under which it was
funded, (C) whether the data is subject to an international treaty
or agreement, (D) whether the data is subject to export control, (E)
a statement that the Contractor plans to commercialize the data in
compliance with the clause of this contract entitled ``Technology
Transfer Mission,'' within five (5) years after obtaining permission
to assert copyright, and (F) for data other than computer software,
a statement explaining why the assertion of copyright is necessary
to enhance commercialization. For data that is developed using other
funding sources in addition to DOE funding, the permission to assert
copyright in accordance with this clause must also be obtained by
the Contractor from all other funding sources prior to the
Contractor's request to Patent Counsel. The request shall include
the Contractor's certification or other documentation acceptable to
Patent Counsel demonstrating such permission has been obtained.
(ii) Permission for the Contractor to assert copyright in
excepted categories of data as determined by DOE will be expressly
withheld. Such excepted categories include data whose release (A)
would be detrimental to national security, i.e., involve classified
information or data or sensitive information under Section 148 of
the Atomic Energy Act of 1954, as amended, or are subject to export
control for nonproliferation and other nuclear-related national
security purposes, (B) would not enhance the appropriate transfer or
dissemination and commercialization of such data, (C) would have a
negative impact on U.S. industrial competitiveness, (D) would
prevent DOE from meeting its obligations under treaties and
international agreements, or (E) would be detrimental to one or more
of DOE's programs. Additional excepted categories may be added by
the Assistant General Counsel for Intellectual Property where data
are determined to be subject to export controls. In addition,
notwithstanding any other provision of this Contract, all data
developed with Naval Reactors' funding and those data that are
classified fall within excepted categories. Additionally, the rights
of the Contractor in data are subject to the disposition of data
rights in the treaties and international agreements identified under
this Contract as well as those additional treaties and international
agreements which DOE may from time to time identify by unilateral
amendment to the Contract; such amendment listing added treaties and
international agreements is effective only for data which is
developed after the date such treaty or international agreement is
added to this Contract. Also, the Contractor will not be permitted
to assert copyright in data in the form of various technical reports
generated by the Contractor under the Contract without first
obtaining the advanced written permission of the Contracting
Officer.
(2) DOE Review and Response to Contractor's Request. The Patent
Counsel shall use its best efforts to respond in writing within 90
days of receipt of a complete request by the Contractor to assert
copyright in technical data and computer software
[[Page 15149]]
pursuant to this clause. Such response shall either give or withhold
DOE's permission for the Contractor to assert copyright or advise
the Contractor that DOE needs additional time to respond and the
reasons therefor.
(3) Permission for Contractor to Assert Copyright.
(i) For computer software, the Contractor shall furnish to a DOE
designated, centralized software distribution and control point, at
the time permission to assert copyright is given under paragraph
(e)(2) of this clause: (A) an abstract describing the software
suitable for publication, (B) the source code for each software
program, and (C) the object code and at least the minimum support
documentation needed by a technically competent user to understand
and use the software. The Patent Counsel, for good cause shown by
the Contractor, may allow the minimum support documentation to be
delivered within 60 days after permission to assert copyright is
given or at such time the minimum support documentation becomes
available. The Contractor acknowledges that the DOE designated
software distribution and control point may provide a technical
description of the software in an announcement identifying its
availability from the copyright holder.
(ii) Unless otherwise directed by the Contracting Officer, for
data other than computer software to which the Contractor has
received permission to assert copyright under paragraph (e)(2) of
this clause above, the Contractor shall within sixty (60) days of
obtaining such permission furnish to DOE's Office of Scientific and
Technical Information (OSTI) a copy of such data as well as an
abstract of the data suitable for dissemination purposes. The
Contractor acknowledges that OSTI may provide an abstract of the
data in an announcement to DOE, its contractors and to the public
identifying its availability from the copyright holder.
(iii) For a period of five (5) years beginning on the date the
Contractor is given permission to assert copyright in data, the
Contractor grants to the Government, and others acting on its
behalf, a paid-up, nonexclusive, irrevocable worldwide license in
such copyrighted data to reproduce, prepare derivative works and
perform publicly and display publicly, by or on behalf of the
Government. Subject to DOE approval, the five-year period for
assertion of copyright is renewable for successive five year
periods. The DOE approval will be based on the standard that the
work is still commercially available and the market demand is being
met.
(iv) After the authorized five (5) year period, or successive
five year period(s) for assertion of copyright by the contractor as
described in paragraph (e)(3)(iii) of this clause, or if, prior to
the end of such period(s), the Contractor abandons commercialization
activities pertaining to the data to which the Contractor has been
given permission to assert copyright, the Contractor grants to the
Government, and others acting on its behalf, a paid-up,
nonexclusive, irrevocable worldwide license in such copyrighted data
to reproduce, distribute copies to the public, prepare derivative
works, perform publicly and display publicly, and to permit others
to do so.
(v) Whenever the Contractor asserts copyright in data pursuant
to this paragraph (e), the Contractor shall affix the applicable
copyright notice of 17 U.S.C. 401 or 402 on the copyrighted data and
also an acknowledgement of the Government sponsorship and license
rights of paragraphs (e)(3) (iii) and (iv) of this clause. Such
action shall be taken when the data are delivered to the Government,
published, licensed or deposited for registration as a published
work in the U.S Copyright Office. The acknowledgement of Government
sponsorship and license rights shall be as follows:
NOTICE: These data were produced under Contract No.________ with
the Department of Energy. The Government is granted for itself and
others acting on its behalf a paid-up, nonexclusive, irrevocable
worldwide license in this data to reproduce, prepare derivative
works, and perform publicly and display publicly. Beginning five (5)
years after (date permission to assert copyright was obtained), the
Government is granted for itself and others acting on its behalf a
paid-up, nonexclusive, irrevocable worldwide license in this data to
reproduce, prepare derivative works, distribute copies to the
public, perform publicly and display publicly, and to permit others
to do so. The initial five year period may have been extended for
successive periods of five years, thereby allowing the contractor to
assert its copyright for that additional period. However, prior to
the expiration of the initial and any successive five year period,
the conditions underlying the permission to assert copyright might
have been violated, denying the contractor the right to assert the
copyright. NEITHER THE UNITED STATES NOR THE UNITED STATES
DEPARTMENT OF ENERGY, NOR ANY OF THEIR EMPLOYEES, MAKES ANY
WARRANTY, EXPRESS OR IMPLIED, OR ASSUMES ANY LEGAL LIABILITY OR
RESPONSIBILITY FOR THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY
INFORMATION, APPARATUS, PRODUCT, OR PROCESS DISCLOSED, OR REPRESENTS
THAT ITS USE WOULD NOT INFRINGE PRIVATELY OWNED RIGHTS.
(End of Notice)
(vi) With respect to any data to which the Contractor has
received permission to assert copyright, the DOE has the right,
during the 5 year period or successive five year period set forth in
subparagraph (e)(1)(i) of this clause, to request the Contractor to
grant a nonexclusive, partially exclusive or exclusive license in
any field of use to a responsible applicant(s) upon terms that are
reasonable under the circumstances, and if the Contractor refuses
such request, to grant such license itself, if the DOE determines
that the Contractor has not made a satisfactory demonstration that
either it or its licensee(s) is actively pursuing commercialization
of the data as set forth in subparagraph (e)(1)(A) of this clause.
Before licensing under this subparagraph (vi), DOE shall furnish the
Contractor a written request for the Contractor to grant the stated
license, and the Contractor shall be allowed thirty (30) days (or
such longer period as may be authorized by the Contracting Officer
for good cause shown in writing by the Contractor) after such notice
to show cause why the license should not be granted. The Contractor
shall have the right to appeal the decision of the DOE to grant the
stated license to the Invention Licensing Appeal Board as set forth
in 10 CFR 781.65--``Appeals''.
(vii) No costs shall be allowable for maintenance of copyrighted
data, primarily for the benefit of the Contractor and/or a licensee
and which exceeds DOE Program needs, except as expressly provided in
writing by the Contracting Officer. The Contractor may use its net
royalty income to effect such maintenance costs.
(viii) At any time the Contractor abandons commercialization
activities for data for which the Contractor has received permission
to assert copyright in accordance with this clause, it shall advise
OSTI and Patent Counsel and upon request assign the copyright to the
Government so that the Government can distribute the data to the
public.
(4) The following notice may be placed on the software prior to
any publication and prior to the Contractor's obtaining permission
from the Department of Energy to assert copyright in the software
pursuant to paragraph (c)(3) of this section.
NOTICE
This program was prepared by [Insert the Contractor's name and
the individual author], hereinafter the Contractor, under Contract
[Insert the Contract Number] with the Department of Energy (DOE).
All rights in the program are reserved by DOE on behalf of the
United States Government and the Contractor as provided in the
contract. You are authorized to use this program for Governmental
purposes but it is not to be released or distributed to the public.
Neither the Government nor the Contractor makes any warranty,
express or implied, or assumes any liability or responsibility for
the use of this software. This notice including this sentence must
appear on any copies of this program.
(End of Notice)
(f) Subcontracting.
(1) Unless otherwise directed by the Contracting Officer, the
Contractor agrees to use in subcontracts in which technical data is
expected to be produced or in subcontracts for supplies that contain
a requirement for production or delivery of data in accordance with
the policy and procedures of 48 CFR (FAR) subpart 27.4 as
supplemented by 48 CFR (DEAR) 927.401 through 927.409, the clause
entitled ``Rights in Data--General'' at 48 CFR 52.227-14 with the
paragraph (a) of this clause substituted for paragraph (a) of that
clause and including Alternates I & V, including its use with
Alternate II through Alternate IV as may be required or authorized
pursuant to 48 CFR 27.409. Prior to using Alternate II, Alternate
III, or Alternate IV, the Contractor shall consult with the DOE
Patent Counsel.
(2) 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
[[Page 15150]]
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:
(i) Promptly submit written notice to the Contracting Officer
setting forth reasons or the Subcontractor's refusal and other
pertinent information which may expedite disposition of the matter,
and
(ii) Not proceed with the subcontract without the written
authorization of the Contracting Officer.
(g) Rights in Limited Rights Data.
Except as may be otherwise specified in this Contract as data
which are not subject to this paragraph, the Contractor agrees to
and does hereby grant to the Government an irrevocable,
nonexclusive, paid-up license by or for the Government, in any
limited rights data of the Contractor specifically used in the
performance of this Contract, provided, however, that to the extent
that any limited rights data when furnished or delivered is
specifically identified by the Contractor at the time of initial
delivery to the Government or a representative of the Government,
such data shall not be used within or outside the Government except
as provided in the ``Limited Rights Notice'' set forth below. All
such limited rights data shall be marked with the following
``Limited Rights Notice'':
Limited Rights Notice
These data contain ``limited rights data,'' furnished under
Contract No. ________ with the United States Department of Energy
which may be duplicated and used by the Government with the express
limitations that the ``limited rights data'' 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) Use (except for manufacture) by support services contractors
within the scope of their contracts;
(b) This ``limited rights data'' may be disclosed for evaluation
purposes under the restriction that the ``limited rights data'' be
retained in confidence and not be further disclosed;
(c) This ``limited rights data'' may be disclosed to other
Contractors participating in the Government's program of which this
Contract is a part for information or use (except for manufacture)
in connection with the work performed under their contracts and
under the restriction that the ``limited rights data'' be retained
in confidence and not be further disclosed; and
(d) This ``limited rights data'' may be used by the Government
or others on its behalf for emergency repair or overhaul work under
the restriction that the ``limited rights data'' be retained in
confidence and not be further disclosed. This Notice shall be marked
on any reproduction of this data in whole or in part.
(e) Release to a foreign government, or instrumentality thereof,
as the interests of the United States Government may require, for
information or evaluation, or for emergency repair or overhaul work
by such government.
(End of Notice)
(h) Rights in Restricted Computer Software.
(1) Except as may be otherwise specified in this Contract as
data which are not subject to this paragraph, the Contractor agrees
to and does hereby grant to the Government an irrevocable,
nonexclusive, paid-up, license by or for the Government, in any
restricted computer software of the Contractor specifically used in
the performance of this Contract, provided, however, that to the
extent that any restricted computer software when furnished or
delivered is specifically identified by the Contractor at the time
of initial delivery to the Government or a representative of the
Government, such data shall not be used within or outside the
Government except as provided in the ``Restricted Rights Notice''
set forth below. All such restricted computer software shall be
marked with the following ``Restricted Rights Notice'':
Restricted Rights Notice-Long Form
(a) This computer software is submitted with restricted rights
under Government Contract No. ________. It may not be used,
reproduced, or disclosed by the Government except as provided in
paragraph (b) of this notice.
(b) This computer software may be:
(1) Used, or copied for use, in or with the computer or
computers for which it was acquired, including use at any Government
installation to which such computer or computers may be transferred;
(2) Used, copied for use, in a backup or replacement computer if
any computer for which it was acquired is inoperative or is
replaced;
(3) Reproduced for safekeeping (archives) or backup purposes;
(4) Modified, adapted, or combined with other computer software,
provided that only the portions of the derivative software
consisting of the restricted computer software are to be made
subject to the same restricted rights; and
(5) Disclosed to and reproduced for use by contractors under a
service contract (of the type defined in FAR 37.101) in accordance
with subparagraphs (b)(1) through (4) of this Notice, provided the
Government makes such disclosure or reproduction subject to these
restricted rights.
(c) Notwithstanding the foregoing, if this computer software has
been published under copyright, it is licensed to the Government,
without disclosure prohibitions, with the rights set forth in the
restricted rights notice above.
(d) This Notice shall be marked on any reproduction of this
computer software, in whole or in part.
(End of Notice)
(2) Where it is impractical to include the Restricted Rights
Notice on restricted computer software, the following short-form
Notice may be used in lieu thereof:
Restricted Rights Notice--Short Form
Use, reproduction, or disclosure is subject to restrictions set
forth in the Long Form Notice of Contract No. ________ with (name of
Contractor).
(End of Notice)
(3) If the software is embedded, or if it is commercially
impractical to mark it with human readable text, then the symbol R
and the clause date (mo/yr) in brackets or a box, a [R-mo/yr], may
be used. This will be read to mean restricted computer software,
subject to the rights of the Government as described in the Long
Form Notice, in effect as of the date indicated next to the symbol.
The symbol shall not be used to mark human readable material. In the
event this Contract contains any variation to the rights in the Long
Form Notice, then the contract number must also be cited.
(4) If restricted rights computer software is delivered with the
copyright notice of 17 U.S.C. 401, the software will be presumed to
be published copyrighted computer software licensed to the
Government without disclosure prohibitions, unlimited rights, unless
the Contractor includes the following statement with such copyright
notice ``Unpublished-rights reserved under the Copyright Laws of the
United States.''
(i) Relationship to patents.
Nothing contained in this clause creates or is intended to imply
a license to the Government in any patent or is intended to be
construed as affecting the scope of any licenses or other rights
otherwise granted to the Government under any patent.
(End of Clause)
Alternate I (XXX 1996): In accordance with 970.2706(f), insert
the parenthetical phrase ``(except Restricted Data in category C-24,
10 CFR part 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)'' after
``technical data'' in paragraph (b)(2)(ii) of the clause at
970.5204-44, as appropriate.
(End of Alternate)
[FR Doc. 97-7327 Filed 3-28-97; 8:45 am]
BILLING CODE 6450-01-P
