27.  RIGHTS IN DATA - SBIR/STTR PROGRAM.

a.  Definitions.

“Computer software” as used in this term, means computer programs, computer databases, and documentation thereof.

"Data" as used in this term, means recorded information, regardless of form or the media on which it may be recorded.  The "Data" includes technical data and computer software.  The "Data" does not include information incidental to grant administration, such as financial, administrative, cost or pricing or management information.

“Form, fit and function data" as used in this term, means data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability as well as data identifying source, size, configuration, matching and attachment characteristics, functional characteristics, and performance requirements except that for computer software it means data identifying source, functional characteristics, and performance requirements, but specifically excludes the source code, algorithm, process, formulae, and flow charts of the software.

“Limited rights data” as used in this term, means data (other than computer software) developed at private expense that embody trade secrets or are commercial or financial and confidential or privileged.

“Restricted computer software” as used in this term, means computer software developed at private expense and that is a trade secret; is commercial or financial and confidential or privileged; or is published copyrighted computer software; including modifications of such computer software.

“SBIR/STTR data” as used in this term, means data first produced by a grantee that is a small business firm in performance of a small business innovation research grant issued under the authority of 15 U.S.C. 631 (Pub. L. 102-564, Small Business Research and Development Enhancement Act of 1992), which data are not generally known, and which data without obligation to its confidentiality have not been made available to others by the grantee or are not already available to the Government.

“SBIR/STTR rights” as used in this term, means the rights in SBIR/STTR data set forth in the SBIR/STTR Rights Notice of paragraph d. of this term.

“Technical data” as used in this term, means that data which are of a scientific or technical nature.

“Unlimited rights” as used in this term, means the right of the Government to use, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose whatsoever, and to have or permit others to do so.

  b.  Allocation of Rights.

          (1) Except as provided in paragraph c. of this term regarding copyright, the Government shall have unlimited rights in -

(a) Data specifically identified in this grant as data to be delivered without restriction;

(b) Form, fit, and function data delivered under this grant;

(c) Data delivered under this grant (except for restricted computer software) that constitute manuals or instructional and training material for installation, operation, or routine maintenance and repair of items, components, or processes delivered or furnished for use under this grant; and

(d) All other data delivered under this grant unless provided otherwise for SBIR/STTR data in accordance with paragraph d. of this term or for limited rights data or restricted computer software in accordance with paragraph g. of this term.

          (2) The grantee shall have the right to -

  (a) Protect SBIR/STTR rights in SBIR/STTR data delivered under this grant in the manner and to the extent provided in paragraph d. of this term.

  (b) Withhold from delivery those data which are limited rights data or restricted computer software to the extent provided in paragraph g. of this term.

 (c) Substantiate use of, add, or correct SBIRSTTR rights of copyright notices and to take other appropriate actions, in accordance with paragraph e. of this term; and

  (d) Establish claim to copyright subsisting in data first produced in the performance of this grant to the extent provided in subparagraph c. (1) of this term.

c.  Copyrights.

(1)  Data first produced in the performance of this grant.  Except as otherwise specifically provided in this grant, the grantee may establish claim to copyright subsisting in any data first produced in the performance of this grant.  If claim to copyright is made, the grantee shall affix the applicable copyright notice of 17 U.S.C. 401 and 402 and acknowledgment of Government sponsorship (including grant number) to the data when such data are delivered to the Government, as well as when the data are published or deposited for registration as published work in the U.S. Copyright Office.  For data other than computer software the grantee grants to the Government, and others acting on its behalf, a paid-up nonexclusive, irrevocable worldwide license to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government for all such data.  For computer software, the grantee grants to the Government, and others acting on its behalf, a paid-up nonexclusive, irrevocable worldwide license for all such computer software to reproduce, prepare derivative works, and perform publicly and display publicly, by or on behalf of the Government.

(2) Data not first produced in the performance of this grant.  The grantee shall not, without prior written permission of the Contracting Officer, incorporate in data delivered under this grant; and that contain the copyright notice of 17 U.S.C. 401 and 402, unless the grantee identifies such data and grants to the Government, or acquires on its behalf, a license of the same scope as set forth in subparagraph c. (1) of this term.

(3) Removal of copyright notices.  The Government agrees not to remove any copyright notices placed on data pursuant to this paragraph c., and to include such notices on all reproductions of the data.

d.  Rights to SBIR/STTR Data.

          (1) The grantee is authorized to affix the following  SBIR/STTR Rights Notice to SBIR/STTR data delivered under this grant and the Government will thereafter treat the data, subject to the provisions of paragraphs e. and f. of this term, in accordance with such Notice:

 

 SBIR/STTR RIGHTS NOTICE

 

These SBIR/STTR data are furnished with SBIR/STTR rights under Grant No.___________ (and subcontract ______________  if appropriate).  For a period of 4 years after acceptance of all items to be delivered under this grant, the Government agrees to use these data for Government purposes only, and they shall not be disclosed outside the Government (including disclosure for procurement purposes) during such period without permission of the grantee, except that, subject to the foregoing use and disclosure prohibitions, such data may be disclosed for use by support contractors.  After the aforesaid 4-year period the Government has a royalty-free license to use, and to authorize others to use on its behalf, these data for Government purposes, but is relieved of all disclosure prohibitions and assumes no liability for unauthorized use of these data by third parties.  This Notice shall be affixed to any reproductions of these data in whole or in part.

 

(End of Notice)

 

          (2) The Government’s sole obligation with respect to any SBIR/STTR data shall be as set forth in this paragraph d.

 

  e.  Omitted or Incorrect Markings.

 

          (1) Data delivered to the Government without any notice authorized by paragraph d. of this term, and without a copyright notice, shall be deemed to have been furnished with unlimited rights, and the Government assumes no liability for the disclosure, use, or reproduction of such data.  However, to the extent the data have not been disclosed without restriction outside the Government, the grantee may request within six months (or a longer time approved by the Contracting Officer for good cause shown) after delivery of such data, permission to have notices placed on qualifying data at the grantee’s expense, and the Contracting Officer may agree to do so if the grantee –

               (a) Identifies the data to which the omitted notice is to be applied;

               (b) Demonstrates that the omission of the notice was inadvertent;

               (c) establishes that the use of the proposed notice is authorized; and

               (d) Acknowledges that the Government has no liability with respect to the disclosure or use of any such data made prior to the addition of the notice or resulting from the omission of the notice.

          (2) The Contracting Officer may also (a) permit correction, at the grantee's expense, of incorrect notices if the grantee identifies the data on which correction of the notice is to be made and demonstrates that the correct notice is authorized, or (b) correct any incorrect notices.

f.  Protection of Limited Rights Data. When data other than that listed in subdivisions b.(1)(a), (b), and (c) of this term are specified to be delivered under this grant and such data qualify as either limited rights data or restricted computer software, the grantee, if the grantee desires to continue protection of such data, shall withhold such data and not furnish them to the Government under this grant.  As a condition to this withholding the grantee shall identify the data being withheld and furnish form, fit, and function data in lieu thereof.

g.  Contracts and Subgrants under the Grant.  The grantee has the responsibility to obtain from its contractors and subgrantees all data and rights therein necessary to fulfill the grantee's obligations to the Government under this grant.  If a contractor or subgrantee refuses to accept terms affording the Government such rights, the grantee shall promptly bring such refusal to the attention of the Contracting Officer and not proceed with contract or subgrant award without further authorization.

h.  Relationship to Patents.  Nothing contained in this term shall imply a license to the Government under any patent or be construed as affecting the scope of any license or other right otherwise granted to the Government.