[Federal Register Volume 78, Number 216 (Thursday, November 7, 2013)]
[Proposed Rules]
[Pages 66865-66885]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-24607]


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DEPARTMENT OF ENERGY

48 CFR Parts 927, 952 and 970

RIN 1991-AB82


Acquisition Regulation: Patents, Data, and Copyrights

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) is proposing to amend the

[[Page 66866]]

Department of Energy Acquisition Regulation (DEAR) to make changes to 
conform to the Federal Acquisition Regulation (FAR). This proposed 
revision will also update, clarify and streamline text in certain DOE 
intellectual property and technology transfer clauses in order to 
benefit from several years of experience under the existing clauses, 
and, where necessary, make these DOE clauses consistent with recent 
changes to the FAR.

DATES: Written comments on the proposed rulemaking must be received on 
or before close of business December 9, 2013.

ADDRESSES: You may submit comments, identified by ``DEAR: Patents, 
Data, and Copyrights and RIN 1991-AB82,'' by any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email to: DEARrulemaking@hq.doe.gov. Include DEAR: 
Patents, Data, and Copyrights and RIN 1991-AB82 in the subject line of 
the message.
     Mail to: U.S. Department of Energy, Office of Acquisition 
and Project Management, MA-611, 1000 Independence Avenue SW., 
Washington, DC 20585. Comments by email are encouraged.

FOR FURTHER INFORMATION CONTACT: Sharon Archer, (202) 287-1739 or 
Sharon.Archer@hq.doe.gov.

SUPPLEMENTARY INFORMATION:
I. Background
II. Section-by-Section Analysis
III. Procedural Requirements:
    A. Review Under Executive Orders 12866 and 13563
    B. Review Under Executive Order 12988
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under the National Environmental Policy Act
    F. Review Under Executive Order 13132
    G. Review Under the Unfunded Mandates Reform Act of 1995
    H. Review Under the Treasury and General Government 
Appropriations Act, 1999
    I. Review Under Executive Order 13211
    J. Review Under the Treasury and General Government 
Appropriations Act, 2001
    K. Approval by the Office of the Secretary of Energy

I. Background

    The purpose of this rulemaking is to update and improve certain DOE 
intellectual property and technology transfer texts and clauses in 
order to benefit from several years of experience under the existing 
clauses; to make, where necessary, said texts and clauses consistent 
with recent changes to FAR Part 27 (72 FR 63045, November 7, 2007); and 
to make technical and grammatical changes to these sections as 
necessary. The proposed changes affect DOE, which includes the National 
Nuclear Security Administration (NNSA), as well as DOE contractors, 
which include both DOE and NNSA contractors, as well as DOE and NNSA 
Management and Operating (M&O) contractors.
    Today's proposed rule does not alter substantive rights or 
obligations under current law. The proposed changes include policy 
revisions for computer software developed under DOE contracts, and 
amend guidance regarding technology transfers to foreign entities, 
trademarks associated with laboratory activities, and background 
technology rights under DOE contracts as follows:

1. Computer Software

    DOE's existing Rights in Technical Data-Technology Transfer clause 
at 970.5227-2 provides mechanisms by which computer software first 
produced by a DOE contractor may be made available to the public. DOE 
program officers and contractors have begun utilizing an additional 
mechanism by which software may be disseminated, a mechanism commonly 
referred to as open source software licensing. Open source software is 
software bearing an assertion of copyright (usually a copyright 
notice), and occasionally, a trademark in the name of the software. DOE 
has developed internal interim guidance by which open source software 
licensing may be conducted by DOE contractors. It is the intention of 
this proposed regulation to recognize the utility of open source 
software licensing as another tool that may be chosen by DOE 
contractors to disseminate DOE-sponsored software, and to specify the 
conditions under which DOE contractors may choose to copyright and 
license software as open source. These changes are set forth in this 
rulemaking, primarily at 48 CFR 970.5227-2 (f).

2. Trademarks

    This proposed rulemaking adds, to 970.5227-3, Technology Transfer 
Mission, a paragraph (a)(3) set forth below, regarding DOE trademark 
policy. Paragraph (a)(3) affirms that the Laboratory names and logos 
are owned by DOE and therefore any Contractor desiring to assert 
trademark or service mark protection for any word, phrase, symbol, 
design, or combination thereof that includes or is associated with the 
Laboratory name, must first notify the DOE Patent Counsel.

3. Technology Transfer to Foreign Entities

    The existing Technology Transfer Mission clause at 970.5227-3 
reflects a policy choice made by DOE to address transactions with 
organizations owned or controlled by foreign entities. The clause is 
being modified to make it clear to DOE contractors and the public that 
consultation of publicly-available United States Trade Representative 
(USTR) information, such as the information on their Web site rather 
than direct consultation with the USTR may satisfactorily address 
requirements under the clause. This modified guidance is set forth in 
this proposed rulemaking primarily at 970.5227-3 (f)(1)(ii)(C).

4. Weapons Related Inventions

    DOE believes that the existing definition of ``weapons related 
subject invention'', included in appropriate contracts, needs to be 
renumbered, and procedures for allocation of rights to such inventions 
need to be clarified. These changes, and other minor modifications, are 
reflected in the amended Patent Rights clause of 970.5227-12.

5. Background Technology Rights

    DOE proposes modifying the DEAR at 927.302 to conform to the 
standards for inclusion of background rights clauses set forth in 10 
CFR 600.325, Copyright Assignment to Government. Additionally, 
circumstances may arise where DOE would like to take ownership of 
copyright in data first produced under a DOE contract by a DOE 
contractor. Although the Rights-in Data--Special Works clause of FAR 
52.227-17 provides for this, it does so in limited special 
circumstances. DOE proposes an amendment to all DOE Rights in Technical 
Data clauses, including 927.409, 970.5227-1(c)(3) and 970.5227-2(c)(3), 
to provide for that possibility in other circumstances, as may be 
needed to support specific DOE programs, or in furtherance of DOE 
mission requirements.

II. Section-by-Section Analysis

    DOE proposes to amend the DEAR as follows:

PART 927--PATENTS, DATA, AND COPYRIGHTS

    1. Section 927.302 is redesignated as 927.302-70, and is amended by 
removing language that is not needed for the DEAR and adding language 
to clarify that in certain rare instances, DOE can acquire rights to 
background intellectual property and data, with the Program's written 
approval.

[[Page 66867]]

    2. Section 927.303(a)(2) is amended by revising the language to 
reflect updates in patent law such as provisional applications, under 
FAR 52.227-11.
    3. Section 927.303(a)(3) is amended by adding language to allow 
flexibility in cleanup projects and where smaller facilities are being 
built or operated on behalf of DOE.
    4. Section 927.303(b) is amended to provide contracting officers 
with guidance on procedures to follow when DOE grants a waiver for 
specific inventions.
    5. Section 927.402-1 has been removed and the language under 
paragraph (1)(a) has been moved to new section 927.403-70-1 under 
paragraph (a). The language in 927.402-1(a) is revised by adding, after 
the last sentence, language setting out DOE's statutory authority to 
maintain, within the Department, publicly available collections of 
scientific and technical information resulting from research, 
development, demonstration and commercial applications that have been 
supported by the Department.
    6. Section 927.402-1 has been removed and the language under 
paragraph (1)(b) has been moved to new section 927.403-70-1 under 
paragraph (b). The language in 927.402-1(b) is revised by adding 
language to include guidance on R&D results.

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    7. Section 952.227-13 is revised by adding Alternate I to provide 
for a right to require licensing of background inventions to third 
parties.

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

    8. Section 970.2701-1 is revised by adding language to include 
decontamination and decommissioning activities to the scope of the 
section.
    9. Section 970.2702-1 is redesignated as section 970.2702-1-2. 
Section 970.2702-4 information is proposed to be incorporated into 
newly redesignated section 970.2702-1-2.
    10. Section 970.2703-2 is redesignated as section 970.2703-70-2.
    11. Section 970.2704-1(a), redesignated as 970-2704-70-1(a), is 
revised by adding language to clarify that the Department's statutory 
missions include those outlined in Energy Policy Act.
    12. Section 970.2704-2(a), redesignated as 970.2704-70-2(a), is 
revised by adding language to include guidance on R&D results.
    13. Section 970.2704-3, redesignated as 970.2704-70-3, paragraphs 
(a) and (b), are revised to include prescriptive language for adding 
new Alternate II paragraphs for various types of contracts.
    14. Section 970.5227-1(b) is revised by adding language to add a 
provision for the Office of Scientific and Technical Information (OSTI) 
statutory reporting requirements.
    15. Section 970.5227-1(c) is revised by adding language to include 
instructions on how the Government may obtain copyright to technical 
data or computer software.
    16. Section 970.5227-1 is revised by adding Alternate II to include 
language to obtain the right to use the limited rights data in 
solicitations to continue or complete the project which is the subject 
of the contract.
    17. Section 970.5227-2(a) is revised by adding five new definitions 
missing from this section.
    18. Section 970.5227-2(b)(1)(ii) is revised to update the 
responsible office name.
    19. Section 970.5227-2(b)(1)(iv) is revised to update the section 
references so that they match the changes made herein.
    20. Section 970.5227-2(b)(2)(ii) is revised by adding language to 
clarify an exception to the clause requirements.
    21. Section 970.5227-2(b) is revised by adding paragraph ``(4)'' to 
add a provision for OSTI statutory reporting requirements.
    22. Section 970.5227-2 is revised to add a new paragraph (c)(3) to 
clarify that contracting officers may establish and assign permission 
to copyright data or computer software when such permission was not 
granted under the contract.
    23. Section 970.5227-2(e)(1)(iii) is revised by adding language to 
provide guidance on Contractor's right to assert copyright in excepted 
categories of data.
    24. Section 970.5227-2(e) is revised by adding paragraph (1)(iv) to 
clarify the paragraphs of the section that apply when data rights are 
limited rights data or restricted computer software.
    25. Section 970.5227-2(e)(2) is revised by updating the section to 
identify the appropriate DOE division, to adjust the response time to a 
more reasonable timeframe and to clarify what is meant by subsequent 
versions.
    26. Section 970.5227-2(e)(3) is revised to read as set forth below 
to update the language to reflect what is currently needed by OSTI for 
the contractor to assert copyright.
    27. Section 970.5227-2(e)(3) is revised to add new paragraph (ii) 
to add language to clarify exceptions to the Government's unlimited 
rights in technical data and computer software.
    28. Section 970.5227-2(e)(3)(iii), redesignated as 970.5227-
2(e)(3)(iv), is revised to remove the term period that is not required.
    29. Section 970.5227-2(e)(3)(vi), redesignated as 970.5227-
2(e)(3)(vii), is revised to remove the term period as that is not 
required.
    30. Section 970.5227-2(e)(3)(viii), redesignated as 970.5227-
2(e)(3)(ix), is revised to require the contractor to provide the 
Department with the latest version of the copyrighted data.
    31. Section 970.5227-2(e)(4) is revised by updating the section to 
identify the responsible office name.
    32. Section 970.5227-2 is revised by adding new paragraph ``(f)'' 
and redesignating paragraphs ``(f)'', ``(g)'', ``(h)'' and ``(i)', 
respectively, to provide procedures for a contractor requesting to 
assert copyright in the work of some subcontractors.
    33. Section 970.5227-2 is revised to add Alternate II to obtain the 
right to use the limited rights data in solicitations to continue or 
complete the project which is the subject of the contract.
    34. Section 970.5227-3(a) is revised by adding new paragraph 
``(3)'' to state that DOE owns the trademarks to all laboratory names 
and logos.
    35. Section 970.5227-3(b) is revised by adding two new definitions.
    36. Section 970.5227-3(d)(1) is revised by adding language to cover 
conformance with standards of conduct.
    37. Section 970.5227-3(d)(10) is revised by adding language to 
identify to whom notice should be provided.
    38. Section 970.5227-3(f)(1)(ii) is revised by adding paragraphs 
``(C)'' and ``(D)'' to provide the contracting officer with guidance 
for handling foreign company control.
    39. Section 970.5227-3(h)(1), is revised by removing ``75 percent'' 
and replacing it with ``15 percent'' to reflect the correct percentage 
of excess amounts of royalties and income received from patent 
licensing after payment of costs that must be paid to the Treasury of 
the United States.
    40. Section 970.5227-3(h)(3) is revised by adding language to 
clarify that changes to policy will require contracting officer 
approval as well.
    41. Section 970.5227-3(j)(1) is revised by adding language that 
clarifies the circumstances under which contractors must obtain 
approval from Contracting Officers prior to entering into any 
technology transfer arrangement.
    42. Section 970.5227-3(n)(2)(ii) is revised by adding language to 
provide

[[Page 66868]]

further guidance on considerations for CRADAs.
    43. Section 970.5227-3(n)(3)(ii) is revised by adding language to 
provide further guidance to Contractors on what factors to consider 
when considering giving preference to business units located in the 
United States that agree that products or processes embodying 
intellectual property will be substantially manufactured or practiced 
in the United States.
    44. Section 970.5227-3(n)(4)(i) is revised to clarify that CRADA is 
used when the project is collaborative.
    45. Section 970.5227-3 Alternate I paragraph (p) is revised and 
moved to main clause regarding technology partnership ombudsman 
responsibilities.
    46. Section 970.5227-10(b)(2)(ii) is revised to add language that 
clarifies and expands upon the exceptional circumstances under 35 
U.S.C. 202 when the right to retain title to subject inventions may be 
restricted.
    47. Section 970.5227-10(c)(3) is revised to clarify patent 
application.
    48. Section 970.5227-12(a) is revised by adding a definition for 
the Department of Energy.
    49. Section 970.5227-12(a) is revised by adding language to clarify 
that the Patent Counsel is the first and primary point of contact for 
patent rights under management and operating contracts.
    50. Section 970.5227-12 is revised in paragraph (b)(5)(ii) to 
expand the list to include two additional initiatives to the list of 
exceptional circumstance subject inventions.
    51. Section 970.5227-12 is revised in paragraph (b)(5)(iii) to add 
language to clarify that exceptional circumstances subject inventions 
are set forth in the applicable class advance waiver.
    52. Section 970.5227-12(t) is revised by adding language to provide 
guidance on delegation.

III. Procedural Requirements

A. Review Under Executive Orders 12866 and 13563

    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 rule is not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs (OIRA) of the 
Office of Management and Budget (OMB).
    DOE has also reviewed this regulation pursuant to Executive Order 
13563, issued on January 18, 2011 (76 FR 3281, January 21, 2011). 
Executive Order 13563 is supplemental to and explicitly reaffirms the 
principles, structures, and definitions governing regulatory review 
established in Executive Order 12866. To the extent permitted by law, 
agencies are required by Executive Order 13563 to: (1) Propose or adopt 
a regulation only upon a reasoned determination that its benefits 
justify its costs (recognizing that some benefits and costs are 
difficult to quantify); (2) tailor regulations to impose the least 
burden on society, consistent with obtaining regulatory objectives, 
taking into account, among other things, and to the extent practicable, 
the costs of cumulative regulations; (3) select, in choosing among 
alternative regulatory approaches, those approaches that maximize net 
benefits (including potential economic, environmental, public health 
and safety, and other advantages; distributive impacts; and equity); 
(4) to the extent feasible, specify performance objectives, rather than 
specifying the behavior or manner of compliance that regulated entities 
must adopt; and (5) identify and assess available alternatives to 
direct regulation, including providing economic incentives to encourage 
the desired behavior, such as user fees or marketable permits, or 
providing information upon which choices can be made by the public.
    DOE emphasizes as well that Executive Order 13563 requires agencies 
to use the best available techniques to quantify anticipated present 
and future benefits and costs as accurately as possible. In its 
guidance, the Office of Information and Regulatory Affairs has 
emphasized that such techniques may include identifying changing future 
compliance costs that might result from technological innovation or 
anticipated behavioral changes. DOE believes that today's NOPR is 
consistent with these principles, including the requirement that, to 
the extent permitted by law, agencies adopt a regulation only upon a 
reasoned determination that its benefits justify its costs and, in 
choosing among alternative regulatory approaches, those approaches 
maximize net benefits.

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 United States 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 if 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, this rule meets the relevant standards of 
Executive Order 12988.

C. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' (67 FR 53461, August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
Web site at http://www.gc.doe.gov.
    Today's proposed rule updates and modifies references in the DEAR 
that apply to public contracts. This rule would not have a significant 
economic impact on small entities because it imposes no significant 
burdens. Any costs incurred by DOE contractors complying with the rule 
would be reimbursed under the contract.
    Accordingly, DOE certifies that this rule would not have a 
significant economic impact on a substantial number of small entities, 
and, therefore,

[[Page 66869]]

no regulatory flexibility analysis is required.

D. Review Under the Paperwork Reduction Act

    This proposed rule does not impose any new information, collection 
or recordkeeping requirements. Existing information collections imposed 
by the Department of Energy Acquisition Regulation are covered by OMB 
control number 1910-4100 with an expiration date of October 31, 2014.

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 amendments to the DEAR are 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 13132

    Executive Order 13132, (64 FR 43255, August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that preempt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. The Executive Order requires agencies to 
have an accountability process to ensure meaningful and timely input by 
state and local officials in the development of regulatory policies 
that have federalism implications.
    On March 14, 2000, DOE published a statement of policy describing 
the intergovernmental consultation process it will follow in the 
development of such regulations (65 FR 13735). DOE has examined the 
proposed rule and has determined that it does not preempt State law and 
does not have a substantial direct effect on the States, on the 
relationship between the National Government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government. No further action is required by Executive Order 13132.

G. Review Under the Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires a Federal agency to perform a written assessment of costs and 
benefits of any rule imposing a Federal Mandate with costs to State, 
local or tribal governments, or to the private sector, of $100 million 
or more. This rulemaking proposes changes that do not alter any 
substantive rights or obligations. This proposed rule does not impose 
any unfunded mandates.

H. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277), requires Federal agencies to issue a 
Family Policymaking Assessment for any rulemaking or policy that may 
affect family well-being. This rulemaking will have no impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

I. Review Under Executive Order 13211

    Executive Order 13211, Actions Concerning Regulations that 
Significantly Affect Energy Supply, Distribution, or Use, (66 FR 28355, 
May 22, 2001), requires Federal agencies to prepare and submit to the 
Office of Information and Regulatory Affairs (OIRA), of the Office of 
Management and Budget (OMB), a Statement of Energy Effects for any 
proposed significant energy action. A ``significant energy action'' is 
defined as any action by an agency that promulgates or is expected to 
lead to promulgation of a final rule, and that: (1) Is a significant 
regulatory action under Executive Order 12866, or any successor order, 
(2) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (3) is designated by the 
Administrator of OIRA as a significant energy action. For any proposed 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution and use. 
Today's proposed rule is not a significant energy action. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

J. Review Under the Treasury and General Government Appropriations Act, 
2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed the 
proposed rule under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

K. Approval by the Office of the Secretary of Energy

    Issuance of this proposed rule has been approved by the Office of 
the Secretary of Energy.

List of Subjects in 48 CFR Parts 927, 952 and 970 Government 
Procurement

    Issued in Washington, DC on September 25, 2013.
Paul Bosco,
Director, Office of Acquisition and Project Management, Department of 
Energy.
Barbara H. Stearrett,
Acting Director, Office of Acquisition Management, National Nuclear 
Security Administration.
    For reasons set out in the preamble, the DOE is proposing to amend 
chapter 9 of title 48 of the Code of Federal Regulations as set forth 
below.

PART 927--PATENTS, DATA, AND COPYRIGHTS

0
1. The authority citation for part 927 is revised to read as follows:

    Authority:  42 U.S.C. 2168, 2182, 2201; 42 U.S.C. 5908; 42 
U.S.C. 7261a; 42 U.S.C. 7101 et seq.; 50 U.S.C. 4201 et seq.

Subpart 927.2--Patents and Copyrights

0
2. The heading of subpart 927.2 is revised to read as set forth above.
0
3. The heading of section 927.201 is revised to read as follows:


927.201  Patent and copyright infringement liability.

* * * * *


927.201-1  [Amended]

0
4. Section 927.201-1 is amended by removing ``Authorization and 
Consent'' in the second sentence and adding in its place ``Patent and 
Copyright Infringement Liability''.

[[Page 66870]]

927.206  [Redesignated and Amended]

0
5. Section 927.206 is redesignated as section 927.202, and newly 
redesignated section 927.202 is amended by revising the heading to read 
as follows:


927.202  Royalties.

* * * * *


927.206-1  [Redesignated and Amended]

0
6. Section 927.206-1 is redesignated as section 927.202-4, and newly 
redesignated section 927.202-4 is amended by revising the heading to 
read as follows:


927.202-4  Refund of royalties.

* * * * *


927.206-2  [Redesignated and Amended]

0
7. Section 927.206-2 is redesignated as section 927.202-5, and newly 
redesignated section 927.202-5 is amended by revising the heading to 
read as follows:


927.202-5  Solicitation provisions and contract clauses.

* * * * *


927.207  [Redesignated and Amended]

0
8. Section 927.207 is redesignated as section 927.203, and newly 
redesignated section 927.203 is amended by revising the heading to read 
as follows:


927.203  Security requirements for patent applications containing 
classified subject matter.

* * * * *


927.207-1  [Redesignated as 927.203-1]

0
9. Section 927.207-1 is redesignated as section 927.203-1.


927.300  [Amended]

0
10. Section 927.300 is amended in paragraph (b) by:
0
a. Adding ``, or successor regulation.'' in the second sentence after 
``10 CFR part 784''; and
0
b. Removing in the third sentence, ``that section'' and adding ``those 
regulations'' in its place.


927.302  [Redesignated and Amended]

0
11. Section 927.302 is redesignated as 927.302-70, and newly 
redesignated 927.302-70 is amended by:
0
a. Revising the heading;
0
b. Revising paragraph (b);
0
c. Removing, in paragraph (c), ``paragraph (k)'', in two places, and 
adding in its place ``Alternate I''; and
0
d. Revising paragraph (d)(5)
    The addition and revisions read as follows:


927.302-70  Additional policy.

* * * * *
    (b) Normally, a contract will not include a background patent and 
data provision. However, under special circumstances, in order to 
provide heightened assurance of commercialization, a provision 
providing for a right to require licensing of third parties to 
background inventions, limited rights data or restricted computer 
software, may be included. Inclusion of such a background patent or 
data provision will be done only with the written concurrence of the 
DOE program official setting forth the need for such assurance. A 
contract may include the right to license the Government and third 
party contractors for special Government purposes when future 
availability of the technology would also benefit the Government. The 
scope of any such background patent or data licensing is subject to 
negotiation.
* * * * *
    (d) * * *
    (5) Represent DOE in patent, technical data, copyright, and other 
intellectual property matters not specifically reserved to the Head of 
the Agency or designee under these regulations.
0
12. Add new section 927.302 as follows:


927.302  Policy.

0
13. Section 927.303 is amended by:
0
a. Revising paragraph (a), introductory text;
0
b. Removing, in paragraph (a)(1), the word ``Acquisition'' and adding 
in its place ``Ownership'';
0
c. Revising paragraphs (a)(2), (a)(3), and (b); and
0
d. Removing, in paragraph (c), ``Facilities License'' and adding in its 
place ``Facilities license''.
    The revisions read as follows:


927.303  Contract clauses.

    (a) In solicitations and contracts for experimental, research, 
developmental, or demonstration work, the contracting officer shall 
include the clause:
* * * * *
    (2) At 48 CFR 52.227-11, Patent Rights Ownership -by the 
Contractor, in contracts in which the contractor is a domestic small 
business or nonprofit organization as defined at 48 CFR 27.301, except 
where the work of the contract is subject to an Exceptional 
Circumstances Determination by DOE; and
    (3) At 970.5227-10, 970.5227-11, or 970.5227-12, as discussed in 
970.27, Patent, Data, and Copyrights, in contracts for the management 
and operation of DOE laboratories, production facilities, certain 
decontamination and decommissioning activities, and the building and/or 
operation of other DOE facilities.
    (b) In instances in which DOE grants an advance waiver or waives 
its rights in an identified invention pursuant to 10 CFR part 784, 
contracting officers shall consult with patent counsel for the 
appropriate clause.
* * * * *


927.304  [Amended]

0
14. Section 927.304 is amended by:
0
a. Removing ``952.227-11'' and adding in its place ``48 CFR 52.227-
11''; and
0
b. Removing ``(FAR)''.

Subpart 927.4--Rights in Data and Copyrights

0
15. The heading of subpart 927.4 is revised to read as set forth above.
0
16. Section 927.402 is revised to read as follows:


927.402  Policy.

    The technical data policy is directed toward achieving the 
following objectives--
    (a) Making the benefits of the energy research, development and 
demonstration programs of DOE widely available to the public in the 
shortest practicable time;
    (b) Promoting the commercial utilization of the technology 
developed under DOE programs;
    (c) Encouraging participation by private persons in DOE energy 
research, development, and demonstration programs; and
    (d) Fostering competition and preventing undue market concentration 
or the creation or maintenance of other situations inconsistent with 
the antitrust laws.


927.402-1  [Removed and Reserved]

0
17. Section 927.402-1 is removed and reserved.


927.402-2  [Removed and Reserved]

0
18. Section 927.402-2 is removed and reserved.
0
19. Section 927.403 is revised to read as follows:


927.403  Data rights--General.

0
20. Add new sections 927.403-70, 927.403-70-1 and 927.403-70-2 to 
subpart 927.4 to read as follows:


927.403-70  Acquisition and use of technical data.


927.403-70-1  General.

    (a) The provisions herein pertain to research, development, 
demonstration and supply contracts. Special considerations for 
contracts for the operation, design, or construction of Government-
owned facilities are covered by subpart 970.27. Under DOE's

[[Page 66871]]

broad charter to perform research, development, and demonstration work, 
in both nuclear and non-nuclear fields, and to meet the objectives 
stated in 927.402, DOE has extensive needs for technical data. The 
satisfaction of these needs and the achievement of DOE's objectives 
through a sound data policy are found in the balancing of the needs and 
equities of the Government, its contractors, and the general public. In 
addition, the Energy Policy Act of 2005 also referred to as Public Law 
109-58, Subtitle G-Science, Section 982, provides that the Office of 
Scientific and Technical Information shall maintain publicly available 
collections of scientific and technical information resulting from 
research, development, demonstration, and commercial applications 
activities supported by the Department.
    (b) It is important to keep a clear distinction between contract 
requirements for the delivery of technical data and rights in technical 
data. The legal rights which the Government acquires in technical data 
in DOE contracts, other than management and operating contracts (see 
970.2704) and other contracts involving the production of data 
necessary for the management or operation of DOE facilities or a DOE 
site, are set forth in Rights in Data--General clause at 48 CFR 52.227-
14 as modified in accordance with 927.409 of this subpart. In those 
contracts involving the production of data necessary for the management 
or operation of DOE facilities or a DOE site, after consultation with 
Patent Counsel the clause at 970.5227-1 shall be used. However, those 
clauses do not obtain for the Government delivery of any data 
whatsoever. Rather, known requirements for the technical data to be 
delivered by the contractor shall be set forth as part of the contract. 
For Research and Development (R&D) contracting, requirements for R&D 
results conveyed in scientific and technical information are addressed 
in 935.010 and should be set forth as part of the contract. The 
Additional Data Requirements clause at 48 CFR 52.227-16 may be used 
along with the Rights in Data--General clause to enable the contracting 
officer to require the contractor to furnish additional technical data, 
the requirement for which was not known at the time of contracting. 
There is, however, a built-in limitation on the kind of technical data 
which a contractor may be required to deliver under either the contract 
or the Additional Data Requirements clause. This limitation is found in 
the withholding provision of paragraph (g) of the Rights in Data--
General clause at 48 CFR 52.227-14, as amended at 927.409(a), which 
provides that the contractor need not furnish limited rights data or 
restricted computer software. Unless Alternate II or III to the Rights 
in Data--General clause is used, it is specifically intended that the 
contractor may withhold limited rights data or restricted computer 
software even though a requirement for technical data specified in the 
contract or called for delivery pursuant to the Additional Data 
Requirements clause would otherwise require the delivery of such data.


927.403-70-2  Negotiations and deviations.

    Contracting officers shall contact Patent Counsel assisting their 
contracting activity or the Assistant General Counsel for Technology 
Transfer and Intellectual Property for assistance in selecting, 
negotiating, or approving appropriate data and copyright clauses in 
accordance with the procedures set forth in this subpart and 48 CFR 
subpart 27.4. In particular, contracting officers shall seek the prompt 
and timely advice of Patent Counsel regarding any situation not in 
conformance with this subpart and prescribed clauses, including the 
inclusion or modification of alternate paragraphs of the Rights in 
Data--General clause at 48 CFR 52.227-14, as amended at 927.409(a), the 
exclusion of specific items from said clause, the exclusion of the 
Additional Data Requirements clause at 48 CFR 52.227-16, and the 
inclusion of any special provisions in a particular contract.
0
21. Revise sections 927.404 and 927.404-70 to read as follows:


927.404  Rights in data.


927.404-70  Rights in technical data.

    (a) Contractors are required by paragraph (d)(3) of the clause at 
48 CFR 52.227-14, as modified pursuant to 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, 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 
927.409(a)(1), Patent Counsel shall predicate its decision on the 
considerations reflected in paragraph (e) of the clause at 970.5227-2 
Rights in Data--Technology Transfer.
    (b) 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 subpart, 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 48 CFR 52.227-
14, as modified pursuant to 927.409(a)(1), 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 Data Requirements clause at 48 CFR 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 Data Requirements clause at 48 CFR 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 acquire rights in the subcontractor's limited 
rights data or restricted computer software for their private use, and 
they shall not acquire rights to limited rights data or restricted 
computer software on behalf of the Government for standard commercial

[[Page 66872]]

items without the prior approval of Patent Counsel.
    (c) 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 limited 
rights data or restricted computer software or both necessary for 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 accordance with 35 U.S.C. 202(f). 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 limited rights data and restricted 
computer software. When such license rights are deemed necessary, the 
Rights in Data-General clause at 48 CFR 52.227-14 should be 
supplemented by the addition of Alternate VI as provided at 952.227-14. 
Alternate VI will normally be sufficient to cover limited rights data 
and restricted computer software 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 952.227-13 
pertaining to ``Background Patents.'' Where, however, limited rights 
data and restricted computer software 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 
subparagraphs (k)(1) through (k)(4) of Alternate VI of 952.227-14 
should be modified or deleted. Paragraph (k) of 952.227-14 further 
provides that limited rights data or restricted computer software 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 (k) of 
952.227-14 to only those classes or categories of limited rights data 
and restricted computer software determined as being essential for 
licensing. Although contractor licensing may be required under 
paragraph (k) of 952.227-14, the final resolution of questions 
regarding the scope of such licenses and the terms thereof, including 
provisions for confidentiality, and reasonable royalties, is then left 
to the negotiation of the parties.
    (d) 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 rights in technical data 
clause of the contract. 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.
0
22. Add section 927.404-71 to read as follows:


927.404-71  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 
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 data will be made available to the public 
notwithstanding the statutory authority to withhold the data from 
public dissemination.


927.408  [Amended]

0
23. Section 927.408 is amended by removing ``FAR'' and adding ``48 
CFR'' in its place.
0
24. Section 927.409 is amended by:
0
a. Revising the section heading as set forth below;
0
b. In paragraph (a)(1):
0
i. Removing ``substituting the following paragraph (a) and including 
the following paragraph'' and adding in its place ``adding the 
following paragraph'';
0
ii. Removing, in two places, ``(d)(3)'' and adding in its place 
``(d)(4)''; and
0
iii. Removing ``:'' and adding in its place ``.''.
0
c. Removing paragraph ``(a) Definitions'';
0
d. Redesignating paragraph (d)(3) as (d)(4); and
0
e. Redesignating paragraphs (s) as (l) and (t) as (m).


927.409  Solicitation provisions and contract clauses.

* * * * *
0
25. Section 927.409 is further amended in the table below, for each 
paragraph (including newly redesignated paragraphs) indicated in the 
left column, remove the word indicated in the middle column from where 
it appears in the paragraph, and add the word in the right column:

----------------------------------------------------------------------------------------------------------------
            Paragraph                              Remove                                   Add
----------------------------------------------------------------------------------------------------------------
(d)(4)(2)(i) in 3 places,          FAR...................................  48 CFR.
 (d)(4)(2)(ii) in 2 places,
 (d)(4)(2)(iii), (iv) and (v);
 (h) in 3 places.
(d)(4)(i)........................  (i)...................................  (e).
(d)(4)(ii).......................  (j)...................................  (f).
(d)(4)(iii)......................  (n)...................................  (i).

[[Page 66873]]

 
(d)(4)(v)........................  (l)...................................  (h).
(d)(4)(vi).......................  927.402-1(b)..........................  927.402(b).
(d)(4)(vii)......................  927.404-70............................  927.404-71.
(h)..............................  FAR 27.406(b).........................  48 CFR 27.406-2(b).
(l)..............................  FAR...................................  48 CFR.
----------------------------------------------------------------------------------------------------------------

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
26. The authority citation for part 952 continues to read as follows:

    Authority:  42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 
et seq.; 50 U.S.C. 2401 et seq.


952.227-9  [Amended]

0
27. In section 952.227-9, introductory text, remove ``927.206-2'' and 
add in its place ``927.202-5''.


952.227-11  [Removed and Reserved]

0
28. Section 952.227-11 is removed and reserved.
0
29. Section 952.227-13 is amended by:
0
a. Revising the section heading;
0
b. Revising the clause heading;
0
c. Adding ``or'' to the end of paragraph (f)(ii);
0
d. Removing paragraph (k);
0
e. Redesignating paragraph (l) as (k) and paragraph (m) as (l); and
0
f. Adding ``Alternate I'' at the end of the section .
    The revision and additions read as follows:


952.227-13  Patent rights-ownership by the Government.

* * * * *

PATENT RIGHTS--OWNERSHIP BY THE GOVERNMENT (XXX 20XX)

* * * * *
    Alternate I (XXX 20XX). As prescribed in 927.302-70(c), insert 
Alternate I under special circumstances to provide for a right to 
require licensing of third parties to background inventions:
    (m) Background Patents. (1) Background Patent means a domestic 
patent covering an invention or discovery which is not a subject 
invention and which is owned or controlled by the Contractor at any 
time through the completion of this contract--
    (i) Which the Contractor, but not the Government, has the right 
to license to others without obligation to pay royalties thereon; 
and
    (ii) Infringement of which cannot reasonably be avoided upon the 
practice of any specific process, method, machine, manufacture, or 
composition of matter (including relatively minor modifications 
thereof) which is a subject of the research, development, or 
demonstration work performed under this contract.
    (2) The Contractor agrees to and does hereby grant to the 
Government a royalty-free, nonexclusive license under any background 
patent for purposes of practicing a subject of this contract by or 
for the Government in research, development, and demonstration work 
only.
    (3) The Contractor also agrees that upon written application by 
DOE, it will grant to responsible parties, for purposes of 
practicing a subject of this contract, nonexclusive licenses under 
any background patent on terms that are reasonable under the 
circumstances. If, however, the Contractor believes that exclusive 
rights are necessary to achieve expeditious commercial development 
or utilization, then a request may be made to DOE for DOE approval 
of such licensing by the Contractor.
    (4) Notwithstanding paragraph (m)(3) of this clause, the 
contractor shall not be obligated to license any background patent 
if the Contractor demonstrates to the satisfaction of the Secretary 
of Energy or designee that--
    (i) A competitive alternative to the subject matter covered by 
said background patent is commercially available or readily 
introducible from one or more other sources; or
    (ii) The Contractor or its licensees are supplying the subject 
matter covered by said background patent in sufficient quantity and 
at reasonable prices to satisfy market needs, or have taken 
effective steps or within a reasonable time are expected to take 
effective steps to so supply the subject matter.


(End of alternate)


952.227-13 and 952.227-14  [Amended]

0
30. Sections 952.227-13 and 952.227-14 are amended in the tables below:
0
a. For each section indicated in the left column (including newly 
redesignated sections), remove the word(s) indicated in the middle 
column from where it appears in the section, and add the word(s) in the 
right column:

----------------------------------------------------------------------------------------------------------------
             Section                               Remove                                   Add
----------------------------------------------------------------------------------------------------------------
952.227-13(d)(4)(vi).............  contractor............................  Contractor.
952.227-13(d)(4)(vii) in three     contractor............................  Contractor.
 places.
952.227-13(e)(5).................  FAR...................................  48 CFR.
952.227-13(h)(1) in three places.  contractor............................  Contractor.
952.227-13(h)(1).................  48 CFR 952.227-11.....................  48 CFR 52.227-11.
952.227-13(h)(5).................  contractor............................  Contractor.
                                   contracting officer...................  Contracting Officer.
952.227-13(l)(2).................  (m)(1)................................  (l)(1).
952.227-13(l)(3).................  paragraph (m).........................  paragraph (l).
952.227-14 Alternate VI            48 CFR 927.404(l).....................  927.404-70(c),
 introductory text.
952.227-14 Alternate VI, in the    contractor............................  Contractor.
 first sentence.
952.227-14 Alternate VII second    FAR...................................  48 CFR.
 sentence.
----------------------------------------------------------------------------------------------------------------

0
b. For each section indicated in the left column (including newly 
redesignated sections), remove the punctuation mark indicated in the 
middle column from where it appears in the section, and add the 
punctuation mark in the right column:

------------------------------------------------------------------------
                 Section                      Remove            Add
------------------------------------------------------------------------
952.227-13(d)(4)(i).....................               :              --
952.227-13(d)(4)(i)(A)..................               ,               ;
952.227-13(d)(4)(v).....................               :              --

[[Page 66874]]

 
952.227-13(l)(1)........................               :              --
952.227-13(l)(2)........................               :              --
952.227-14 Alternate VI introductory                   .               :
 text...................................
952.227-14 Alternate VI(k), ending                     :              --
 punctuation............................
952.227-14 Alternate VII introductory                  .               :
 text...................................
------------------------------------------------------------------------

952.227-82  [Removed and Reserved]

0
31. Section 952.227-82 is removed and reserved.


952.227-84  [Amended]

0
32. For each section indicated in the left column, remove the word(s) 
indicated in the middle column from where it appears in the section, 
and add the word(s) in the right column:

----------------------------------------------------------------------------------------------------------------
             Section                               Remove                                   Add
----------------------------------------------------------------------------------------------------------------
952.227-84 introductory text.....  48 CFR 927.409(t).....................  927.409(m).
952.227-84 provision.............  DEAR 952.227-11.......................  48 CFR 52.227-11.
952.227-84 provision, in two       contractor............................  Contractor.
 places.
----------------------------------------------------------------------------------------------------------------

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS

0
33. The authority citation for part 970 continues to read as follows:

    Authority:  42 U.S.C. 2201; 2282a; 2282b; 2282c; 42 U.S.C. 7101 
et seq.; 50 U.S.C. 2401 et seq.

0
34. Section 970.2701-1 is revised to read as follows:


970.2701-1  Applicability.

    This subpart applies to negotiation of patent rights, rights in 
technical data provisions and other related provisions for the 
Department of Energy contracts for the management and operation of 
DOE's sites or facilities, including the conduct of research and 
development and nuclear weapons production, and contracts which involve 
major, long-term or continuing activities conducted at a DOE site, 
including decontamination and decommissioning activities.
0
35. Section 970.2702 is amended by revising the section heading to read 
as follows:


970.2702  Patents and copyrights.

* * * * *


970.2702-1  [Redesignated as 970.2702- 1-2]

0
36. Section 970.2702-1 is redesignated as section 970.2702-1-2, and 
newly redesignated section 970.2702-1-2 is revised to read as follows:


970.2702-1-2  Solicitation provision and contract clauses.

    (a) Authorization and consent. Contracting officers must include 
the clause at 970.5227-4, Authorization and Consent, instead of the 
clause at 48 CFR 52.227-1.
    (b) Notice and assistance regarding patent and copyright 
infringement. Contracting officers must include the clause at 970.5227-
5, Notice and Assistance Regarding Patent and Copyright Infringement, 
instead of the clause at 48 CFR 52.227-2.
    (c) Patent indemnity. (i) Contracting officers must include the 
clause at 970.5227-6, Patent Indemnity-Subcontracts, to assure that 
subcontracts appropriately address patent indemnity.
    (ii) Normally, the clause at 48 CFR 52.227-3 would not be 
appropriate for an M&O contract; however, if there is a question, such 
as when the mission of the contractor involves production, the 
contracting officer must consult with local patent counsel and use the 
clause where appropriate.
    (d) Rights to proposal data. Contracting officers must include the 
clause at 48 CFR 52.227-23, Rights to Proposal Data, in all 
solicitations and contracts for the management and operation of DOE 
sites and facilities.
    (e) Notice of right to request patent waiver. Contracting officers 
must include the provision at 970.5227-9 in all solicitations for 
contracts for the management and operation of DOE sites or facilities.
    (f) Royalties. Contracting officers must include the solicitation 
provision at 970.5227-7, Royalty Information, and the clause at 
970.5227-8, Refund of Royalties instead of the provision at 48 CFR 
52.227-8 and the clause at 48 CFR 52.227-9, respectively.


970.2702-2, 970.2702-3, 970.2702-4, 970.2702-5 and 970.2702-
6  [Removed]

0
37. Sections 970.2702-2, 970.2702-3, 970.2702-4, 970.2702-5 and 
970.2702-6 are removed.


970.2703-1  [Redesignated]

0
38. Section 970.2703-1 is redesignated as section 970.2703-70-1.


970.2703-2  [Redesignated and Amended]

0
39. Section 970.2703-2 is redesignated as section 970.2703-70-2, and 
newly redesignated section 970.2703-70-2 is amended by:
0
a. Revising the section heading to read as set forth below;
0
b. Adding in paragraph (a), first sentence, after ``educational 
institution'', ``, small business''; and
0
c. Removing in paragraph (g), in 3 places, ``Alternate 1'' and adding 
in their places, ``Alternate I''.
0
40. Section 970.2704 is amended by revising the section heading to read 
as follows:


970.2704  Rights in data and copyrights.

* * * * *


970.2704-1  [Redesignated and Amended]

0
41. Section 970.2704-1 is redesignated as section 970.2704-70-1, and 
paragraph (a) is amended by:
0
a. Adding in the second sentence after ``statutory missions'' ``, 
including those set forth in the Energy Policy Act of 2005,''; and
0
b. Removing ``48 CFR'' in four places.


970.2704-2  [Redesignated and Amended]

0
42. Section 970.2704-2 is redesignated as section 970.2704-70-2, and 
newly redesignated section 970.2704-70-2 is amended by:
0
a. Adding at the end of paragraph (a), a new sentence;
0
b. Removing in paragraphs (b) and (c)(1), ``Additional Technical Data 
Requirements'' and adding in its place ``Additional Data 
Requirements''; and
0
c. Revising the last sentence in paragraph (e).
    The revision and additions read as follows:


970.2704-70-2  Procedures.

    (a) * * * For Research and Development Contracting, requirements 
for R&D results conveyed in scientific and technical information are 
addressed in section 935.010 and should be set forth as part of the 
contract.

[[Page 66875]]

Requirements are further addressed in DOE Order 241.1B, or its 
successor version, which sets forth requirements for scientific and 
technical information.
* * * * *
    (e) * * * The clause at 970.5227-2, Rights in Data-Technology 
Transfer, provides for DOE approval of DOE's taking a limited copyright 
license during the period in which the copyrighted data is being 
commercialized. The contractor must notify DOE (Patent Counsel and 
OSTI) when commercial activity ceases.
* * * * *


970.2704-70-2  [Amended]

0
43. Newly redesignated section 970.2704-70-2, is further amended in the 
table below, for each paragraph indicated in the left column, remove 
the word(s) in the middle column from where it appears in the 
paragraph, and add the word(s) in the right column:

----------------------------------------------------------------------------------------------------------------
                  Paragraph                                          Remove                             Add
----------------------------------------------------------------------------------------------------------------
(c)(1) in 2 places...........................  48 CFR 970.5227-1................................      970.5227-1
(c)(1).......................................  48 CFR 970.5227-2................................      970.5227-2
                                               DEAR 927.409.....................................         927.409
(c)(2).......................................  927.404-70.......................................      927.404-71
(d)(1).......................................  48 CFR 970.5227-1................................      970.5227-1
                                               48 CFR 970.5227-2................................      970.5227-2
(d)(2).......................................  48 CFR 952.227-14................................      952.227-14
                                               48 CFR 970.5227-1................................      970.5227-1
                                               48 CFR 970.5227-2................................      970.5227-2
(e) in first instance........................  48 CFR 970.5227-2................................      970.5227-2
(e)..........................................  48 CFR 970.5227-1................................      970.5227-1
(f)..........................................  48 CFR 970.5227-3................................      970.5227-3
                                               48 CFR 970.5227-2................................      970.5227-2
----------------------------------------------------------------------------------------------------------------

970.2704-3  [Redesignated and Amended]

0
44. Section 970.2704-3 is redesignated as 970.2704-70-3, and newly 
redesignated section 970.2704-70-3 is amended by:
0
(a) Adding a sentence to the end of paragraphs (a) and (b); and
0
(b) Removing, in paragraph (a), ``48 CFR''.
    The additions read as follows:


970.2704-70-3  Contract clauses.

    (a) * * * The contracting officer shall include the clause with its 
Alternate II in contracts where government facilities are being 
constructed, modified, or in decontamination and decommissioning, and 
it is anticipated that further solicitation may be required to complete 
the project.
    (b) * * * The contracting officer shall include the clause with its 
Alternate II in contracts where government facilities are being 
constructed, modified, or in decontamination and decommissioning, and 
it is anticipated that further solicitation may be required to complete 
the project.
0
45. Section 970.5227-1 is amended by:
0
a. Removing ``48 CFR 970.2704-3(a)'' from the introductory text and 
adding in its place ``48 CFR 970.2704-70-3(a)'';
0
b. Revising the clause heading;
0
c. Removing the paragraph designation numbers for paragraphs (a)(1) 
through (a)(7) ;
0
d. Adding new paragraphs (b)(4) and (c)(3); and
0
e. Adding Alternate II at the end of the section.
    The revisions and additions read as follows:


970.5227-1  Rights in data-facilities.

* * * * *

RIGHTS IN DATA--FACILITIES (XXX 20XX)

* * * * *
    (b) * * *
    (4) In the performance of DOE contracted obligations, each 
contractor is required to manage scientific and technical 
information (STI) produced under the contract as a direct and 
integral part of the work and ensure its broad availability to all 
customer segments by making STI available to DOE's central STI 
coordinating office, the Office of Scientific and Technical 
Information (OSTI). All such information is reportable to OSTI, 
whether it is publicly releasable, controlled unclassified 
information, or classified, unless specifically excluded under 
contract.
    (c) * * *
    (3) If the Contractor has not been granted permission to 
copyright technical data or computer software first produced under 
the contract, and if the Government desires to obtain copyright in 
such data and computer software, the Contracting Officer may direct 
the Contractor to establish claim to copyright in such data or 
computer software and to assign such copyright to the Government or 
its designated assignee.
* * * * *
    Alternate II (XXX 20XX). As prescribed in 970.2704-70-3(a), 
where government facilities are being constructed, modified, or in 
decontamination and decommissioning, and it is anticipated that 
further solicitation may be required to complete the project, insert 
paragraph (f) in the Limited Rights Notice of the basic clause: (f) 
This ``limited rights data'' may be disclosed in future 
solicitations for the continuation or completion of the work 
contemplated under this contract under the restriction that the 
``limited rights data'' be retained in confidence and not be further 
disclosed.


970.5227-1  [Amended]

0
46. Section 970.5227-1 is further amended in the tables below:
0
a. For each paragraph indicated in the left column, remove the word(s) 
in the middle column from where it appears in the paragraph, and add 
the word(s) in the right column:

----------------------------------------------------------------------------------------------------------------
            Paragraph                              Remove                                   Add
----------------------------------------------------------------------------------------------------------------
(b)(1)(iv) in three places, and    contracting officer...................  Contracting Officer.
 Alternate I.
(b)(1)(i), (b)(1)(ii),             Contract..............................  contract.
 (b)(1)(iii), (b)(1)(iv) in two
 places, (b)(1)(v), (b)(2)(ii) in
 three places, (b)(3), (e) in two
 places, (e) Limited Rights
 Notice paragraph (c), (f)(1) in
 two places, and (f)(3).
(c)..............................  Copyrighted Material..................  Copyrighted material.
(d)(1)...........................  48 CFR Subpart 27.4...................  48 CFR subpart 27.4.
(d)(1), in the last sentence.....  contractor............................  Contractor.
(d)(1), (d)(2)(i), (d)(2)(ii)....  contracting officer...................  Contracting Officer.

[[Page 66876]]

 
Alternate I introductory text....  48 CFR 970.2704-3(a)..................  970.2704-70-3(a)
                                   48 CFR 970.5227-1.....................  970.5227-1.
----------------------------------------------------------------------------------------------------------------

0
b. For each paragraph indicated in the left column, remove the 
punctuation mark in the middle column from where it appears in the 
paragraph, and add the punctuation mark in the right column:

------------------------------------------------------------------------
                Paragraph                     Remove            Add
------------------------------------------------------------------------
At the end of introductory text for                    :              --
 paragraphs (b)(1), (b)(2), (d)(2) and
 (e);...................................
(f) Restricted Rights Notice-Long Form
 (b)
------------------------------------------------------------------------

0
47. Section 970.5227-2 is amended by:
0
a. Revising the introductory text and clause date;
0
b. Revising paragraph (a);
0
c. Revising paragraph (b)(1) introductory text;
0
d. Revising paragraph (b)(1)(iv);
0
e. Revising paragraph (b)(2)(ii);
0
f. Adding new paragraph (b)(4);
0
g. Adding new paragraph (c)(3);
0
h. Revising paragraphs (e)(1) introductory text and (e)(1)(iii);
0
i. Adding paragraph (e)(1)(iv);
0
j. Revising paragraph (e)(2);
0
k. Revising paragraph (e)(3);
0
l. Removing in paragraph (e)(5), the first word in the paragraph, 
``a'', and adding in its place ``A'';
0
m. Redesignating paragraphs (f) through (i) as (g) through (j);
0
n. Adding a new paragraph (f);
0
o. Revising newly redesignated paragraph (g)(1);
0
p. Revising the heading of newly redesignated paragraph (h); and
0
q. Adding new Alternate II at the end of the section.
    The additions and revisions read as follows:


970.5227-2  Rights in data-technology transfer.

    As prescribed in 970.2704-70-3(b), insert the following clause:

* * * (XXX 20XX)

    (a) Definitions.
    Assistant General Counsel for Technology Transfer and 
Intellectual Property is the senior intellectual property counsel 
for the Department of Energy, as distinguished from the NNSA Patent 
Counsel, and, where used in this clause, indicates that the 
authority for the activity(ies) being described belongs to DOE.
    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.
    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.
    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. The term 
``data'' does not include data incidental to the administration of 
this contract, such as financial, administrative, cost and pricing, 
or management information. Department of Energy (DOE), as used in 
this clause, includes the National Nuclear Security Administration 
(NNSA), unless otherwise identified or indicated. 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 (h) 
of this clause.
    Open source software, as used in this clause, means computer 
software that is distributed under a license in which the user is 
granted the right to use, copy, modify, prepare derivative works and 
distribute, in source code or other format, the software, in 
original or modified form and derivative works thereof, without 
having to make royalty payments. Patent Counsel means the DOE or 
NNSA Patent Counsel assisting the contracting activity.
    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 (i) of 
this clause.
    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.
    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--
* * * * *
    (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. When delivering all contractor produced computer 
software to the Energy Science and Technology Software Center 
(ESTSC) in the DOE Office of Scientific and Technical Information 
(OSTI), the Contractor shall submit a complete package as prescribed 
in paragraph (e)(3) of this clause. 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 (g) of this clause (``Rights in 
Limited Rights Data'') or paragraph (h) of this clause (``Rights in 
Restricted Computer Software''); and
* * * * *
    (2) * * *
    (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, atomic vapor laser isotope separation, and except 
restricted data category C-24, 10 CFR part 725, provided the data 
requirements of this contract have been met as of the date of the 
private use of such data; and
* * * * *
    (4) In the performance of DOE contracted obligations, each 
contractor is required to

[[Page 66877]]

manage scientific and technical information (STI) produced under the 
contract as a direct and integral part of the work and ensure its 
broad availability to all customer segments by making STI available 
to DOE's central STI coordinating office, the Office of Scientific 
and Technical Information (OSTI). All such information is reportable 
to OSTI, whether it is publicly releasable, controlled unclassified 
information, or classified, unless specifically excluded under 
contract.
    (c) * * *
    (3) If the Contractor has not been granted permission to 
copyright data or computer software first produced under the 
contract where such permission is necessary, i.e., for works other 
than scientific and technical journal articles and data produced 
under a CRADA, and if the Government desires to obtain copyright in 
such data or computer software, the Contracting Officer may direct 
the Contractor to establish claim to copyright in such data or 
computer software and to assign such copyright to the Government or 
its designated assignee.
* * * * *
    (e) * * *
    (1) Contractor request to assert copyright.
* * * * *
    (iii) Permission for the Contractor to assert copyright in 
excepted categories of data as determined exclusively 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.
    (iv) Additional excepted categories may be added by the 
Assistant General Counsel for Technology Transfer and Intellectual 
Property. Where data are determined to be under export control 
restriction, the Contractor may obtain permission to assert 
copyright subject to the provisions of this clause for purposes of 
limited commercialization in a manner that complies with export 
control statutes and applicable regulations. 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. 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) Patent Counsel Review and Response to Contractor's Request. 
The Patent Counsel shall use its reasonable best efforts to respond 
in writing within 60 days of receipt of a complete request by the 
Contractor to assert copyright in technical data and computer 
software pursuant to this clause. Such response shall either give or 
withhold Patent Counsel's permission for the Contractor to assert 
copyright or advise the Contractor that Patent Counsel needs 
additional time to respond, and the reasons therefore. If Patent 
Counsel grants permission for the Contractor to assert copyright in 
computer software, the permission extends to subsequent versions 
with the same name that incorporates the same functions of the 
original program, unless otherwise directed.
    (3) Permission for contractor to assert copyright. (i) For 
computer software, the Contractor shall furnish to the DOE's ESTSC, 
at the time permission to assert copyright is given under paragraph 
(e)(2) of this clause--
    (A) Announcement information/metadata contained in the Software 
Announcement Notice 241.4;
    (B) The source code and/or executable file for each software 
program; and
    (C) Documentation, if any, which may consist of a user manual, 
sample test cases, or similar information, needed by a technically 
competent user to understand and use the software (whether included 
on the software media itself or provided in a separate file or in 
paper format).
    (ii) 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.
    (iii) 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, the Contractor shall within sixty (60) days of 
obtaining such permission furnish to DOE's 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.
    (iv) During the period in which commercialization activities 
pertaining to the copyrighted data are continuing, or for a 
specified period of time prescribed by Patent Counsel, 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.
    (v) When the Contractor abandons commercialization activities 
pertaining to the data to which the Contractor has been given 
permission to assert copyright or at the end of the specified 
periods as prescribed by Patent Counsel, 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.
    (vi) 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. When the Contractor abandons commercialization activities, 
the Contractor will provide to the ESTSC the latest version of the 
copyrighted data (for example, source code, object code, minimal 
support documentation, drawings or updated manuals.) In addition, 
the Contractor will provide annually to Patent Counsel, if 
requested, a list of all copyrighted data that the Contractor has 
abandoned commercial licensing activity during that year. If 
requested, the Contractor will provide annually to Patent Counsel a 
list of all copyrighted data that the Contractor has abandoned 
commercial licensing activity during that year.
    (vii) 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 acknowledgment of the Government sponsorship and license 
rights of paragraphs (e)(3)(iv) and (v) 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 acknowledgment of Government 
sponsorship and license rights shall be as follows: Notice: These 
data were produced by (insert name of Contractor) under Contract No. 
-------- with the Department of Energy. During the period of 
commercialization or such other time period as specified by DOE, the 
Government is granted for itself and others acting on its behalf a 
nonexclusive, paid-up, irrevocable worldwide license in this data to 
reproduce, prepare derivative works, and perform publicly and 
display publicly, by or on behalf of the Government. Subsequent to 
that period, the Government is granted for itself and others acting 
on its behalf a nonexclusive, paid-up, 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 specific term of the license can be 
identified by inquiry made to Contractor or DOE. 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 data, apparatus, product, or process disclosed, or 
represents that its use would not infringe privately owned rights.

[[Page 66878]]

    (End of notice)
    (viii) With respect to any data to which the Contractor has 
received permission to assert copyright, the DOE has the right, 
during the period that Contractor is commercializing the software as 
provided for in paragraph (e)(3)(iv) 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 paragraph (e)(1)(i) of 
this clause. Before licensing under paragraph (e)(3)(vi) of this 
clause, 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''.
    (ix) No costs shall be allowable for maintenance of copyrighted 
data, primarily for the benefit of the Contractor and/or a licensee 
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.
    (x) 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.
* * * * *
    (f) Open software source. The Contractor may release computer 
software first produced by the Contractor in the performance of this 
contract under an open source software license. Such software shall 
hereinafter be referred to as open source software or OSS, subject 
to the following:
    (1) DOE Program notice for copyright assertion for OSS. (i) The 
Contractor shall provide written notice to each DOE Program or 
Programs that have provided a substantial portion of the funding 
(funding source(s)) to develop the software that the Contractor 
intends to release as OSS unless the funding Program(s) has 
previously provided blanket approval for all software developed with 
funding from that Program or a specific DOE project stipulates the 
software to be released as OSS. If Program has neither consented nor 
objected to the assertion of copyright within two weeks of such 
written notification, the Contractor may assert copyright in the 
software with Patent Counsel approval. If notification of funding 
DOE Program(s) is not practicable, the Contractor shall consult with 
Patent Counsel, which may provide approval. For software developed 
under a CRADA, User Facility Agreement, or WFO Agreement, 
authorization from the CRADA Participant(s) or User Facility 
User(s), or WFO Sponsor(s), as applicable, shall be additionally 
obtained for OSS release.
    (ii) If the software is developed with funding from a federal 
government agency or agencies (funding source(s)) other than DOE, 
then authorization from all the funding agency(ies) shall be 
obtained for OSS release, if practicable. Such federal government 
agency(ies) may provide blanket approval for all software developed 
with funding from that agency(ies). However, OSS release of any one 
of such software shall be subject to approval by all other funding 
sources for the software, if any. If approval from such federal 
government agency(ies) is not practicable, the Patent Counsel may 
provide approval instead.
    (2) Assert copyright in the OSS. Once the Contractor has met the 
program approval requirements set forth in paragraph (f)(1) of this 
clause, copyright in the software to be distributed as OSS may be 
asserted by the Contractor, or, for OSS developed under a CRADA, 
User Facility Agreement, or WFO Agreement, either by the Contractor, 
CRADA Participant, User Facility User, or WFO Sponsor, as 
applicable, which precludes marking such OSS as protectable from 
public distribution.
    (3) Submit Software Announcement Notice 241.4 to ESTSC. The 
Contractor must submit Software Announcement Notice (AN) 241.4 (or 
the current notice as may be required by DOE) to DOE's ESTSC. In the 
AN 241.4, the Contractor shall provide the unique URL (i.e. a 
persistent identifier) from which the software can be obtained so 
that ESTSC can announce the availability of the OSS and the public 
has access via the URL.
    (4) Maintain OSS record. The Contractor must maintain a record, 
available for inspection by DOE, of software distributed as OSS. 
Upon request of the Patent Counsel, the Contractor shall provide the 
Patent Counsel a copy of the record. The record shall contain the 
following information--
    (i) Name of the computer software (or other identifier);
    (ii) An abstract with description or purpose of the software;
    (iii) Evidence of the funding source's approval or compliance 
with notification procedure in paragraph (f)(1) of this clause;
    (iv) The planned or actual OSS location on the Contractor's Web 
page or other publicly available location (see paragraph (f)(5) of 
this clause);
    (v) Any names, logos or other identifying marks used in 
connection with the OSS, whether or not registered;
    (vi) The type of OSS license used; and
    (vii) A release version of the software for OSS containing 
derivative works.
    (5) Provide public access to the OSS. The Contractor shall 
ensure that the OSS is publicly accessible as an open source via the 
Contractor's Web site, Open Source Bulletin Boards operated by third 
parties, DOE, or other industry methods.
    (6) Select an OSS license. Each OSS will be distributed pursuant 
to an OSS license. The Contractor may choose among industry standard 
OSS licenses or create its own set of Contractor standard licenses. 
To assist the Contractor, the Assistant General Counsel for 
Technology Transfer and Intellectual Property, may periodically 
issue guidance on OSS licenses. Each Contractor-created OSS license, 
must contain, at a minimum, the following provisions--
    (i) A disclaimer or equivalent that disclaims the Government's 
and Contractor's liability for licensees' and third parties' use of 
the software; and
    (ii) A grant of permission for licensee to distribute OSS 
containing the licensee's derivative works. This provision may allow 
the licensee and third parties to commercialize their derivative 
works or might request that the licensee's derivative works be 
forwarded to the Contractor for incorporation into future OSS 
versions.
    (7) Collection of administrative costs is permissible. However, 
the Contractor may not collect a royalty or other fee in excess of a 
good faith amount for cost recovery from any licensee for the 
Contractor's OSS.
    (8) Relationship to other required clauses in the contract. OSS 
distributed in accordance with this section shall not be subject to 
the requirements relating to indemnification of the Contractor or 
Federal Government, U.S. Competitiveness and U.S. Preference, as set 
forth in paragraphs (g) and (h) of the clause within this contract 
entitled Technology Transfer Mission (48 CFR 970.5227-3). The 
requirement for the Contractor to request permission to assert 
copyright for the purpose of engaging in licensing software for 
royalties, as set forth elsewhere in this clause, is not modified by 
this section.
    (9) Government license. For all OSS, the Contractor grants to 
the Government, and others acting on its behalf, a paid-up, 
nonexclusive, irrevocable worldwide license in data copyrighted in 
accordance with paragraph (f)(2) of this clause to reproduce, 
distribute copies to the public, prepare derivative works, perform 
publicly and display publicly, and to permit others to do so.
    (10) Contractor abandons OSS. If the Contractor ceases to make 
OSS publicly available, then the Contractor shall submit to ESTSC 
the object code and source code of the latest version of the OSS 
developed by the Contractor in addition to a revised Announcement 
Notice 241.4 (which includes an abstract) and the Contractor shall 
direct any inquiries from third parties seeking to obtain the 
original OSS to ESTSC.
    (g) Subcontracting. (1) Unless otherwise directed by the 
Contracting Officer, the Contractor agrees to use, in subcontracts 
in which technical data or computer software 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 subpart 27.4 (as supplemented by 48 CFR 927.400 
through 48 CFR 927.409), the clause ``Rights in Data-General'' at 48 
CFR 52.227-14 modified in accordance with 48 (CFR 927.409(a). The 
Contractor shall include Alternate V of 48 CFR 52.227-14, however, 
Alternates II through IV may be included as appropriate with the 
prior approval of the

[[Page 66879]]

Patent Counsel. The Contractor shall not acquire rights in a 
subcontractor's limited rights data or restricted computer software, 
except through the use of Alternates II or III, respectively, 
without the prior approval of the Patent Counsel. The clause at 48 
CFR 52.227-16, ``Additional Data Requirements'', shall be included 
in subcontracts in accordance with 48 CFR 927.409(h). In 
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 under its with DOE, the Contractor shall instead 
use the ``Rights in Data-Facilities'' clause at 48 CFR 970.5227-1.
* * * * *
    (h) Rights in limited rights data. * * *
    Alternate II (XXX 20XX). As prescribed in 970.2704-70-3(b), 
where government facilities are being constructed, modified, or in 
decontamination and decommissioning, and it is anticipated that 
further solicitation may be required to complete the project, insert 
paragraph (f) in the Limited Rights Notice of the basic clause: (f) 
This ``limited rights data'' may be disclosed in future 
solicitations for the continuation or completion of the work 
contemplated under this contract under the restriction that the 
``limited rights data'' be retained in confidence and not be further 
disclosed.
    (End Clause)


970.5227-2  [Amended]

0
48. Section 970.5227-2 is further amended in the tables below:
0
a. For each paragraph (including newly redesignated paragraphs) 
indicated in the left column, remove the word(s) in the middle column 
from where it appears in the paragraph, and add the word(s) in the 
right column:

----------------------------------------------------------------------------------------------------------------
            Paragraph                              Remove                                   Add
----------------------------------------------------------------------------------------------------------------
(b)(1)(i), (b)(1)(ii) in two       Contract..............................  contract.
 places, (b)(1)(iii), (b)(1)(v),
 (b)(2)(ii) in two places,
 (c)(2), (d)(1), (d)(2) in two
 places, (e), (e)(1)(i), (h), (h)
 in Limited Rights notice (c),
 and (i)(1) in two places.
(b)(1)(ii) in first instance.....  DOE...................................  Patent Counsel.
(c)(1) and (2)...................  (d) and (e)...........................  (d), (e) or (f).
(d)(1), (g)(2)(ii),..............  contracting officer...................  Contracting Officer.
(d)(2), (d)(3)...................  contractor............................  Contractor.
(e)(4)...........................  Department of Energy..................  Patent Counsel.
                                   (c)(3)................................  (e)(3).
(e)(4) in two places in the        Contract..............................  contract.
 Notice.
(i)(3)...........................  Contract..............................  contract.
Alternate I......................  (DEC 2000)............................  (XXX 20XX).
                                   48 CFR 970.2704-3(b)..................  970.2704-70-3(b).
                                   48 CFR 970.5227-2.....................  970.5227-2.
----------------------------------------------------------------------------------------------------------------

0
b. For each paragraph (including newly redesignated paragraphs) 
indicated in the left column, remove the punctuation mark in the middle 
column from where it appears in the paragraph, and add the punctuation 
mark in the right column:

------------------------------------------------------------------------
                Paragraph                     Remove            Add
------------------------------------------------------------------------
(b)(2), (e)(1)(i),......................               :              --
(e)(1)(i)(A), (B), (C), (D), (E)........               ,               ;
------------------------------------------------------------------------

0
49. Section 970.5227-3 is amended by:
0
a. Removing ``48 CFR 970.2770-4(a)'' in the introductory text and 
adding in its place ``970.2770-4(a)'';
0
b. Revising the clause heading;
0
c. Removing in paragraph (a)(2), in two places, ``Intellectual 
Property'', and adding in its place ``intellectual property'';
0
d. Adding in paragraph (a)(2), in the last sentence, ``exchanges'' 
after ``personnel'';
0
e. Adding new paragraph (a)(3);
0
f. Revising paragraph (b);
0
g. Revising paragraphs (d) heading, (d)(1) and (d)(10);
0
h. Revising the heading of paragraph (f);
0
i. Adding in paragraph (f)(1)(ii)(B) ``or assigning to'' after 
``licensing'', in the first occurrence and removing ``.'' and adding in 
its place ``;'';
0
j. Adding new paragraphs (f)(1)(ii)(C) and (f)(1)(ii)(D);
0
k. Removing in paragraph (h)(1), ``75 percent'' and adding in its place 
``15 percent'';
0
l. Removing the last sentence in paragraph (h)(2);
0
m. Adding in paragraph (h)(3), a new sentence to the end of the 
paragraph;
0
n. Adding in paragraph (j)(1), ``, as amended, or is subject to export 
control for nonproliferation and other nuclear-related national 
security purposes.'', at the end of the first sentence;
0
o. In paragraph (n)(2)(ii):
0
i. Removing ``Intellectual Property'' and adding ``intellectual 
property'' in its place;
0
ii. Removing ``;'' and adding in its place ``.''; and
0
iii. Adding three sentences to the end of the paragraph;
0
p. Adding two sentences to the end of paragraph (n)(3)(ii);
0
q. Revising the last sentence of paragraph (n)(4)(i);
0
r. Adding ``or'' to the end of paragraph (n)(5)(i)(A)(1);
0
s. Adding paragraph (p);
0
t. Revising Alternate I by removing all of paragraph (p); and
0
u. Revising Alternate I paragraph (q).
    The additions and revisions read as follows:


970.5227-3  Technology transfer mission.

* * * * *

TECHNOLOGY TRANSFER MISSION (XXX 20XX)

    (a) * * *
    (3) Trademarks and service marks. The Contractor, with 
notification to DOE Patent Counsel, is authorized to protect goods/
services resulting from work at the Laboratory through Trademark and 
Service Mark protection. The Laboratory name and associated logos 
are owned by the Department of Energy and shall be protected by DOE 
Patent Counsel. In furtherance of the technology transfer mission, 
should the Contractor want to assert trademark or service mark 
protection for any word, phrase, symbol, design, or combination 
thereof that includes or is associated with the Laboratory name, the 
Contractor must first notify the Department of Energy Patent 
Counsel. All marks, whether or not registered with the United States 
Patent and Trademark Office, are to be included in the 
``Intellectual property rights'' paragraph (i) of this clause, 
below, regarding transfer to successor

[[Page 66880]]

contractor, DOE reserves the right to require the Contractor to 
cancel registration of the mark or cease use of the mark.
    (b) Definitions.
    Assignment means any agreement by which the Contractor transfers 
ownership of Laboratory Intellectual Property, subject to the 
Government's retained rights.
    Bailment means any agreement in which the Contractor permits the 
commercial or non-commercial transfer of custody, access or use of 
laboratory biological materials or laboratory tangible research 
product for a specified purpose of technology transfer or research 
and development, including without limitation evaluation, and 
without transferring ownership to the bailee.
    Contractor's Laboratory Director means the individual who has 
supervision over all or substantially all of the Contractor's 
operations at the Laboratory.
    Cooperative Research and Development Agreement (CRADA) means any 
agreement entered into between the Contractor as operator of the 
Laboratory, and one or more parties including at least one non-
Federal party under which the Government, through its laboratory, 
provides personnel, services, facilities, equipment, intellectual 
property, or other resources with or without reimbursement (but not 
funds to non-Federal parties) and the non-Federal parties provide 
funds, personnel, services, facilities, equipment, intellectual 
property, or other resources toward the conduct of specified 
research or development efforts which are consistent with the 
missions of the Laboratory; except that such term does not include a 
procurement contract, grant, or cooperative agreement as those terms 
are used in sections 6303, 6304, and 6305 of Title 31 of the United 
States Code.
    Department of Energy (DOE), as used in this clause, includes the 
National Nuclear Security Administration (NNSA), unless otherwise 
identified or indicated.
    Intellectual property means patents, trademarks, copyrights, 
mask works, protected CRADA information, and other forms of 
comparable property rights protected by Federal Law and other 
foreign counterparts.
    Joint Work Statement (JWS) means a proposal for a CRADA prepared 
by the Contractor, signed by the Contractor's Laboratory Director or 
designee which describes the following--
    (i) Purpose;
    (ii) Scope of work which delineates the rights and 
responsibilities of the Government, the Contractor and third 
parties, one of which must be a non-Federal party;
    (iii) Schedule for the work; and
    (iv) Cost and resource contributions of the parties associated 
with the work and the schedule.
    Laboratory biological materials means biological materials 
capable of replication or reproduction, such as plasmids, 
deoxyribonucleic acid molecules, ribonucleic acid molecules, living 
organisms of any sort and their progeny, including viruses, 
prokaryote and eukaryote cell lines, transgenic plants and animals, 
and any derivatives or modifications thereof or products produced 
through their use or associated biological products, made under this 
contract by Laboratory employees or through the use of Laboratory 
research facilities.
    Laboratory tangible research product means tangible material 
results of research which--
    (i) Are provided to permit replication, reproduction, evaluation 
or confirmation of the research effort, or to evaluate its potential 
commercial utility;
    (ii) Are not materials generally commercially available; and
    (iii) Were made under this contract by laboratory employees or 
through the use of laboratory research facilities.
    Patent Counsel means the DOE or NNSA Patent Counsel assisting 
the contracting activity. The Patent Counsel is the first and 
primary point of contact for activities described in this clause.
* * * * *
    (d) Conflicts of interest-technology transfer. * * *
    (1) Inform employees of and require conformance with standards 
of conduct and integrity in connection with research involving non-
Federal sponsors and, for CRADA activity in accordance with the 
provisions of paragraph (n)(5) of this clause;
* * * * *
    (10) Notify the Contracting Officer and the funding party or 
program prior to evaluating a proposal to be funded by a third party 
or a DOE program, when the subject matter of the proposal involves 
an elected or waived subject invention under this contract or one in 
which the Contractor intends to elect to retain title under this 
contract.
* * * * *
    (f) U.S. industrial competiveness for licensing and assignments 
of intellectual property.
    (1) * * *
    (ii) * * *
    (C) If the proposed licensee, assignee, or parent of either type 
of entity is subject to the control of a foreign company or 
government, the Contractor, with the assistance of the Contracting 
Officer, in considering the factors set forth in paragraph 
(f)(1)(ii)(B) of this clause, may rely upon the following 
information--
    (1) U.S. Trade Representative Inventory of Foreign Trade 
Barriers;
    (2) U.S. Trade Representative Special 301 Report; and
    (3) Such other relevant information available to the Contracting 
Officer; and
    (D) The Contractor should review the U.S. Trade Representative 
Web site at: http://www.ustr.gov for the most current versions of 
these reports and other relevant information. The Contractor is 
encouraged to utilize other available resources, as necessary, to 
allow for a complete and informed decision.
* * * * *
    (h) * * *
    (3) * * * The Contractor shall notify the Contracting Officer of 
any changes to that policy, and such changes, shall be subject to 
the approval of the Contracting Officer.
* * * * *
    (n) * * *
    (2) * * *
    (ii) * * * The Contractor, in considering these factors, may 
rely upon the following information--
    (A) U.S. Trade Representative Inventory of Foreign Trade 
Barriers,
    (B) U.S. Trade Representative Special 301 Report, and
    (C) Such other relevant information available to the Contracting 
Officer. The Contractor should review the U.S. Trade Representative 
Web site at http://www.ustr.gov for the most current versions of 
these reports and other relevant information. The Contractor is 
encouraged to utilize other available resources, as necessary, to 
allow for a complete and informed decision;
* * * * *
    (3) * * *
    (ii) * * * A final report, upon completion of a CRADA, shall be 
provided to DOE's Office of Scientific and Technical Information; 
reports marked as Protected CRADA Information will not be released 
to the public for a period up to five years, in accordance with the 
terms of the CRADA.
* * * * *
    (4) * * *
    (i) * * * The Contractor agrees to inform prospective CRADA 
participants, which are intending to substantially pay full cost 
recovery for the effort under a proposed CRADA, of the availability 
of alternative forms of agreements, i.e., WFO and UFA, and of the 
Class Patent Waiver provisions associated therewith.
* * * * *
    (p) Technology partnership ombudsman. (1) The Contractor agrees 
to establish a position to be known as ``Technology Partnership 
Ombudsman,'' to help resolve complaints from outside organizations 
regarding the policies and actions of the Contractor with respect to 
technology partnerships (including CRADAs), patents owned by the 
Contractor for inventions made at the laboratory, and technology 
licensing.
    (2) The Ombudsman shall be a senior official of the Contactor's 
laboratory staff, who is not involved in day-to-day technology 
partnerships, patents or technology licensing, or, if appointed from 
outside the laboratory or facility, shall function as such senior 
official.
    (3) The duties of the Technology Partnership Ombudsman shall 
include--
    (i) Serving as the focal point for assisting the public and 
industry in resolving complaints and disputes with the laboratory or 
facility regarding technology partnerships, patents, and technology 
licensing;
    (ii) Promoting the use of collaborative alternative dispute 
resolution techniques such as mediation to facilitate the speedy and 
low cost resolution of complaints and disputes, when appropriate; 
and
    (iii) Submitting a quarterly report, in a format provided by 
DOE, to the Secretary of Energy, the Administrator for National 
Nuclear Security Administration, the Director of the DOE Office of 
Dispute Resolution, and the Contracting Officer concerning the 
number and nature of complaints and disputes raised, along with the 
Ombudsman's assessment of their

[[Page 66881]]

resolution, consistent with the protection of confidential and 
sensitive information.
* * * * *

ALTERNATE I * * *

    (q) Nothing in paragraphs (c) Allowable costs, (e) Fairness of 
opportunity, (f) U.S. industrial competitiveness, (g) Indemnity--
product liability, (h) Disposition of income, and (i) Transfer to 
successor contractor of this clause are intended to apply to the 
contractor's privately funded technology transfer activities if such 
privately funded activities are addressed elsewhere in the contract.
* * * * *


970.5227-3  [Amended]

0
50. Section 970.5227-3 is further amended in the tables below:
0
a. For each paragraph indicated in the left column, remove the word 
indicated in the middle column from where it appears in the paragraphs, 
and add the word in the right column:

------------------------------------------------------------------------
          Paragraph                  Remove                  Add
------------------------------------------------------------------------
(c) heading.................  Allowable Costs.....  Allowable costs.
(c)(1)......................  Contract............  contract.
                              contracting officer.  Contracting Officer.
(c)(1) and (c)(2)...........  Intellectual          intellectual
                               Property.             property.
(d) introductory text.......  other...............  all.
(d) introductory text in two  contracting officer.  Contracting Officer.
 places, (d)(6), (d)(7),
 (d)(8).
(d)(2), (d)(4)..............  Contractor..........  contractor.
d)(2), (d)(4), (d)(6),        Intellectual          intellectual
 (d)(7), (d)(8), and (d)(9).   Property.             property.
(d)(6) and (d)(7)...........  Contract............  contract.
(e).........................  Fairness of           Fairness of
                               Opportunity.          opportunity.
(f)(1), (f)(1)(ii)(B).......  Intellectual          intellectual
                               Property.             property.
(f)(1)(i), (f)(1)(ii)(A)....  whether.............  Whether.
(f)(1)(i)...................  ; or................  ; and.
(f)(1)(ii)(A)...............  ; and...............  ;
(f)(1)(ii)(B)...............  in..................  In.
(f)(1)(ii)(B)...............  licensing...........  licensing or
                                                     assigning.
(f)(1)(ii)(B)...............  .                     ;
(f)(2) in two places,.......  contracting officer.  Contracting Officer.
(g).........................  Product Liability...  product liability.
                              contracting officer.  Contracting Officer.
(h) heading.................  Disposition of        Disposition of
                               Income.               income.
(h)(1)......................  Contract............  contract.
(h)(3) in two places........  contracting officer.  Contracting Officer.
(i) (i) in three places.....  Contract............  contract.
                              contracting officer.  Contracting Officer.
(i) and (l).................  Intellectual          Intellectual
                               Property.             property.
(j)(1)......................  contracting officer.  Contracting Officer.
(j)(2)......................  Technical Data......  technical data.
(k), (l) and (m)............  contracting officer.  Contracting Officer.
(k) and (m).................  contract............  Contract.
(n) heading.................  Technology Transfer   Technology transfer
                               Through Cooperative   through Cooperative
                               Research and          Research and
                               Development           Development
                               Agreements.           Agreements (CRADA).
(n) introductory text.......  Joint Work Statement  joint work
                              contracting officer.   statement.
                                                    Contracting Officer.
(n)(1)(i)...................  Intellectual          intellectual
                               Property.             property.
(n)(1)(ii)..................  Fairness of           fairness of
                               Opportunity.          opportunity.
(n)(1) in three places,       contracting officer.  Contracting Officer.
 (n)(1)(iii) in two places,
 (n)(1)(iv) in three places,
 (n)(3)(ii) in two places.
(n)(2)(iii).................  Fairness of           fairness of
                               Opportunity.          opportunity.
(n)(2)(iv)..................  Conflicts of          conflicts of
                               Interest.             interest.
(n)(3)(iii).................  Intellectual          intellectual
                               Property.             property.
                              Contract............  contract.
(n)(4) heading..............  Work for others and   Work for others
                               user facility         (WFO) and user
                               programs.             facility programs.
(n)(4)(i)...................  form................  inform.
(n)(4)(iii).................  Contract............  contract.
(n)(5)(i)(A)(1).............  holds...............  Holds
                              CRADA;..............  CRADA; or.
(n)(5)(i)(A)(2).............  receives............  Receives.
(n)(5)(ii), (n)(5)(iii) in    contracting officer.  Contracting Officer.
 two places.
(o).........................  contracting officer.  Contracting Officer.
Alternate I.................  48 CFR 970.2770-4(b)  970.2770-4(b).
Alternate II................  48 CFR 970.2770-4(c)  970.2770-4(c).
------------------------------------------------------------------------

0
b. For each paragraph indicated in the left column, remove the 
punctuation mark indicated in the middle column from where it appears 
in the section, and add the punctuation mark in the right column:

[[Page 66882]]



------------------------------------------------------------------------
                Paragraph                     Remove            Add
------------------------------------------------------------------------
(d) introductory text...................             to:            to--
(f)(1)..................................               :              --
(n)(2)..................................               :              --
(n)(2)(ii)..............................               ;               .
(n)(5)(i)...............................               :              --
(n)(5)(i)(A)(1).........................               ;            ; or
------------------------------------------------------------------------

970.5227-4, 970.5227-5, 970.5227-6, 970.5227-7, 970.5227-8, and 
970.5227-9  [Amended]

0
51. Amend sections 970.5227-4, 970.5227-5, 970.5227-6, 970.5227-7, 
970.5227-8 and 970.5227-9 as follows in the table below:
0
a. For each section indicated in the left column, remove the word(s) 
indicated in the middle column from where it appears in the section, 
and add the word(s) in the right column:

------------------------------------------------------------------------
           Section                   Remove                  Add
------------------------------------------------------------------------
970.5227-4, introductory      970.2702-1..........  970.2701-1-2(a)(1).
 text.
970.5227-4(c)(1)............  52.227-1............  48 CFR 52.227-1.
970.5227-4(c)(1)............  Alternate 1.........  Alternate I.
970.5227-5, introductory      970.2702............  970.2702-1-2(b).
 text.
970.5227-6..................  FAR 48 CFR 52.227-3.  48 CFR 52.227-3.
970.5227-7, introductory      970.2702-4..........  970.2702-2-5.
 text.
970.5227-7, paragraph (b)...  Copies of current     Copies of current
                               licenses..            licenses.
970.5227-8, introductory      970.2702-4..........  970.2702-2-5.
 text.
970.5227-8 (a) in two         Contract............  contract.
 places, (d) and (e).
970.5227-9, introductory      970.2704-6..........  970.2702-1-2(i).
 text.
------------------------------------------------------------------------

0
b. For each section indicated in the left column, remove the 
punctuation mark indicated in the middle column from where it appears 
in the section, and add the punctuation mark in the right column:

------------------------------------------------------------------------
                 Section                      Remove            Add
------------------------------------------------------------------------
970.5227-7(a)...........................               :              --
970.5227-8(a)...........................               :              --
------------------------------------------------------------------------

0
52. Section 970.5227-10 is amended by:
0
a. Revising the section heading;
0
b. Removing ``970.2703-1(b)(2)'' in the introductory text and adding in 
its place, ``970.2703-70-1(b)(2)''.
0
c. Removing the paragraph designation numbers for paragraphs (a)(1) 
through (a)(9);
0
d. Revising paragraph (b)(2)(ii);
0
e. Adding new paragraphs (b)(2)(ii)(D) and (b)(2)(ii)(E);
0
f. Revising paragraph (c)(3); and
0
g. Adding, in paragraph (f)(3), before ``continue'', ``file an 
application,''.
    The additions and revisions read as follows:


970.5227-10  Patent rights management and operating contracts, 
nonprofit organization or small business firm contractor.

* * * * *

PATENT RIGHTS--MANAGEMENT AND OPERATING CONTRACTS, NONPROFIT 
ORGANIZATION OR SMALL BUSINESS FIRM CONTRACTOR (XXX 20XX)

* * * * *
    (b) * * *
    (2) * * *
    (ii) As determined by the DOE, inventions made under any 
agreement, contract or subcontract, related to the exceptional 
circumstances under 35 U.S.C. 202, under which the right to retain 
title to subject inventions may be restricted or eliminated, 
maintained by the Office of the Assistant General Counsel for 
Technology Transfer and Intellectual Property, include but are not 
limited to the following--
* * * * *
    (D) Solid State Energy Conversion Alliance (SECA), if the 
Contractor is a participant in the ``Core Technology Program''; and
    (E) Solid State Lighting (SSL) Program, if the Contractor is a 
participant in the ``Core Technology Program''.
* * * * *
    (c) * * *
    (3) Filing of patent applications by the Contractor. The 
Contractor will file a provisional, nonprovisional, or Patent 
Cooperative Treaty patent application on a subject invention to 
which it elects to retain title within one year after election of 
title or, if earlier, or prior to the end of any 1-year statutory 
period wherein valid patent protection can be obtained in the United 
States after a publication, on sale, or public use. The Contractor 
will file patent applications in additional countries or 
international patent offices within either ten months of the 
corresponding first filed patent application or six months from the 
date permission is granted by the Commissioner of Patents and 
Trademarks to file foreign patent applications where such filing has 
been prohibited by a Secrecy Order.
* * * * *


970.5227-10  [Amended]

0
53. Section 970.5227-10 is further amended in the tables below:
0
a. For each paragraph indicated in the left column, remove the word 
indicated in the middle column from where it appears in the paragraphs, 
and add the word in the right column:

[[Page 66883]]



------------------------------------------------------------------------
           Section                   Remove                  Add
------------------------------------------------------------------------
(a) Subject Invention         contractor..........  Contractor.
 definition, (b)(1) in the
 first sentence, (c)(1) in
 four places.
(c)(1)......................  B&R.................  Budget and Resources
                                                     (B&R).
(e)(2), in two places.......  Part................  part.
(f)(3), (f)( 4).............  contractor..........  Contractor.
(g)(2), in two places.......  48 CFR 952.227-11...  48 CFR 52.227-11.
(n) heading.................  Examination of        Records relating to
                               Records Relating to   subject inventions--
                               Subject Inventions--
                               .
(o) heading.................  Facilities License..  Facilities license.
Alternate 1, introductory     Weapons Related       Weapons related
 text.                         Subject Invention.    subject invention.
Alternate 1, heading........  Alternate 1.........  Alternate I.
Alternate I (a).............  (10) Weapons Related  Weapons related
                               Subject Invention.    subject invention.
Alternate I (b).............  Principal Rights....  principal rights.
------------------------------------------------------------------------

0
b. For each paragraph indicated in the left column, remove the 
punctuation mark indicated in the middle column from where it appears 
in the section, and add the punctuation mark in the right column:

------------------------------------------------------------------------
                 Section                      Remove            Add
------------------------------------------------------------------------
(b)(2)(i), (f)(6).......................               :              --
(b)(2)(ii)(C)...........................               .               ;
(f)(1)(i)...............................           , and           ; and
(k).....................................              --               :
(c), (e), (f), (g)(1), (m), (n), (p),                 --               .
 (q), Alternate I (b)...................
------------------------------------------------------------------------

0
54. Section 970.5227-11 is amended by:
0
a. Removing ``970.2703-1(b)(4):'' in the introductory text, and adding 
in its place ``970.2703-70-1(b)(4):'';
0
b. Revising the clause heading; and
0
c. Removing in paragraph (a), the paragraph designations numbers (a)(1) 
through (a)(7).
    The additions and revisions read as follows:


970.5227-11  Patent rights--management and operating contracts, for-
profit contractor, non-technology transfer.

* * * * *

PATENT RIGHTS--MANAGEMENT AND OPERATING CONTRACTS, FOR-PROFIT 
CONTRACTOR, NON-TECHNOLOGY TRANSFER (XXX 20XX)

* * * * *


970.5227-11  [Amended]

0
55. Section 970.5227-11 is further amended in the tables below:
0
a. For each paragraph indicated in the left column, remove the word 
indicated in the middle column from where it appears in the paragraphs, 
and add the word in the right column:

----------------------------------------------------------------------------------------------------------------
             Section                               Remove                                   Add
----------------------------------------------------------------------------------------------------------------
(b)(2)...........................  an Contractor.........................  a contractor.
(c)(2), (c)(4)...................  Contractor personnel..................  contractor personnel.
(d)(1) heading...................  Contractor License....................  Contractor license.
(d)(1)(iii) and (iv).............  Part..................................  part.
(d), (d)(1)(i), (d)(1)(ii),        Contractor............................  contractor.
 (d)(1)(iii), (d)(1)(iv) in
 headings only.
(k) heading......................  License...............................  license.
----------------------------------------------------------------------------------------------------------------

0
b. For each paragraph indicated in the left column, remove the 
punctuation mark indicated in the middle column from where it appears 
in the section, and add the punctuation mark in the right column:

------------------------------------------------------------------------
                 Section                      Remove            Add
------------------------------------------------------------------------
(b), (c), (e), (f), (g), (j), and (l)...              --               .
(c)(2)..................................               :              --
(f)(2), (f)(3)..........................              --               -
------------------------------------------------------------------------

0
56. Section 970.5227-12 is amended by:
0
a. Revising the section heading and introductory text;
0
b. Revising the clause heading;
0
c. In paragraph (a):
0
i. Removing the paragraph designation numbers for (a)(1) through 
(a)(8);
0
ii. Adding, in alphabetical order, a new definition for ``Department of 
Energy (DOE)''; and
0
iii. Revising the definition for ``Patent Counsel'';
0
d. Revising paragraphs (b)(5)(ii) and (iii);
0
e. Revising paragraph (c)(4), in the first sentence, by removing ``an 
initial patent application'' and adding in its place ``a provisional, 
nonprovisional, or Patent Cooperative Treaty patent application'' and 
in the second sentence, by removing ``initial'' and adding ``first 
filed'' in its place.
0
f. Adding in paragraph (d)(4), before ``discontinue'', ``not file a 
nonprovisional application, or to'';
0
g. Revising paragraph (m);

[[Page 66884]]

0
h. Removing in paragraph (r) ``(1)'' and ``(2)'';
0
i. Adding a new sentence, at the end of paragraph (t); and
0
j. Redesignating Alternate 1 as Alternate I, and revising the heading 
and text.
    The revisions and additions read as follows:


970.5227-12  Patent rights management and operating contracts, for-
profit contractor, advance class waiver.

    Insert the following clause in solicitations and contracts in 
accordance with 970.2703-70-1(b)(3):

PATENT RIGHTS--MANAGEMENT AND OPERATING CONTRACTS, FOR-PROFIT 
CONTRACTOR, ADVANCE CLASS WAIVER (XXX 20XX)

    (a) * * *
    Department of Energy (DOE), as used in this clause, includes the 
National Nuclear Security Administration (NNSA), and unless 
otherwise identified or indicated, includes the coordinated efforts 
of the DOE and NNSA.
* * * * *
    Patent Counsel means the DOE Patent Counsel assisting the DOE 
contracting activity.
    The Patent Counsel is the first and primary point of contact for 
activities described in this clause.
* * * * *
    (b) * * *
    (5) * * *
    (ii) Inventions made under any agreement, contract or 
subcontract, related to the following initiatives or programs are 
exceptional circumstance subject inventions--
    (A) DOE Steel Initiative and Metals Initiative;
    (B) U.S. Advanced Battery Consortium;
    (C) Any funding agreement which is funded in part by the 
Electric Power Research Institute (EPRI) or the Gas Research 
Institute (GRI);
    (D) Solid State Energy Conversion Alliance (SECA), if the 
Contractor is a participant in the ``Core Technology Program''; and
    (E) Solid State Lighting (SSL) Program, if the Contractor is a 
participant in the ``Core Technology Program''.
    (iii) Exceptional circumstances subject inventions are as set 
forth in the applicable class advance waiver. In addition, DOE 
reserves the right to unilaterally amend this contract to modify, by 
deletion or insertion, technical fields, programs, initiatives or 
other classifications for the purpose of defining DOE exceptional 
circumstance subject inventions.
* * * * *
    (m) Facilities license. In addition to the rights of the parties 
with respect to inventions or discoveries conceived or first 
actually reduced to practice in the course of or under this 
contract, the Contractor agrees to and does hereby grant to the 
Government an irrevocable, nonexclusive, paid-up license in and to 
any inventions or discoveries regardless of when conceived or 
actually reduced to practice or acquired by the contractor at any 
time through completion of this contract and which are incorporated 
or embodied in the construction of the facility or which are 
utilized in the operation of the facility or which cover articles, 
materials, or products manufactured at the facility--
    (1) To practice or have practiced by or for the Government at 
the facility; and
    (2) To transfer such license with the transfer of that facility. 
Notwithstanding the acceptance or exercise by the Government of 
these rights, the Government may contest at any time the 
enforceability, validity or scope of, or title to, any rights or 
patents herein licensed.
* * * * *
    (t) * * * At the discretion of the Patent Counsel, authority to 
review publications prior to release may be delegated to the 
Contractor.
* * * * *
    Alternate I Weapons related subject inventions. As prescribed at 
970.2703-70-2(g), insert the following definition after the last 
definition in paragraph (a) and add subparagraph (b)(10):
    (a) Definitions. Weapons related subject invention means any 
subject invention conceived or first actually reduced to practice in 
the course of or under work funded by or through defense programs, 
including Department of Defense and intelligence reimbursable work, 
or the Naval Nuclear Propulsion Program of the Department of Energy 
or the National Nuclear Security Administration.
    (b) Allocation of principal rights. (10) Weapons related subject 
inventions. Except to the extent that DOE is solely satisfied that 
the Contractor meets certain procedural requirements and DOE grants 
rights to the Contractor in weapons related subject inventions, the 
Contractor does not have a right to retain title to any weapons 
related subject inventions.


(End of alternate)


970.5227-12  [Amended]

0
57. Section 970.5227-12 is further amended in the tables below:
0
a. For each paragraph indicated in the left column, remove the word 
indicated in the middle column from where it appears in the paragraphs, 
and add the word in the right column:

----------------------------------------------------------------------------------------------------------------
            Paragraph                              Remove                                   Add
----------------------------------------------------------------------------------------------------------------
(a) DOE licensing regulations and  Part..................................  part.
 DOE patent waiver regulations
 definitions, (e)(3).
(a) Subject invention definition.  contractor............................  Contractor.
(c), (f)(2)......................  Contractor............................  contractor.
(e)(2)...........................  non-transferrable.....................  non-transferable.
(e), (e)(1), (e)(2), (e)(3),       Contractor............................  contractor.
 (e)(4) in the headings only.
(e)(3) in second sentence........  continues.............................  continue.
(e)(3) in last sentence..........  failed................................  have failed.
(j)..............................  March-In..............................  March-in.
----------------------------------------------------------------------------------------------------------------

0
b. For each paragraph indicated in the left column, remove the 
punctuation mark indicated in the middle column from where it appears 
in the section, and add the punctuation mark in the right column:

------------------------------------------------------------------------
                Paragraph                     Remove            Add
------------------------------------------------------------------------
(b), (c), (d), (e), (f), (g), (l), (n),               --               .
 (o), and (p)...........................
(c)(1), (c)(5), (f)(1)..................               :              --
(g)(2), (g)(3)..........................              --               -
------------------------------------------------------------------------


[[Page 66885]]

[FR Doc. 2013-24607 Filed 11-6-13; 8:45 am]
BILLING CODE 6450-01-P