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Policies and Procedures — Proprietary versus Non-proprietary Projects

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Proprietary versus non-proprietary projects

What’s Proprietary and What’s Not

Proprietary information is generally defined as information that is not public knowledge and that is viewed as the property of the holder, with the holder of that information responsible to declare it and treat it as proprietary.  The Department of Commerce defines "Proprietary Research Activities" in the NanoFab as “research activities, surveys, laboratory analyses, measuring or testing of specific materials, chemicals, or devices conducted by non-Federal parties using Department facilities, where the resulting data or other products are treated as confidential by the non-Federal parties. In contrast, under non-proprietary research, the host operating unit will be entitled to obtain, use, and permit public access to the resulting data.”  (See the DOC DAO 217-19 in the Appendix.)

Note that the distinction between proprietary and non-proprietary research in the NanoFab, which is a DOC facility, is ultimately related to public disclosure under the Freedom of Information Act (FOIA), not to the protection of intellectual property Information (“data or other products”) created by the federal government is generally considered public (i.e. non-proprietary) information and is subject to public disclosure under FOIA.  Therefore, with a few exceptions, any internal NanoFab project—defined as a project paid for by a NIST work order and led by a NIST employee—is considered non-proprietary.  The exceptions include internal projects associated with a Cooperative Research and Development Agreement (CRADA) or covered by a non-disclosure agreement to which the project leader and other participants are parties (not the NanoFab staff, who will generally not be included under those agreements).  A user in any of these situations should alert the NanoFab Manager before submitting a project application.

For an external project—defined as a project led by an external user and paid for directly by the user’s home institution—the distinction between proprietary and non-proprietary research is generally the choice of the user.  The CNST expects the results of non-proprietary research to be freely shared with the public, either by the users themselves via publications and/or presentations, or by the CNST in the form of reports, web pages, etc.  Note that this treatment does not preclude the protection of intellectual property through a reasonable delay in making certain ideas and results public. Such a non-proprietary project is associated with a Facilities Use Agreement for Non-Proprietary Research and may be considered for reduced rates.  As discussed above, as a facility operated by the federal government, data or other products created at the CNST with the assistance of NIST employees is generally subject to disclosure under FOIA.  Therefore, if any NIST employees are involved in creating the research “data or other products”, unless they are involved as part of a CRADA or other unusual agreement, the research will be considered non-proprietary.

In general terms, an external research project should be proprietary if the users do not intend to disclose the results or other aspects of the project to the public—including to any NIST employees in the NanoFab.  Such a proprietary project is associated with a Facilities Use Agreement for Non-collaborative Proprietary Research.  It is NIST policy that to preserve the proprietary nature of the data which result from use of the NanoFab, in this case the user “must obtain the measurement data directly and exclusively from the apparatus”; i.e., no NIST employees can be involved.  In addition, it is DOC policy that proprietary projects are not eligible for reduced rates.  It is important to recognize, however, that even for proprietary projects, information about the proposed work must be provided in sufficient detail to process and review the application, including to judge its merit, safety, and the NanoFab resources required (i.e., the tools and hours of tool use). 

In some cases, an applicant may decide that it is necessary to disclose proprietary information to the NanoFab Manager before an application is submitted in order, for example, to determine if the NanoFab has the capabilities to complete a project.  In these cases a non-disclosure agreement may be completed between NIST and the applicant, with the understanding that it only applies to the pre-application discussion; once a facilities use agreement is signed, subsequent disclosure terms are covered by whichever agreement (proprietary or non-proprietary) is chosen.

Note that you may find elsewhere on the NIST website, but not on the CNST's website, a Facilities Use Agreement for Collaborative Proprietary Research.  This agreement, a form of a CRADA, is not used by the NanoFab. 

How Proprietary Status Affects a Project

The key distinctions related to proprietary versus non-proprietary projects in the NanoFab are summarized as follows:
  1. Non-proprietary projects are expected to freely share the results with the public, may involve both internal and external users, and may apply for reduced rates.
  2. Internal projects are non-proprietary, except under limited, special circumstances such as those associated with a CRADA or other agreement to which the project leader and other participants are parties that specifically prohibits public disclosure.
  3. Proprietary projects must be conducted solely by external users, who must obtain all data directly and exclusively without the involvement of NIST employees, and are not eligible for reduced rates.

In some cases an external user may desire to conduct a proprietary project, but requires training and assistance in using the required tools and/or developing the required processes.  An effective approach to this situation is to conduct two, sequential projects.  First, a non-proprietary project focuses on developing the needed tool and process expertise with the assistance of NanoFab and other NIST employees, as required.  Then a new proprietary project can be conducted directly and exclusively by the external users.

Responsibilities of the User vs. NIST in Protecting Proprietary Information

As discussed above, it is the responsibility of the holder of information to declare it and treat it as proprietary, and to inform NIST employees when the holder intends to disclose proprietary information.  NIST does not accept proprietary information unless absolutely necessary. The receipt of that proprietary information must be approved by NIST management. NIST does recognize that organizations may need to disclose proprietary information in order to have effective technical discussions; for example, to determine whether the NanoFab has the capabilities needed for a proprietary project. In these cases, please plan ahead to allow for the time needed for NIST to review and approve a non-disclosure agreement.  (See http://www.nist.gov/tpo/collaborations/infoexchange.cfm.) 

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