CNST NanoFab Frequently Asked Questions

Prior to submitting a new CNST NanoFab project application, please contact the NanoFab Manager to discuss your proposed project. After discussing your proposed project, please complete and submit a Project Application and e-mail it to the nanofabuseroffice [at] nist.gov (NanoFab User Office).

The project application process takes approximately two weeks from application submission to project approval and activation. An initial payment must be made at the time of project application submission. Once the project is approved and activated, you must have a NIST site badge. If you are a U.S. citizen, the process of obtaining a site badge typically takes between three to six weeks. For permanent residents and foreign nationals, the approval process may extend up to 10 weeks.

No. The CNST NanoFab is accessible on an equal basis to researchers from industry, academia, NIST, and other government agencies, and identical rates are offered to everyone, both inside and outside of NIST. Although projects associated with NIST collaborations are welcome, there is no specific need to collaborate with a NIST staff member in order to use the NanoFab.

The CNST NanoFab offers a two-tiered rate schedule that, unlike some other national nanofabrication user facilities, is based on the nature of your work NOT your affiliation. Non-proprietary projects may be considered for reduced rates. The decision to award reduced rates will be based on the extent to which the proposed project will develop innovative nanoscale measurement and fabrication capabilities to support nanoscale technology from discovery to production, including the likelihood of publications, patents, new processes, commercial products, and other outputs that benefit the public.

The distinction between proprietary and non-proprietary research in the CNST NanoFab, which is a federal facility, is ultimately related to public disclosure under the Freedom of Information Act (FOIA), not intellectual property. 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 CNST NanoFab expects the results of non-proprietary research to be freely shared with the public, either by the researchers themselves via publications and/or presentations, or by the CNST NanoFab in the form of reports, web pages, etc.

As a facility operated by the federal government, work performed at the CNST NanoFab with the assistance of federal employees is generally subject to disclosure under FOIA. Therefore, if any federal employees will assist you in collecting the data for your project, with a few exceptions, the project will be non-proprietary. Similarly, NIST and other federal government projects, except in unusual circumstances, are inherently non-proprietary. In general terms, you are doing proprietary research in the NanoFab if all the work will be performed directly by you and other members of your (non-federal) organization, and you do not intend to share with anyone outside your organization—including any members of the NanoFab staff— the specifics of what you are doing, how you are doing it, or what you learn. See Proprietary Versus Non-proprietary Projects below for a more in-depth discussion of this topic.

There is a simple approach to these situations that works well in most cases. We suggest you create two separate project applications, one for a non-proprietary project and one for a proprietary project. (You will receive two project numbers.) Use the non-proprietary project for the generic processes you are willing to share, such as base-line process development, and/or for acquiring sufficient proficiency to operate the needed tools and processes without CNST NanoFab staff assistance. Then use the proprietary project for the work you would like to protect from public disclosure and will therefore perform by yourself.

NIST does not claim any inherent rights to inventions made in the course of any NanoFab project. Ownership and rights to any such inventions are determined solely by who the inventors are. Unless one of the inventors is a NIST employee or guest researcher, NIST will not have any rights to your invention. If you co-invent something with a NIST employee, NIST will jointly own that invention, with the same rights it would have for any intellectual property co-invented by a NIST federal employee.

If you are a Domestic or Foreign Guest Researcher at NIST, you have granted NIST certain rights to inventions made during your work with NIST.

Note that this is a complex topic and the following is provided as general information only. We recommend that you consult an attorney if you have questions or concerns about intellectual property or trade secrets.

As a user of a federal facility, it is important to distinguish between proprietary information and intellectual property. Proprietary information is information that is not public knowledge (such as certain financial data, test results, or trade secrets) and that is viewed as the property of the holder. With a few exceptions, information held by the federal government is considered non-proprietary. Proprietary versus non-proprietary projects are discussed in more detail below.

Intellectual property is knowledge or ideas that have commercial value and are protectable under copyright, patent, service mark, trademark, or trade secret laws. Intellectual property includes brand names, discoveries, formulas, inventions, knowledge, registered designs, software, and art, literary, or musical works. Within the NanoFab, patents and patent rights are of the most significance.

A patent is a property right granted by the government to an inventor, who may assign his or her rights to others. Note that the determination of who the inventors are is different than the determination of who has the rights to an invention. An inventor is any person who conceived some or all of the invention during the course of a CNST NanoFab project, depending upon the circumstances that may or may not include a CNST NanoFab staff member or other NIST employee. The inventors are not determined by the type of project, only by who was involved in conceiving the invention. The only way to ensure that only a specific set of people may become inventors on a project is to confine all work on that project to that group of people.

NIST does not claim any inherent rights to inventions made in the course of a NanoFab project. The ownership rights will generally be determined by the employment status and any intellectual property assignments agreed to by the inventors. Most employers retain the rights to inventions by their employees. NIST (the federal government) generally retains the rights to inventions made by NIST employees. In addition, both Domestic and Foreign Guest Researchers at NIST, in signing agreements with NIST, grant NIST certain rights to inventions made during their work with NIST (please consult the agreements for specific details).

An external user of the NanoFab who signs a Non-proprietary Facility Use Agreement does not assign any patent rights to NIST. Therefore, unless one of the inventors is a NIST employee or guest researcher, NIST will not have any rights to that invention. The rights will be determined by any intellectual property agreements the inventors may have with their employer(s) or other parties. If a user co-invents something with a NIST employee in the NanoFab, NIST will jointly own that invention, and the sharing of those rights will need to be negotiated between all the rights holders.

An external user of the NanoFab who signs a Proprietary Facility Use Agreement also does not assign any patent rights to NIST. Because in signing such an agreement the external users commit to performing all work themselves (without the involvement of NIST employees), there should be no risk of co-inventions with NIST employees that would complicate any patent rights. As discussed below, such an agreement does not preclude having the CNST NanoFab staff assist with non-proprietary process development and tool training, which can be done as part of a separate, non-proprietary project.

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 CNST NanoFab staff, who will generally not be included under those agreements). A user in any of these situations should alert the CNST 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 NanoFab 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 NanoFab 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 NanoFab 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 CNST NanoFab. Such a proprietary project is associated with a Facilities Use Agreement for Proprietary Research. It is NIST policy that, to preserve the proprietary nature of the data which result from use of the CNST 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 CNST 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.

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 CNST 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 it is 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 CNST 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 Information Exchange.)

The NanoFab uses two types of facilities use agreements (FUAs) for external users only. The agreements define the period of use, requirements for payment and insurance, responsibilities for damages and injuries, liabilities (including those associated with information disclosure), and other terms of use, such as the requirement that the use of the CNST NanoFab be acknowledged in publications.

1. Facilities Use Agreement for Non-Proprietary Research: For non-proprietary NanoFab projects from institutions that are not federal agencies where the processes and procedures used in the CNST  NanoFab and all results may be made freely available to the public, and the users intend to publish the results.
2. Facilities Use Agreement for Non-collaborative Proprietary Research: For proprietary CNST NanoFab projects when the external users do not want the results or other aspects of the project disclosed to the public, and are, therefore, required to perform the project directly and exclusively by the external users. Note that this agreement explicitly declares that the "USER will retain the entire right, title, and interest to any invention solely created by USER's employee(s) resulting from the proprietary measurements performed under this Agreement."