(4) A brief description of the safeguards to be taken in handling invention disclosures to protect the proprietary rights of persons submitting such disclosures;

(5) A requirement that the submitter indicate either that the following or similar legend has been applied to the invention disclosure, or that the following legend should be applied to the invention disclosure by the Office, or that such legend in the judgment of the submitter is not required: "This invention disclosure contains information which is (i) a trade secret or (ii) commercial or financial information that is privileged or confidential.";

(6) A Memorandum of Understanding setting forth the conditions under which NIST shall accept an invention disclosure for evaluation of the invention described therein, and including, directly or by reference, the provisions

§270.5; such Memorandum shall be gned by the person who submits the invention disclosure as a prerequisite to the evaluation of the invention described in such disclosure; and

(7) Other information deemed relevant.

(b) Where the Government is entitled to the entire right, title, and interest in an invention and such invention is described in an invention disclosure to be submitted for the purpose set out in §270.2 of this part, the Office shall furnish to the submitter an Energy-Related Invention Evaluation Request form which shall include paragraphs (a)(1), (2), and (3) of this section and which may omit paragraphs (a)(4), (5), and (6) thereof.

41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18, 1990]

(b) When the person, who is to sign the Statement of Nondisclosure form is a Department employee, a statement indicating that such person has read and understood 15 CFR 0.735-15(b), which prohibits the use of inside information by a Department employee, and 15 CFR 0.735-15(d), which prohibits the disclosure of restricted information; and

(c) When the person, who is to sign the Statement of Nondisclosure form, is a government officer or employee, a statement indicating that such person has read and understood 18 U.S.C. 1905, which provides for criminal penalties which may be imposed on a government officer or employee for the unauthorized disclosure of confidential information, including trade secrets, which comes to such person in the course of his employment or official duties.

§ 270.5 Nondisclosure provisions for

evaluation contracts.

(a) In any contract awarded by the Department or NIST for the evaluation of an invention described in an invention disclosure or for any other task for which a contractor receives an invention disclosure in confidence, the contractor shall agree in writing to comply with the following safeguards:

(1) To establish and maintain procedures for holding such invention disclosure in confidence;

(2) To provide the contracting officer with a signed statement from each person to whom an invention disclosure will be shown that any information which is received in confidence shall be kept in confidence by such person to the extent of the nondisclosure provisions contained in such contract; such statement shall be subject to the approval of the contracting officer;

(3) To furnish the contracting officer a description of the procedures specified in paragraph (a)(1) of this section so that their effectiveness may be determined and evaluated, and to make any reasonable changes in such procedures as may be requested by the contracting officer to increase their effectiveness;

(4) To use the information in the invention disclosure only in the perform

ance of the work called for in the contract;

(5) Not to disclose information in the invention disclosure to anyone except as provided in the contract, without the prior written authorization of the contracting officer;

(6) Not to make, have made, or permit to be made any copies of the invention disclosure, or any portion thereof, except those copies necessary for the performance of the work called for in the contract; any proprietary legend appearing on the invention disclosure shall be reproduced on each such copy or portion thereof; and

(7) To mark each report called for in the contract with a legend, provided by the Office, which shall specify the restrictions on distribution of the report and, when appropriate, the property rights in the information in the report.

(b) In the event the contract contemplates engaging the services of an outside consultant to perform the work called for in the contract, the contractor shall prior to disclosing the invention disclosure to the consultant, bind the consultant to a written agreement which shall contain all the nondisclosure provisions in the contract. The contractor shall provide the contracting officer, or a person designated in the contract, with a copy of such agreement.

(c) When a contract for the evaluation of an invention described in an invention disclosure requires the performance of commercial feasibility studies, the contract shall provide that the contractor, notwithstanding the provisions of paragraph (a) of this section, may, in performing an analysis of the market potential of the invention, disclose to a third party the class of systems, devices or methods to which the invention belongs, and may disclose to such party in general terms the results achieved by, and the characteristics of, the system, device or method comprising the invention.

[41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18, 1990]

$270.6 Conflict of interest.

Each contract, requiring access to invention disclosures, shall provide that if, upon examination of an invention disclosure, the contractor is aware that

it has any financial interest in or any relation with a third party which might affect the integrity and impartiality of its performance of the work specified in the contract, the contractor shall provide the contracting officer with a complete written report of such interest or relation prior to undertaking the work and shall not proceed with the work without the prior written authorization of the contracting officer. The authorization of the contracting officer is required to assure that the integrity and impartiality of the contractor's performance of the work specified in the contract shall not be affected by such financial interest or relation.

§ 270.7 Restricted access to invention disclosures.

(a) When an invention disclosure is not accompanied by a signed Memorandum of Understanding, specified in §270.3(a)(6) of this part, such disclosure (1) shall be handled for processing only, such as recording, classifying, and safekeeping, or (2) may be returned to the submitter without evaluation when the disclosure does not describe an invention as defined in §270.1(b). During the processing, the distribution of the invention disclosure shall be restricted to the personnel in the Office who have been designated by the Chief of the Office to carry out the processing functions called for in this paragraph. Moreover, the invention disclosure shall not be processed beyond the Office for any purpose prior to receipt of a signed Memorandum of Understanding.

(b) When an invention disclosure is accompanied by a signed Memorandum of Understanding, such disclosure may be released to any person, who needs the information in the disclosure for administrative purposes or for evaluation of the invention described in such disclosure, and who has signed a Statement of Nondisclosure form specified in §270.4, or who is authorized to receive the invention disclosure pursuant to a contract with the Department or NIST.

(c) In no event shall an invention disclosure be released to any person not specified in paragraph (a) or (b) of this section without the prior written au

thorization of the NIST Legal Advisor, provided, however, that the Chief of the Office may authorize the release of an invention disclosure to any person when (1) the invention described in such disclosure has been set forth in a written publication available to the public, or (2) the submitter has stated in writing that a proprietary legend on the invention disclosure is not required.

(d) Notwithstanding the provisions of paragraphs (b) and (c) of this section and §270.8, an invention described in an invention disclosure, in which the Government is entitled to the entire right, title, and interest, may be reviewed and evaluated without receiving a signed Memorandum of Understanding specified in §270.3(a)(6) or the signed statement specified in § 270.5(a)(2).

(e) After the Office has completed its review and evaluation of an invention disclosure pursuant to §270.8, the Office, with the prior written permission of the person who submitted such disclosure, may forward the disclosure to ERDA:

(1) Without regard to the provisions of paragraphs (b) and (c) of this section; and

(2) With the understanding between the Office and ERDA that such disclosure shall be handled in accordance with the procedures established by ERDA for the protection of proprietary information. When such permission is not obtained by the Office, the Office may nevertheless forward such invention disclosure to ERDA subject to the provisions of paragraphs (b) and (c) of this section.

(f) Notwithstanding the provisions of any section of this part, the disclosure of any information in or related to an invention disclosure shall be subject

to:

(1) The provisions of the Freedom of Information Act, 5 U.S.C. 552, and the Department's regulations published in the implementation thereof;

(2) The provisions of any statute which requires the submission of information to a standing committee of the Congress, including each subcommittee thereof; and

(3) Release to a third party pursuant to an order of a court of competent jurisdiction.

[41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18, 1990]

$270.8 Review and evaluation.

(a) When an invention disclosure is accompanied by the signed Memorandum of Understanding specified in §270.3(a)(6), such disclosure shall receive a preliminary review to determine whether it is complete and sufficient and describes an invention which may be a potentially beneficial source of energy subject to utilization technologies.

(b) After completion of a preliminary review, the Office may undertake or have undertaken an evaluation of the invention in an invention disclosure which shall include:

(1) An assessment of the validity of the technical assumptions and statements which are made in the invention disclosure concerning the invention;

(2) An assessment of the potential of the invention for energy conservation, utilization, and production;

(3) An assessment of the potential of the commercial utilization of the invention; and

(4) A recommendation on whether ERDA should support the invention.

(c) Invention disclosures submitted to the Office normally shall be evaluated in the order in which they are received except in those cases where the Chief of the Office determines that the advancement of an invention disclosure would improve the effectiveness of the program established by section 14 of the Act.

(d) When a preliminary review and/or evaluation of an invention requires a capability which is not available at NIST, the Office may enter into a contract for the performance of such review and/or evaluation with a qualified individual or firm in the private sector or into an agreement with another Federal Government department or agency for the same purpose.

[41 FR 43396, Oct. 1, 1976, as amended at 55 FR 38316, Sept. 18, 1990]

157-047 0-95--12

$270.9 Recommendations on invention

disclosures.

(a) Based on the review or evaluation of an invention pursuant to §270.8, the Office shall decide whether or not to recommend the invention to ERDA for support and shall inform ERDA and the person who submitted the invention disclosure of such decision.

(b) Subject to the provisions of § 270.7(e):

(1) Where the Office recommends an invention to ERDA for support, the Office shall furnish a report to ERDA which documents the basis for the recommendation; and

(2) Where the Office decides not to recommend an invention to ERDA, a report which documents the basis of its decision shall be forwarded to ERDA upon its request.

Sec.

275.1 Purpose and policy.

275.2 Testimony or production of records by NIST employees in legal proceedings not involving the United States as a named party.

275.3 Certification of records.

275.4 Request or order for testimony or production of records.

275.5 Response to request or order for testimony or production of records.

AUTHORITY: Sec. 9, 31 Stat. 1450, as amended; 15 U.S.C. 277.

SOURCE: 44 FR 17481, Mar. 22, 1979, unless otherwise noted.

EDITORIAL NOTE: Nomenclature changes to part 275 appear at 55 FR 38316, Sept. 18, 1990.

$275.1 Purpose and policy.

(a) This part prescribes the policies and procedures of the National Institute of Standards & Technology (NIST) with respect to testimony by NIST employees and production of data, information and records, in legal proceedings not involving the United States as a named party.

(b) NIST is the Federal agency responsible for the custody, maintenance, and development of the national standards of measurement, and the impartial development and application of measurement technologies upon which the flow of interstate and foreign commerce must necessarily depend (15 U.S.C. 272).

(c) To carry out its statutory mission effectively, NIST must apply the expertise of the many scientific and technical experts it employs exclusively to the performance of its official duties, including providing scientific and technical advisory services to other Federal agencies. It is essential that NIST also maintain a policy of strict impartiality among private litigants, and that it ensure that its employees adhere to the responsibilities for which they were employed. To these ends, it is the pol

not testify nor otherwise appear in legal proceedings not involving the United States or its officers or employees in their official capacity as a named party in order to produce data, information, or records which concern matters related to official duties of NIST employees or the functions of NIST.

(d) For purposes of this part, "legal proceeding" includes any civil or criminal proceeding before a court of law, administrative board or commission, hearing officer, or other body conducting a legal or administrative proceeding, or any discovery proceeding in support thereof, including depositions and interrogatories.

$275.2 Testimony or production of records by NIST employees in legal proceedings not involving the United States as a named party.

No NIST employee shall give testimony in any legal proceeding in which the United States Government or an agency or department in the Executive Branch is not a named party, concerning official duties of an NIST employee or any function of NIST, nor produce any data, information, or record created or acquired by NIST as a result of the discharge of its official duties, without the prior written authorization of the NIST Legal Adviser.

$275.3 Certification of records.

Certified copies of NIST records will be provided upon request and payment of the applicable fees. Requests for certification should be addressed to the NIST Legal Adviser, National Institute of Standards & Technology, Washington, DC 20234. The applicable fees include charges for certification and reproduction, the amounts of which are set out in §4.9(a) (3) and (5) of Title 15 of the CFR. Other reproduction costs and postage fees, as appropriate, will also be borne by the requester.