Other Grant Requirements
Chapter VII Contents
700 Non-Discrimination Statutes VII-1
701 General VII-1
702 Civil Rights Act of 1964 VII-1
702.1 Background VII-1
702.2 NSF Regulations VII-1
702.3 Assurance of Compliance VII-1
702.4 Civil Rights Assurance-Subrecipients VII-1
702.5 Grant Provisions VII-2
703 Rehabilitation Act VII-2
703.1 Background VII-2
703.2 NSF Regulations VII-2
703.3 Assurance of Compliance VII-2
703.4 Section 504 Assurance-Subrecipients VII-2
703.5 Grant Conditions VII-2
704 Title IX - Sex Discrimination VII-2
705 Age Discrimination Act VII-2
705.1 Background VII-2
705.2 NSF Regulations VII-2
705.3 Grant Conditions VII-2
706 Equal Employment Opportunity Under E.O.11246 VII-2
706.1 Background VII-2
706.2 Grant Conditions VII-3
710 Protection of Living Organisms VII-3
711 Human Subjects VII-3
711.1 Background VII-3
711.2 NSF Regulation VII-3
711.3 Certification of Compliance VII-3
712 Research Involving Recombinant DNA Molecules VII-3
712.1 Applicability VII-3
712.2 Policy VII-3
712.3 Research Requiring Prior Approval of the Director, NIH VII-3
712.4 Recombinant DNA Research Outside the U.S. VII-3
712.5 Reporting VII-4
712.6 Additional Information VII-4
713 Animal Welfare Requirements VII-4
714 Marine Mammal Protection Act VII-4
720 Construction, Rearrangements and Alterations VII-5
721 Davis-Bacon Act VII-5
722 Bonding and Insurance VII-5
723 Flood Insurance VII-5
724 Seismic Safety of Buildings VII-5
730 Intellectual Property VII-5
731 Patent and Inventions VII-5
731.1 Background VII-5
731.2 National Science Foundation Patent Policy VII-6
731.3 Standard Patent Rights Clause VII-6
732 Copyright VII-9
732.1 Rights to Copyrightable Material VII-9
732.2 Standard Copyrightable Material Clause VII-10
733 Special Patent and Copyright Situations VII-10
733.1 Special Grant Provisions VII-10
733.2 Grants Not Primarily for Research VII-10
733.3 Grants Affected by International Agreements VII-11
734 Dissemination and Sharing of Research Results VII-11
735 Tangible Property VII-11
735.1 Background VII-11
735.2 Legal Rights to Tangible Property VII-11
740 Publication/Distribution of Grant Materials VII-11
741 NSF Policy VII-11
742 Costs VII-12
743 Responsibilities VII-12
744 Grantee Obligations VII-12
750 Program Income VII-12
751 Background VII-12
752 Definition VII-12
753 NSF Policy VII-12
760 International Considerations VII-12
761 Travel to Foreign Countries VII-12
761.1 Policy VII-12
761.2 Use of U.S.-Flag Air Carriers VII-13
761.3 Use of Foreign-Flag Air Carriers VII-13
762 Charter Flights VII-13
763 Projects in a Foreign Country VII-13
764 Passports and Visas VII-14
765 International Travel Grants VII-14
OTHER GRANT REQUIREMENTS
This chapter discusses other grant requirements not addressed in the preceding chapters. Topics covered are:
700 NON-DISCRIMINATION STATUTES
710 PROTECTION OF LIVING ORGANISMS
720 CONSTRUCTION, REARRANGEMENTS AND ALTERATIONS INCLUDING: DAVIS-BACON
ACT, BONDING AND INSURANCE, FLOOD INSURANCE, AND SEISMIC SAFETY OF
730 INTELLECTUAL PROPERTY (INCLUDING: PATENTS AND INVENTIONS, AND
740 PUBLICATION/DISTRIBUTION OF GRANT MATERIALS
750 PROGRAM INCOME
760 INTERNATIONAL CONSIDERATIONS (INCLUDING: TRAVEL GRANTS AND USE OF
U.S. FLAG CARRIERS)
700 NON-DISCRIMINATION STATUTES
a. A number of statutes bar recipients of Federal financial assistance from excluding persons, because of their race, sex, color, age or national origin, from participation in Federally supported activities. These include: Title VI of the Civil Rights Act of 1964 (barring discrimination on grounds of race, color, or national origin); Section 504 of the Rehabilitation Act (barring discrimination against individuals with disabilities); and the Age Discrimination Act. Title IX of the Educational Amendments of 1972 bars sex discrimination in Federally assisted education programs or activities. In addition to statutory prohibitions, E.O. 11246 bars various types of discriminatory employment practices under grants for construction. The following sections discuss the application of each of these Acts and E.O. 11246 to NSF grantees.
b. When a recipient of an NSF grant receives an Equal Opportunity Complaint, the original complaint should be sent to the Director, Office of Equal Opportunity Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
702 Civil Rights Act of 1964
Section 602 of the Civil Rights Act of 1964 (42 USC §§2000d et seq.) provides that no person in the U.S. shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving Federal financial assistance. Section 602 requires that each Government agency which is empowered to extend such financial assistance issue rules or regulations implementing Title VI of the Act with respect to such programs or activities administered by the agency.
702.2 NSF Regulations
NSF regulations implementing Title VI of the Civil Rights Act are found at 45 CFR §611. These regulations apply to the grantee and to any subrecipients such as subawardees, contractors and subcontractors of a grantee, and successors in interest, other than subrecipients for commercially available supplies, materials, equipment or general support services. The regulations require that as a condition of approval of an application for assistance, the applicant must execute the Assurance of Compliance form (see Exhibit VII-1), whether or not a similar assurance form has been filed with another Federal agency.
702.3 Assurance of Compliance
Prospective grantees may either reproduce the Assurance of Compliance form or request copies from DGA. The signed original should be mailed to DGA. Once a properly executed form has been filed with NSF, it will cover all future applications to NSF. Acceptance of a subsequent grant constitutes affirmation that the Assurance of Compliance will be fully applicable to the grant.
702.4 Civil Rights Assurance-Subrecipients
Before any organization serves as a subrecipient on an NSF grant (for other than the provision of commercially available supplies, materials, equipment or general support services), it must first file an Assurance of Compliance form with either the grantee or NSF.
702.5 Grant Provisions
Each NSF grant contains as part of the standard grant conditions an article implementing Title VI.
703 Rehabilitation Act
Section 504 of the Rehabilitation Act of 1973, as amended (29 USC §794) provides that "no otherwise qualified individual with a disability in the United States...shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance...."
703.2 NSF Regulations
NSF regulations implementing section 504 are found at 45 CFR §605. With a few changes, these regulations follow closely the regulations issued by the DHHS at 45 CFR §84. These regulations also apply to subrecipients such as subawardees, contractors and subcontractors of a grantee, and successors in interest (other than subrecipients for the provision of commercially available supplies, materials, equipment or general support services).
703.3 Assurance of Compliance
In lieu of requiring submission of separate assurances or certifications, each NSF grant contains as part of the standard grant conditions a provision stating that acceptance of the grant constitutes assurance that the grantee will comply with Section 504 and NSF's implementing regulation.
703.4 Section 504 Assurance-Subrecipients
In lieu of requiring grantees to obtain separate assurances or certification from subrecipients receiving financial assistance under an NSF grant, grantees will include in all subawards (for other than the provision of commercially available supplies, materials, equipment or general support services), an assurance of compliance comparable to that included in NSF grants.
703.5 Grant Conditions
Each NSF grant contains as part of the standard grant conditions an article implementing Section 504 and the NSF regulations. The assurance requirement of those conditions will be satisfied as indicated in GPM 703.3 and 703.4.
704 Title IX - Sex Discrimination
Subject to certain exceptions regarding admission policies at certain religious and military organizations, Title IX of the Education Amendments of 1972 (20 USC §§1681-1686) prohibits the exclusion of persons on the basis of sex from any education program or activity receiving Federal financial assistance. NSF has not issued any rules or regulations further implementing these statutory provisions with respect to its programs. All NSF grantees are expected to comply with Title IX.
705 Age Discrimination Act
The Age Discrimination Act of 1975, as amended (42 USC §§6101 et seq.), provides that pursuant to regulations issued by DHHS "no person in the United States shall, on the basis of age, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under, any program or activity receiving Federal financial assistance."
705.2 NSF Regulations
NSF regulations implementing the Age Discrimination Act are found at 45 CFR #167;617.
705.3 Grant Conditions
Each NSF grant contains as part of the standard grant conditions an article implementing the Age Discrimination Act.
706 Equal Employment Opportunity Under E.O. 11246
E.O. 11246, as amended, requires contractors and subcontractors performing Federally assisted construction projects to provide equal opportunity, without regard to race, color, religion, sex or national origin, to persons employed or seeking employment with them. This E.O. may apply to some NSF grants for construction.
706.2 Grant Conditions
In instances when E.O. 11246 is applicable, the grant instrument will include an equal opportunity clause in conformance with regulations issued by the Secretary of Labor at 41 CFR §60.
710 PROTECTION OF LIVING ORGANISMS
711 Human Subjects
The grantee is responsible for the protection of the rights and welfare of human subjects involved in activities supported by NSF. All research involving human subjects supported or otherwise subject to regulation by any Federal agency is covered by a policy set forth in a Common Rule, Protection of Human Subjects.
711.2 NSF Regulation
NSF's Common Rule on Protection of Human Subjects is found at 45 CFR §690.
711.3 Certification of Compliance
Before a research project involving the use of human subjects can be supported, a prospective grantee must certify that the research has been approved and will be subject to continuing review by the appropriate Institutional Review Board (IRB) in accordance with the regulations in the common rule. An approved assurance of compliance with the Common Rule that is filed with any Federal agency participating in the Common Rule is normally acceptable as validation of the IRB. Such assurances are most commonly filed with the Office for Protection from Research Risks of DHHS, National Institutes of Health (NIH) or with NSF. Categories of research that are exempt from this requirement are described at 45 CFR §690.101(b). Required contents and procedures for approval of assurances are set forth at 45 CFR §690.103. Prospective grantees should contact the relevant program officer for more information.
712 Research Involving Recombinant DNA Molecules
This section applies to all research, for which NSF research grant funds are used, that falls within the scope of the Guidelines for Research Involving Recombinant DNA Molecules (NIH Guidelines) (Federal Register/Vol. 59, No. 127, July 5, 1994, 34495-34547), as amended, hereafter referred to as the "Guidelines".
NSF grantees performing research within the U.S. that falls within the scope of the Guidelines shall comply with the Guidelines, including the procedural requirements and any subsequent revisions as they are published in the Federal Register. Grantee responsibilities include: a. Each organization involved in the conduct of NSF-supported recombinant DNA research subject to the Guidelines must have a standing Institutional Biosafety Committee (IBC) as specified in Section IV of the Guidelines. b. Recombinant DNA research subject to the Guidelines must be registered with the IBC indicating compliance with the containment requirements specified in Part III of the Guidelines. IBCs are required to keep records of recombinant DNA research conducted at their organization in a form that is available to NSF upon request.
712.3 Research Requiring Prior Approval of the Director, NIH
In certain instances research should not be initiated or registered with IBC's prior to approval and determination of containment level by the Director, NIH. Normally such experiments are reviewed by the Recombinant DNA Advisory Committee before a decision is made by the Director, NIH. Such instances are:
a. research for which containment levels are not explicitly specified by the Guidelines;
b. research involving experiments prohibited by the Guidelines; i.e., requests for exceptions to the Guidelines; and
c. requests to perform experiments without regard to the containment specified in the Guidelines; i.e. exemptions from the Guidelines.
712.4 Recombinant DNA Research Outside the U.S.
Recombinant DNA research within the scope of the Guidelines that is performed outside of the U.S. using funds provided by NSF for transportation, salaries or direct research expenses must comply with the U.S. or host country standards. If the research is to be carried out in a country that has adopted guidelines comparable to those of the U.S., a document with information and endorsements assuring compliance to the host organization standards must be submitted to NSF. NSF funds may not be used to carry out research using recombinant DNA in a country that has not adopted national guidelines unless the research is in full compliance with the Guidelines and the procedures required for NSF-supported research within the U.S.
PI/PDs must report the following to NSF and their IBCs:
a. new technical information relating to risks and safety procedures;
b. serious laboratory accidents involving recombinant DNA material;
c. serious laboratory-related illness of a laboratory worker; and
d. safety problems.
712.6 Additional Information
Inquiries concerning NSF policy on recombinant DNA research and its implementation should be addressed to:
Division of Molecular and Cellular Biosciences
National Science Foundation
4201 Wilson Boulevard
Arlington, VA 22230
713 Animal Welfare Requirements
a. The grantee is responsible for the humane care and treatment of vertebrate animals used or intended for use in such activities as field or laboratory research, development, training, education or biological testing or for related purposes supported by NSF grants.
b. Any grantee performing activities that use vertebrate animals will comply with the Animal Welfare Act (7 USC §§2131-59) and the regulations promulgated thereunder by the Secretary of Agriculture (CFR, Title 9, Subchapter A, Parts 1, 2, 3, and 4) pertaining to the care, handling and treatment of vertebrate animals held or used for research, teaching or other activities supported by Federal grants. The grantee is to ensure that the guidelines described in NIH publication No. 90-23, Guide for the Care and Use of Laboratory Animals, (Revised 1990) are followed and to comply with the U.S. Government Principles for the Utilization and Care of Vertebrate Animals Used in Testing, Research, and Training (included as an appendix to the NIH Guide).
c. Before a grant involving the use of vertebrate animals in either field or laboratory activities can be made, NSF must receive a statement that the proposed activity has been reviewed and approved by the appropriate Institutional Animal Care and Use Committee (IACUC) at the grantee organization, and that the grantee has an approved Animal Welfare assurance with the Public Health Service (PHS) that assures NSF that it will comply with the PHS Policy on Humane Care and Use of Laboratory Animals (September 1986, revision). If at all possible, this statement should be included in the proposal at the time it is submitted to NSF. If a delay in providing the statement is necessary, the statement should be submitted to the NSF program processing the proposal as soon as possible. No grants involving vertebrate animals can be made without this statement. For continuing grants, this statement must be provided before the first year of the grant can be activated. For subsequent annual increments of continuing grants, no further statement is necessary unless the protocols for use of vertebrate animals have been changed substantively from those originally proposed and approved. Applications from organizations not having a general assurance on file with the PHS will be reviewed first for scientific merit. If a decision to support the proposal is reached, NSF will make every effort to arrange for a special assurance to be negotiated.
d. The grantee may request registration of its facility and a current listing of licensed dealers from the Regional Office of the Animal and Plant Health Inspection Service (APHIS), U.S. Department of Agriculture, for the region in which the research facility is located. The location of the appropriate APHIS Regional Office, as well as information concerning this program, may be obtained by contacting the Chief Staff Officer, Animal Care Staff, USDA/APHIS, REAC, Room 558, 6505 Belcrest Road, Hyattsville, MD 20782.
e. Single copies of the NIH Guide and the PHS Policy on Humane Care and Use of Laboratory Animals are available from the Office for Protection from Research Risks, Building 31, Room 4B09, National Institutes of Health, 9000 Rockville Pike, Bethesda, MD 20892.
714 Marine Mammal Protection Act
The protection of marine mammals in research activities supported by NSF grants is the responsibility of the grantee. Proposals submitted to NSF in support of marine research activities must include a statement that the grantee will comply with the Marine Mammal Protection Act of 1972, (16 USC §§1361-1421h).
720 CONSTRUCTION, REARRANGEMENTS AND ALTERATIONS
721 Davis-Bacon Act
The Davis-Bacon Act (40 USC §§276a et seq.) establishes minimum wages to be paid to laborers and mechanics on construction contracts to which the U.S. is a party involving public buildings or public works within the U.S. A number of other statutes have extended this provision to specific Federal grant programs involving construction. However, unless specifically stated in the grant instrument, the Davis-Bacon Act does not normally apply to NSF grants since grantees normally retain title to property acquired under the grant and the construction, if any, is normally on non-Government land.
722 Bonding and Insurance
The NSF Act (42 USC §1870c) provides NSF with authority to enter into grants, contracts or other agreements without performance or other bonds. Therefore, unless the grant instrument specifically provides otherwise, NSF does not require performance or other bonds or insurance.
723 Flood Insurance
a. Two sections of the National Flood Insurance Act of 1968 (42 USC §4012a and §4106) bar Federal agencies from giving financial assistance for acquisition or construction purposes in any area identified by the Federal Emergency Management Agency (FEMA) as having special flood hazards unless:
1. the community in which that area is located participates in the national flood insurance program; and
2. the building and any related equipment is covered by adequate flood insurance.
b. Prospective grantees located in FEMA-designated special flood hazard areas must certify in their proposals that adequate flood insurance has been or will be obtained:
1. for NSF grants for the construction of a building or facility, regardless of the dollar amount of the grant; and
2. for other NSF grants when more than $10,000 has been budgeted in the proposal for repair, alteration or improvement of a building or facility.
c. Prospective grantees should contact their local government or a federally-insured financial institution to determine what areas are identified as having special flood hazards and the availability of flood insurance in their community.
724 Seismic Safety of Buildings
E.O. 12699 Seismic Safety of Federal and Federally-assisted or Regulated New Building Construction dated January 5, 1990, requires that consideration be given to seismic hazards in the design of buildings. Very seldom are NSF grantees involved with federally-assisted construction and rarely are new buildings involved. NSF ensures compliance with the Order through its grantees and grantee organizations by inclusion of a specific grant condition in any appropriate grant.
730 INTELLECTUAL PROPERTY
731 Patents and Inventions
a. The disposition of rights to inventions made by small business firms and non-profit organizations, including universities and other institutions of higher education, during NSF-assisted research is governed by Chapter 18 of title 35 of the USC, commonly called the Bayh-Dole Act. In accordance with a Presidential Memorandum entitled Government Patent Policy issued on February 18, 1983 and under the authority of section 12 of the National Science Foundation Act of 1950, as amended (42 USC §1871), NSF applies the policies of that Act to all its grantees. The Department of Commerce (DOC) is the lead agency for implementing the Bayh-Dole Act and has published guidance to Federal agencies in 37 CFR §401. NSF's implementing rules are published in 45 CFR §650.
b. NSF's standard Patent Rights clause, published at 45 CFR §650.4(a) and below at GPM 731.3, is identical to that prescribed in the DOC guidance (37 CFR §401.14(a)) except that:
1. NSF has tailored the clause to apply to grants and to identify NSF;
2. pursuant to section 401.5(d) of the DOC guidance (37 CFR §401.5(d)), NSF has added to paragraph b. of the clause a stipulation that NSF reserves the right to direct a grantee to transfer to a foreign government or research performer such rights to any subject invention as are required to comply with any international treaty or agreement identified when the grant is made as being applicable to the assisted research;
3. as permitted by section 401.5(f) of the DOC guidance (37 CFR §401.5(f)), NSF has added two subparagraphs to the end of paragraph f. of the clause to require grantees or their representatives to send NSF confirmations of the Government licenses for and copies of any U.S. patents on subject inventions; and
4. since NSF normally uses the same clause for all subcontractors, the first two subparagraphs of paragraph g. of the clause specified in the DOC guidance have been reduced to one.
731.2 National Science Foundation Patent Policy
As authorized by the National Science Board (NSB), the Director of the NSF has adopted the following NSF patent policy.
a. In accordance with the Bayh-Dole Act and the Presidential Memorandum entitled Government Patent Policy issued February 18, 1983, NSF will use the Patent Rights clause prescribed by DOC in all its funding agreements for the performance of experimental, developmental or research work, including grants made to foreign entities, unless NSF determines that some other provision would better serve the purposes of that Act or the interests of the U.S. and the general public.
b. In funding agreements covered by a treaty or agreement that provide that an international organization or foreign government, research institute or inventor will own or share patent rights, NSF will acquire such patent rights as are necessary to comply with the applicable treaty or agreement.
c. If a grantee elects not to retain rights to an invention, NSF will allow the inventor to retain the principal patent rights unless the grantee, or the inventor's employer if other than the grantee, shows that it would be harmed by that action.
d. NSF will normally allow any patent rights not wanted by the grantee or inventor to be dedicated to the public through publication in scientific journals or as a statutory invention registration. However, if another Federal agency is known to be interested in the relevant technology, NSF may give it an opportunity to review and patent the invention so long as that does not inhibit the dissemination of the research results to the scientific community.
731.3 Standard Patent Rights Clause
The following Patent Rights clause will be used in every funding agreement awarded by NSF that relates to scientific or engineering research unless a special patent clause has been negotiated (see GPM 733.1, "Special Grant Provisions"). When the clause is used in a funding agreement other than a grant, "grant" and "grantee" may be replaced by "contract" and "contractor" or other appropriate terms.
PATENT RIGHTS (APRIL, 1992)
1. INVENTION means any invention or discovery which is or may be patentable or otherwise protectable under title 35 of the USC, to any novel variety of plant which is or may be protected under the Plant Variety Protection Act (7 USC §§2321 et seq.).
2. SUBJECT INVENTION means any invention of the grantee conceived or first actually reduced to practice in the performance of work under this grant, provided that in the case of a variety of plant, the date of determination (as defined in section 41(d)) must also occur during the period of grant performance.
3. PRACTICAL APPLICATION means to manufacture in the case of a composition or product, to practice in the case of a process or method, or to operate in the case of a machine or system; and, in each case, under such conditions as to establish that the invention is being utilized and that its benefits are to the extent permitted by law or Government regulations available to the public on reasonable terms.
4. MADE when used in relation to any invention means the conception or first actual reduction to practice of such invention.
5. NON-PROFIT ORGANIZATION means a domestic university or other institution of higher education or an organization of the type described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 USC §501(c)) and exempt from taxation under section 501(a) of the Internal Revenue Code (26 USC §501(a)) or any domestic non-profit scientific or educational organization qualified under a State non-profit organization statute.
b. Allocation of Principal Rights. The grantee may retain the entire right, title, and interest throughout the world to each subject invention subject to the provisions of this Patent Rights clause and 35 USC §203. With respect to any subject invention in which the grantee retains title, the Federal Government shall have a non-exclusive, nontransferable, irrevocable, paid-up license to practice or have practiced for or on behalf of the U.S. the subject invention throughout the world. If the grant indicates it is subject to an identified international agreement or treaty, the National Science Foundation (NSF) also has the right to direct the grantee to convey to any foreign participant such patent rights to subject inventions as are required to comply with that agreement or treaty.
c. Invention Disclosure, Election of Title and Filing of Patent Applications by Grantee.
1. The grantee will disclose each subject invention to NSF within two months after the inventor discloses it in writing to grantee personnel responsible for the administration of patent matters. The disclosure to NSF shall be in the form of a written report and shall identify the grant under which the invention was made and the inventor(s). It shall be sufficiently complete in technical detail to convey a clear understanding of the nature, purpose, operation, and, to the extent known, the physical, chemical, biological or electrical characteristics of the invention. The disclosure shall also identify any publication, on sale or public use of the invention and whether a manuscript describing the invention has been submitted for publication and, if so, whether it has been accepted for publication at the time of disclosure. In addition, after disclosure to NSF, the grantee will promptly notify NSF of the acceptance of any manuscript describing the invention for publication or of any on sale or public use planned by the grantee.
2. The grantee will elect in writing whether or not to retain title to any such invention by notifying NSF within two years of disclosure to NSF. However, in any case where publication, on sale, or public use has initiated the one-year statutory period wherein valid patent protection can still be obtained in the U.S., the period for election of title may be shortened by NSF to a date that is no more than 60 days prior to the end of the statutory period.
3. The grantee will file its initial patent application on an invention to which it elects to retain title within one year after election of title or, if earlier, prior to the end of any statutory period wherein valid patent protection can be obtained in the U.S. after a publication, on sale, or public use. The grantee will file patent applications in additional countries or international patent offices within either ten months of the corresponding initial patent application, or six months from the date when permission is granted by the Commissioner of Patents and Trademarks to file foreign patent applications when such filing has been prohibited by a Secrecy Order.
4. Requests for extension of the time for disclosure to NSF, election, and filing under subparagraphs 1., 2., and 3. may, at the discretion of NSF, be granted.
d. Conditions When the Government May Obtain Title. The grantee will convey to NSF, upon written request, title to any subject invention:
1. if the grantee fails to disclose or elect the subject invention within the times specified in paragraph c. above, or elects not to retain title; provided that NSF may only request title within 60 days after learning of the failure of the grantee to disclose or elect within the specified times;
2. in those countries in which the grantee fails to file patent applications within the times specified in paragraph c. above, but prior to its receipt of the written request of NSF, the grantee shall continue to retain title in that country; or
3. in any country in which the grantee decides not to continue the prosecution of any application for, to pay the maintenance fees on, or defend in a reexamination or opposition proceeding on, a patent on a subject invention.
e. Minimum Rights to Grantee.
1. The grantee will retain a non-exclusive royalty-free license throughout the world in each subject invention to which the Government obtains title, except if the grantee fails to disclose the subject invention within the times specified in paragraph c. above. The grantee's license extends to its domestic subsidiaries and affiliates, if any, within the corporate structure of which the grantee is a party and includes the right to grant sublicenses of the same scope to the extent the grantee was legally obligated to do so at the time the grant was awarded. The license is transferable only with the approval of NSF except when transferred to the successor of that part of the grantee's business to which the invention pertains.
2. The grantee's domestic license may be revoked or modified by NSF to the extent necessary to achieve expeditious practical application of the subject invention pursuant to an application for an exclusive license submitted in accordance with applicable provisions at 37 CFR §404. This license will not be revoked in that field of use or the geographical areas in which the grantee has achieved practical application and continues to make the benefits of the invention reasonably accessible to the public. The license in any foreign country may be revoked or modified at discretion of NSF to the extent the grantee, its licensees, or its domestic subsidiaries or affiliates have failed to achieve practical application in that foreign country.
3. Before revocation or modification of the license, NSF will furnish the grantee a written notice of its intention to revoke or modify the license, and the grantee will be allowed thirty days (or such other time as may be authorized by NSF for good cause shown by the grantee) after the notice to show cause why the license should not be revoked or modified. The grantee has the right to appeal, in accordance with applicable regulations in 37 CFR §404 concerning the licensing of Government-owned inventions, any decision concerning the revocation or modification of its license.
f. Grantee Action to Protect Government's Interest.
1. The grantee agrees to execute or to have executed and promptly deliver to NSF all instruments necessary to: (i) establish or confirm the rights the Government has throughout the world in those subject inventions for which the grantee retains title; and (ii) convey title to NSF when requested under paragraph d. above, and to enable the Government to obtain patent protection throughout the world in that subject invention.
2. The grantee agrees to require, by written agreement, its employees, other than clerical and non-technical employees, to disclose promptly in writing to personnel identified as responsible for the administration of patent matters and in a format suggested by the grantee each subject invention made under this grant in order that the grantee can comply with the disclosure provisions of paragraph c. above, and to execute all papers necessary to file patent applications on subject inventions and to establish the Government's rights in the subject inventions. The disclosure format should require, as a minimum, the information requested by paragraph c.1. above. The grantee shall instruct such employees through the employee agreements or other suitable educational programs on the importance of reporting inventions in sufficient time to permit the filing of patent applications prior to U.S. or foreign statutory bars.
3. The grantee will notify NSF of any decision not to continue prosecution of a patent application, pay maintenance fees, or defend in a reexamination or opposition proceeding on a patent, in any country, not less than 30 days before the expiration of the response period required by the relevant patent office.
4. The grantee agrees to include, within the specification of any U.S. patent application and any patent issuing thereon covering a subject invention, the following statement: "This invention was made with Government support under (identify the grant) awarded by the National Science Foundation. The Government has certain rights in this invention."
5. The grantee or its representative will complete, execute and forward to NSF a confirmation of a License to the U.S. Government within two months of filing any domestic or foreign patent application.
6. The grantee or its representative will forward to NSF a copy of any U.S. patent covering a subject invention within two months after it is issued.
1. The grantee will include this Patent Rights clause, suitably modified to identify the parties, in all subcontracts, regardless of tier, for experimental, developmental or research work. The subcontractor will retain all rights provided for the grantee in this Patent Rights clause, and the grantee will not, as part of the consideration for awarding the subcontract, obtain rights in the subcontractors' subject inventions.
2. In the case of subcontracts, at any tier, when the prime award by NSF was a contract (but not a grant or cooperative agreement), NSF, subcontractor, and contractor agree that the mutual obligations of the parties created by this Patent Rights clause constitute a contract between the subcontractor and the Foundation with respect to those matters covered by this Patent Rights clause.
h. Reporting on Utilization of Subject Inventions. The grantee agrees to submit on request periodic reports no more frequently than annually on the utilization of a subject invention or on efforts at obtaining such utilization that are being made by the grantee or its licensees or assignees. Such reports shall include information regarding the status of development, date of first commercial sale or use, gross royalties received by the grantee and such other data and information as NSF may reasonably specify. The grantee also agrees to provide additional reports in connection with any march-in proceeding undertaken by NSF in accordance with paragraph j. of this Patent Rights clause. As required by 35 USC §202(c)(5), NSF agrees it will not disclose such information to persons outside the Government without the permission of the grantee.
i. Preference for United States Industry. Notwithstanding any other provision of this Patent Rights clause, the grantee agrees that neither it nor any assignee will grant to any person the exclusive right to use or sell any subject invention in the U.S. unless such person agrees that any products embodying the subject invention or produced through the use of the subject invention will be manufactured substantially in the U.S. However, in individual cases, the requirement for such an agreement may be waived by NSF upon a showing by the grantee or its assignee that reasonable but unsuccessful efforts have been made to grant licenses on similar terms to potential licensees that would be likely to manufacture substantially in the U.S. or that under the circumstances domestic manufacture is not commercially feasible.
j. March-in Rights. The grantee agrees that with respect to any subject invention in which it has acquired title, NSF has the right in accordance with procedures at 37 CFR §401.6 and NSF regulations at 45 CFR §650.13 to require the grantee, an assignee or exclusive licensee of a subject invention to grant a non-exclusive, partially exclusive, or exclusive license in any field of use to a responsible applicant or applicants, upon terms that are reasonable under the circumstances and if the grantee, assignee, or exclusive licensee refuses such a request, NSF has the right to grant such a license itself if NSF determines that:
1. such action is necessary because the grantee or assignee has not taken or is not expected to take within a reasonable time, effective steps to achieve practical application of the subject invention in such field of use;
2. such action is necessary to alleviate health or safety needs which are not reasonably satisfied by the grantee, assignee, or their licensees;
3. such action is necessary to meet requirements for public use specified by Federal regulations and such requirements are not reasonably satisfied by the grantee, assignee, or licensee; or
4. such action is necessary because the agreement required by paragraph i. of this Patent Rights clause has not been obtained or waived or because a licensee of the exclusive right to use or sell any subject invention in the U.S. is in breach of such agreement.
k. Special Provisions for Grants with Non-profit Organizations. If the grantee is a non-profit organization, it agrees that:
1. rights to a subject invention in the U.S. may not be assigned without the approval of NSF, except where such assignment is made to an organization which has as one of its primary functions the management of inventions, provided that such assignee will be subject to the same provisions as the grantee;
2. the grantee will share royalties collected on a subject invention with the inventor, including Federal employee co-inventors (when NSF deems it appropriate) when the subject invention is assigned in accordance with 35 USC §202(e) and 37 CFR §401.10;
3. the balance of any royalties or income earned by the grantee with respect to subject inventions, after payment of expenses (including payments to inventors) incidental to the administration of subject inventions, will be utilized for the support of scientific or engineering research or education; and
4. it will make efforts that are reasonable under the circumstances to attract licensees of subject inventions that are small business firms and that it will give preference to a small business firm if the grantee determines that the small business firm has a plan or proposal for marketing the invention which, if executed, is equally likely to bring the invention to practical application as any plans or proposals from applicants that are not small business firms; provided that the grantee is also satisfied that the small business firm has the capability and resources to carry out its plan or proposal. The decision whether to give a preference in any specific case will be at the discretion of the grantee. However, the grantee agrees that the Secretary of Commerce may review the grantee's licensing program and decisions regarding small business applicants, and the grantee will negotiate changes to its licensing policies, procedures or practices with the Secretary when the Secretary's review discloses that the grantee could take reasonable steps to implement more effectively the requirements of this paragraph k.4.
l. Communications. All communications required by this Patent Rights clause should be sent to:
Office of the General Counsel
National Science Foundation
4201 Wilson Boulevard
Arlington, VA 22230
[END OF CLAUSE]
732.1 Rights to Copyrightable Material
The following principles governing the treatment of copyrightable material produced under NSF grants were adopted by the NSB.
a. NSF normally will acquire only such rights to copyrightable material as are needed to achieve its purposes or to comply with the requirements of any applicable government-wide policy or international agreement.
b. To preserve incentives for private dissemination and development, NSF normally will not restrict or take any part of income earned from copyrightable material except as necessary to comply with the requirements of any applicable government-wide policy or international agreement.
c. In exceptional circumstances, NSF may restrict or eliminate an awardee's control of NSF-supported copyrightable material and of income earned from it, if NSF determines that this would best serve the purposes of a particular program or grant.
732.2 Standard Copyrightable Material Clause
The following copyrightable material clause will be used in every funding agreement awarded by NSF that relates to scientific or engineering research unless a special copyrightable material clause has been negotiated. (See GPM 733.1, "Special Grant Provisions," and GPM 733.2, "Grants Not Primarily for Research.") When the clause is used in a funding agreement other than a grant, "grant" and "grantee" may be replaced by "contract" and "contractor" or other appropriate terms.
a. SUBJECT WRITING means any material that:
1. is or may be copyrightable under Title 17 of the United States Code; and
2. is produced by the grantee or its employees in the performance of work under this grant. "Subject writings" include such items as reports, books, journal articles, software, sound recordings, video tapes and video discs.
b. Copyright Ownership, Government License. Except as otherwise specified in the grant or by this paragraph, the grantee may own or permit others to own copyright in all subject writings. The grantee agrees that if it or anyone else does own copyright in a subject writing, the Federal government will have a non-exclusive, nontransferable, irrevocable, royalty-free license to exercise or have exercised for or on behalf of the U.S. throughout the world all the exclusive rights provided by copyright. Such license, however, will not include the right to sell copies or photorecords of the copyrighted works to the public.
c. Grants Affected by International Agreements. If the grant indicates it is subject to an identified international agreement or treaty, NSF can direct the grantee to convey to any foreign participant or otherwise dispose of such rights to subject writings as are required to comply with that agreement or treaty.
d. Grantee Action to Protect Government Interests. The grantee agrees to acquire, through written agreement or an employee relationship, the ability to comply with the requirements of the preceding paragraphs and, in particular, to acquire the ability to convey rights in a subject writing to a foreign participant if directed by NSF under the previous paragraph. The grantee further agrees that any transfer of copyright or any other rights to a subject writing, by it or anyone whom it has allowed to own such rights, will be made subject to the requirements of this article.
[END OF CLAUSE]
733 Special Patent and Copyright Situations
733.1 Special Grant Provisions
At the request of the prospective grantee or on recommendation from NSF staff, a Grants Officer, with the concurrence of the cognizant Program Manager, may negotiate special patent or copyright provisions when he/she determines that exceptional circumstances require restriction or elimination of the right of a prospective grantee to control principal rights to subject inventions or writings in order to better achieve the objectives of the program, the National Science Foundation Act, or (in the case of inventions) Chapter 18 of title 35 of the USC. Every special copyright or patent provision will allow the grantee, after an invention has been made or copyrightable material created, to request that it be allowed to retain principal rights to that invention or material, unless doing so would be inconsistent with an obligation imposed on NSF by statute, international agreement or pact with other participants in or supporters of the research.
733.2 Grants Not Primarily for Research
a. Grants not primarily intended to support scientific or engineering research generally do not contain patent or copyrightable material provisions. Examples of such grants are travel, conference and equipment grants.
b. NSF Fellowships and Traineeships. In accordance with section 212 of title 35 of the USC, NSF claims no rights to inventions made by fellows or trainees. The following provision will be included in each fellowship or traineeship program announcement and made part of the grant:
INTELLECTUAL PROPERTY RIGHTS
The National Science Foundation claims no rights to any inventions or writings that might result from its fellowship or traineeship grants. However, fellows and trainees should be aware that the NSF, another Federal agency, or some private party may acquire such rights through other support for particular research. Also, fellows and trainees should note their obligation to include an Acknowledgment and Disclaimer in any publication.
[END OF PROVISION]
733.3 Grants Affected by International Agreements
a. Many of the bilateral and multilateral treaties and agreements underlying NSF's international cooperative research programs contain provisions on allocation of rights to inventions or writings. These sometimes require an allocation of rights different from that provided by the standard Copyrightable Material or Patent Rights clauses. In those cases, the standard clauses will be modified through the addition of the following to the grant letter:
"This project is supported under the cooperative program listed below. Your rights in inventions, writings, and data may be affected."
The applicable agreement or treaty will be identified immediately beneath that sentence.
b. After an invention is disclosed to the Patent Assistant, the recipient of a grant subject to an international agreement will be informed as to what rights, if any, it must transfer to foreign participants. Recipients may also ask the NSF Program Officer for copies of the identified international agreement before or after accepting a grant.
734 Dissemination and Sharing of Research Results
a. Investigators are expected to promptly prepare and submit for publication, with authorship that accurately reflects the contributions of those involved, all significant findings from work conducted under NSF grants. Grantees are expected to permit and encourage such publication by those actually performing that work, unless a grantee intends to publish or disseminate such findings itself.
b. Investigators are expected to share with other researchers, at no more than incremental cost and within a reasonable time, the primary data, samples, physical collections and other supporting materials created or gathered in the course of work under NSF grants. Grantees are expected to encourage and facilitate such sharing. Privileged or confidential information should be released only in a form that protects the privacy of individuals and subjects involved. General adjustments and, where essential, exceptions to this sharing expectation may be specified by the funding NSF Program or Division for a particular field or discipline to safeguard the rights of individuals and subjects, the validity of results, or the integrity of collections or to accommodate legitimate interest of investigators. A grantee or investigator may also request a particular adjustment or exception from the cognizant NSF Program Officer.
c. Investigators and grantees are encouraged to share software and inventions created under the grant or otherwise make them or their products widely available and usable.
d. The NSF normally allows grantees to retain principal legal rights to intellectual property developed under NSF grants to provide incentives for development and dissemination of inventions, software and publications that can enhance their usefulness, accessibility and upkeep. Such incentives do not, however, reduce the responsibility that investigators and organizations have as members of the scientific and engineering community to make results, data and collections available to other researchers.
735 Tangible Property
Some NSF grants support collection or creation of tangible property, such as insects, marine life, drilling core samples and genetically-altered microorganisms. As used in this section "tangible property" means any personal property other than equipment (see GPM 612, "Equipment"), and intellectual property.
735.2 Legal Rights to Tangible Property
Unless otherwise provided in the grant letter, all legal rights to tangible property collected or created during NSF-assisted research remain with the grantee or investigators as determined by the policies of the organization. As members of the scientific and engineering community, both grantees and investigators are responsible for making such tangible property appropriately available to other researchers.
740 PUBLICATION / DISTRIBUTION OF GRANT MATERIAL
741 NSF Policy
NSF advocates and encourages open scientific and engineering communication. NSF expects significant findings from research it supports to be promptly submitted for publication, with authorship that accurately reflects the contributions of those involved.
Cost of documenting, preparing, publishing, disseminating and sharing research findings and supporting material are allowable charges against the grant. (See GPM 617 "Publication, Documentation, and Dissemination".)
Unless otherwise provided in the grant letter, preparation, content, editing, identification of authorship and submission for publication of significant research findings are the responsibilities of the investigators, consistent with such policies and procedures as the grantee may prescribe.
744 Grantee Obligations
a. Unless otherwise provided in the grant letter, the grantee is required to assure that:
1. an acknowledgment of NSF support appears in every publication of material based on or developed under the grant, in the following terms:
"This material is based on work supported by the National Science Foundation under Grant No. (Grantee should enter NSF grant number)."
2. every publication of material based on or developed under the grant, except scientific articles or papers appearing in scientific, technical or professional journals, contains the following disclaimer:
"Any opinions, findings and conclusions or recommendations expressed in this material are those of the author(s) and do not necessarily reflect those of the National Science Foundation."
3. up to two copies of every publication of material based on or developed under the grant are provided, as requested by NSF.
b. Grantees should also note their obligations in regard to copyrights (see GPM 732, "Copyright") and their responsibilities as members of the scientific and engineering community to disseminate and share research results (see GPM 734, "Dissemination and Sharing of Research Results").
750 PROGRAM INCOME
The following provisions implement the applicable portions of OMB Circular A-110 on program income as well as the principle on income from copyrightable material adopted by the NSB (GPM 732.1, "Rights to Copyrightable Material").
PROGRAM INCOME means gross income earned by the grantee that is directly generated by a supported activity or earned as a result of the grant. Program income includes, but is not limited to, income from fees for services performed, the use or rental of real or personal property acquired under the grant, the sale of commodities or items fabricated under the grant, license fees for and royalties on and copyrights and interest on loans made with grant funds. Interest earned on advances of Federal funds is not program income. Program income does not include the receipt of principal on loans, rebates, credits, discounts, etc., or interest earned on any of them.
753 NSF Policy
a. Standard Treatment. Unless otherwise specified in the grant, program income received or accruing to the grantee during the period of the grant is to be retained by the grantee, added to the funds committed to the project by NSF, and thus used to further project objectives. The grantee has no obligation to NSF with respect to: 1) license fees and royalties for copyrighted material, patents, patent applications, trademarks and inventions; or 2) program income received beyond the period of the grant.
b. Special Treatment. In exceptional circumstances, the NSF Grants Officer, in collaboration with Program Officers and other appropriate NSF offices, may approve use of a special grant provision to restrict or eliminate a grantee's control of income earned through NSF-supported activities if it determines that this would best serve the purposes of a particular program or grant. The special provisions may require the Federal share of program income be kept in a separate account, reported on and/or remitted for such periods as may be reasonable under the circumstances.
760 INTERNATIONAL CONSIDERATIONS
761 Travel to Foreign Countries
a. Expenses for transportation, lodging, subsistence and related items incurred by project personnel and by outside consultants employed on the project (GPM 614, "Travel Costs") who are in travel status on business related to an NSF-supported project are allowable as prescribed in the governing cost principles. The requirements for prior approval detailed in the governing cost principles are waived.
b. Support for the foreign travel of an investigator's dependents is allowable only under the conditions identified in GPM 614c, "Travel Costs".
761.2 Use of U.S.-Flag Air Carriers
a. The Comptroller General of the U.S., by Decision B-138942 of June 17, 1975, as amended March 31, 1981, provided guidelines for implementation of Section 5 of the International Air Transportation Fair Competitive Practices Act of 1974 (49 USC §1517).
b. Any air transportation to, from, between or within a country other than the U.S. of persons or property, the expense of which will be assisted by NSF funding, must be performed by a U.S.-flag air carrier if service provided by such a carrier is "available".
c. For the purposes of this requirement, U.S.-flag air carrier service is considered "available" even though:
1. comparable or a different kind of service can be provided at less cost by a foreign-flag air carrier;
2. foreign-flag air carrier service is preferred by or is more convenient for NSF or traveler; or
3. service by a foreign-flag air carrier can be paid for in excess foreign currency.
d. The following rules apply unless their application would result in the first or last leg of travel from or to the U.S. being performed by a foreign- flag air carrier:
1. A U.S.-flag air carrier shall be used to destination or, in the absence of direct or through service, to the farthest interchange point on a usually traveled route;.
2. If a U.S.-flag air carrier does not serve an origin or interchange point, a foreign-flag air carrier shall be used only to the nearest interchange point on a usually traveled route to connect with a U.S.-flag air carrier; or.
3. If a U.S.-flag air carrier involuntarily reroutes the traveler via a foreign-flag carrier, the foreign-flag air carrier may be used notwithstanding the availability of alternative U.S.-flag air carrier service.
761.3 Use of Foreign-Flag Air Carriers
a. Travel To and From the U.S. Use of a foreign-flag air carrier is permissible if the airport abroad is:
1. the traveler's origin or destination airport, and use of U.S.-flag air carrier service would extend the time in a travel status by at least 24 hours more than travel by a foreign-flag carrier; or
2. an interchange point, and use of U.S.-flag air carrier service would require the traveler to wait six hours or more to make connections at that point, or would extend the time in a travel status by at least six hours more than travel by a foreign-flag air carrier.
b. Travel Between Points Outside the U.S. Use of a foreign-flag air carrier is permissible if travel by a:
1. foreign-flag air carrier would eliminate two or more aircraft changes en route;
2. U.S.-flag air carrier would extend the time in a travel status by at least six hours more than travel by a foreign-flag air carrier.
c. Short Distance Travel. For all short distance travel, regardless of origin and destination, use of a foreign-flag air carrier is permissible if the elapsed travel time on a scheduled flight from origin to destination airport by a foreign-flag air carrier is three hours or less and service by a U.S.-flag air carrier would double the travel time.
762 Charter Flights
Because of the risk of catastrophic loss, NSF does not encourage the use of charter flights as a means of mass transportation for groups of scientists nor does it make arrangements for purchase of charter flight airline tickets.
763 Projects in a Foreign Country
a. General. Prior to undertaking any projects outside the U.S., the grantee should ensure that any permits or licenses required by the host country or the political subdivision in which the project will be performed have been obtained and that the researcher(s) will abide by the appropriate ordinances of such foreign countries. NSF funds may not be used in support of a project which is prohibited by law in the country in which it is undertaken.
b. NSF-Supported Activities in Greenland. All research projects in Greenland must be approved in advance by the Government of Denmark. Applications for projects in which U.S. citizens and U.S. nationals are involved in any way (logistical, operational and/or financial support) shall be submitted to the Danish Government through diplomatic channels (i.e., through the U.S. Department of State and the American Embassy, Copenhagen) to the Danish Ministry of Foreign Affairs. Application forms, deadline dates and instructions are available from the Director, Office of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, VA 22230.
764 Passports and Visas
NSF assumes no responsibility for securing passports or visas required by any person because of participation in an NSF-supported project. It should be noted that some countries that normally do not require visas for tourists do require special visas for scientists engaged in research or studies.
765 International Travel Grants
Funding Limitations. Funds for international travel grants will normally not exceed the cost of a round-trip, economy class airline ticket between the approved points of origin and destination. Group travel grants awarded to a university, professional society or other non-profit organization to enable it to coordinate U.S. participation in one or more scientific meetings held abroad may include a flat rate of $50 per traveler for the general administration of this type of project. NSF international travel grants may not be supplemented by funds from any other NSF grant or fellowship.