- Title 45--PUBLIC WELFARE
- Part C--Post-Award Requirements
- Section 74.36 Intangible property.
[Code of Federal Regulations]
[Title 45, Volume 1]
[Revised as of October 1, 2003]
From the U.S. Government Printing Office via GPO Access
TITLE 45--PUBLIC WELFARE
AND HUMAN SERVICES
Subpart C--Post-Award Requirements
Sec. 74.36 Intangible property.
(a) The recipient may copyright any work that is subject to
copyright and was developed, or for which ownership was purchased, under
an award. The HHS awarding agency reserves a royalty-free, nonexclusive
and irrevocable right to reproduce, publish, or otherwise use the work
for Federal purposes, and to authorize others to do so.
(b) Recipients are subject to applicable regulations governing
patents and inventions, including government-wide regulations issued by
the Department of Commerce at 37 CFR part 401, ``Rights to Inventions
Made by Nonprofit Organizations and Small Business Firms Under
Government Grants, Contracts and Cooperative Agreements.''
(c) The Federal Government has the right to:
(1) Obtain, reproduce, publish or otherwise use the data first
produced under an award; and
(2) Authorize others to receive, reproduce, publish, or otherwise
use such data for Federal purposes.
(d)(1) In addition, in response to a Freedom of Information Act
(FOIA) request for research data relating to published research findings
produced under an award that were used by the Federal Government in
developing an agency action that has the force and effect of law, the
HHS Awarding Agency shall request, and the recipient shall provide,
within a reasonable time, the research data so that they can be made
available to the public through the procedures established under the
FOIA. If the HHS Awarding Agency obtains the research data solely in
response to a FOIA request, the agency may charge the requester a
reasonable fee equaling the full incremental cost of obtaining the
research data. This fee should reflect costs incurred by the agency, the
recipient, and applicable subrecipients. This fee is in addition to any
fees the agency may assess under the FOIA (5 U.S.C. 552(a)(4)(A)).
(2) The following definitions apply for purposes of this paragraph
(i) Research data is defined as the recorded factual material
commonly accepted in the scientific community as necessary to validate
research findings, but not any of the following: preliminary analyses,
drafts of scientific papers, plans for future research, peer reviews, or
communications with colleagues. This ``recorded'' material excludes
physical objects (e.g., laboratory samples). Research data also do not
(A) Trade secrets, commercial information, materials necessary to be
held confidential by a researcher until they are published, or similar
information which is protected under law; and
(B) Personnel and medical information and similar information the
disclosure of which would constitute a clearly unwarranted invasion of
personal privacy, such as information that could be used to identify a
particular person in a research study.
(ii) Published is defined as either when:
(A) Research findings are published in a peer-reviewed scientific or
technical journal; or
(B) A Federal agency publicly and officially cites the research
findings in support of an agency action that has the force and effect of
(iii) Used by the Federal Government in developing an agency action
that has the force and effect of law is defined as when an agency
publicly and officially cites the research findings in support of an
agency action that has the force and effect of law.
(3) The requirements set forth in paragraph (d)(1) of this section
do not apply to commercial organizations.
(e) Title to intangible property and debt instruments purchased or
otherwise acquired under an award or subaward vests upon acquisition in
the recipient. The recipient shall use that property for the originally-
-authorized purpose, and the recipient shall not encumber the property
without approval of the HHS awarding agency. When no longer needed for
the originally authorized purpose, disposition of the intangible
property shall occur in accordance with the provisions of Sec. 74.34 (g)
[59 FR 43760, Aug. 25, 1994, as amended at 65 FR 14407, 14418, Mar. 16,