POLICY

A. Purpose

At times, Lawrence Berkeley National Laboratory (Berkeley Lab) needs to, or finds it useful to, disclose information relating to technical and scientific developments not yet published or approved for public disclosure through pre-publication review (see the Patents – Publication Clearance Policy, document number 10.04.002.000).

Similarly, at times Berkeley Lab needs to obtain proprietary information from third parties to meet Berkeley Lab's programmatic research objectives. The procedures of this policy enable Berkeley Lab to comply with its obligation to protect proprietary information that it receives from an external source and to avoid the possibility of liability for disclosure or misuse of such information. The procedures also protect Berkeley Lab researchers from inappropriately restrictive terms on publications or inventions of their own creation.

B. Persons Affected

This policy applies to employees and affiliates who wish to obtain proprietary information from third parties or who wish to disclose Berkeley Lab technical and scientific developments that are not public.

C. Exceptions

Berkeley Lab staff, in administrative positions or elsewhere, who routinely receive proprietary information in the course of their employment (e.g., purchasing agents, human resources specialists) must follow departmental guidelines for the management of proprietary information. Those guidelines generally incorporate the procedures, below, but see also the Use of Privileged Information policy.

This policy should not be construed to prohibit or otherwise restrict na employee or affiliate from lawfully reporting waste, fraud, or abuse related to the performance of any Berkeley Lab contracts with the U.S. Government to a designated investigative or law enforcement representative of a Federal department or agency authorized to received such information. This policy is consistent with and does not supersede, conflict with, or otherwise alter the employee obligations, rights, or liabilities created by existing statue or Executive order relating to (1) classified information, (2) communications to Congress, (3) the reporting to an Inspector General of a violation of any law, rule, or regulation, or mismanagement, a gross waste of funds, an abuse of authority, or a substantial and specific danger to public health or safety, or (4) any other whistleblower protection. The definitions, requirements, obligations, rights, sanctions, and liabilities created by controlling Executive orders and statutory provisions are incorporated into this policy and any agreement are controlling.

D. Policy Statement

Berkeley Lab will enter into nondisclosure agreements (NDAs) to protect Berkeley Lab's and DOE's interest in intellectual property, foster successful technology transfer, and avoid liability for others' use or misuse of Berkeley Lab information or material.

1. Transfer to Third Parties
   1. NDA Signed by IPO. A Berkeley Lab researcher (employee or affiliate) wishing to transfer nonpublic technical or scientific information to third parties, including other University of California campuses or DOE Lab contractors, must contact the Intellectual Property Office (IPO), which will prepare an NDA. IPO may also prepare an agreement for mutual disclosure of proprietary information or an agreement that also includes the transfer of tangible research material. The researcher may not transfer Berkeley Lab information before the agreement is signed by both IPO and the recipient.
   2. Disclosure of Information. At a minimum, any information Berkeley Lab discloses under an NDA should be prominently marked as "proprietary" or "confidential." If the Berkeley Lab researcher transferring nonpublic information wishes to disclose the information orally, he or she must first inform his or her audience that the forthcoming information is confidential. Some NDAs also require that confidential oral presentations be summarized, marked as confidential, and transmitted to the recipient within 15 to 30 days. The researcher must comply with any additional requirements contained in the NDA.
   3. Transfer of Information to Berkeley Lab Subcontractors. Under certain subcontracts, Berkeley Lab's full rights to intellectual property may be impaired if confidential information is transferred to a subcontractor under the subcontract without appropriate restrictive markings. If a Berkeley Lab researcher anticipates transferring nonpublic information to a Berkeley Lab subcontractor, the researcher must inform the Procurement and Property Management Department about this intention and take steps necessary under the subcontract to mark the information.
2. Obtaining Proprietary Information from Third Parties
   1. Written NDA
      1. If a third party provides a written NDA, the Berkeley Lab employee must have that agreement approved by IPO. For quicker approval, the researcher may send the proposed agreement electronically to IPO (ndas-and-mtas@lbl.gov) for review and send the original to IPO for signature. In urgent cases, IPO may authorize the researcher to sign the agreement on behalf of Berkeley Lab, after approval of the agreement on content. If the agreement from the originator contains unacceptable terms, IPO will contact the originator to modify the agreement appropriately.
      2. All obligations to keep confidential information from a for-profit company must be memorialized in a written agreement. If a for-profit company orally requests confidentiality, the Berkeley Lab researcher must contact IPO to obtain a written agreement, however a written agreement is always preferable.
   2. Implied Conditions of Confidentiality. If a Berkeley Lab employee receives proprietary information from a nonprofit (including a university) or government originator under implied conditions of confidentiality (i.e., without a written agreement), he or she must take steps to protect the information set forth in Sections D.2.c, Maintenance of Proprietary Information, to D.2.f, Return to Source, below. Berkeley Lab does not accept implied obligations of confidentiality or restrictions on use for proprietary information from private entities. The Berkeley Lab employee must have an approved agreement to obtain proprietary information from a for-profit entity.
   3. Maintenance of Proprietary Information. The Berkeley Lab recipient of proprietary information is responsible for physically securing the proprietary information at Berkeley Lab or associated campus facilities. The proprietary information must be kept under lock, must not be left where inadvertent disclosure may occur, and must not be removed from Berkeley Lab or associated campus facilities. It must be clearly marked as confidential and proprietary data. Computer source code containing proprietary information must not be stored in permanent files or open tape libraries. Object code containing proprietary information must not be stored in permanent files unless access to such files is controlled by the person responsible for the information.
   4. Internal Information Sharing. As necessary for the conduct of the project and only on a need-to-know basis, proprietary information generally may be shared with other Berkeley Lab staff and employees. No approvals are required for this, but the Berkeley Lab researcher must exercise his or her best judgment to minimize the exposure of such information. Copies must not be made for internal information sharing. Occasionally, the NDA may restrict internal sharing of proprietary information to a single recipient or specified group; IPO will inform the researcher of this restriction, and the researcher must abide by that restriction.
   5. Disclosure Outside Berkeley Lab
      1. If disclosure of proprietary information to any individual other than Berkeley Lab staff and appropriate employees appears necessary, the Berkeley Lab employee who wishes to disclose the information must obtain prior written approval from the entity who supplied the proprietary information. That approval must be signed by an authorized representative of that entity and clearly specify what proprietary information may be disclosed and to whom it may be disclosed. Unless the approval letter otherwise specifies, the disclosure of the information will be made only on the Berkeley Lab site. No copies of the proprietary information may be made. Contact IPO to obtain assistance in securing appropriate approval from the proprietary information supplier.
      2. If Berkeley Lab independently develops, derives, or obtains information similar to proprietary property (other than from a source that Berkeley Lab would have reason to believe has a confidentiality obligation to the third party entity that signed an NDA with Berkeley Lab), Berkeley Lab may use or divulge that proprietary information without restriction. Berkeley Lab must, however, have documentary evidence (e.g., properly witnessed laboratory notebooks or publications) to prove the independence of the source.
   6. Return to Source. When proprietary information or material is no longer needed, it must be destroyed or returned promptly to the entity who signed the NDA by registered mail or a recognized courier service such as Federal Express or DHL, or otherwise disposed of (e.g., destroyed) as required in any written agreement. Copies of the proprietary information are generally not retained.
3. Consequence of Failure to Safeguard Information. Failure to reasonably safeguard Berkeley Lab proprietary information and/or follow the procedures listed above may constitute a serious violation of professional responsibility that may result in disciplinary action, including termination.

E. Roles and Responsibilities

F. Definitions/Acronyms

G. Recordkeeping Requirements

Intellectual Property Office keeps records of all NDAs.

H. Implementing Documents

None

I. Contact Information

Licensing Manager
Intellectual Property Office
ipo@lbl.gov

J. Revision History

DOCUMENT INFORMATION

Source Requirements Documents

U.S. Department of Energy (DOE) Contract No. DE-AC02-05CH11231, Clause I.138, DEAR 970.5227-3, Technology Transfer Mission (AUG 2019) [SC alternate APR 2018] (prev. I.092)

U.S. Department of Energy (DOE) Contract No. DE-AC02-05CH11231, Clause H.31

Implementing Documents

None