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    Title:

    Software Disclosure and Distribution

    Publication date:

    4/1/2021

    Effective date:

    4/1/2021

    BRIEF

    Policy Summary

    Employees and affiliates who have written software that will be distributed to any third party or that will be useful either commercially or for other government contractors must submit a Software Disclosure form to the Intellectual Property Office (IPO). It is the developer's responsibility to report all software prior to distribution, and to obtain the appropriate license agreement from IPO.

    Who Should Read This Policy

    All Berkeley Lab software developers, including full- and part-time employees and those with faculty appointments and affiliates

    To Read the Full Policy, Go To:

    The POLICY tab on this wiki page

    Contact Information

    Licensing Manager
    Intellectual Property Office
    [email protected]

    Title:

    Software Disclosure and Distribution

    Publication date:

    4/1/2021

    Effective date:

    4/1/2021

    POLICY

    A. Purpose

    Employees and affiliates who have written software that will be distributed to any third party or that will be useful either commercially or for other government contractors must submit a Software Disclosure form to the Intellectual Property Office (IPO). It is the developer's responsibility to report all software to IPO prior to distribution, and to obtain the appropriate license agreement from IPO in order for Lawrence Berkeley National Laboratory (Berkeley Lab) to meet Department of Energy (DOE) requirements, ensure that Berkeley Lab has the appropriate rights to distribute the software, and to distribute software under contracts that are appropriate for the particular software and type of distribution.

    B. Persons Affected

    IPO staff and Berkeley Lab software developers, including full- and part-time employees and those with faculty appointments and affiliates

    C. Exceptions

    Berkeley Lab's software disclosure requirement does not apply to Berkeley Lab software that has already been disclosed to IPO or software that is already publicly released as open source software (OSS) only if a bug fix, error correction, new version or derivative work, which for this policy is defined as a change to existing software that:

    • Comprises less than 25% of the existing software, and
    • Does not add meaningful new functionality to the existing software, and
    • Does not materially improve the performance of the existing software.

    D. Policy Statement

    1. Berkeley Lab software developers must report software to IPO before it can be distributed to anyone outside Berkeley Lab. This includes software shared with other academic or national institutions and software given away free of charge.
    2. Software that must be reported includes software developed at Berkeley Lab (minus exceptions above), and all third party software.
    3. To facilitate distribution of Berkeley Lab software, avoid using third party confidential or proprietary code especially commercial packages and viral open source software such as GNU GPL code. Berkeley Lab prefers that non-viral code such as OSS code licensed under BSD or MIT be used. Using confidential/proprietary or viral OSS code in Laboratory software may make it difficult or impossible to distribute your software outside Berkeley Lab. 
    4. If a project requires third-party software, Berkeley Lab software developers must document where the code was obtained and what legal terms apply to its use, whether modified or not and whether included for distribution, i.e., download and keep a copy of the software license. Berkeley Lab software developers must also keep records of the individuals who contributed work on the code and the funding source that supported its development.
    5. After disclosing to IPO, the Berkeley Lab software developer(s) and IPO staff may need to discuss the software project's goals, and if the software is to be distributed to third parties, IPO will seek requisite approvals from DOE, and any other sponsors as required, and will provide the text of the appropriate license agreement and accompanying instructions to the software developer or will directly provide licenses to interested external users of the software.
    6. The Berkeley Lab software developer must track the number of licenses/downloads of software arising from a Web site managed by the developer and report that number annually to IPO upon request, for IPO's reporting requirement to DOE.
    7. IPO directly handles all licensing transactions in which Berkeley Lab is receiving compensation for the license, and will distribute a share of net licensing income to Berkeley Lab software developers annually.

    E. Roles and Responsibilities

    Role

    Responsibility

    Berkeley Lab Software Developer

    • Sends a written report of new software (i.e., a completed Software Disclosure form) to IPO prior to distribution to third parties, and provides a current, fully functional copy of the software as requested by IPO
    • Keeps records of (1) software licenses for third-party software incorporated into the Berkeley Lab software, (2) individuals who contributed work on the code, and (3) funding supporting the software development
    • If authorized by IPO to distribute the software from the developer's Web site or repository, tracks the number of annual licensed downloads

    Berkeley Lab IPO

    • Notifies the DOE Patent Counsel of new software
    • Reviews licenses for any incorporated third-party code, and assesses any other encumbrances on the software
    • Obtains DOE approvals prior to distribution
    • Deposits software with DOE's OSTI code repository called DOE Code
    • Selects or drafts appropriate software license agreement
    • Provides instructions to the Berkeley Lab software developer for developer-distributed software
    • Reports annually on software to DOE

    F. Definitions/Acronyms

    Term

    Definition

    Affiliates

    Non-Laboratory employees engaged in on-site Laboratory activities. Affiliates are subject to training in safety and other subjects. They are also issued a Berkeley Lab identification badge. Affiliates may receive system accounts, research access to facilities, and a per diem allowance for housing and living expenses. Examples:  Facility users, scientific collaborators, students.

    Developer

    One who writes software code or contributes to the design/architecture of the software in a demonstrable way as evidenced by tangible design drawings.

    Net Royalty or Licensing Income

    As used in this policy, royalties received by Berkeley Lab after deducting (1) amounts payable to non-Berkeley Lab owners or licensors of the intellectual property; and (2) patent or other intellectual-property protection costs (including litigation), reserves for bad debt, and licensing costs.

    Policy

    Statements or directives from the federal, state, or local government; the University of California; or Berkeley Lab senior management that set a course of action, define acceptable conduct, or implement governing principles. Example: Berkeley Lab Site Access.

    Software Disclosure

    A description of the software that will be transferred. The Berkeley Lab Software Disclosure form incorporates the DOE OSTI Software Disclosure form.

    IPO

    Intellectual Property Office

    G. Recordkeeping Requirements

    • The Berkeley Lab software developer keeps records of (1) software licenses for third-party software incorporated into the Berkeley Lab software, (2) individuals who authored the code, and (3) funding supporting the software development.
    • IPO keeps records of all software disclosures submitted to and software licensed through IPO.
    • If IPO authorizes the software developer to distribute software electronically, the developer must record the number of licensed software downloads annually.

    H. Implementing Documents

    Document number

    Title

    Type

    10.04.007.001

    Software Disclosure Form

    Form

    I. Contact Information

    Licensing Manager
    Intellectual Property Office
    [email protected]

    J. Revision History

    Date

    Revision

    By whom

    Revision Description

    Section(s) affected

    Change Type

    1/2/2012

    0

    H.Clark

    New (brief)

    all

    Major

    12/3/2012

    1

    V.Wolinsky

    New (policy)

    all

    Major

    12/17/2020
    D. Soustin Updated Contract 31 I clause numbers as per mod 1105 Source Requirement Documents Editorial
    4/1/2021 2 R. Carrington Periodic review. Minor policy clarifications. Updated office names and contact info. all Minor

    DOCUMENT INFORMATION

    Title:

    Software Disclosure and Distribution

    Document number

    10.04.007.000

    Revision number

    2

    Publication date:

    4/1/2021

    Effective date:

    4/1/2021

    Next review date:

    4/1/2026

    Policy Area:

    Intellectual Property

    RPM Section (home)

    Info Management

    RPM Section (cross-reference)

    Asset management

    Functional Division

    IPO

    Prior reference information (optional)

    RPM Section 5.03(B)(1); RPM Section 5.05(A)

    Source Requirements Documents

    Implementing Documents

    Document number

    Title

    Type

    10.04.007.001

    Software Disclosure Form

    Form

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