Section 8 of the Policy Directive sets forth the terms of agreement under SBIR awards. SBA received several comments on this section. Specifically, SBA received numerous comments concerning section 8(b), which addresses data rights for Phases I, II and III awards. Two commenters suggested that SBA state that the removal or inclusion of the SBIR data rights clause is non-negotiable and that the data rights clause is automatically inserted into the Phase III award notwithstanding an agency's failure or refusal to do so. The commenter also wanted these changes to apply retroactively. Another commenter thought that agencies should be allowed to negotiate for these rights prior to award.

Several commenters thought this section, addressing the period of data rights protection, should be clarified. One commenter believed that as set forth in the proposed rule, the clause means that for projects that receive both a Phase I and Phase II award, the 4 year protection period begins at the end of Phase I and ends four years later. This would mean that data rights from Phase II would only be protected for approximately two years following completion of the Phase II project. Another comment recommended that SBA should ensure in the Directive that agencies know they have to protect all SBIR technical data from all prior phases for a period of not less than 4 years from completion of the last phase of the SBIR Program. Similarly, one commenter stated that the Directive is unclear on protecting rights for Phase III work that does not immediately follow a Phase II. For example, the proposed Directive stated that the four year protection period starts at the end of Phase II, then when a Phase III starts, protection is granted during the duration of the Phase III and a new four year protection period starts when the Phase III ends. The commenter asked what happens if the Phase III does not start until after the first four-year clock has run out. Finally, one commenter recommended SBA amend the Directive to state that data rights apply to subcontracts.

SBA amends the Policy Directive to clarify that agencies are required by statute to protect SBIR data rights developed from Phases I, II, and III awards, including subcontracts to such awards, for a period of at least 4 years from the last deliverable under that award. In addition, SBA amends the Directive to emphasize that agencies cannot condition a Phase III award on a concern giving up its SBIR data rights. Likewise, the Policy Directive clarifies that SBIR data rights can not be negotiated or diminished by the funding agency. The Policy Directive prohibits the negotiation for SBIR data rights before awarding an SBIR funding agreement. Negotiations with the SBIR awardee must be via a separate agreement, made without pressure or coercion by the agency or any other party.

The Policy Directive also clarifies that any data developed under a Phase III funding agreement must be protected by SBIR data rights. Any data developed under Phase I, II, or III continues to be protected for a period of at least 4 years from delivery of the last deliverable under that award. The Policy Directive clarifies that although agencies are released from obligation to protect SBIR data upon expiration of the protection period, any such data that is also protected and referenced under a subsequent SBIR award must remain protected through the protection period of that subsequent SBIR award. For example, if a Phase III award that is issued within the Phase II data rights protection period refers to and protects the data developed and protected under the Phase II award, then that data must continue to be protected through the Phase III protection period.

SBA received one comment on patents and copyrights. The comment stated that SBA should clarify the data rights because neither the statute nor the SBA Directive establish separate rights of the parties respecting patents or copyrights. SBA believes that these subjects are covered adequately in the instructions to agencies for preparation of SBIR Program solicitations (Appendix I).

SBA received one comment requesting that the Policy Directive address the selling of licenses or technical data language and the Government purchasing such data from SBIR awardees. SBA believes that agencies or their prime contractors, Government-owned, contractor- operated facilities, or Federally-funded research and development centers should negotiate the purchase or licensed use of SBIR funded technology directly with the SBIR awardee. This should be done through the agencies' routine acquisition and procurement procedures and should not be a condition of the SBIR funding agreement.