If you are involved with a small business and eager to dive into research and development with the help of a Small Business Innovation Research (SBIR) grant, data rights are likely on your mind.
What rights do you have to your data under funded research and development programs, and what can the government claim?
Every application requests a “Data & Resource Sharing Plan”. However, the rules go well beyond that form.
Government Disclosure Rules
The highlights of the government’s disclosure rules are as follows:
- The federal government can’t disclose SBIR data, outside of the government itself.
- The government has a limited non-exclusive license, to use SBIR data without disclosing it.
- The government cannot compete technologies with SBIR data.
Organizations under the SBIR rules have full right and title to data developed under an SBIR award. The disclosure protection is in effect for not less than four years from the delivery of the last deliverable, per phase of the award.
As projects move through each phase of SBIR funding, the protection period is extended to ensure the company is covered through ongoing research and development. These are relevant for the NIH Budget 2018.
FOIA
The Freedom of Information Act provides for the release of information upon request. For the SBIR program grant submitted fall under the same federal law as that for submitted FDA clinical trial data. The short story is you can request, but unless the owner releases the data you are extremely unlikely to receive the requested information.
What is SBIR Data?
You know the government is obligated to protect SBIR data, but what exactly does it entail?
SBIR data is recorded information of a technical nature, generated under the SBIR funding agreement.
This means it’s written data, be it code, drawings, reports, or other information in written documentation. It doesn’t cover ideas or concepts, unless those are reduced to a written form.
It has to be technical in that it relates to the SBIR technology being developed in phases of the SBIR programs, and thus worth protecting to the SBIR recipient. Anything the SBIR recipient shares online or in accessible documentation is not technical information covered under data provisions.
The third condition is fairly straightforward: SBIR data has to come from SBIR funding; thus anything the company had done on their own funding is not protected. If, however, SBIR data and non-SBIR data are so mixed together that they cannot be separated it all becomes part of the nondisclosure rule.
Protecting SBIR Data
SBIR recipients must carefully and consistently mark SBIR data for it to be protected. These recipients must also avoid disclosing SBIR data accidentally or voluntarily. Anyone permitted to view the data must be government-affiliated, as confirmed by the recipient.
Generally, it’s best to reduce the amount of technical information included in any kind of public information or presentation to best protect this valuable data. For SBIRs it is different and there are clear ways to protect your confidential technical information.
Grant Engine knows SBIR applications, data regulations, and other details inside out. Please feel free to contact Grant Engine to answer any further questions you may have by calling (650) 937-9164 or by emailing greatscience@grantengine.com.
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