§5.06
Proprietary Information from External Sources


Rev. 09/07
Links updated 03/11

  1. General
  2. Definitions
    1. Proprietary Information
    2. Originator
  3. Acceptance
    1. Written Nondisclosure Agreement
    2. Implied Conditions of Confidentiality
  4. Maintenance of Proprietary Information
  5. Internal Information Sharing
  6. Disclosure Outside the Laboratory
  7. Return to Originator
  8. Consequence of Failure to Safeguard Information

A.  GENERAL

Laboratory staff must observe the following procedures when the Laboratory needs to obtain proprietary information to meet programmatic research objectives. These procedures enable the Laboratory to comply with its obligation to protect proprietary information or proprietary material that it receives from an external source and to avoid the possibility of liability for disclosure or misuse of such information or material. The procedures also protect Laboratory investigators from inappropriately restrictive terms on publications or inventions of their own creation.

Laboratory employees 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 of Paragraphs (D)–(G), below. See also RPM §10.14 (Privileged Information).

B.  DEFINITIONS

1.  Proprietary Information

Proprietary information is any information or material (including, but not restricted to, ideas, concepts, proposals, inventions, instruments, chemical samples, cost estimates, data, and computer programs) that (a) originates outside the Laboratory, (b) is disclosed to the Laboratory on expressed or implied conditions that limit the Laboratory's right to use or disclose the information, (c) is specifically identified by the originator as proprietary, and (d) is not generally known to workers in the relevant field. This includes the documents or computer tapes that contain such information. On information originating at the Laboratory, see RPM §5.07 (Disclosure of Laboratory Proprietary Information).

2.  Originator

The originator is an individual or organization that has provided proprietary information to the Laboratory or to a government agency that has in turn passed it on to the Laboratory on conditions that restrict its disclosure or use.

C.  ACCEPTANCE

1. Written Nondisclosure Agreement

If the originator provides a written nondisclosure agreement (also often called a confidentiality agreement, a proprietary information agreement, or (in the case of materials) a material transfer agreement), the Laboratory employee must have that agreement approved by Technology Transfer and Intellectual Property Management. For quicker approval, the researcher may fax the proposed agreement to Technology Transfer and Intellectual Property Management (ext. 6457) for review and send the original for signature. In urgent cases, Technology Transfer and Intellectual Property Management may authorize the researcher to sign the agreement on behalf of the Laboratory, after approval of the agreement on content. If the agreement from the originator contains unacceptable terms, Technology Transfer and Intellectual Property Management will contact the originator to modify the agreement appropriately.

All obligations to keep confidential information from an originator that is a for-profit company must be memorialized in a written agreement. If a for-profit company orally requests confidentiality, the Laboratory researcher must contact Technology Transfer and Intellectual Property Management to obtain a written agreement.

2. Implied Conditions of Confidentiality

If a Laboratory employee receives proprietary information from a nonprofit (including 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 Paragraphs (D)–(G), below. The Laboratory does not accept implied obligations of confidentiality or restrictions on use for proprietary information from private entities. The Laboratory employee must have an approved agreement to obtain proprietary information from a for-profit entity. See Paragraph (C)(1), above.

D.  MAINTENANCE OF PROPRIETARY INFORMATION

The Laboratory recipient of proprietary information is responsible for physically securing the proprietary information at the Laboratory 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 the Laboratory or associated campus facilities. Such information may not be photocopied or duplicated in any manner. It must be clearly marked as confidential and proprietary data. Computer source codes containing proprietary information must not be stored in permanent files or open tape libraries. Object codes containing proprietary information must not be stored in permanent files unless access to such files is controlled by the person responsible for the information.

E.  INTERNAL INFORMATION SHARING

As necessary for the conduct of the project and only on a need-to-know basis, proprietary information may be shared with other Laboratory staff and appropriate University employees. No approvals are required for this, but the Laboratory researcher must exercise his or her best judgment to minimize the exposure of such information. Copies must not be made for internal information sharing.

F.  DISCLOSURE OUTSIDE THE LABORATORY

If disclosure of proprietary information to any individual other than Laboratory staff and appropriate University employees appears necessary, the Laboratory employee who wishes to disclose the information must obtain prior written approval from the originator who supplied the proprietary information. That approval must be signed by an authorized representative of the originator and clearly specify what proprietary information may be disclosed and to whom it may be disclosed. Unless the originator's approval letter otherwise specifies, the disclosure of the information will be made only on site. No copies of the proprietary information may be made. Contact Technology Transfer and Intellectual Property Management to obtain assistance in securing appropriate approval from the originator.

If the Laboratory independently develops, derives, or obtains information similar to proprietary property, the Laboratory may use or divulge that proprietary information without restriction. The Laboratory must, however, have documentary evidence (e.g., properly witnessed laboratory notebooks or publications) to prove the independence of the source.

G.  RETURN TO ORIGINATOR

When proprietary information or material is no longer needed, it must be returned promptly to its originator 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 must not be retained.

H.  CONSEQUENCE OF FAILURE TO SAFEGUARD INFORMATION

Failure to reasonably safeguard proprietary information and/or to follow the procedures listed above may constitute a serious violation of professional ethics that can result in disciplinary action, including termination. Violation of trade secret laws can also result in legal action against the violator.

Printed . The official or current version is located in the online LBNL Requirements and Policies Manual.
Printed or electronically transmitted copies are not official. Users are responsible for working with the latest approved revision.

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