§ 278n. — Advanced Technology Program.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 15USC278n]
TITLE 15--COMMERCE AND TRADE
CHAPTER 7--NATIONAL INSTITUTE OF STANDARDS AND TECHNOLOGY
Sec. 278n. Advanced Technology Program
(a) Establishment; purpose; focus; guidance
There is established in the Institute an Advanced Technology Program
(hereafter in this chapter referred to as the ``Program'') for the
purpose of assisting United States businesses in creating and applying
the generic technology and research results necessary to--
(1) commercialize significant new scientific discoveries and
technologies rapidly; and
(2) refine manufacturing technologies.
The Secretary, acting through the Director, shall assure that the
Program focuses on improving the competitive position of the United
States and its businesses, gives preference to discoveries and to
technologies that have great economic potential, and avoids providing
undue advantage to specific companies. In operating the Program, the
Secretary and Director shall, as appropriate, be guided by the findings
and recommendations of the Biennial National Critical Technology Reports
prepared pursuant to section 6683 \1\ of title 42.
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\1\ See References in Text note below.
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(b) Authority of Secretary; research and development; contracts and
cooperative agreements; Federal laboratories; other activities
with joint ventures
Under the Program established in subsection (a) of this section, and
consistent with the mission and policies of the Institute, the
Secretary, acting through the Director, and subject to subsections (c)
and (d) of this section, may--
(1) aid industry-led United States joint research and
development ventures (hereafter in this section referred to as
``joint ventures'') (which may also include universities and
independent research organizations), including those involving
collaborative technology demonstration projects which develop and
test prototype equipment and processes, through--
(A) provision of organizational and technical advice; and
(B) participation in such joint ventures by means of grants,
cooperative agreements, or contracts, if the Secretary, acting
through the Director, determines participation to be
appropriate, which may include (i) partial start-up funding,
(ii) provision of a minority share of the cost of such joint
ventures for up to 5 years, and (iii) making available
equipment, facilities, and personnel,
provided that emphasis is placed on areas where the Institute has
scientific or technological expertise, on solving generic problems
of specific industries, and on making those industries more
competitive in world markets;
(2) provide grants to and enter into contracts and cooperative
agreements with United States businesses (especially small
businesses), provided that emphasis is placed on applying the
Institute's research, research techniques, and expertise to those
organizations' research programs;
(3) involve the Federal laboratories in the Program, where
appropriate, using among other authorities the cooperative research
and development agreements provided for under section 3710a of this
title; and
(4) carry out, in a manner consistent with the provisions of
this section, such other cooperative research activities with joint
ventures as may be authorized by law or assigned to the Program by
the Secretary.
(c) Authority of Secretary; selection criteria; monitoring use of
technologies; overseas transfer; annual report to Congress;
financial reporting and auditing; routine consideration of
Committee advice; dissemination of research results
The Secretary, acting through the Director, is authorized to take
all actions necessary and appropriate to establish and operate the
Program, including--
(1) publishing in the Federal Register draft criteria and, no
later than six months after August 23, 1988, following a public
comment period, final criteria, for the selection of recipients of
assistance under subsection (b)(1) and (2) of this section;
(2) monitoring how technologies developed in its research
program are used, and reporting annually to the Congress on the
extent of any overseas transfer of these technologies;
(3) establishing procedures regarding financial reporting and
auditing to ensure that contracts and awards are used for the
purposes specified in this section, are in accordance with sound
accounting practices, and are not funding existing or planned
research programs that would be conducted in the same time period in
the absence of financial assistance under the Program;
(4) assuring that the advice of the Committee established under
section 278 of this title is considered routinely in carrying out
the responsibilities of the Institute; and
(5) providing for appropriate dissemination of Program research
results.
(d) Contracts or awards; criteria; restrictions
When entering into contracts or making awards under subsection (b)
of this section, the following shall apply:
(1) No contract or award may be made until the research project
in question has been subject to a merit review, and has, in the
opinion of the reviewers appointed by the Director and the
Secretary, acting through the Director, been shown to have
scientific and technical merit.
(2) In the case of joint ventures, the Program shall not make an
award unless the award will facilitate the formation of a joint
venture or the initiation of a new research and development project
by an existing joint venture.
(3) No Federal contract or cooperative agreement under
subsection (b)(2) of this section shall exceed $2,000,000 over 3
years, or be for more than 3 years unless a full and complete
explanation of such proposed award, including reasons for exceeding
these limits, is submitted in writing by the Secretary to the
Committee on Commerce, Science, and Transportation of the Senate and
the Committee on Science, Space, and Technology of the House of
Representatives. The proposed contract or cooperative agreement may
be executed only after 30 calendar days on which both Houses of
Congress are in session have elapsed since such submission. Federal
funds made available under subsection (b)(2) of this section shall
be used only for direct costs and not for indirect costs, profits,
or management fees of the contractor.
(4) In determining whether to make an award to a particular
joint venture, the Program shall consider whether the members of the
joint venture have made provisions for the appropriate participation
of small United States businesses in such joint venture.
(5) Section 552 of title 5 shall not apply to the following
information obtained by the Federal Government on a confidential
basis in connection with the activities of any business or any joint
venture receiving funding under the Program--
(A) information on the business operation of any member of
the business or joint venture; and
(B) trade secrets possessed by any business or any member of
the joint venture.
(6) Intellectual property owned and developed by any business or
joint venture receiving funding or by any member of such a joint
venture may not be disclosed by any officer or employee of the
Federal Government except in accordance with a written agreement
between the owner or developer and the Program.
(7) If a business or joint venture fails before the completion
of the period for which a contract or award has been made, after all
allowable costs have been paid and appropriate audits conducted, the
unspent balance of the Federal funds shall be returned by the
recipient to the Program.
(8) Upon dissolution of any joint venture or at the time
otherwise agreed upon, the Federal Government shall be entitled to a
share of the residual assets of the joint venture proportional to
the Federal share of the costs of the joint venture as determined by
independent audit.
(9) A company shall be eligible to receive financial assistance
under this section only if--
(A) the Secretary finds that the company's participation in
the Program would be in the economic interest of the United
States, as evidenced by investments in the United States in
research, development, and manufacturing (including, for
example, the manufacture of major components or subassemblies in
the United States); significant contributions to employment in
the United States; and agreement with respect to any technology
arising from assistance provided under this section to promote
the manufacture within the United States of products resulting
from that technology (taking into account the goals of promoting
the competitiveness of United States industry), and to procure
parts and materials from competitive suppliers; and
(B) either--
(i) the company is a United States-owned company; or
(ii) the Secretary finds that the company is
incorporated in the United States and has a parent company
which is incorporated in a country which affords to United
States-owned companies opportunities, comparable to those
afforded to any other company, to participate in any joint
venture similar to those authorized under this chapter;
affords to United States-owned companies local investment
opportunities comparable to those afforded to any other
company; and affords adequate and effective protection for
the intellectual property rights of United States-owned
companies.
(10) Grants, contracts, and cooperative assignments under this
section shall be designed to support projects which are high risk
and which have the potential for eventual substantial widespread
commercial application. In order to receive a grant, contract, or
cooperative agreement under this section, a research and development
entity shall demonstrate to the Secretary the requisite ability in
research and technology development and management in the project
area in which the grant, contract, or cooperative agreement is being
sought.
(11)(A) Title to any intellectual property arising from
assistance provided under this section shall vest in a company or
companies incorporated in the United States. The United States may
reserve a nonexclusive, nontransferable, irrevocable paid-up
license, to have practiced for or on behalf of the United States, in
connection with any such intellectual property, but shall not, in
the exercise of such license, publicly disclose proprietary
information related to the license. Title to any such intellectual
property shall not be transferred or passed, except to a company
incorporated in the United States, until the expiration of the first
patent obtained in connection with such intellectual property.
(B) For purposes of this paragraph, the term ``intellectual
property'' means an invention patentable under title 35 or any
patent on such an invention.
(C) Nothing in this paragraph shall be construed to prohibit the
licensing to any company of intellectual property rights arising
from assistance provided under this section.
(e) Suspension for failure to satisfy eligibility criteria
The Secretary may, within 30 days after notice to Congress, suspend
a company or joint venture from continued assistance under this section
if the Secretary determines that the company, the country of
incorporation of the company or a parent company, or the joint venture
has failed to satisfy any of the criteria set forth in subsection (d)(9)
of this section, and that it is in the national interest of the United
States to do so.
(f) Coordination with other Federal technology programs
When reviewing private sector requests for awards under the Program,
and when monitoring the progress of assisted research projects, the
Secretary and the Director shall, as appropriate, coordinate with the
Secretary of Defense and other senior Federal officials to ensure
cooperation and coordination in Federal technology programs and to avoid
unnecessary duplication of effort. The Secretary and the Director are
authorized to work with the Director of the Office of Science and
Technology Policy, the Secretary of Defense, and other appropriate
Federal officials to form interagency working groups or special project
offices to coordinate Federal technology activities.
(g) Meetings with industry sources
In order to analyze the need for the value of joint ventures and
other research projects in specific technical fields, to evaluate any
proposal made by a joint venture or company requesting the Secretary's
assistance, or to monitor the progress of any joint venture or any
company research project which receives Federal funds under the Program,
the Secretary, the Under Secretary of Commerce for Technology, and the
Director may, notwithstanding any other provision of law, meet with such
industry sources as they consider useful and appropriate.
(h) Standards development
Up to 10 percent of the funds appropriated for carrying out this
section may be used for standards development and technical activities
by the Institute in support of the purposes of this section.
(i) Acceptance of funds from other Federal departments and agencies
In addition to such sums as may be authorized and appropriated to
the Secretary and Director to operate the Program, the Secretary and
Director also may accept funds from other Federal departments and
agencies for the purpose of providing Federal funds to support awards
under the Program. Any Program award which is supported with funds which
originally came from other Federal departments and agencies shall be
selected and carried out according to the provisions of this section.
(j) Definitions
As used in this section--
(1) the term ``joint venture'' means any group of activities,
including attempting to make, making, or performing a contract, by
two or more persons for the purpose of--
(A) theoretical analysis, experimentation, or systematic
study of phenomena or observable facts;
(B) the development or testing of basic engineering
techniques;
(C) the extension of investigative finding or theory of a
scientific or technical nature into practical application for
experimental and demonstration purposes, including the
experimental production and testing of models, prototypes,
equipment, materials, and processes;
(D) the collection, exchange, and analysis of research
information;
(E) the production of any product, process, or service; or
(F) any combination of the purposes specified in
subparagraphs (A), (B), (C), (D), and (E),
and may include the establishment and operation of facilities for
the conducting of research, the conducting of such venture on a
protected and proprietary basis, and the prosecuting of applications
for patents and the granting of licenses for the results of such
venture; and
(2) the term ``United States-owned company'' means a company
that has majority ownership or control by individuals who are
citizens of the United States.
(Mar. 3, 1901, ch. 872, Sec. 28, as added Pub. L. 100-418, title V,
Sec. 5131(a), Aug. 23, 1988, 102 Stat. 1439; amended Pub. L. 102-245,
title II, Sec. 201(c), Feb. 14, 1992, 106 Stat. 16.)
References in Text
Section 6683 of title 42, referred to in subsec. (a), was omitted
from the Code.
Amendments
1992--Subsec. (a). Pub. L. 102-245, Sec. 201(c)(1), inserted at end
``In operating the Program, the Secretary and Director shall, as
appropriate, be guided by the findings and recommendations of the
Biennial National Critical Technology Reports prepared pursuant to
section 6683 of title 42.''
Subsec. (b)(1). Pub. L. 102-245, Sec. 201(c)(2), inserted
``industry-led'' after ``aid'' in introductory provisions.
Subsec. (b)(1)(B). Pub. L. 102-245, Sec. 201(c)(3), inserted ``by
means of grants, cooperative agreements, or contracts'' after ``such
joint ventures''.
Subsec. (b)(2). Pub. L. 102-245, Sec. 201(c)(4), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ``enter into
contracts and cooperative agreements with United States businesses,
especially small businesses, and with independent research
organizations, provided that emphasis is placed on applying the
Institute's research, research techniques, and expertise to those
organizations' research programs;''.
Subsec. (d)(2). Pub. L. 102-245, Sec. 201(c)(5), amended par. (2)
generally. Prior to amendment, par. (2) read as follows: ``In the case
of joint ventures, the Program shall not make an award unless, in the
judgment of the Secretary, acting through the Director, Federal aid is
needed if the industry in question is to form a joint venture quickly.''
Subsec. (d)(7) to (11). Pub. L. 102-245, Sec. 201(c)(6),
redesignated pars. (8) and (9) as (7) and (8), respectively, added pars.
(9) to (11), and struck out former par. (7) which read as follows: ``The
Federal Government shall be entitled to a share of the licensing fees
and royalty payments made to and retained by any business or joint
venture to which it contributes under this section in an amount
proportional to the Federal share of the costs incurred by the business
or joint venture as determined by independent audit.''
Subsec. (e). Pub. L. 102-245, Sec. 201(c)(7), amended subsec. (e)
generally. Prior to amendment, subsec. (e) read as follows: ``As used in
this section, the term `joint research and development venture' has the
meaning given to such term in section 4301(a)(6) of this title.''
Subsecs. (f) to (j). Pub. L. 102-245, Sec. 201(c)(8), added subsecs.
(f) to (j).
Change of Name
Committee on Science, Space, and Technology of House of
Representatives treated as referring to Committee on Science of House of
Representatives by section 1(a) of Pub. L. 104-14, set out as a note
preceding section 21 of Title 2, The Congress.
Effective Date of 1992 Amendment
Section 201(d) of Pub. L. 102-245 provided that: ``The amendments in
subsection (c) [amending this section] shall take effect immediately
upon enactment [Feb. 14, 1992]; however, the amendments shall not apply
to applications submitted before the date of enactment of this Act.''
Congressional Findings and Purposes for Advanced Technology Program
Amendments
Section 201(b) of Pub. L. 102-245 provided that:
``(1) The Congress finds that--
``(A) technological innovation and its profitable inclusion in
commercial products are critical components of the ability of the
United States to raise the living standards of Americans and to
compete in world markets;
``(B) maintaining viable United States-based high technology
industries is vital to both the national security and the economic
well-being of the United States;
``(C) the Department of Commerce has reported that the United
States is losing or losing badly, relative to Japan and Europe, in
many important emerging technologies and risks losing much of the
$350,000,000,000 United States market and $1,000,000,000,000 world
market expected to develop by the year 2000 for products based on
emerging technologies;
``(D) it is in the national interest for the Federal Government
to encourage and, in selected cases, provide limited financial
assistance to industry-led private sector efforts to increase
research and development in economically critical areas of
technology;
``(E) joint ventures are a particularly effective and
appropriate way to pool resources to conduct research that no single
company is likely to undertake but which will create new generic
technologies that will benefit an entire industry and the welfare of
the Nation;
``(F) it is vital that industry within the United States attain
a leadership role and capability in development, design, and
manufacturing in fields such as high-resolution information systems,
advanced manufacturing, and advanced materials; and
``(G) the Advanced Technology Program, established under section
28 of the National Institute of Standards and Technology Act (15
U.S.C. 278n), is the appropriate vehicle for the United States
Government to provide limited assistance to joint development within
the United States of new high technology capabilities in fields such
as high-resolution information systems, advanced manufacturing
technology, and advanced materials, and can help encourage United
States industry to work together on problems of mutual concern.
``(2) The purposes of this section [amending this section and
section 272 of this title and enacting provisions set out as notes under
this section and section 271 of this title] are--
``(A) to strengthen the Advanced Technology Program created
under section 28 of the National Institute of Standards and
Technology Act (15 U.S.C. 278n), and to provide improved guidelines
for the allocation of Advanced Technology Program funds appropriated
under the authorizations contained in section 105 of this Act
[amending sections 278k and 4632 of this title and provisions set
out as a note under section 278l of this title];
``(B) to promote and assist in the development of advanced
technologies and the generic application of such technologies to
civilian products, processes, and services;
``(C) to improve the competitive position of United States
industry by supporting industry-led research and development
projects in areas of emerging technology which have substantial
potential to advance the economic well-being and national security
of the United States, such as high-resolution information systems,
advanced manufacturing technology, and advanced materials; and
``(D) to support projects that range from idea exploration to
prototype development and address long-term, high-risk areas of
technological research, development, and application that are not
otherwise being adequately developed by the private sector, but are
likely to yield important benefits to the Nation.''
Comprehensive Report on Advanced Technology Program
Section 201(f) of Pub. L. 102-245 provided that: ``The Secretary
shall, not later than 4 years after the date of enactment of this Act
[Feb. 14, 1992], submit to each House of the Congress and the President
a comprehensive report on the results of the Advanced Technology Program
established under section 28 of the National Institute of Standards and
Technology Act (15 U.S.C. 278n), including any activities in the areas
of high-resolution information systems, advanced manufacturing
technology, and advanced materials.''
National Academies of Sciences and Engineering Study of Government-
Industry Cooperation in Civilian Technology
Section 5131(c) of Pub. L. 100-418 provided that:
``(1) Within 90 days after the date of enactment of this Act [Aug.
23, 1988], the Secretary of Commerce shall enter into contracts with the
National Academies of Sciences and Engineering for a thorough review of
the various types of arrangements under which the private sector in the
United States and the Federal Government cooperate in civilian research
and technology transfer, including activities to create or apply
generic, nonproprietary technologies. The purpose of the review is to
provide the Secretary and Congress with objective information regarding
the uses, strengths, and limitations of the various types of cooperative
technology arrangements that have been used in the United States. The
review is to provide both an analysis of the ways in which these
arrangements can help improve the technological performance and
international competitiveness of United States industry, and also to
provide the Academies' recommendations regarding ways to improve the
effectiveness and efficiency of these types of cooperative arrangements.
A special emphasis shall be placed on discussions of these subjects
among industry leaders, labor leaders, and officials of the executive
branch and Congress. The Secretary is authorized to seek and accept
funding for this study from both Federal agencies and private industry.
``(2) The members of the review panel shall be drawn from among
industry and labor leaders, entrepreneurs, former government officials
with great experience in civilian research and technology, and
scientific and technical experts, including experts with experience with
Federal laboratories.
``(3) The review shall analyze the strengths and weaknesses of
different types of Federal-industry cooperative arrangements in civilian
technology, including but not limited to--
``(A) Federal programs which provide technical services and
information to United States companies;
``(B) cooperation between Federal laboratories and United States
companies, including activities under the Technology Share Program
created by Executive Order 12591 [15 U.S.C. 3710 note];
``(C) Federal research and technology transfer arrangements with
selected business sectors;
``(D) Federal encouragement of, and assistance to, private joint
research and development ventures; and
``(E) such other mechanisms of Federal-industry cooperation as
may be identified by the Secretary.
``(4) A report based on the findings and recommendations of the
review panel shall be submitted to the Secretary, the President, and
Congress within 18 months after the Secretary signs the contracts with
the National Academies of Sciences and Engineering.''
Section Referred to in Other Sections
This section is referred to in sections 272, 278 of this title.
