It seems increasingly common in research collaborations between universities and government or industry to have agreements on the transfer of confidential information. These agreements are often contained in contracts which solely address confidential information, commonly called non-disclosure agreements, confidentiality agreements or secrecy agreements, as well as more complicated contracts governing a funding relationship between two or more parties, such as research agreements. The common element is that they specify terms by which confidential information may be transferred.
WHO MAY SIGN AGREEMENTS ON THE TRANSFER OF CONFIDENTIAL INFORMATION?
For non-disclosure agreements, confidentiality agreements or secrecy agreements between the University and other party or parties, the Vice-President, Research, the Director, Office of Research Services (ORS), and the Director, Industry Engagement (IE) are the authorized signing authorities for the University. University researchers generally are not parties to these agreements, although they may sign the document to acknowledge the terms of the arrangement. As soon as discussions begin about the transfer of confidential information, researchers already involved in the commercialization process should contact either their IO technology manager or the Director, IO. All other researchers should contact the Director, Research Services, and file a completed Non-Disclosure-Confidentiality Agreement Application to provide ORS the background information necessary to expedite a written agreement.
WHAT MAY BE CONSIDERED AS CONFIDENTIAL INFORMATION?
Confidential or proprietary information can exist in many different forms. It may consist of notes, testing procedures, trade secrets, formulae, test data, specifications, "know-how", software, etc. An important attribute of such information is its unavailability and inaccessibility to the public. It is this shroud of restricted use that imputes the confidential nature to the information in the eyes of the law. The agreement on confidential information should clearly define the confidential information, or in the alternative contain terms which allow for both parties to subsequently agree in writing as to what constitutes confidential information.
In determining what information the University may agree to keep confidential, it is important to distinguish between information provided by the other party or parties and that which arises from the University performed research. The University's policies require that results of research undertaken at the University be fully publishable at the discretion of the researcher, subject to limited and mutually agreed upon publications delays.
WHAT SHOULD CONFIDENTIAL INFORMATION EXCLUDE?
University agreements on the transfer of confidential information should exclude the following information from the definition of confidential information:
- already known by the recipient
- independently developed by the recipient
- disclosed to the recipient by a third party without an obligation of confidentiality
- in the public domain (at the time of disclosure or during term of agreement) disclosed pursuant to judicial or administrative order
HOW MAY CONFIDENTIAL INFORMATION BE USED?
The agreement on the transfer of confidential information should specify how the information may be used. In agreements which govern information disclosed to the University, the terms will often restrict the University's use of the information to a specific research purpose, and require that it only be disclosed to those employees of the University and/or those researchers who agree to acknowledge the confidential nature of the information and be bound by terms similar to those in the University agreement. It is important, therefore, that the lead researcher under a confidentiality agreement or research agreement obtain the agreement of any students, technicians or other researchers to these terms prior to disclosure of the information. Staff from ORS and IO will assist researchers in preparing the appropriate forms to be used under confidentiality agreements, as well as employment agreements for principal investigators who hire personnel under research agreements.