Incoming Information
Companies often ask UA researchers to sign a Confidential Disclosure Agreement, or CDA, before company technical information is transferred. By using a CDA, the company is protecting its commercial position and the interests of its owners in what is usually a highly competitive market, but is also signaling that it desires to collaborate in some way with the UA researcher.
Under those circumstances, a CDA is a reasonable instrument through which to clearly communicate the parties' interests and to bind the parties to specific duties. The disclosing party usually writes the first draft of a CDA but the receiving party may request to negotiate some of the terms.
When evaluating a CDA providing for receipt of information from another organization, UA researchers might consider an inbound CDA template, or its equivalent Web form, and should consider the following points:
- Researchers should not sign a CDA in their personal capacity: Doing so could expose them to personal liability in the case of a breach. Instead, any CDA for University of Arizona research purposes should be signed by a University officer or authorized delegate on behalf of the researcher, so that the obligation (and potential liability) falls on the institution, with the researcher acting as an agent/employee. At the limit, the researcher might sign the CDA over a line noting "Read and Understood."
- Because a CDA imposes legally binding duties on the recipient, information accepted under a CDA should be limited to what is truly confidential, and to what is required for the purpose at hand.
- A CDA should describe the confidential information in enough detail to permit the UA researcher, and others, to make a reasonable judgment about whether or not a particular item of information falls under a duty of confidentiality. But the description should not be so specific that it reveals part of the confidential information itself.
- A CDA should require that the confidential information be transmitted in writing and clearly marked as confidential. This ensures that both the discloser and the recipient have a reliable and objective way to judge the boundaries of the confidential information.
- The period during which confidential information may be transferred should be limited to the term of the planned collaboration, typically a year or so. The term of the CDA can be extended later in writing if necessary.
- The duty of confidentiality should be limited in duration, typically to no more than two or three years after the receipt of the information. The openness of universities and finite dwell time of student research assistants make it impractical to maintain information in confidence for much longer than that, and inappropriate to promise to do so. (Note: this period of confidentiality can be, and usually is, distinct from the period during which information may be transferred.)
- Any CDA must permit UA researchers to publish their own novel research results at a time and in a manner of the researchers' own choosing, even if obtaining those results was facilitated by the confidential information received. Of course, during the period of confidentiality, a publication can not contain proprietary information itself if received under a CDA, or give readers enough information to easily deduce that information.
- Special care must be taken to ensure that the freedom to publish University results applies to students and to their theses.
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Last modified: June 27, 2008.
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