On the SF424 R&R application form there is a required question that asks: Is proprietary/privileged information included in the application? The application guide addresses how to answer the question and instructs you to clearly mark the applicable portions of your application.
If a grant is awarded as a result of or in connection with the application, and we receive a Freedom of Information Act (FOIA) request for the awarded application, we will consider your response to this question and the information you marked in determining what information should be disclosed and what information should be withheld. Although we will consult with the grantee institution and the investigator before anything is disclosed in response to a FOIA request, NIH will make the final determination. It is important to note that marking information as proprietary or privileged does not automatically shield the information from disclosure under FOIA. If no information is marked as proprietary at the time of the submission, we will need a significant, substantive, and detailed justification explaining how release of the information will cause commercial competitive harm in order to withhold any information in response to a FOIA request.
Additionally, while NIH policy is to keep grant applications confidential and while reviewers are required to keep application information confidential regardless of whether it is marked proprietary or privileged, this additional designation may help to preserve invention rights if a patent will be pursued. Checking the box and marking the privileged/proprietary information evidences an applicant’s intent to protect potential patent rights from being compromised by articulating what portions of the application the applicant considers privileged/proprietary.
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