We recommend researchers enter into a confidentiality disclosure agreement (CDA or NDA) any time you or a company plan to share proprietary or non-public information with each other. Learn more below or find the CDA Request Form here.
What is a Confidentiality Disclosure Agreement?
Confidentiality disclosure agreements (CDAs), or nondisclosure agreements (NDAs), protect information disclosed in the course of evaluating a possible business relationship that is not yet in the public domain by limiting further disclosure and use by the recipient. There are three general forms of the agreement:
- one-way transfer of information from the university out to a third party
- one-way transfer of information from a third party to the university
- two-way transfer of information between the university and a third party (i.e., both parties share confidential information)
When Do I Need a CDA?
As an academic institution, it is important to preserve our right to publish and openly exchange information. If not managed properly, the receipt of confidential information can potentially limit academic freedom if not managed properly.
Generally speaking, you should avoid accepting any more information from a third party than is absolutely necessary. When you receive third-party information, you are not only obligated to maintain it in a confidential manner, but you also cannot use the information outside the context of the contemplated transaction. Keeping confidential information limited to the purpose can be difficult to control in an academic environment, and this should be an important factor in whether or not you elect to enter into a transaction requiring a CDA. If it is at all possible to accomplish your research goals without the transfer of confidential information, you are encouraged to pursue such an option and to thereby avoid unnecessary entanglements or restrictions on your research.
It is very possible to have constructive discussions with third parties without revealing or receiving confidential information – for example, discussing the performance of a material but not revealing its structure/composition. An effective non-confidential description of your work is usually the best starting place.
If you do not need a third party’s confidential information, the agreement should be an outgoing CDA with only a one-way transfer of information to the third party.
With that said, there are several circumstances when a CDA makes sense, as CDAs can protect BU and BU investigators in important ways:
- They allow BU investigators to discuss interesting new findings without compromising their future patentability.
- They memorialize what was discussed between the investigator and the company, so that if later there are questions about who originally developed an idea, we have a record of when the discussion took place.
Examples of times when a CDA is useful:
- You have key data available prior to filing a patent application or submitting a manuscript that you would like to share in a limited way.
- Industry sponsor wants to share their proprietary research results as a precursor to a sponsor-initiated clinical trial or sponsored research project.
Common obligations of a CDA provide that:
- the providing party will provide the confidential information in writing, mark it confidential and, if provided orally, must distill the information in writing and provide to the receiving party within 30 days;
- the receiving party will not disclose confidential information it has received from the disclosing party to anyone that does not need the confidential information for the purposes of the agreement;
- the receiving party will not disclose confidential information it has received from the disclosing party to anyone outside of the receiving party’s organization;
- the receiving party will protect the disclosing party’s confidential information as safely as it protects its own; and
- the receiving party will destroy or return the confidential information at the end of the agreement or upon request by the disclosing party.
Who will handle my CDA?
The Industry Engagement Contracting Team is responsible for negotiating and executing CDAs related to research, while OTD is responsible for negotiating CDAs related to licenses.
To get started, fill out the CDA Request Form. The form will go to either IE or OTD, based on your indicated need, for review and processing.CDA Request Form
What happens next?
- Your completed form is assigned to an Industry Contracting or OTD team member
- The contracting team member will confirm receipt and will review the form and initiate the CDA process
What can I do to help?
- Please don’t disclose your unpublished research to a company without the CDA in place
- Please familiarize yourself with key terms and concepts associated with the CDA process and the risks of receiving and disclosing confidential information
- Please contact firstname.lastname@example.org if you do not receive a confirmation within 3 business days of submitting your CDA form
Glossary of Terms
Confidential Information: Information shared with you that is not in the public domain; not in your possession already; not shared with you by a third party under no obligations of confidentiality; or information that you cannot develop on your own without knowledge or information from the provider
Term: The length of time you need to keep the provided information confidential and the length of the agreement
Format of Confidential Information: Confidential information should always be provided in writing or if disclosed orally distilled into a written form.
No, it is not always necessary to put a CDA in place to have a discussion with a company. IE recommends that your first discussions with a company are done not under a CDA but at a high level where only public/published information is shared with each other in order to gauge interest.
What information can I discuss and what can’t I discuss?
If there is no CDA in place then you should only discuss information that is already in the public domain. You should not disclose to the company unpublished research, inventions that don’t have a published patent application or potentially sensitive information around the future of your research.
What’s the difference between discuss and disclose?
Discussing is the act of talking about a particular subject matter that may or may not be considered confidential information. Disclosing is typically the act of providing confidential information to another party. It’s always best to disclose or receive confidential information in writing so that there are records of what information was disclosed to the other party.
When is the right time to bring up the need for a CDA?
IE and OTD can help you determine when is the right time to put a CDA in place. Please contact us to help you.
What are the risks of putting a CDA in place?
There are two major risks associated with CDAs. One is the risk that you might receive confidential information that might hamper your research program in the future. The second risk is to the university: If you disclose confidential information that you received from a third party to a different third party that is not under a CDA, BU can be liable for any damages that the disclosing party may incur.
Should the researcher negotiate and sign an CDA?
No, researchers cannot sign or negotiate a CDA. CDAs are legal documents that have to be signed by someone at the university who has proper signing authority. Please reach out to IE or OTD if you receive a CDA from a third party with a request for a signature from BU.
For questions about CDA processing, please contact the Industry Engagement Contracting team at email@example.com. We recommend researchers enter into a CDA/NDA any time you will be discussing confidential information with another party. The CDA form is the first step to obtaining such an agreement.