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4 min read

Asserting, Marking & Justifying Restrictions on Technical Data

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The Complex World of Intellectual Property Rights

Data Rights

In this comprehensive video we delve deeper into the intricate world of intellectual property rights and their application in Department of Defense (DOD) contracts. In this detailed webinar transcript, our senior attorney, Anna, possessing over 35 years of experience in intellectual property, government contracts, and patent law, will guide us through the complex rules and regulations governing restrictions on technical data and computer software in government contracts, with a specific focus on DOD contracts.

Understanding Intellectual Property

To gain a complete understanding of intellectual property rights, it's essential to first familiarize ourselves with the various types of intellectual property. Anna begins her presentation by providing an informative primer on intellectual property, starting with the well-known form of patents. However, she emphasizes that patents are just the tip of the iceberg when it comes to intellectual property rights. Delving deeper into her explanations, Anna proceeds to discuss DOD policies regarding data and software rights and the process involved in asserting restrictions on how the government can use contractor-provided data. Among the wide range of topics covered, she explains the critical importance of accurately marking data with authorized markings and the significance of validating and justifying restricted markings when challenged by a contracting officer.

The Role of Copyright and Trademarks

But Anna's discussion doesn't end there. She also sheds light on another vital aspect of intellectual property - copyright. She carefully explains that while copyright does not exist for works produced directly by the US government, it can be assigned to the government by a contractor or private individual. Additionally, she delves into trademarks and their role in distinguishing the owner's goods and services from others in the commercial domain. Trade secrets are another area that Anna emphasizes. She stresses that technical data and software rights are also protected under the umbrella of trade secret protection.

Technical Data and Computer Software in Government Contracts

Moving forward, Anna clarifies that intellectual property rights specifically apply to technical data and computer software required to be delivered under a government contract. She also highlights the significance of Form 423, which serves as a crucial document used to establish clear contractual requirements and avoid any ambiguity. During the webinar, Anna and the other speakers underline a significant distinction - the difference between ownership and licensing of technical data rights. They highlight that the DOD generally seeks licensing rather than ownership of technical data rights, and the scope of the license is determined by the extent of government investment in the data or software. It is essential for contractors to understand that they are not obligated to sell or relinquish their technical data or computer software to the US government, particularly if they have developed it at their own expense. However, they must deliver the data as part of the contract performance. Contractors do have the option to voluntarily offer additional rights, which may prove advantageous during the contract selection process. The speakers further emphasize the importance of distinguishing between commercial and non-commercial data rights in DOD contracts. While the government does not acquire specific rights in commercial computer software, it is entitled to certain rights in non-commercial software and data. Contractors must be able to demonstrate that their software is commercial to avoid relinquishing additional rights.

Defining Technical Data and Computer Software

To provide clarity on the definition of "technical data" in relation to items, components, or processes developed for the government, the speakers offer a concise explanation. Technical data covers recorded scientific or technical information, excluding the computer software itself. Additionally, the definition of "computer software and documentation" is expanded to encompass computer programs, source code, related materials, manuals, and guides. The speakers emphasize that data rights are specific license rights granted to the US government, allowing them to modify, reproduce, or disclose the data in question. Furthermore, the speakers clarify that regardless of whether the government funds the entire development of an item, the contractor retains the technical data rights. However, export control or government security regulations may restrict the contractor from disclosing the data to certain individuals. It's important to note that the government does have certain rights to technical data or computer software, regardless of delivery.

Categories of Rights in Technical Data and Computer Software

Highlighting the importance of delivering technical data or computer software as part of contract performance, the speakers stress that failure to fulfill this obligation may result in termination for default. In cases where non-commercial technical data is developed exclusively at government expense, the government acquires unlimited rights. Now, let's delve into the various types of rights the government can acquire in technical data and computer software. The first category is "unlimited rights," granting the government the freedom to use, disclose, and display the data without any limitations. Next, we have "government purpose rights" (GPR), which are acquired when there is mixed funding for the development of the data or software. GPR data can be disclosed to third parties if they sign a non-disclosure agreement. On the other hand, we have "limited rights" data, which the government can use within its own entities but cannot disclose to anyone outside the government. Additionally, the government can acquire "restricted rights" for non-commercial computer software. In addition to the default categories of rights, contractors also have the option to negotiate license rights. In such cases, it is crucial for contractors to carefully examine the license itself to clearly understand the government's rights. Contractors must also assert restrictions on the government's use of technical data when required to deliver it as part of a contract.

Identifying and Marking Technical Data

To assist contractors in properly identifying and protecting their intellectual property, a comprehensive table is provided within the document. This table allows contractors to list technical data alongside its underlying intellectual property. Additionally, the document offers examples of effective ways to list technical data, such as "Design Drawing for T one Seeker" and "X missile." Contractors must assert limited rights appropriately to effectively restrict the government's usage. The person asserting these restrictions must hold a position as an officer of the contractor with binding authority. Furthermore, the document highlights the necessity of correcting any errors in the assertion list before submission. The correct assertion of technical data is critically important for protecting intellectual property, and restrictions should be asserted at the appropriate level to provide a substantiated basis for the assertion. Contractors are required to provide supporting documentation to substantiate limited rights assertions. Contractors must also ensure that technical data is appropriately marked before delivery to safeguard their intellectual property. Retroactively marking data that has already been delivered without markings can present challenges. Contractors must adhere to conforming markings outlined in the Department of Defense Federal Acquisition Regulation Supplement (DFARS) regulations. The regulations specify the exact wording and format for markings to ensure compliance. Technical data or computer software listed in an assertion list incorporated into the contract should bear the appropriate markings. In the case of multi-page technical data, only the restricted portions of each page need to be marked. Non-conforming markings, if present, may be corrected or removed at the contractor's expense by the government. The implications of delivering unmarked technical data grant the government unlimited rights, so contractors must respond to a 60-day letter to correct any non-conforming markings. Examples of non-conforming markings include words that do not conform to the precise wording specified in the regulations.

In Conclusion

In conclusion, the delivery of unmarked technical data can have significant implications. Contractors must be vigilant in ensuring that technical data is marked correctly to protect their intellectual property. By adhering to the appropriate markings and asserting restrictions where necessary, contractors can effectively safeguard their rights and avoid any potential loss of control over their intellectual property. Through diligent adherence to regulations and informed decision-making, contractors can navigate the complex landscape of intellectual property rights in DOD contracts with confidence and protect their valuable creations.