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3 min read

Categories of Data Rights in Federal Government Contracts

Categories of Data Rights in Federal Government Contracts

The transcript provided is from a captivating webinar discussing the intricacies of intellectual property within the Department of Defense (DOD) contracting. Featuring Ann, a senior attorney specializing in intellectual property and data rights, this webinar covers four fascinating topics. These include an exploration of the major types of intellectual property such as patents, copyrights, trademarks, and trade secrets.

Additionally, the DOD's policy on data and software rights acquisition is thoroughly examined. The webinar also delves into the definitions of key terms and provides a comprehensive understanding of the main categories of rights pertaining to technical data and computer software. Patents, protecting novel devices, inventions, processes, and products, take center stage alongside copyrights, which safeguard original works of authorship.

Trademarks, on the other hand, play a vital role in designating the source of a product or service through words, marks, colors, patterns, and sounds. Lastly, trade secrets are explored, revealing their significance in providing possessors with a competitive edge. This webinar promises to be an enlightening and informative experience for all those interested in the world of intellectual property within the realm of DOD contracting.

Technical data rights and software rights are considered valuable assets in the world of intellectual property. Within the realm of Department of Defense (DOD) contracting, it is crucial for the government to acquire the necessary technical data, software, and documentation. However, it is important to note that the government cannot demand offerors to give up their rights in technical data or software as a condition of participating in a solicitation or being awarded a contract.

To navigate the complexities of intellectual property rights in DOD contracts, it is essential to have a thorough understanding of the Federal Acquisition Regulation (FAR) and the Defense Federal Acquisition Regulation Supplement (DFARS). These regulations serve as the guiding principles for technical data and software rights in DOD contracts.

In order to determine the appropriate rights in technical data, it is essential to differentiate between commercial and non-commercial items. The distinction between these two categories plays a significant role in determining the applicable rights clauses.

Technical data, as defined in FAR Part 2, refers to recorded information of a scientific or technical nature. However, it is important to note that technical data does not include computer software or cost/pricing information.

Similarly, computer software is defined as program source code, source code listings, object code listings, design details, algorithms, and formulas. It is important to highlight that computer software does not encompass computer databases or software documentation.

While technical data and software may be crucial for the government, it is worth noting that the government acquires certain rights in these assets regardless of whether they are delivered under the contract. Past experiences have shown that contracts lacking requirements for the delivery of technical data or software have caused issues for the government.

To ensure access to technical data and software, it is essential to negotiate their price. However, there have been instances where contractors refuse to deliver these assets due to concerns about the government's ability to maintain confidentiality.

Failure to fulfill contractual obligations regarding the delivery of technical data or software can have serious consequences, including termination of the contract. Therefore, it is vital for all parties involved to understand and adhere to the rights and obligations associated with intellectual property in DOD contracting.

Within FAR Part 27, there are three distinct categories of default rights: unlimited rights, government purpose rights, and limited rights. Unlimited rights grant the government the freedom to utilize, disclose, modify, and display technical data for any purpose. Government purpose rights allow the government to use and disclose technical data in any transaction involving the US government. On the other hand, limited rights restrict the government's use of technical data exclusively within its own operations. In cases where the government requires rights that do not fall within these default categories, it has the option to negotiate a specially tailored license. During the webinar, Sherri Hughes Smith and Ann, the senior attorney for intellectual property and data rights, discuss various types of intellectual property, such as patents, copyrights, trademarks, and trade secrets. They also touch upon the Department of Defense's policy regarding the acquisition of data and software rights. Ann goes into detail about the rights the government can obtain in non-commercial software, including restricted rights that prevent the government from disclosing the software outside of its own operations. Additionally, she explores the rights the government can acquire in commercial software, which typically adhere to the vendor's commercial license.

Furthermore, Ann highlights the critical significance of including the delivery of technical data and software as a contractual requirement to enable the government to exercise its rights effectively. Additionally, she delves into the realm of SBIR data rights, governed by clause 7018, which grant the government limited rights in technical data and restricted rights in computer software. Lastly, Ann sheds light on the government's ability to acquire unlimited rights in commercial data for form, fit, and function data, as well as data necessary for maintenance, installation, and training purposes.