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8 min read

Intellectual Property In Department of Defense Contracting

sheet of paper that reads intellectual property

This webinar will delve into the fascinating realm of intellectual property in Department of Defense contracting. Led by the firm's CMO this webinar promises to be an enlightening experience. Ann, a seasoned senior attorney with over 35 years of expertise in intellectual property, government contracting, and patent law, will be the main presenter. Hosted by Cousins VPC, a renowned law firm specializing in various areas, including disability law, bear law, and veterans advocacy law, this webinar is a must-attend event.



Questions Covered in this Webinar 

  1. What are the main types of intellectual property (patents, copyrights, trademarks, and trade secrets), and what distinguishes each one?
  2. How does the Department of Defense's policy impact the acquisition of data and software rights?
  3. What is the difference in acquisition and handling of commercial versus non-commercial items, specifically in relation to technical data and computer software?
  4. What specific rights and restrictions exist for the government and contractors in relation to intellectual property, technical data, and software developed at private expense?
  5. How do the definitions of technical data and computer software apply according to the Defense Federal Acquisition Regulation Supplement (DFARS) and the DeForest Clauses?
  6. How are the government's rights in non-commercial data developed by the contractor defined and protected?
  7. What is the importance and process of negotiating special license rights in contracts?

Key Takeaways Of This Webinar

  1. Understanding Intellectual Property (IP) Rights: The four main types of IP—patents, copyrights, trademarks, and trade secrets—are outlined. The discussion includes the nature of these rights and how they relate to Department of Defense (DoD) contracting.
  2. Government IP Policy: The DoD policy around acquiring data and software rights is discussed, especially in regards to the Defense Federal Acquisition Regulation Supplement (DFARS).
  3. Significance of Commercial vs Non-Commercial Items: Ann emphasizes the importance of distinguishing between commercial and non-commercial items, specifically regarding technical data and computer software.
  4. Technical Data and Computer Software Definitions: These are defined, and the government’s rights to these are elucidated. This includes their application according to the DeForest Clauses.
  5. Rights Acquisition: The seminar also highlights the types of rights the government can acquire and the limitations of these rights, including those relating to technical data or software developed at private expense.
  6. Contract Negotiation: The seminar underscores the importance of negotiating special license rights to best meet specific project needs and protect contractor interests.
  7. Contract Delivery Requirements: Finally it points towards the importance of clearly specifying delivery requirements in a contract to avoid future complications.

Webinar on Intellectual property in DOD contracts

Data Rights

During the webinar, Ann will delve into the four main types of intellectual property: patents, copyrights, trademarks, and trade secrets. Patents, for instance, are sought after for new devices, inventions, processes, and products. On the other hand, copyrights safeguard original works of authorship, such as books, music, paintings, and movies. The importance of trademarks will also be explored, as they can take the form of a word, mark, color, pattern, or sound, and serve as a designation of the source of a product or service.

The Department of Defense's policy regarding the acquisition of data and software rights will also be a focal point of Ann's presentation. Attendees can expect a comprehensive breakdown of important terms used in rights discussions, as well as an overview of the main categories of rights in technical data and computer software. Ann will even guide participants through the trademark registration process, using the example of a singer who successfully registered the phrase "100% that pitch." This intriguing case study sheds light on the complexities of trademark registration and association with a specific individual.

Don't miss out on this valuable opportunity to expand your knowledge of intellectual property in Department of Defense contracting. Join the firm's CMO Ann, and the Cousins VPC law firm for an engaging and informative webinar that will equip you with vital insights into this vital aspect of government contracting.

She elaborates on how the singer's trademark was granted due to her strong association with the phrase. Ann delves into the realm of trade secrets, emphasizing their need to remain undisclosed to be considered as such. She provides notable examples like the closely guarded Coca-Cola formula and a company's valuable customer list. Ann then connects the concept of trade secrets to the unique technical data rights and software rights that US government contracts entail. She underscores the significance of safeguarding technical data from falling into the hands of competitors. Furthermore, she sheds light on the lack of copyright protection for government-produced work and refers to the recent trademark infringement case of Jack Daniel's Properties v. VIP Products. Ann explains the intricate nature of intellectual property rights and how they encompass a "bundle of rights." In addition, she clarifies the distinction between title and license within the context of government contracting.

Ann proceeds to discuss the utmost importance of comprehending the difference between ownership and licensing when it comes to technical data and software. She emphasizes that the government cannot demand contractors to relinquish rights to technical data or software that was developed at their own expense. However, during the selection process, the government has the authority to evaluate the rights offered by the contractor. It is crucial to note that the government cannot compel a contractor to provide additional rights; it is purely voluntary. While refusing to offer additional rights will not disqualify a contractor, it may impact their ranking in the selection process. Ann also clarifies that the relevant regulations governing technical data and software rights in DOD contracting can be found in DFARS, rather than the FAR.

Ann emphasizes the significance of comprehending the definitions found in the DFARS clauses, highlighting the distinction between commercial and non-commercial items, software, and processes. She points out that the DFARS clauses primarily apply to non-commercial items when it comes to technical data and software. In the case of commercial items, there is no specific clause that applies in a contract acquiring commercial computer software for the government. Definitions for these terms can be found in FAR Part 2.

According to Ann, technical data refers to recorded information of a scientific or technical nature, excluding computer software, cost or pricing information, management information, data related to contract administration, or financial data. She mentions a recent court case involving Raytheon, in which Raytheon argued that a vendor list was not technical data since it only contained contact information for vendors. Ann clarifies that technical data pertains to an item, component, or process, and includes information about the government's ability to disclose it to specific parties.

Furthermore, Ann provides an example to illustrate the concept of technical data, stating that an engineering drawing would be considered technical data, while the device itself would not. She also highlights that although the government doesn't automatically own the design data of an item it purchases, it does own the item itself.

Ann also emphasizes the importance of computer software in government contracting and references the DeForest Clauses, which define technical data and computer software. According to Ann, computer software, as defined by the DeForest Clauses, includes program source code, design details, and algorithms. However, computer software does not encompass computer databases or software documentation. Ann explains that while the government can use computer software to create a database, the software itself is subject to the rights negotiated in the contract. She further defines computer software documentation as manuals and instructions.

the webinar delves into the discussion of "data rights" and "software rights" unique to the US government in the context of government contracting.

These rights encompass the power to modify, reproduce, perform, display, release, or disclose the data or software. The extent of these rights is influenced by various factors, such as the party responsible for funding the development of the item or software. The government gains certain rights regardless of whether the technical data or software is delivered under the contract. It is emphasized in the webinar how crucial it is for the government to receive the technical data or software in order to exercise its rights. Instances in the past where the government did not require delivery of the technical data or software have resulted in problems. If the contract does not mandate delivery, the contractor is not obliged to provide the data or software. Some contractors have exploited this situation and refused to deliver unless they are compensated further. the webinar highlights the significance of the government obtaining the technical data or software to fulfill its rights. It also stresses the importance of the contractor meeting the performance requirement by delivering the data or software. It is mentioned in the webinar that some contractors decline to deliver the data or software due to a lack of trust in the government's ability to maintain confidentiality. the webinar states that if the contractor refuses to deliver the data or software, it may be considered a failure to perform and could result in contract termination.

The webinar also delves into the technical data clause, which specifically addresses the government's rights regarding non-commercial technical data. Interestingly, this clause does not impose any restrictions on what the contractor can do with the data or software. Instead, it focuses on outlining the government's rights in this regard. If the government is granted unlimited rights, it gains the authority to use, disclose, modify, or display the data for any purpose it deems necessary. It is important to note, however, that the contractor still retains ownership of the data and has the freedom to license it to others. On the other hand, if the government acquires ownership of the data, the contractor is prohibited from selling or licensing it without obtaining prior permission. The primary objective of the government in obtaining ownership is not to make a profit, but rather to utilize the data for government purposes. Additionally, the webinar sheds light on government purpose rights, which provide the government with the ability to use and disclose the data in any transaction in which it is involved. The author also discusses three distinct types of rights: unlimited rights, government purpose rights, and limited rights. While unlimited rights grant the government complete freedom to utilize the data for any purpose, government purpose rights are more restricted and applicable only to transactions where the government is a party. Limited rights, on the other hand, are the most restrictive of the three, allowing the government to use, disclose, and modify the data solely within its own domains. In cases where the government desires to use data with limited rights for competitive acquisition, it must engage in negotiations with the contractor to establish a license agreement that meets both parties' requirements.

The webinar delves into the various categories of rights, including governance, purpose rights, and unlimited rights. It emphasizes the importance of tailoring these rights to fit the specific needs of the government, rather than relying on a one-size-fits-all approach. the webinar encourages the government, especially the Department of Defense, to negotiate special licenses that fall between government purpose rights and unlimited rights, ensuring a tailored approach for each case. It highlights the trend of negotiating specific rights instead of relying on default categories. the webinar stresses the need to study the license agreement to understand the government's rights in a specially negotiated license. Additionally, it discusses scenarios in which a contractor can be involved with the government and clarifies that responding to a request for proposal (RFP) is considered a transaction to which the US government is a party. The implications of limited rights and non-commercial software rights are also explored, emphasizing the need for further negotiation and tailored licenses. Lastly, the webinar addresses the implications of a contractor using software developed exclusively at their own expense in a government contract.

The contractor is not prohibited by the government from using such software, but this implies that the government only possesses restricted rights to the software. These restricted rights prevent the government from disclosing the software outside of its domain and limit its usage to a single computer at a time. the webinar also differentiates between "technical data" and "computer software" and highlights that restricted rights are narrower in scope for software. Lastly, the webinar explores the default categories for non-commercial software, which include unlimited rights and government purpose rights. Additionally, it discusses a specialized license rights category that the government can utilize if none of the default categories are applicable. the webinar also covers SBIR data rights, which are governed by clause 7018, and notes that recent modifications have simplified the SBIR data rights process. SBIR rights in technical data are limited, while SBIR rights in computer software are restricted. Furthermore, the webinar delves into the government's rights concerning technical data and computer software developed exclusively at the contractor's private expense. It specifies that the government is restricted to a 20-year protection period for SBIR data rights. Moreover, the webinar discusses "commercial data," which refers to commercially available items accessible to the public. The government is granted specific rights to this data, including form, fit, and function data, as well as data needed for maintenance, installation, and training purposes. It further explores the government's rights related to commercial data and non-commercial data. the webinar references specific clauses (7014 and 70011) that outline the government's rights in these areas. It also highlights the complexities involved in understanding these clauses, emphasizing that thorough study and effort are required. Additionally, the webinar discusses the government's rights concerning commercial computer software, noting the absence of a specific defense clause governing this area. Instead, the government is typically subject to the commercial license agreement used by the vendor. However, certain clauses in these agreements do not apply to the government, such as indemnification clauses. the webinar emphasizes the importance of the government acquiring rights to intellectual property as soon as a contract is signed.Data Rights

The webinar emphasizes the crucial need for the government to ensure that intellectual property is delivered as part of the contract. This is to prevent any situation where the government is left empty-handed after investing in development. Contractors are advised to carefully review the delivery requirements and communicate any concerns to the contracting officer. In conclusion, the facilitator, the firm's CMO, and the senior attorney, Ann, wrap up the webinar by reminding participants to send in any questions they may have, assuring them that they will be answered. They also inform the audience that the recording of the webinar will be available within 24 hours and that more webinars will be scheduled in the future. Lastly, they express their gratitude to everyone for their participation.