1. Technical Data Rights / Computer Software Rights
Presentation Title
April 13, 2017
Intellectual Property in the Defense Industry
Preserving Competitive Advantage
Through Diligent Marking Practices
March 2011
Susan L. Kilgore, Raytheon
(520)
Cynthia R. Fairbank, Raytheon
(520)
Technical Data Rights / Computer Software Rights
John J. Horn
Senior IP Counsel
April 26, 2010
Copyright Raytheon Company.
Customer Success Is Our Mission is a registered trademark of Raytheon Company.
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2. Presentation Title
April 13, 2017
SCOPE
This presentation reviews the various types of Intellectual Property (IP) and presents the challenges associated with data restrictions and the appropriate use of associated data markings for Defense acquisition programs under the authority of the Department of Defense Federal Acquisition Regulations Supplement (DFARs)*.
This lesson is intended to provide the audience with a foundational understanding of IP data rights and markings associated with various technologies. It will address the application of these concepts for different data types from the perspectives of both a prime contractor and the responsibilities of a contractor in protecting subcontractor data rights.
*This lesson does not address FAR or DEARs program applications
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3. Why Protect Technical Data Rights / Computer Software Rights?
Presentation Title
April 13, 2017
Why Protect Technical Data Rights / Computer Software Rights?
Provides protection from competitive procurements by restricting the sharing of Company-developed technologies with private contractors
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4. Who Protects Technical Data Rights / Computer Software Rights?
Presentation Title
April 13, 2017
Who Protects Technical Data Rights / Computer Software Rights?
Configuration and
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5. What is Intellectual Property?
Presentation Title
April 13, 2017
What is Intellectual Property?
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6. What is Intellectual Property? – Trade Secrets
Presentation Title
April 13, 2017
What is Intellectual Property? – Trade Secrets
Covers traditional scientific secrets, confidential financial data and business information.
Requires an NDA to protect when shared with other private companies.
Protected when in Government hands under the Trade Secret Act, Procurement Integrity Act, Economic Espionage Act, and other laws.
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7. What is Intellectual Property? – Patents
Presentation Title
April 13, 2017
What is Intellectual Property? – Patents
Protect functional aspects of new or improved technology.
Awarded by the Government.
Require technological novelty – new and different.
Prohibit others from making, using, or selling the technology covered by the patent claims and allow royalties for infringement.
The only remedy the patent holder has is to bring a claim against the U.S. Government for royalties.
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8. What is Intellectual Property? – Copyrights
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April 13, 2017
What is Intellectual Property? – Copyrights
Cover creative works of authorship.
Government-granted, long-term right to prevent others from copying, distributing, preparing derivative works, displaying, etc.
Covers specific creative expressions of ideas, but not functional aspects; more about creative form than technical content.
Books, articles, music, drama, pictures, graphics, audio-visual works, computer program code.
Useful for but can be narrow.
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9. Determine Deliverable vs Non-Deliverable Items
Presentation Title
April 13, 2017
Determine Deliverable vs Non-Deliverable Items
Distinguish Technical Data and Software “Deliverables” under CDRLs or other specific delivery requirements from “Non-Deliverable” data being “informally” shared, such as:
Progress Reports
Electronic Databases (e.g. PDM)
Distinguish deliverable Technical Data and Computer Software from administrative, management and financial data.
Identifies marking requirements.
DD Form 1423 has precedence as the accepted method of acquiring data from contractors.
Policy.
  (a) DoD policy is to acquire only the technical data, and the rights in that data, necessary to satisfy agency needs.
  (b) Solicitations and contracts shall—
  (1) Specify the technical data to be delivered under a contract and delivery schedules for the data;
  (2) Establish or reference procedures for determining the acceptability of technical data;
  (3) Establish separate contract line items, to the extent practicable, for the technical data to be delivered under a contract and require offerors and contractors to price separately each deliverable data item; and
  (4) Require offerors to identify, to the extent practicable, technical data to be furnished with restrictions on the Government's rights and require contractors to identify technical data to be delivered with such restrictions prior to delivery.
Acquisition of technical data.
  (a) Contracting officers shall work closely with data managers and requirements personnel to assure that data requirements included in solicitations are consistent with the policy expressed in
(c) Contracting officers are responsible for ensuring that, wherever practicable, solicitations and contracts—
  (1) Identify the type and quantity of the technical data to be delivered under the contract and the format and media in which the data will be delivered;
  (2) Establish each deliverable data item as a separate contract line item (this requirement may be satisfied by listing each deliverable data item on an exhibit to the contract);
  (3) Identify the prices established for each deliverable data item under a fixed-price type contract;
  (4) Include delivery schedules and acceptance criteria for each deliverable data item; and
  (5) Specifically identify the place of delivery for each deliverable item of technical data.
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10. Technical Data / Computer Software Rights Applicability
Presentation Title
April 13, 2017
Technical Data / Computer Software Rights Applicability
Determined by the source of funds (color of money) used to develop the item, component, or process.
Limited Rights (for Technical Data) or Restricted Rights (for Software)
Government Purpose Rights (GPR)
Unlimited Rights
Specifically Negotiated Rights
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11. Technical Data / Computer Software Rights Applicability
Presentation Title
April 13, 2017
Technical Data / Computer Software Rights Applicability
Development and Workability have slightly different definitions for Technical Data Items, Components, or Processes (ICPs) and Computer Software:
Technical Data Workability means- the data-related ICP was constructed or practiced, analyzed, and tested sufficiently to demonstrate a high probability of working as intended.
Computer Software Workability means- the Software module successfully operated in a computer and was tested to the extent sufficient to demonstrate that it can reasonably be expected to perform its intended purpose.
Careful simulation may demonstrate Workability.
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12. Technical Data / Computer Software Rights Applicability
Presentation Title
April 13, 2017
Technical Data / Computer Software Rights Applicability
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13. When Protect Technical Data Rights / Computer Software Rights?
Presentation Title
April 13, 2017
When Protect Technical Data Rights / Computer Software Rights?
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14. Assertion Tables Submitted at time of contract formation.
Presentation Title
April 13, 2017
Assertion Tables
Submitted at time of contract formation.
Usually a bad idea to agree to “mutually agree” later on Assertion Table entries.
Provides summary listing of all restrictions affecting Technical Data and Software Deliverables under the contract.
Notifies Government of Company’s Limited Rights and GPR claims.
Provides verification and evidence behind the assertions to support compliance and protection against challenges.
Asserted Rights and Markings do NOT automatically flow through to new contracts, follow-on contracts, or subsequent system blocks.
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15. Assertion Tables SAMPLE ASSERTION TABLE
Presentation Title
April 13, 2017
Assertion Tables
SAMPLE ASSERTION TABLE
Technical Data/Computer Software to be Furnished with Restrictions
Basis for Assertion
Asserted Rights Category
Name of Person Asserting Restrictions
1) Sensor Array Temperature Compensation Circuit, All materials describing the circuit such as schematics and performance data
Developed exclusively at Private Expense
Limited Rights
ABC Company
2) Target Detection Algorithm with Multi-frame Filtering
Developed With Mixed Funding
Government Purpose Rights
3) Semiconductor Construction and Structure for Laser Proximity Detection
Special License
between ABC Company and
the Agency
Specifically Negotiated Rights
4) Flight Stabilization Software including Feed Forward Source Code and all Flowcharts
Restricted Rights
XYZ Supplier Company
5) Two Stage Long-Range/Short-Range Thrust Deflectors Schematics and all other related Technical Data
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16. Protecting Technical Data Rights / Computer Software Rights
Presentation Title
April 13, 2017
Protecting Technical Data Rights / Computer Software Rights
Markings on Deliverables should appear on transmittal document , media, and each applicable page of printed material exactly as shown in the Regulation.
Portions of data subject to Restrictions should be identified by underscoring, circling, or call-outs.
For further restrictive marking processes, refer to company policies (copyrights, trademarks, etc.)
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17. Deliverable Technical Data / Computer Software Marking Requirements
Presentation Title
April 13, 2017
Deliverable Technical Data / Computer Software Marking Requirements
Unlimited Rights Limited Rights Restricted Rights Government Purpose Rights Specifically Negotiated Rights
A Allows the Government to share data for all government purposes, but not commercial purposes
B Restricts the sharing of software and software data with other private contractors for competitive procurement
C Rights are unknown until negotiated (can never be less than Limited or Restricted Rights)
D Restricts the sharing of technical data with other private contractors for competitive procurement
E Allows the Government to use data for ANY purpose whatsoever
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18. Technical Data – Limited Rights Marking
Presentation Title
April 13, 2017
Technical Data – Limited Rights Marking
SAMPLE TECHNICAL DATA LEGEND
From DFARS (f)
LIMITED RIGHTS
Contract Number ___________ Contractor Name ___________ Contractor Address _________________ The Government’s rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(3) of the Rights in Technical Data – Noncommercial Items clause contained in the above identified contract. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings. Any person, other than the Government, who has been provided access to such data must promptly notify the above named Contractor.
(f)(1) all storage containers, media, and printed material that contains asserted rights must contain the applicable asserted rights markings on the specific container/media/pages where the asserted rights appear.
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19. Technical Data – Government Purpose Rights Marking
Presentation Title
April 13, 2017
Technical Data – Government Purpose Rights Marking
SAMPLE TECHNICAL DATA LEGEND
From DFARS (f)
GOVERNMENT PURPOSE RIGHTS
Contract Number ___________ Contractor Name ___________ Contractor Address _________________
Expiration Date _____________________
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(2) of the Rights in Technical Data—Noncommercial Items clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.
(f)(1) and 7014 (f)(1) all storage containers, media, and printed material that contains asserted rights must contain the applicable asserted rights markings on the specific container/media/pages where the asserted rights appear.
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20. Technical Data– Special License Rights Marking
Presentation Title
April 13, 2017
Technical Data– Special License Rights Marking
SAMPLE TECHNICAL DATA LEGEND
From DFARS (f)
SPECIAL LICENSE RIGHTS
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these data are restricted by Contract No. _____(Insert contract number)____, License No. ____(Insert license identifier)____. Any reproduction of technical data or portions thereof marked with this legend must also reproduce the markings.
(f)(1) and (f)(1) all storage containers, media, and printed material that contains asserted rights must contain the applicable asserted rights markings on the specific container/media/pages where the asserted rights appear.
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21. Computer Software – Restricted Rights Marking
Presentation Title
April 13, 2017
Computer Software – Restricted Rights Marking
SAMPLE COMPUTER SOFTWARE LEGEND
From DFARS (f)
RESTRICTED RIGHTS
Contract Number ___________ Contractor Name ___________ Contractor Address _________________
The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(3) of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause contained in the above identified contract. Any reproduction of computer software or portions thereof marked with this legend must also reproduce the markings. Any person, other than the Government, who has been provided access to such software must promptly notify the above named Contractor.
(f)(1) all storage containers, media, and printed material that contains asserted rights must contain the applicable asserted rights markings on the specific container/media/pages where the asserted rights appear.
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22. Computer Software – Government Purpose Rights Marking
Presentation Title
April 13, 2017
Computer Software – Government Purpose Rights Marking
SAMPLE COMPUTER SOFTWARE LEGEND
From DFARS (f)
GOVERNMENT PURPOSE RIGHTS
Contract Number ___________ Contractor Name ___________ Contractor Address _________________
Expiration Date ____________________
The Government's rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(2) of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of the software or portions thereof marked with this legend must also reproduce the markings.
(f)(1) and (f)(1) all storage containers, media, and printed material that contains asserted rights must contain the applicable asserted rights markings on the specific container/media/pages where the asserted rights appear.
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23. Computer Software – Special License Rights Marking
Presentation Title
April 13, 2017
Computer Software – Special License Rights Marking
SAMPLE COMPUTER SOFTWARE LEGEND
From DFARS (f)
SPECIAL LICENSE RIGHTS
The Government's rights to use, modify, reproduce, release, perform, display, or disclose these data are restricted by Contract No. _____(Insert contract number)____, License No. ____(Insert license identifier)____. Any reproduction of computer software, computer software documentation, or portions thereof marked with this legend must also reproduce the markings.
(f)(1) and (f)(1) all storage containers, media, and printed material that contains asserted rights must contain the applicable asserted rights markings on the specific container/media/pages where the asserted rights appear.
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24. Presentation Title
April 13, 2017
Non-Deliverable and Non-Technical Deliverable Data Marking Requirements
“ABC Company Proprietary” is the correct marking for:
Technical Data and Computer Software that may be Deliverables, but are not being formally delivered;
Technical Data and Computer Software that are not required Deliverables, but are being furnished (or made available) to the US Government;
All administrative, management, and financial data whether it’s being “Delivered” or not.
Avoid referring to “confidential” in respect to company “confidential vs Government confidential”.
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25. Customer Relations – Conflict in Interpretation
Presentation Title
April 13, 2017
Customer Relations – Conflict in Interpretation
Please note: some US Government Agencies believe that everything available to them is or becomes a contract Deliverable.
However, this may be contrary to:
the Law [see especially 10USC2320(a)(3)(b)],
many years of settled customs and practice involving the use of CDRLs to specify Deliverables,
common sense contract law: the idea that Deliverables should be known items specified and supplied at a specified time.
This continues to be an interpretation issue with some agencies.
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26. SAMPLE “ABC COMPANY PROPRIETARY” LEGEND From ABC Company Policies
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April 13, 2017
Non-Deliverable and Non-Technical Deliverable Data Marking Requirements
SAMPLE “ABC COMPANY PROPRIETARY” LEGEND
From ABC Company Policies
ABC PROPRIETARY
This document contains proprietary data or information pertaining to items, or components, or processes, or other matter that may have been developed or acquired at the private expense of ABC Company and is restricted to use only by persons authorized by ABC Company in writing to use it. Disclosure to unauthorized persons would likely cause substantial competitive harm to ABC’s business position. Neither said document nor said technical data or information shall be furnished or disclosed to or copied or used by persons outside ABC Company without the express written approval of ABC Company.
Copyright 2011 ABC Company
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27. Protecting Subcontract / Partner Intellectual Properties
Presentation Title
April 13, 2017
Protecting Subcontract / Partner
Intellectual Properties
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28. Levying Prime Contract IP Requirements
Presentation Title
April 13, 2017
Levying Prime Contract IP Requirements
Terms and Conditions F L O W D N
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29. Levying Prime Contract IP Requirements
Presentation Title
April 13, 2017
Levying Prime Contract IP Requirements
The list of applicable compliance and reference documents are listed in the Terms and Conditions of a flowed down purchase order. The Terms and Conditions originate from:
Prime contract FAR/DFARs licensing rights and marking requirements
Additional marking and protection requirements as indicated in Prime Contract attachments (DD254, special clauses)
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30. Levying Prime Contract IP Requirements
Presentation Title
April 13, 2017
Levying Prime Contract IP Requirements
ASSERTION TABLES
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31. Levying Prime Contract IP Requirements
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April 13, 2017
Levying Prime Contract IP Requirements
The Subcontractor/Partner assertion table identifies all Intellectual Properties that the subcontractor/partner is asserting licensing restrictions. In absence of assertion table entries that identify technologies for protection (items, components, or processes) , any associated data or computer software delivered under the purchase order must be marked in accordance with prime contract flow down marking requirements.
Any subcontractor/partner licensing exceptions must be originated by the subcontractor/partner and provided to the Prime contractor for incorporation into the Prime contract assertion table
Subcontractors have the ability and the right to work assertion issues directly with the prime customer.
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32. Presentation Title
April 13, 2017
Data Protection Vehicles – Proprietary Information Non-Disclosure Agreements (NDAs)
Contractual Agreement between two or more parties that define expectations for protecting and properly using Intellectual Property:
Parties are clearly identified (can be by individual name or company)
Provides a specific time period of effectivity – no open ended NDAs
Identifies specific items or technologies under restriction by the agreement
Only protects data that is properly identified as proprietary (through appropriate markings) – regardless of NDA implementation, unless specifically written into the NDA
Can be executed as one-way or two-way agreements (protecting both incoming and outgoing data between Prime and subcontractor/partner)
NDAs are normally executed by Supply Chain or authorized Contracting personnel
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33. Data Protection Vehicles – Electronic Environments
Presentation Title
April 13, 2017
Data Protection Vehicles – Electronic Environments
Database Considerations
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34. Data Protection Vehicles – Electronic Environments
Presentation Title
April 13, 2017
Data Protection Vehicles – Electronic Environments
Ensure system uses splash screen potential restriction warnings (export, NDA, fraudulent account usage) to advise and require acknowledgement from users prior to accessing data
Establish a segregated proprietary working environment
Determine access requirements bed on NDA agreements and need-to-know
Ensure proper workflows and lifecycle permissions are established
Provide applicable user roles to support task responsibilities and program strategy
Monitor data for proper markings, workflow status, user accesses, retrievability and data retention requirements
Erroneous subcontractor/partner data markings should be corrected by the subcontractor/partner . However, there is an “implied license” that allows for the use of subcontractor data in the execution of prime contract. Therefore, it may be allowable in extreme circumstances to modify markings
Ensure accurate subcontractor/partner marking integrity is maintained when incorporated into Prime contract data deliverables – cannot remove/change subcontractor/partner markings, but additional supplemental markings may be added as long as they do not change the amount of protection to the subcontractor/partner data
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35. Impacts of Inadvertent Exposure and
Presentation Title
April 13, 2017
Impacts of Inadvertent Exposure and
Marking Non-Compliance – Prime and Subcontractor/Partner
Legal and Cost Impacts:
Breach of contract/NDA agreement(s) may result in potential civil and/or criminal penalties (fines and litigation costs)
Loss of Competitive Advantage due to unprotected technologies and processes
Loss of Competitive Advantage due to exposed financial data and business information
Loss of royalties as new market provider
Surrenders Limited Rights assertions (eliminating potential to levy re-assertion of technology)
Withholding of Payment - DFARs
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36. Impacts of Inadvertent Exposure and
Presentation Title
April 13, 2017
Impacts of Inadvertent Exposure and
Marking Non-Compliance – Prime and Subcontractor/Partner
Relationship Impacts:
Break in partnering relationships (termination of Subcontract and elimination of future business opportunities)
Inability to fulfill current and future prime contract requirements based on necessary subcontract/partnership key capabilities
Tarnished reputation regarding IP management and protection – can lead to perception of overall lack of security
Damaged customer relations
Damaged competitive position for both parties
Loss of exclusivity
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37. Emerging Trends – Prime and Subcontractor/Partner
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April 13, 2017
Emerging Trends – Prime and Subcontractor/Partner
Company electronic databases established to identify and capture IP technologies, supporting:
follow-on contracts (reassertion tables)
reuse of technology – leveraged on new contracts
validity of claimed assertions (development timelines)
patent tracking activity
Migration from 2D to 3D model drawings supporting enhanced engineering and collaboration capabilities
Companies partnering to develop and deliver products or services to maximize opportunities with declining budgets. It is imperative that an understanding of the following elements be clearly defined:
IP Use and ownership rights
Data rights and associated markings
NDA – applicability and use
Database and collaboration tool usage
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38. Presentation Title
April 13, 2017
Knowledge Check
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39. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Under the FAR and DFARs are other private contractors afforded the right to infringe ABC Company patents in performance of U.S. Government contracts?
Yes No
Not Sure
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40. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Do Limited Rights afford the U.S. Government the right to use ABC Company’s Technical Data for competitive re-procurements?
Yes No
Not Sure
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41. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Do Government Purpose Rights (GPR) afford the U.S. Government the right to use ABC Company’s Technical Data for competitive re-procurements?
Yes No
Not Sure
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42. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Are financial and administrative data delivered under a CDRL covered under the Technical Data Rights provisions of the Defense Federal Acquisition Regulation Supplement (DFARS)?
Yes No
Not Sure
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43. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Can you claim Limited Rights in material that you have allowed third parties unrestricted access without the benefit of nondisclosure protection under an NDA or similar agreement?
Yes No
Not Sure
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44. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Can you properly mark a deliverable Computer Software module as Restricted Rights if there is no corresponding entry in the Assertion Table for the U.S. Government contract?
Yes No
Not Sure
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45. Presentation Title
Presentation Title
You properly include an entry for Technical Data in an Assertion Table, are there any other active steps required to maintain ABC Company’s rights?
April 13, 2017
April 13, 2017
Yes No
Not Sure
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46. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
ABC Company has properly asserted its rights for the BLK I TXT contract; does ABC Company need to again provide both a new Assertion Table and repeated Data Markings for the BLK II TXT contract?
Yes No
Not Sure
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47. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Can information included in a software user’s or operator’s manual be considered Restricted Rights material under a DoD contract?
Yes No
Not Sure
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48. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Does the U.S. Government need to have a reason to challenge a Technical Data Rights Assertion?
Yes No
Not Sure
Government right to challenge and validate asserted restrictions.
(1) The Government, when there are reasonable grounds to do so, has the right to review and challenge the validity of any restrictions asserted by the Contractor on the Government's rights to use, modify, reproduce, release, perform, display, or disclose computer software delivered, to be delivered under this contract, or otherwise provided to the Government in the performance of this contract. Except for software that is publicly available, has been furnished to the Government without restrictions, or has been otherwise made available without restrictions, the Government may exercise this right only within three years after the date(s) the software is delivered or otherwise furnished to the Government, or three years following final payment under this contract, whichever is later.
(2) The absence of a challenge to an asserted restriction shall not constitute validation under this clause. Only a Contracting Officer's final decision or actions of an agency Board of Contract Appeals or a court of competent jurisdiction that sustain the validity of an asserted restriction constitute validation of the restriction.
There is a challenge (formal request – need grounds) and pre-challenge (request for information for no reason) in the FAR clause Para c
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49. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Is ABC Company required to request Technical Data and Computer Software Assertions from its subcontractors and include them in ABC Company’s Assertion Tables?
Yes No
Not Sure
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50. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Is ABC Company required to provide a listing of commercial software delivered under a U.S. Government Contract where the software is subject to commercial license terms that may restrict its use?
Yes No
Not Sure
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51. Critical Thinking Scenarios
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April 13, 2017
Critical Thinking Scenarios
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52. Copperhead Contract – Fact Pattern 1
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April 13, 2017
April 13, 2017
Copperhead Contract – Fact Pattern 1
In December of 2007, ABC Company decided that a new “WB Target Detection Software Module” would be developed and fully testing using IRAD funds.
The WB Target Detection Module was completed using IRAD funds in December of 2008 and no follow-on work was performed.
In July of 2009, the Copperhead Missile Contract was signed including a CDRL requiring delivery of the “WB Target Detection Module”.
The WB Target Detection Module was included in the Copperhead Block I Assertion Table and listed as Restricted Rights computer software.
The US Government has now challenged this particular entry in the Copperhead Contract Assertion Table.
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53. What should the final rights determination be?
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April 13, 2017
April 13, 2017
What should the final rights determination be?
Restricted Rights (as shown in the Assertion Table). The WB Target Detection Software module was fully developed exclusively at private expense with IRAD funds.
Unlimited Rights. ABC Company should not have included this Software module in the Assertion Table since it was explicitly required by the Copperhead Contract.
Government Purpose Rights. The Software had not been developed to the point of Workability before it became a deliverable under the Contract.
ABC Company Proprietary. The Computer Software was paid for and is owned by ABC Company and can not be used by other contractors.
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54. At Delivery what is the appropriate marking?
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April 13, 2017
April 13, 2017
At Delivery what is the appropriate marking?
ABC Company Proprietary. All technical materials should be marked this way.
Government Purpose Rights. Contract Number ___________ Contractor Name ___________ Contractor Address __________ Expiration Date (Generally 5 years after contract execution – July of 2014) The Government’s rights to use, modify, reproduce, release, perform, display, or disclose this software are restricted by paragraph (b)(2)of the Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any reproduction of the Software or portions thereof marked with this legend must also reproduce the markings.
ABC Company Proprietary And Government Purpose Rights
Restricted Rights. The Computer Software was fully Developed at Private Expense and properly included in the Assertion Table.
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55. Copperhead Contract – Fact Pattern 2
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April 13, 2017
April 13, 2017
Copperhead Contract – Fact Pattern 2
In December 2007, ABC Company Engineering decided to develop a new and improved rocket nozzle using IRAD. It is hoped that the new nozzle profile will increase performance and give ABC Company a competitive advantage in winning new programs in coming years.
The program was a success and completed in December The nozzle profile is effective, complex, and novel. The financial and engineering records are complete. The nozzle will be applicable to a variety of programs.
ABC Company has included the nozzle profile in its Assertion Table for Copperhead Missile contract.
ABC Company expects the U.S. Government to stubbornly challenge all assertions under the contract.
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56. What type of rights should ABC Company pursue?
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What type of rights should ABC Company pursue?
Government Purpose Rights. We should agree to GPR since that will make a good compromise.
Specially Negotiated Rights. We should try to negotiate with the U.S. Government and establish a Special Program-Wide License.
Limited Rights. We developed the nozzle exclusively at private expense.
Unlimited Rights. Since the nozzle may be easily reverse engineered, it is probably not worth contesting a Challenge.
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57. Copperhead Contract – Fact Pattern 3
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April 13, 2017
April 13, 2017
Copperhead Contract – Fact Pattern 3
In December 2008, ABC Company Engineering decided to invest IRAD into the development of new flight software with a new feed-forward control loop module which will allow more agile course corrections.
Engineering called the IRAD project successful after a single simulation in June The Engineering notebooks, including requirements and design documentation and all financial records are complete. The new software was a deliverable and included in the July 2009 Copperhead Assertion Table as shown for the Copperhead contract.
Technical Data/Computer Software to be Furnished
Basis for Assertion
Asserted Rights Category
Name of Person Asserting Restrictions
1) Flight Software
Developed exclusively at private expense
Limited Rights
ABC Company
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58. Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Are there any issues?
Yes. The description in the Assertion Table as “Flight Software” is too broad and does not accurately identify the Computer Software. Also, Computer Software is Restricted Rights not Limited Rights.
No. The term Flight Software is broad enough to include the feed-forward module. Restricted Rights Markings can be used upon delivery to correct the terminology on the Assertion Table.
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Speaker Name 58

59. Copperhead Block II – Fact Pattern 4
Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Copperhead Block II – Fact Pattern 4
Under the Copperhead Block II contract, ABC Company is procuring sensor assemblies and other miscellaneous components from XYZ Subcontractor.
Under one of the CDRLs, ABC Company is required to deliver a listing of sensitive supplier-related financial data including some highly private costs of XYZ Subcontractor.
Government funding was used in collecting and preparing most of the financial data.
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Speaker Name
Speaker Name 59

60. What is the appropriate marking?
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Presentation Title
April 13, 2017
April 13, 2017
What is the appropriate marking?
XYZ Company Proprietary.
ABC Company Competition Sensitive.
Internal Use Only.
Government Purpose Rights. Contract Number ___________ Contractor Name ___________ Contractor Address __________ Expiration Date (Generally 5 years after execution of the contract) The Government’s rights to use, modify, reproduce, release, perform, display, or disclose these technical data are restricted by paragraph (b)(2)of the Rights in Technical Data – Noncommercial Items clause contained in the above identified contract. No restrictions apply after the expiration date shown above. Any production of technical data or portions thereof marked with this legend must also reproduce the markings.
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Speaker Name 60

61. Copperhead Block II – Fact Pattern 5
Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
Copperhead Block II – Fact Pattern 5
In September 2009, ABC Company was awarded the Copperhead Block II Contract (follow-on contract to Copperhead Block I) and the Assertion Table below was generated. The product was the same except for new “Aerodynamic Flight Control Software”.
The CDRL requires a schematic for the “Lateral Lasers for Target Proximity Detection” which was properly asserted and Marked for the Copperhead Block I program as a Limited Rights item.
Technical Data/Computer Software to be Furnished
Basis for Assertion
Asserted Rights Category
Name of Person Asserting Restrictions
1) Feed-Forward Flight Control Software for Agile Course Correction
Developed exclusively at private expense
Restricted Rights
ABC Company
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Speaker Name
Speaker Name 61

62. What would be the appropriate marking for the Laser schematic?
Presentation Title
Presentation Title
April 13, 2017
April 13, 2017
What would be the appropriate marking for the Laser schematic?
Limited Rights. The Lateral Laser item has not changed since Copperhead Block I, so the same marking should be carried over.
None Required. The Lateral Lasers item was developed at private expense on Copperhead Block I and properly asserted and properly marked at that time.
Government Purpose Rights. The Lateral Lasers item was properly asserted and marked on Copperhead Block I. Since it was not asserted on Block II it is now subject to mixed funding and the Government’s rights are automatically converted to GPR.
None or Unlimited Rights. The Lateral Laser item was not properly asserted on the Copperhead Block II Assertion Table and ABC Company has now forfeited all rights.
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Speaker Name 62

63. Questions Presentation Title Presentation Title April 13, 2017
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Speaker Name
Speaker Name 63