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Technical Data Rights / Computer Software Rights John J. Horn Senior IP Counsel April 26, 2010 Copyright 2011. Raytheon Company. Customer Success Is Our.

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Presentation on theme: "Technical Data Rights / Computer Software Rights John J. Horn Senior IP Counsel April 26, 2010 Copyright 2011. Raytheon Company. Customer Success Is Our."— Presentation transcript:

1 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. 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)

2 Page 2 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 ver. 1

3 Page 3ver. 1 Why Protect Technical Data Rights / Computer Software Rights? Provides protection from competitive procurements by restricting the sharing of Company-developed technologies with private contractors

4 Page 4ver. 1 Who Protects Technical Data Rights / Computer Software Rights? Configuration and

5 Page 5ver. 1 What is Intellectual Property?

6 Page 6ver. 1 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. 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.

7 Page 7ver. 1 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. 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.

8 Page 8ver. 1 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. 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.

9 Page 9ver. 1 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. 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.

10 Page 10ver. 1 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 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

11 Page 11ver. 1 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. 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.

12 Page 12ver. 1 Technical Data / Computer Software Rights Applicability

13 Page 13ver. 1 When Protect Technical Data Rights / Computer Software Rights?

14 Page 14ver. 1 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. 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.

15 Page 15ver. 1 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 RightsABC Company 2) Target Detection Algorithm with Multi-frame Filtering Developed With Mixed Funding Government Purpose Rights ABC Company 3) Semiconductor Construction and Structure for Laser Proximity Detection Special License between ABC Company and the Agency Specifically Negotiated Rights ABC Company 4) Flight Stabilization Software including Feed Forward Source Code and all Flowcharts Developed exclusively at Private Expense Restricted RightsXYZ Supplier Company 5) Two Stage Long-Range/Short-Range Thrust Deflectors Schematics and all other related Technical Data Developed exclusively at Private Expense Limited RightsABC Company

16 Page 16ver. 1 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.)

17 Page 17 Unlimited Rights Limited Rights Restricted Rights Government Purpose Rights Specifically Negotiated Rights ver. 1 D Restricts the sharing of technical data with other private contractors for competitive procurement Deliverable Technical Data / Computer Software Marking Requirements E Allows the Government to use data for ANY purpose whatsoever C Rights are unknown until negotiated (can never be less than Limited or Restricted 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

18 Page 18ver. 1 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.

19 Page 19ver. 1 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.

20 Page 20 Technical Data– Special License Rights Marking ver. 1 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.

21 Page 21 Computer Software – Restricted Rights Marking ver. 1 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.

22 Page 22 Computer Software – Government Purpose Rights Marking ver. 1 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.

23 Page 23 Computer Software – Special License Rights Marking ver. 1 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.

24 Page 24ver. 1 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. “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.

25 Page 25ver. 1 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: a) the Law [see especially 10USC2320(a)(3)(b)], b) many years of settled customs and practice involving the use of CDRLs to specify Deliverables, c) 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. Please note: some US Government Agencies believe that everything available to them is or becomes a contract Deliverable. However, this may be contrary to: a) the Law [see especially 10USC2320(a)(3)(b)], b) many years of settled customs and practice involving the use of CDRLs to specify Deliverables, c) 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.

26 Page 26ver. 1 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 Non-Deliverable and Non-Technical Deliverable Data Marking Requirements

27 Page 27ver. 1 Protecting Subcontract / Partner Intellectual Properties

28 Page 28ver. 1 Levying Prime Contract IP Requirements Terms and Conditions F L O W D O W N

29 Page 29ver. 1 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)

30 Page 30ver. 1 Levying Prime Contract IP Requirements ASSERTION TABLES

31 Page 31 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. ver. 1 Levying Prime Contract IP Requirements

32 Page 32 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

33 Page 33 Data Protection Vehicles – Electronic Environments ver. 1 Database Considerations

34 Page 34 Data Protection Vehicles – Electronic Environments ver. 1 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

35 Page 35ver. 1 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

36 Page 36 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

37 Page 37ver. 1 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

38 Knowledge Check

39 Page 39ver. 1 Under the FAR and DFARs are other private contractors afforded the right to infringe ABC Company patents in performance of U.S. Government contracts? 1. Yes 2. No 3. Not Sure

40 Page 40ver. 1 Do Limited Rights afford the U.S. Government the right to use ABC Company’s Technical Data for competitive re-procurements? 1. Yes 2. No 3. Not Sure

41 Page 41ver. 1 Do Government Purpose Rights (GPR) afford the U.S. Government the right to use ABC Company’s Technical Data for competitive re-procurements? 1. Yes 2. No 3. Not Sure

42 Page 42ver. 1 Are financial and administrative data delivered under a CDRL covered under the Technical Data Rights provisions of the Defense Federal Acquisition Regulation Supplement (DFARS)? 1. Yes 2. No 3. Not Sure

43 Page 43ver. 1 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? 1. Yes 2. No 3. Not Sure

44 Page 44ver. 1 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? 1. Yes 2. No 3. Not Sure

45 Page 45ver. 1 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? 1. Yes 2. No 3. Not Sure

46 Page 46ver. 1 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? 1. Yes 2. No 3. Not Sure

47 Page 47ver. 1 Can information included in a software user’s or operator’s manual be considered Restricted Rights material under a DoD contract? 1. Yes 2. No 3. Not Sure

48 Page 48ver. 1 Does the U.S. Government need to have a reason to challenge a Technical Data Rights Assertion? 1. Yes 2. No 3. Not Sure

49 Page 49ver. 1 Is ABC Company required to request Technical Data and Computer Software Assertions from its subcontractors and include them in ABC Company’s Assertion Tables? 1. Yes 2. No 3. Not Sure

50 Page 50ver. 1 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? 1. Yes 2. No 3. Not Sure

51 Critical Thinking Scenarios

52 Page 52ver. 1 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.

53 Page 53ver. 1 What should the final rights determination be? 1.Restricted Rights (as shown in the Assertion Table). The WB Target Detection Software module was fully developed exclusively at private expense with IRAD funds. 2.Unlimited Rights. ABC Company should not have included this Software module in the Assertion Table since it was explicitly required by the Copperhead Contract. 3.Government Purpose Rights. The Software had not been developed to the point of Workability before it became a deliverable under the Contract. 4.ABC Company Proprietary. The Computer Software was paid for and is owned by ABC Company and can not be used by other contractors.

54 Page 54ver. 1 At Delivery what is the appropriate marking? 1.ABC Company Proprietary. All technical materials should be marked this way. 2.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. 3.ABC Company Proprietary And Government Purpose Rights 4.Restricted Rights. The Computer Software was fully Developed at Private Expense and properly included in the Assertion Table.

55 Page 55ver. 1 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.

56 Page 56ver. 1 What type of rights should ABC Company pursue? 1.Government Purpose Rights. We should agree to GPR since that will make a good compromise. 2.Specially Negotiated Rights. We should try to negotiate with the U.S. Government and establish a Special Program-Wide License. 3.Limited Rights. We developed the nozzle exclusively at private expense. 4.Unlimited Rights. Since the nozzle may be easily reverse engineered, it is probably not worth contesting a Challenge.

57 Page 57ver. 1 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 AssertionAsserted Rights Category Name of Person Asserting Restrictions 1) Flight SoftwareDeveloped exclusively at private expense Limited RightsABC Company

58 Page 58ver. 1 Are there any issues? 1.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. 2.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.

59 Page 59ver. 1 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.

60 Page 60ver. 1 What is the appropriate marking? 1.XYZ Company Proprietary. 2.ABC Company Competition Sensitive. 3.Internal Use Only. 4.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.

61 Page 61ver. 1 Copperhead Block II – Fact Pattern 5 Technical Data/Computer Software to be Furnished Basis for AssertionAsserted Rights Category Name of Person Asserting Restrictions 1) Feed-Forward Flight Control Software for Agile Course Correction Developed exclusively at private expense Restricted RightsABC Company 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.

62 Page 62ver. 1 What would be the appropriate marking for the Laser schematic? 1.Limited Rights. The Lateral Laser item has not changed since Copperhead Block I, so the same marking should be carried over. 2.None Required. The Lateral Lasers item was developed at private expense on Copperhead Block I and properly asserted and properly marked at that time. 3.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. 4.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.

63 Page 63ver. 1 Questions


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