1. Counsel, C2ISR Programs Division USAF Electronic Systems Center
Software & Data Rights in Government Contracts NCMA Workshop March 16, 2011
Peter J. Camp
Counsel, C2ISR Programs Division
USAF Electronic Systems Center
Matthew J. Kleiman
Corporate Counsel
Draper Laboratory
The views expressed are those of the presenters and may not reflect the policy or position of the DOD, USAF or
Draper Laboratory

2. Outline What is Intellectual Property?
Background on FAR & DFARS Software and Data Rights
FAR Software & Data Rights Provisions
Industry Tips

3. WHAT IS INTELLECTUAL PROPERTY?

4. Intellectual Property
What is IP?
Valuable intangible property created by the human mind
Provided for in the Constitution
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. Art. 1, sec. 8, cl. 8

5. Intellectual Property
What is IP?
Patent: Property right granted by the government to an inventor which allows the inventor to exclude others from making, using or selling the invention Copyright: Set of exclusive rights granted to the author or creator of an original work of authorship, including the right to copy, distribute and adapt the work Trade Secret: A formula, process, design, instrument or other information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors Trademarks: A distinctive sign or indicator used in the marketplace to distinguish goods or services of one source from those of other sources

6. A Real US Patent
U.S. Patent #6,293,874: User-Operated Amusement Apparatus for Kicking the User’s Buttocks

7. Background on FAR & DFARS Software and Data Rights

8. Purpose
Gain a basic understanding of FAR and DFARS Data Rights treatment so you can negotiate fair and reasonable terms
C: how we got here; E: Policy

9. FAR & DFARS Data and Software Rights
Background
FAR & DFARS Data and Software Rights
1988
1955
1987
1995
2007
Different Rules for
Civilian Agencies (FAR) v. DOD (DFARS)
Technical Data v. Computer Software
Commercial Items v. Non-Commercial Items

10. FAR/DFARS SOFTWARE & DATA RIGHTS PROVISIONS

11. FAR Software & Data Rights Policy
Acknowledges that agencies require data to:
Obtain competition among suppliers
Fulfill responsibilities for disseminating the results of their activities
Ensure appropriate utilization of the results of research, development, and demonstration activities, including the dissemination of technical information to foster subsequent technological developments
Meet other programmatic and statutory requirements
Meet specialized acquisition needs and ensure logistics support
Recognizes that contractors have proprietary interests in data and that the protection of such data is necessary to encourage contractors to participate in Government programs
Agencies shall protect proprietary data from unauthorized use and disclosure
Agencies shall balance the Government’s needs and the contractor’s legitimate proprietary interests

12. DOD Policy
References
10 U.S.C. §§ 2302(4), 2305(d)(4), 2320, 2321 and 2325
FAR Subpart 27.4
DFARS Subparts ,
227.71,
(technical data)
(computer software and documentation)
C:DOD policy begins with 10 USC This statute is the source of the DFARS data rights regulations, at part 227, which says ignore the civilian rules at FAR Subpart 27.4.
--statute speaks only to tech data, regs cover TD and CS
--sets the scheme that rights in data are determined based on the type of funding used to develop it. Exclusive Federal funds, exclusive private funds, or mixed funding.
--prohibits govt from requiring Kr refrain from offering to use an item or process to which Kr is entitled to restrict rights in data. And, with certain exceptions, the gov’t can’t require the contractor to relinquish any rights in tech data in order to be responsive to a solicitation.
--requires major WS PMs to assess long-term tech data needs and establish corresponding acquisition strategies that provide the rights needed for sustainment over the system’s life cycle

13. Data FAR DFARS Recorded information, regardless of form or media
FAR (a); DFARS (a)(14)
FAR
DFARS
Recorded information, regardless of form or media
Includes technical data and computer software
Does not include information incidental to contract administration, such as financial, administrative, cost or pricing, or management information
Confidential financial information may be protected under the Trade Secrets Act and exemptions to the Freedom of Information Act
(Not defined)

14. Technical Data FAR DFARS
FAR (a); DFARS (a)(14)
FAR
DFARS
Data, other than computer software, which are of a scientific or technical nature
Does not apply to the item or component itself
Includes data bases and computer software documentation
Excludes computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration
Data, other than computer software, which are of a scientific or technical nature
Does not apply to the item or component itself
Includes data bases and computer software documentation
Excludes computer software or financial, administrative, cost or pricing, or management data or other information incidental to contract administration
C: DFARS Noncommercial Tech Data Definition has remained substantively unchanged since 1988 (1995 revisions shortened the definition, and introduced treatment of commercial tech data).
Under DFARS or FAR, there are 3 important characteristics to TD:
It is recorded information. I.e., TD does not include the item or component itself described in the data. TF, the gov’t doesn’t violate contractual tech data rights if it purchases an item from Acme, and then gives it to Widget Co. to reverse engineer copies—so long as Widget doesn’t rely on the TD as an aid in reverse engineering.
It doesn’t include data derived or measured from the item itself. TF, the gov’t can hire Widget Co. to create blueprints of the item it bought from Acme.
Doesn’t include financial, cost, pricing, and management data. But this may be protected under FOIA or the Trade Secrets Act.

15. Computer Software FAR DFARS
FAR (a); DFARS (a)(3)
FAR
DFARS
Computer programs that comprise a series of instructions, rules, routines or statements, regardless of the media in which recorded, that allow or cause a computer to perform a specific operation or series of operations
Recorded information comprising source code listings, design details, algorithms, processes, flow charts, formulas, and related material that would enable the computer programs to be produced, created, or compiled
Excludes data bases and computer software documentation
Computer programs (a set of instructions, rules, or routines recorded in a form that is capable of causing a computer to perform a specific operation or series of operations), source code, source code listings, design details, algorithms, processes, flow charts, formulae and related material that would enable the software to be reproduced, recreated, or recompiled.
Excludes computer data bases and computer software documentation. C:
CS=
CSD=
DFARS—computer databases and computer software documentation =/= computer software.
They are types of technical data, and each are treated by their own clause (CD=-7013,
and CSD = (unlimited rights). I.e., contractor can’t claim limited rights in CSD. Does not apply to FAR contracts.

16. Comp. Software Documentation
FAR (a); DFARS (a)(5)
Owner’s manuals, user’s manuals, installation instructions, operating instructions, and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software

17. Who gets what? Title --» Contractor Rights grant --» Government
FAR
Title --» Contractor
Rights grant --» Government
Unlimited rights (default) (FAR )
Data first produced in the performance of a contract
Limited rights (in technical data) (FAR (c))
Technical Data produced at private expense containing confidential information
Restricted rights (in computer software) (FAR (d))
Computer Software (non-commercial) produced at private expense containing confidential or privileged information
Government purpose rights (FAR )
Co-sponsored R&D

18. Who gets what? Title --» Contractor License --» Government
DFARS (TD) & (CS)
Title --» Contractor
License --» Government
Unlimited rights (-7013(b)(1) & -7014(b)(1))
Including FF&F; OMIT; developed exclusively w/ Fed funds; specified as element of performance; publicly available; by K/expir. of GPR
Limited rights (in technical data) (-7013(b)(3)) No Expiration
Technical Data developed exclusively at private expense and marked with the limited rights legend
Restricted rights (in computer software) (-7014(b)(3)) No Expiration
Computer Software (non-commercial) required to be delivered or otherwise provided to the Gov’t under the K that were developed exclusively at private expense
Government purpose rights (-7013(b)(2) & -7014(b)(2)) 5 Year Expr’n
Developed with mixed funding but without Unlimited Rights
Developed with mixed funding in performance of K that doesn’t require dev’t; mfr; construction; or production of items, components, or processes
Important: Gov’t only gets a nonexclusive license in the TD & CS. K’r continues to own these items and can continue to do with them what it wishes, including commercial sales. (E.g., night vision equipment). Only 3 important restrictions exist: 1. national security classification; 2. Federal export control regulations; and 3. K’r can re-charge Gov’t for license fees, royalties, or similar charges in cases where it already owns a license to use the data or have it used on its behalf.

19. Data Rights Spectrum Restrictions Limited/ Restricted Rights Unlimited
GPR
Govt
Funding
Mixed
Funding
Privately
Funded
Restrictions
Least
Most

20. FAR & DFARS Unlimited Rights
Default Rule for Data
Unlimited Rights: The right of the Gov’t to use, modify, perform, disclose, reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, in any manner and for any purpose, and to have or permit others to do so ( (a); -7013/-7014(a)(15))
Gov’t can publish Data on the front page of the Boston Globe
Applies to ( (b)(1); -7013/-7014(b)(1)), including:
Data first produced in the performance of a contract
TD/CS developed exclusively with Government funds
Studies, analyses, test data, etc. as an element of K performance
CS documentation deliverables
Expired GPR
Form, fit, and function data delivered under contract
Manuals or instructional and training material
C: The right to use or disclose TD or CS in any fashion and for any purpose.
--including the right to distribute data to competitors to enable them to manufacture the same or similar equipment, or to design derivative products.
Applies to both TD and CS
Never expires
Why not always buy UL Rights? cost

21. FAR Limited Rights
Technical Data
Limited Rights Data (LRD): Developed at private expense and embodies trade secrets or are commercial or financial and confidential or privileged ( (a))
Default rule is that Contractor may withhold LRD from the Gov’t and deliver form, fit and function data instead ( (g))
Alt. II – Allows Contractor to deliver LRD with Limited Rights
Gov’t may reproduce or use LRD
Gov’t may not
disclose LRD outside the government
use LRD for manufacturing
Other permitted uses may be listed in the Limited Rights Notice
LRD must be marked with Limited Rights Notice in Alt. II

22. Technical Data: DFARS 252.227-7013(a)(13)
DFARS Limited Rights
Technical Data: DFARS (a)(13)
Limited Rights: Government can make internal use of data, but cannot disclose outside the Government
We may only share the information with other federal employees. If we need to share it with contractors or other non-government personnel, we must get the written permission of the owner of the data, and the recipient must sign a non-disclosure agreement
Exception: Emergency repair or overhaul
No expiration
DFARS Case 2009–D031
Permits support contractors to access third party Technical Data, conditioned upon the execution of an NDA with the owner of the Technical Data
LR is the right to use or disclose tech data within the govt, but not for manufacture, except for emergency repairs or overhaul. The TD may be disclosed to foreign gov’ts for evaluation or informational purposes and may be disclosed to support contractors with notice to the developer.
Note: The restrictions on sharing limited rights data apply to both in-house support contractors and other contractors.

23. DFARS Restricted Rights
Noncommerical Computer Software (CS): DFARS (a)(13)
Restricted Rights: Generally restricts the Government’s use to a single computer per copy of the software, and prohibits all but backup or archival copies
Exception: Emergency repair or overhaul
Contractors performing service contracts may access restricted rights software in certain situations provided that:
Govt notifies the party asserting restricted rights, and
The support contractor is subject to or
See clause for details; consult legal as needed
No expiration
Note: The restrictions on sharing limited rights data apply to both in-house support contractors and other contractors.

24. FAR Restricted Rights
Computer Software
Restricted Computer Software (RCS): Developed at private expense and that is a trade secret, is commercial or financial and confidential or privileged, or is copyrighted computer software ( (a))
Default rule is that Contractor may withhold RCS from the Gov’t and deliver form, fit and function data instead ( (g))
Alt. III – Allows Contractor to deliver RCS with Restricted Rights
Use on the computer for which it was acquired
Use on a back up computer
Archive and backup copies
Modify, adapt or combine with other software
Disclose to service support contractors
Use on replacement computer
RCS must be marked with Restricted Rights Notice in Alt. III

25. FAR Government Purpose Rights
Co-Sponsored R&D – (a)
Use in contracts where:
Co-sponsored research & development;
Contractor required to make substantial contributions of funds or resources (e.g., by cost-sharing or by repayment of nonrecurring costs); and
Contractor’s and the Government’s respective contributions are not readily segregable
Government Purpose Rights should, at a minimum, assure use of the data for agreed-to Governmental purposes
Used in Cooperative Research and Development Agreements (CRADAs)

26. DFARS Government Purpose Rights
DFARS (a)(12)/-7014(a)(11)
Government Purpose Rights (GPR): Permit the Government to use, modify, reproduce, release, perform, display tech data within the Govt without restriction; and to release or disclose tech data outside for Govt Purposes
“Government Purpose”
includes competitive procurement, but do not the rights to use, modify, reproduce, release, perform, display, or disclose technical data for commercial purposes or authorize others to do so
Govt may not disclose unless
Recipient is subject to Use & Non-Disclosure Agreement at DFARS ; or
Recipient is a Govt contractor receiving data for performance of a Govt contract that contains
Applies to tech data and software
Expires in 5 yrs unless otherwise negotiated, converts to Unlimited
The GPR definition is provided in DFARS (a)(12). Govt purpose is defined in (a)(11). The information provided in the 2nd bullet, 2nd sub-bullet is provided in (b)(2)(iii).
GPR= the right to use, modify, disclose, or release TD or CS within the Govt without restriction and outside the Govt for Gov’t purposes (including procurement) as long as any third party recipient agrees to a use and NDA that limits the recipient’s use to Govt purposes.
GPR was a 1987 add to the DFARS. Was originally viewed favorable by industry, bc it permitted the Kr to retain commercial rights to the product in instances where the Govt obtained the right to use the data in a competitive procurement. After the 1994 passage of the FASA, the significance of GPR lessened because FASA expanded the concept of commercial item and required regulatory rights coverage for them. FASA resulted in greater protection of IP for commercial items than those items would have received under GPR
Govt purpose includes FMS, as well as competitive procurement, but not commercial purposes.

27. FAR & DFARS Commercial Software
Commercial Item definition (FAR 2.101):
Any item, other than real property, of a type customarily used for nongovernmental purposes, that is
sold, leased or licensed to the general public; or
offered for sale, lease or license
Modifications of a type customarily available in the commercial marketplace
Minor modifications of a type not customarily available in the commercial marketplace made to meet Federal Government requirements
Compliance with the FAR requirements excused ( (a))
Government acquires commercial software under the license customarily provided to the public
Limitation: To the extent the license is consistent with Federal law and otherwise satisfies the Government’s needs
Do not use FAR Commercial Software clause ( )
Unlimited rights in data
Restricted rights in software

28. Commercial Items
DFARS (a): DoD shall only acquire the tech data customarily provided to the public with a commercial item, except tech data that
Are form, fit, or function data
Are required for repair, maintenance or installation or customary data is not sufficient for military purposes
Describe mods to commercial items made at Govt expense to meet Govt requirements
Section 2320(b)(1) of Title 10 U.S.C. establishes the presumption that commercial items are developed at private expense
(a)(10): form, fit, or function data describes the required physical, functional, and performance characteristics of an item, component, or process to the extent necessary to permit identification of physically and functionally interchangeable items.
Standard Commercial License Rights are the rights provided by the Kr in a license that accompanies commercial software. For the most part, the Govt is obligated to abide by the commercial license accompanying the commercial software
--but every standard license has terms that contradict federal law, and they must be negotiated out of the agreement—e.g., choice of law/court “Nebraska”; agreement to arbitrate; indemnification (ADA violation); right of inspection.

29. DFARS Specifically Nego’d Rights
DFARS (b)(4)
Specifically Negotiated Rights: Any rights negotiated by the contractor and agency that are different than the foregoing classes of rights
Also called “Special” or “Non-standard” Rights
Govt may not accept less than statutory rights without receiving a “compensating benefit”
Degree to which these are permitted depends on the particular regulations applicable to the procurement
Must be identified in a license agreement incorporated into the contract
Coordinate with Legal
Applies to tech data or software
Expiration negotiated
Cannot negotiate for less than limited rights (TD) or Restricted Rights (CS)
Note: It is critical to fully capture the terms of the Specifically Negotiated Rights in the contract or contract attachment. Omitting the full text agreement increases the chance of misunderstanding down the road.

30. FAR Release of Data
Contractor shall have the right to use, release to others, reproduce, distribute or publish any data first produced or specifically used by the Contractor in the performance of this contract, except:
As prohibited by Federal law (e.g., export control or national security);
As expressly set forth in this contract; or
Data that contain restrictive markings shall be treated in accordance with such markings.
( (d))
Contractor may not assert copyright in contract data without CO permission, except for scientific and technical data for publication in academic, technical or professional publications ( (c))
Alt. IV – Contractor may assert copyright in all contract data

31. Industry tips

32. Subcontracts Case Study:
Case Study - Flowdowns
Case Study:
Sub discloses confidential technical data to Prime while working on Phase I of a DOD program
Subcontract incorporates by reference DFARS , including the provision that the Prime is to have “unlimited rights in technical data that are … developed exclusively with Government funds”
In the process of soliciting bids for Phase II of the program, Prime discloses Sub’s technical data to Sub’s competitor
Sub sues Prime for misappropriation of trade secrets
Will the Sub’s misappropriation claim be successful?

33. Subcontracts Plainville Electrical Products Co. v. Bechtel Bettis Inc.
Case Study - Flowdowns
Plainville Electrical Products Co. v. Bechtel Bettis Inc.
(D.Ct. 2009)
Court: “Because the 2003 subcontract gave [Prime] the unlimited right to use, distribute, or disclose that data … there can be no ‘misappropriation’ of the [Sub’s] data, and therefore no trade secret claim.”
Court emphasized that the “DFARS provides a mechanism for protecting trade secrets that the parties chose not to use.”

34. Subcontracts Subcontracts are commercial agreements – negotiate!
Mindless Flowdowns
Subcontracts are commercial agreements – negotiate!
Exception: Mandatory flow-down provisions
Avoid “mindless flowdowns”
Do not simply replace “Government” with “Prime Contractor” in Patent and Data & Software Rights clauses
FAR (k)(3): “At all tiers, the patent rights clause must be modified to identify the parties as follows: references to the Government are not changed, and the subcontractor has all rights and obligations of the Contractor in the clause. The Contractor shall not, as part of the consideration for awarding the subcontract, obtain rights in the subcontractor’s subject inventions.”
DFARS (l)(2)(i): “The patents rights clause included in the subcontract shall retain all references to the Government and shall provide to the subcontractor all the rights and obligations provided to the Contractor in the clause. The Contractor shall not, as consideration for awarding the subcontract, obtain rights in the subcontractor’s subject inventions.”

35. Scope of Rights Granted to Prime Contractor
Subcontracts
Scope of Rights Granted to Prime Contractor
Prime’s rights to Sub’s IP should be limited to those rights that are necessary to perform the contract
FAR (h): The Contractor shall obtain from its subcontractors all data and rights therein necessary to fulfill the Contractor’s obligations to the Government under this contract
DFARS (k):
(2)Technical data required to be delivered by a subcontractor or supplier shall normally be delivered to the next higher-tier contractor, subcontractor, or supplier. However, when there is a requirement in the prime contract for data which may be submitted with other than unlimited rights by a subcontractor or supplier, then said subcontractor or supplier may fulfill its requirement by submitting such data directly to the Government, rather than through a higher-tier contractor, subcontractor, or supplier.
(4)The Contractor and higher-tier subcontractors or suppliers shall not use their power to award contracts as economic leverage to obtain rights in technical data from their subcontractors or suppliers.
Prime does not need the same rights as the Gov't
Standard NDA terms are often sufficient

36. Case Study – Grant of Rights to the Government
Subcontracts
Case Study – Grant of Rights to the Government
In the course of performing a DOD program, Contractor gives source code that it developed at private expense to the Government, but did not assert rights to the software or include any proprietary markings
Key employee leaves Contractor and starts a competing business with core technology based on source code
Contractor files a lawsuit against the former employee for misappropriation of trade secrets.

37. Scope of Rights Granted to the Government
Subcontracts
Scope of Rights Granted to the Government
L-3 Comm. Westwood Corp v. Robichaux (E.D. La. 2008)
Court: “Granting the Gov't unlimited rights to data without any restrictive legend or markings constitutes a failure to maintain secrecy”
Because contractor “did not use efforts reasonable under the circumstances to maintain the secrecy of the alleged trade secrets in the source code,” the source code was no longer protectable as a trade secret
Carefully consider the nature of the rights granted to the Gov't
Giving the Gov't “unlimited rights” when IP is developed at private expense can impact the status of those rights vis-à-vis third parties

38. Monitor the Engineers Strategic development decisions
Must make smart decisions about what to develop at private expense and what to develop with public funds and what to develop in the performance of a government contract
Track development process
Only deliver technical data and software that is required by the contract
Marking/Notice
Must provide notice and mark data exactly as required
Unlabeled or improperly marked data is unlimited rights data
Proposal must include table identifying what data/software is being provided with other than unlimited rights

39. Marking
Cautionary Tales
Properly mark all data and software as required by the contract
Standard confidential/proprietary markings are not sufficient
Night Vision Corp. v. U.S. (Fed. Ct. Cl. 2005)
Contractor waived any protection from disclosure of data rights when it delivered prototypes to the Gov't without marking the prototypes or their packaging with appropriate legends
Court: “To read an exception into the regulation … would undermine the entire purpose of restrictive legends. Restrictive legends alert all Gov't officials [that] data is considered proprietary and is inappropriate for dissemination. Creating exceptions to the restrictive rights requirement would place Gov't officials in the difficult position of being unsure which data was subject to restrictions and which was not”

40. Government Best Practices & Responsibilities

41. Sustainment
Data rights are still important in a sustainment environment
To sustain a system, the Govt must know what category of data rights it has to the existing data
A modification to an existing system must consider the category of data rights to obtain for sustainment
In the acquisition planning phase of any sustainment acquisition, data rights issues must be considered
Due to the length of sustainment activity that may occur on a system, data rights are important in the support of the system
--A system will still need to have data to function in its operational mode.
--It is imperative that the Government is aware of the rights that it has to use the data in its possession in regard to an operational system. Sustainment functions on a operational system could be halted if the Government does not have the ability to use the data.
--The Government should always consider what level of data rights is necessary to sustain a system after a modification is performed to that system.
--During the ASP and in the acquisition plan, data rights will be discussed. This is a very important aspect of acquisition planning, since the level of data rights to be obtained may force the Government to consider whether the ability will exist to compete sustainment tasks/function in the marketplace in the future for the system or if the Government will have to perform the tasks/functions in an organic manner.
--Sustainment of a system could be for years or beyond this time frame. It is important that the Government consider the level of data rights that it will need to keep the system viable.

42. Data Rights Acquisition Process Overview
Requirements/ Acq Planning
Data Manager and PM determine data rights required. Considerations: contractors’ economic interest, Government’s costs, re-procurement needs, future uses of data, need to disseminate research results etc.
Acq Plan/ASP
Data rights requirements and strategy are clearly documented and approved
Solicitation
Govt’s desired data rights specified in solicitation
Section J, Exhibit A contains three tables that are the heart of the data rights approach
Section K contains provision DFARS

43. Data Rights Acquisition Process Overview (con’t)
Evaluation Phase
Data rights assertions in Section K are reviewed by tech team (verification tools: lit search, DTIC, personal knowledge, other Govt personnel, DCMA, etc.)
If necessary, clarification is requested from contractor
Specifically negotiated license rights coordinated with JA
Negotiation/ Award Phase
If warranted, assertions are challenged by PCO then coordinated with Govt team
Data rights are clearly captured in an attachment to the contract
Performance Phase
Contractor can make assertions arising during performance
New assertions must be incorporated into contract
Monitor deliverable data to ensure markings are IAW contract
Non-conforming/ unjustified data markings worked with PCO.

44. Data Rights Acquisition Process Overview (con’t)
Data Delivery
PM/Data Inspector inspects data rights markings
Reports non-conforming and unjustified markings to PCO for action
PCO engages legal as needed
Post-Performance
Government may challenge restrictive markings within 3 years of contract completion
Don’t rely on this—Leverage greatly reduced after data acceptance

45. Restrictive Legends Required on all non-commercial deliverables
DFARS (f)
Required on all non-commercial deliverables
Authorized Legends:
Copyright Notice
GPR/SBIR Data Rights
Limited/Restricted
Special License
Nonconforming: Unauthorized legends that do not comply with data rights clause may not be used. Per clause, contractor is notified and given 60 days to correct.
Unjustified: Legends that do not accurately depict data rights. Per clause, Govt can challenge; markings remain in place until challenge resolved
Unmarked: Presume unlimited
Note on nonconforming legends/markings: The most common nonconforming legends/markings is “proprietary”. Tech data should never be marked proprietary. The tech data may be marked with the limited rights legend because it is proprietary (i.e. developed at private expense), but “proprietary” is not among the legends authorized by the data rights clauses.
Make sure tech data inspectors/acceptors understand nonconforming and unjustified legends.

46. Best Practices
Working data rights issues up front leads to maximum effectiveness
Teams must work together, but every member must be responsible for their own function
Ensure data assertions/contract attachments are clear and precise; clarify when necessary
Ensure legal reviews non-standard rights; non-standard rights must be fully captured in the contract
Use ACO to get history on funding if no other source of information
Ensure inspector proactively monitors deliverable data and software markings
These best practices are for the entire Govt acq team not just PK.

47. CASE STUDY

48. Background
In assertions, contractor identified three items to be provided with limited data rights
Acq team determined that Govt Purpose Rights were needed

49. Assertions
Contractor asserted all three items were developed with internal funds
Description was vague, but nobody questioned at first
Upon further review, it became apparent assertions were not specific enough to identify items

50. Clarification Govt requested clarification
The contractor’s response still didn’t specify what data they actually developed at private expense
The response opened more questions about funding of previous research
The tech team’s literature search revealed the Govt paid for the initial research

51. Negotiated Settlement
Govt relied on funding history data research
Based on research, Govt and contractor negotiated GPR instead of the limited rights proposed

52. Lessons Learned Determine data rights needs
Remember--An assertion is only an assertion
Govt acq team must evaluate, validate, and negotiate
Understand specifically what data is being asserted with limitations and what the basis is for the assertion
Literature searches aren’t just file stuffers
Research options and talk to PK and Legal
Resolve data rights issues sooner rather than later

53. CONCLUSION

54. Summary
Data rights can differ significantly between civilian and DOD agencies
Data rights decisions can have far-reaching impacts on lifecycle costs and corporate intellectual property rights
Work with your acq team to find the right data rights solution—early & up front
Consider the scope of rights granted to the Government and other contractors
Properly markproprietary technical data

55. QUESTIONS?

56. Backup

57. Contract Provision & Clauses

58. Provision
DFARS Identification & Assertion of Use, Release, or Disclosure Restrictions (JUN 1995)
Use when non-commercial tech data or software required
Contractor must certify to this provision in Section K
List all tech data with less-than-unlimited rights or respond “negative”
Includes assertions on behalf of subcontractors
Use this provision in all solicitations that include Rights in Tech Data-Noncommercial Items or Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation (i.e. in solicitations for contracts that will required delivery of noncommercial data or software).

59. Contract Clauses
DFARS Rights in Technical Data—Noncommercial Items (NOV 1995)
DFARS Rights in Noncommercial Computer Software & Noncommercial Computer Software Documentation (JUN 1995)
DFARS Technical Data—Commercial Items (NOV 1995)
DFARS Rights in Noncommercial Technical Data—Computer Software—Small Business Innovation Research (SBIR) Program (JUN 1995)
Others in the DFARS 227 series as applicable
Read clause prescriptions and carefully select clause based on the circumstances of your acquisitions. Confer with legal when needed.

60. Contract Clauses (cont)
Validation of Asserted Restrictions-- Computer Software
    Validation of Restrictive Markings on Technical Data
The validation clauses are used in combination with the other data rights clauses
Justification: The contractor is responsible for maintaining records sufficient to justify the validity of its markings that impose restrictions on the Govt’s data rights
Contractor shall be prepared to furnish a written justification for restrictive markings
Exception: Contracts for commercial items
As noted on the Categories & Funding Source slide: Sometimes acq teams are not sure how to track the source of development funding. The validation clauses place the responsibility for justification on the contractor. The contractor is responsible for maintaining records sufficient to justify the validity of its markings that impose restrictions on the Govt’s right to use, duplicate, or disclose data delivered under a contract. Take Away: If you can’t track the funding through other means, ask the contractor for justification documentation.

61. Limited Rights Notice (52.227-14 Alt. II)
FAR Limited Rights
Limited Rights Notice ( Alt. II)
Limited Rights Notice (Dec 2007)
(a) These data are submitted with limited rights under Government Contract No. _____ (and subcontract ______, if appropriate). These data may be reproduced and used by the Government with the express limitation that they will not, without written permission of the Contractor, be used for purposes of manufacture nor disclosed outside the Government; except that the Government may disclose these data outside the Government for the following purposes, if any; provided that the Government makes such disclosure subject to prohibition against further use and disclosure: [Agencies may list additional purposes as set forth in (c)(1) or if none, so state.]
(b) This notice shall be marked on any reproduction of these data, in whole or in part.

62. Restricted Rights Notice (52.227-14 Alt. III)
FAR Restricted Rights
Restricted Rights Notice ( Alt. III)
Restricted Rights Notice (Dec 2007)
(a) This computer software is submitted with restricted rights under Government Contract No. _______ (and subcontract ________, if appropriate). It may not be used, reproduced, or disclosed by the Government except as provided in paragraph (b) of this notice or as otherwise expressly stated in the contract.
(b) This computer software may be—
(1) Used or copied for use with the computer(s) for which it was acquired, including use at any Government installation to which the computer(s) may be transferred;
(2) Used or copied for use with a backup computer if any computer for which it was acquired is inoperative;
(3) Reproduced for safekeeping (archives) or backup purposes;
(4) Modified, adapted, or combined with other computer software, provided that the modified, adapted, or combined portions of the derivative software incorporating any of the delivered, restricted computer software shall be subject to the same restricted rights;
(5) Disclosed to and reproduced for use by support service Contractors or their subcontractors in accordance with paragraphs (b)(1) through (4) of this notice; and
(6) Used or copied for use with a replacement computer.
(c) Notwithstanding the foregoing, if this computer software is copyrighted computer software, it is licensed to the Government with the minimum rights set forth in paragraph (b) of this notice.
(d) Any other rights or limitations regarding the use, duplication, or disclosure of this computer software are to be expressly stated in, or incorporated in, the contract.
(e) This notice shall be marked on any reproduction of this computer software, in whole or in part.

63. Restricted Rights Notice (52.227-14 Alt. III) (Short Form)
FAR Restricted Rights
Restricted Rights Notice ( Alt. III) (Short Form)
Restricted Rights Notice Short Form (Jun 1987)
Use, reproduction, or disclosure is subject to restrictions set forth in Contract No. _______ (and subcontract, if appropriate) with ________ (name of Contractor and subcontractor).