From a contractor’s perspective, intellectual property (IP) is a valuable corporate asset that can be used to generate revenue, create a competitive advantage, create barriers to entry by competitors, and act as a deterrent to litigation. The Government also needs to consider IP issues during the acquisition planning process to help promote competition, reduce lifecycle/O&M costs, and reduce reprocurement costs. Importantly, rights in technical data and computer software is not a separate area of intellectual property. Rather, it is a merger of copyright law, trade secret law, and contract law. In order to protect your company’s IP it is important to understand the definitions, types of rights, and the importance of marking technical data and software as required in the FAR and DFARS for defense contracts. Planning is required to maximize your company’s rights in technical data and computer software by complying with the Government’s requirements.
Definition. For Department of Defense contracts “Technical data” is recorded information, regardless of the form or method of the recording, of a scientific or technical nature. “Technical data” includes computer software documentation and computer databases (but not computer software). “Technical data” does not include data incidental to contract information, such as financial or management information (e.g., cost and pricing data). Nor does it include unrecorded information (e.g., general “know how” or “show how”).
Government Licenses. The technical data rights system in government contracts calls for the Contractor to get title and the Government to get a license. There are three general categories of government license rights in technical data and computer software:
- Unlimited rights;
- Limited rights (technical data)/Restricted rights (computer software); and
- Government purpose rights.
For defense contracts, each of these license rights is detailed in DFARS 252.227-7013. Continue Reading Protecting IP Rights in Technical Data and Computer Software – An Overview for Defense Contractors