On June 27, 2018, the Armed Services Board of Contract Appeals (ASBCA) held for the first time that the government, much as with commercial customers, does not affirmatively need to agree to or even be aware of a commercial computer software license to be bound by the terms of the license. In Appeal of CiyaSoft Corporation, CiyaSoft appealed a claim asserting that the Army had breached the terms of its license by using more copies of the software than were permitted. Specifically, CiyaSoft objected to the government’s installation of the software on multiple computers, passing the software to non-government personnel and copying of the software thousands of times without CiyaSoft’s consent. When CiyaSoft objected and ultimately filed a claim, the Army denied CiyaSoft’s claim asserting that the contract between the parties contained no specific terms regarding how the government would access, secure and protect the software.
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With every new administration, there is both great uncertainty and opportunity in federal government contracting. To help you navigate the rough seas of doing business with the federal government in this new administration, we have assembled nationally recognized practitioners who will cover topics relevant to government contractors large and small, novice and seasoned. Session topics

15184528727_f3716e1a52_oFrom 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.
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