On June 21, 2016, DoD published a notice in the Federal Register indicating that an advisory committee is seeking information to facilitate its review of 10 U.S.C. §§ 2320 and 2321 regarding rights in technical data and the validation of proprietary data restrictions. This is an excellent opportunity for contractors, Government contracts counsel, and others to provide input into rules that play an important role in DoD procurements involving rights in technical data. The notice requires submission of written comments in the very near future—on or before July 21, 2016. The Panel must submit its final report and recommendations to the Secretary of Defense no later than September 30, 2016.

Section 813 of the National Defense Authorization Act for FY 2016 required DoD to establish a Government-Industry Advisory Panel to review §§ 2320 and 2321 and the implementing regulations to ensure that such requirements are best structured to serve the interests of taxpayers and the national defense. The Panel must give appropriate consideration to the following factors: (A) ensuring that DoD does not pay more than once for the same work; (B) ensuring that DoD contractors are appropriately rewarded for their innovation and invention; (C) providing for cost-effective reprocurement, sustainment, modification, and upgrades to DoD systems; (D) encouraging the private sector to invest in new products, technologies, and processes relevant to DoD missions; and (E) ensuring that DoD has appropriate access to innovative products, technologies, and processes developed by the private sector for commercial use.

The Panel has held two open meetings, one on June 7 and another on June 21. A Federal Advisory Committee Act website provides information related to the meetings, including links to numerous documents associated with each meeting. For example, one of the documents is a May 31, 2016 letter from Aerospace Industries Association providing comments on topics for the June 7 meeting.

The June 21 Federal Register notice specifically seeks comments on nine items, summarized as follows:

  1. Any issues, concerns, benefits, and/or appropriateness of §§ 2320 and 2321.
  2. Any issues, concerns, benefits, and/or appropriateness of DFARS subparts 227.71 and 227.72 and associated clauses.
  3. Any issues, concerns, benefits, and/or appropriateness of DoD's policy and guidance on IP strategy and management.
  4. Any issues/concerns associated with whether and how DoD personnel are prepared and equipped to implement DoD's IP policy and guidance, and/or the governing statutes and regulations.
  5. The current approach in regulation (DFARS 227.71 and 227.72) of extending and adapting the scheme of §§ 2320 and 2321 to apply to computer software, including the approach whereby most of the statutory scheme is applied to noncommercial computer software but not to commercial computer software.
  6. The current approach in regulation of treating "Rights in Technical Data" and "Rights in Computer Software and Computer Software Documentation" as two separate topics/subparts (i.e., DFARS 227.71 and 227.72, respectively).
  7. The applicability of §§ 2320 and 2321, and the implementing regulations, to contracts and subcontracts for commercial items.
  8. Practices used by DoD in acquiring IP from non-traditional contractors, commercial contractors, and traditional contractors.
  9. IP acquisition practices used by DoD that encourage or discourage use of commercial technologies.

The June 21 Federal Register notice also includes other factors and considerations that provide additional information to be used in providing comments on the nine items listed in the notice.

Again, this is an excellent opportunity for interested parties—including commercial companies interested in performing DoD contracts—to provide input into what may be the foundation for significant changes in rules governing rights in technical data under DoD contracts.

Originally published on June 28, 2016

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