Subcommittee on Improving IP Protection

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Subcommittee on Improving IP Protection

Subcommittee on Improving Intellectual Property Protection for Small Businesses

Information on previous meetings can be found at the links below.

The following survey is being used to collect information on specific examples of follow-on contracts that have received Phase III SBIR status in the contract award. The SBIR policy directive states that an agency official may determine, using the criteria set forth in the Directive as guidance, whether a contract or agreement is a Phase III award. The NDIA IP Protection subcommittee had previously issued a survey(link below) to NDIA small business division members soliciting feedback on IP protection issues of concern. Responses to this survey highlighted that different agencies used different criteria for determining whether a contract or agreement should have Phase III status. Also, some small businesses referred to cases where they believed that their contract or agreement should have received Phase III contract status in accordance with the Policy Directive but the agency had disagreed. The information collected by this survey will be summarized for use by the SBA in providing more specific guidance to agencies on when a follow on contract should be granted Phase III status.

Click here to take the survey on SBIR Data Rights Protection under Phase III contracts

The following is the survey soliciting feedback on IP protection issues of concern.

Click here to take the survey on IP protection issues of concern

Background

At the May 2008 DoD Procurement Conference in Orlando, run by the Council of Defense and Space Industry Associations and chaired by the Director of Defense Procurement and Acquisition Policy (DPAP), a recurring topic of discussion was the need to improve the ability to insert component technologies into large contracts to stimulate competition and reduce over-all program risk. The comments attached below from Sec. John Young (USD (AT&L)) were quoted as an example of the concern at OSD over using subcontracts to primes as the means to achieve technology component insertion. Sec Young's view was that program offices should go directly to the small company as otherwise the DOD's access to innovation would be limited due to perceived risks to Intellectual Property (IP) protection for small businesses when working as a subcontractor. The argument was made from both large and small business perspectives that the acquisition process would be improved by creating better incentives to Prime contractors to bring in outside components and by providing small businesses with a comfort level that their intellectual property would be protected in the Prime/Subcontract relationship.

Sec John Young USD(AT&L) on the Small Business: Balancing Objectives &
Resources: "Dear AT&L Team Members, We should all work together to streamline the placement of contracts. However, we cannot let the challenge of placing contracts lead to bad decisions and behaviours. I have encountered a couple of examples in this area. In one specific case, a small firm proposed a concept for a component upgrade to a DoD system. The program office urged the small company to go to the prime contractor with their product. In certain cases, where there are integration risks, this may be appropriate. In this case, there was virtually no integration risk. The reality was that the Defense Department would be charged significantly greater costs for buying the component through a prime. The small firm was urged to go to the prime solely for the convenience of using the existing prime contract. Further, this flawed approach potentially limits DoD's access to innovation because many firms will feel their intellectual property is put at risk through the prime contract process."

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Mission Statement

The mission of this subcommittee is to explore methods of improving Intellectual Property protection for small businesses in Prime/Subcontractor relationships to address the concerns raised by Sec Young and industry; specifically, that DoD's access to innovation is being limited because many firms feel their intellectual property is put at risk through the prime contract process. The subcommittee shall report back to NDIA leadership with recommendations on how NDIA could support their small business and Prime contractor members with solutions to address improved IP protection in order to improve DoD’s access to innovations through the Prime/Subcontract process.

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Subcommittee Objectives

The subcommittee will:

Solicit input from small businesses on previous IP issues where they felt that their Intellectual Property was put at risk through the prime contract process.
Solicit input from Prime contractors on success stories they have had with Prime/Subcontract relationships where technology component insertion was accomplished and Intellectual Property protection maintained.
Compile case studies of examples of good and bad situations regarding technology component insertion using the Prime/Subcontract process.
Hold subcommittee meetings to get input from industry, professional and DoD representatives on methods of improving Intellectual Property protection.
Hold subcommittee meetings to extract key lessons learned from the input received and from case studies compiled from NDIA members.
Investigate options put forward for improving small business Intellectual Property protection in the Prime/Subcontract process.
Prepare a list of recommendations for consideration by NDIA leadership where NDIA could engage with their members to provide solutions to address improved IP protection in order to improve DoD’s access to innovations through the Prime/Subcontract process.
Prepare a list of recommendations for consideration by NDIA leadership where NDIA could recommend changes to OSD in Defense Procurement and Acquisition Policy which would improve DoD’s access to innovations through the Prime/Subcontract process.