Ensuring that companies are adequately compensated for their intellectual property (IP), and their intellectual property is protected is crucial for Department of Defense (DoD) to incentivize investment in innovation and access new suppliers at the prime and subcontractor level. The discussion surrounding IP generally focuses on the government’s negotiated rights to, and the delivery of, two forms of IP under contracts; technical data and computer software. The allocation of rights and technical data required to be delivered depends on their function and which party paid for their development. At the onset of a program, program management is responsible for developing an IP Strategy, which considers the implications of various IP arrangements on competition and sustainment throughout the lifecycle.
The greatest challenge for the government is that it is best to negotiate for IP early in the acquisition process, however; that is also when it is most unclear what rights and data the government needs. Existing statute prohibits the government from requiring a potential contractor or subcontractor to sell or otherwise relinquish rights to technical data, however; industry has become increasingly concerned by the government’s incorporation of an offerors willingness to grant technical data rights into source selections or blanket requirements for government purpose rights (GPR).
Furthermore, inherent conflict exists between DoD’s desires for greater private investment in research and development and access to non-traditional and commercial companies’ innovations, and its preference for the modular open systems approach for major systems. Given the complexity of issues surrounding IP, and the implications for a host of related issues, NDIA suggested in its 2014 Pathways to Transformation report that Congress establish a Government-Industry Advisory panel to review relevant statutes contained in 10 U.S.C. § § 2320 and 2321. Congress heeded this suggestion, and established such a panel in section 813 of the Fiscal Year 2016 National Defense Authorization Act.