1. Intellectual Property Issues in DoD Contracting
Panel Presentation for the North Alabama Chapter
Federal Bar Association
2011 Acquisition Law Symposium, Huntsville, Alabama
3 November 2011
Views expressed in this presentation are those of the authors and do not necessarily reflect the official policy or position of the U.S. Army, Department of Defense or Government.
02 Nov 2011
UNCLASSIFIED

2. Panelists Richard Gray Professor Ralph Nash George Winborne
Associate General Counsel (Acquisition & Logistics)
Department of Defense, Office of General Counsel
Professor Ralph Nash
Professor Emeritus of Law
George Washington University
George Winborne
Intellectual Property Attorney
U.S. Army Materiel Command, Office of Command Counsel
02 Nov 2011
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3. Overview Opening Remarks – Winborne
Data Rights in DoD Procurements: Statutory & Regulatory Developments - Gray
Anything he wants to say – Nash
Panel discussion – audience questions
02 Nov 2011
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4. A Fundamental Principle of the U. S
A Fundamental Principle of the U.S. Economy – Intellectual Property Rights
Protection of intellectual property rights (IPRs)—e.g., patents, copyrights, trade secrets—promotes innovation, creativity, and investment of capital thus promoting economic growth and providing greater social utility.
02 Nov 2011
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5. A Fundamental Principle of the U.S. Economy – Competition
Competition reduces prices to consumers and enhances efficient use of resources thus promoting social utility.
However, IPRs, by definition, limit competition by granting certain exclusive rights to the rights holder for a period of time.
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6. 10 U.S.C. § 2320
Requires DOD Regulations for technical data (software DFARS only)
Requires respect for IPRs but establishes a default Government licensing scheme
Some rights mandatory
Some rights depend on development funding
Some rights negotiable
Prohibits conditioning of contract award on surrender of certain IPRs from exclusive private development
02 Nov 2011
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7. DFARS Policy
Acquire only the commercial item technical data customarily provided to the public except data:
Form, fit, function
Repair, maintenance, installation, operating, or handling
Describing modifications made at Government expense
02 Nov 2011
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8. DFARS Policy
DoD policy (on data for noncommercial items) is to acquire only the technical data, and the rights in that data, necessary to satisfy agency needs.
However, this begs the question: “What rights are necessary to satisfy agency needs?”
02 Nov 2011
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9. Contact Information
George O. Winborne Intellectual Property Attorney AMCCC-BBI Office of Command Counsel U.S. Army Materiel Command Redstone Arsenal, AL Phone (256) DSN
02 Nov 2011
UNCLASSIFIED