Nash & Gray: Emerging Issues in in IP/Data Rights – Part 2: Developments in the Aftermath of the Section 813 Panel; Issues on the Horizon

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Summary

This session will revisit and update the topics presented in Session 2 -- emerging issues in Government procurement of IP/data rights, including the new DoD IP policy and stand-up of the “IP Cadre;” an update of the most significant recent statutory, regulatory, and policy developments; and a forecast of what is likely to come next. (Note: In addition to our regularly-scheduled topic, we will revisit & wrap-up the tail-end of the Session 4 material regarding commercial data & software – topics listed for convenience below*) Developments in the Aftermath of the Sect ion 813 Panel; Issues on the Horizon:

Recap: The Section 813* Government-Industry Advisory Panel Final Report, November 2018 (* Sec. 813(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016);
Quick Recap: The Section 875* “Independent Review” of Department of Defense (DoD) Access to IP Rights of Private Sector Firms (for Weapon System Sustainment) (* Sec. 875 of the FY 2016 NDAA);
New! Standing up the DoD “IP Cadre” -- as required by Sec. 2322 of Title 10, United States Code (USC) (Management of IP matters within the DoD)
New! DoD IP Policy – DoD Instruction 5010.44, “Intellectual Property (IP) Acquisition and Licensing” (10/16/19)
What is the Army doing in the IP arena?
What is the Air Force doing in the IP arena?
What is the Navy doing in the IP arena?
Early Engagement on DoD IP Rulemaking: a planned series of public meetings on draft revisions to the Defense Federal Acquisition Regulation Supplement
IP related Legislation – what’s on the horizon for new statutory provisions, as well as implementation efforts for recent changes:
- What to expect in the FY 2010 National Defense Authorization Act
- Up-front negotiation of price for technical data for major weapon systems (10 USC 2439); and
- Consideration of certain matters during acquisition of non-commercial computer software (new 10 USC 2322a);
- Establishment of a preference for specially negotiated license rights (new 10 USC 2320(f));
- New statutory rights allocations to support Modular Open Systems Approaches (MOSA), including activities for the “segregation and reintegration” of proprietary technologies
- DoD’s mandatory right for “deferred ordering” of technical data
- Massive streamlining of the complex scheme of presumptions of development funding for commercial technologies and exceptions for major systems
- Limited authority for DoD to use and release asserted-proprietary data during the challenge & validation procedures
Revision of IP related elements of the Small Business Innovation Research (SBIR) Policy Directive, by the Small Business Administration (84 FR 12794, April 2, 2019); and

* Wrap-up of topics from Session 4: Commercial Technical Data & Commercial Computer Software

Does the government treat technical data and computer software pertaining to commercial items differently than technical data and computer software pertaining to noncommercial items?
Is there a definition of a commercial item?
Can the government accept the vendor’s standard commercial license when it buys commercial computer software?
Can the government allow competitors of the vendor to modify or upgrade commercial computer software?
Can the government modify or upgrade commercial computer software with its own employees?
How should a contractor deal with subcontractors furnishing commercial items?

Dates & Topics

Second Thursday of the Month (*exceptions)

12:00 pm – 1:30 pm (ET)

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April 11: Basic Principles Governing IP in Government Contracts; Government Use of Technology to Which is has Acquired No Rights

May 9: Emerging Issues in IP/Data Rights - New Legislation, the Section 813 Advisory Panel, and Beyond

June 13: Rights in Inventions & Patents; Introduction to Rights in Technical Data and Computer Software

July 11: Detailed Review of Rights in Technical Data and Computer Software; Special Rules for Commercial Technical Data and Computer Software

September 12: Determining the Requirements for Delivery and License Rights; Modular Open Systems Approaches

October 10: IP Rights Issues in Source Selections, and Negotiating Specialized Licenses or Deliveries

November 14: Emerging Issues in IP/Data Rights - Part 2: Developments in the Aftermath of the Section 813 Panel; Issues on the Horizon

*topics are subject to change*

Continuing Education Credits

CLP
2.0 credits per session; 10 credits for entire series

CPE (Business Law)
1.5 credits per session; 7.5 credits for entire series. (If a CPA claiming CPE credits, you should refer to respective state board requirements regarding acceptability on one-half CPE credits.)

CLE
1.5 credits per session; 7.5 credits for entire series (Pending Approval in VA)

CLE Jurisdiction Approval

This course has been approved for CLE in CA, OH, and PA, and is pending approval in VA.
PCI is an accredited sponsor, approved by the State Bar of Texas, Committee on MCLE. If credit is needed in TX, please contact PCI at least 45 days prior to the training.
Through reciprocity, CLE may also be received in AK, AZ, AR, CO, FL, HI, IL, ME, MT, NJ, NY, ND, OR, WA, WV, and WI (additional state requirements may apply).
If you are seeking CLE credits for a jurisdiction other than the ones listed above, please contact Jess@PublicContractingInstitute.com.

CEU
0.15 credits per session; 0.75 credits for entire series

PDU

This course can be submitted to Project Management Institute (PMI) for PDU. Upon their approval, it may be worth 1.5 PDU credits per session; 9 PDU credits for entire series