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Scenario – a small business has an SBIR contract. One of its subcontractors is a large business. The SBIR data rights clause (DFARS 252.227-7018) is in the prime contract. The clause grants SBIR data rights to all technical data developed under the contract (essentially equivalent to limited rights). The clause (at (k)(2)) says that it is to be inserted in all subcontracts without alteration except to identify the parties. It also says that no other clause shall be used to enlarge or diminish the rights of the government, or the contractor in any subcontractor's technical data. The question – can the large business assert SBIR data rights in any data it has to deliver, thus getting the same 20-year protection as the SBIR prime? On the one hand, the clause does not limit its application to only small business subcontractors. If it goes in the subcontract without alteration, as (k)(2) says, then the large sub can deliver any data it develops with SBIR data rights. Also, SBA materials on its SBIR website do not distinguish between large and small subcontractors, which suggests they get treated the same. I could find nothing that limits the SBIR data rights protection only to a small business subcontractor. On the other hand, one would think that the favorable treatment of data developed under an SBIR contract would only be extended to the SBIR contractor or to other small businesses.
Hi all, Background: Prime has given us a set of instructions on how Data Rights should be asserted/marked, etc for a contract. DFARS 252.227-7013 (instructions on how to mark GPR, LR, etc) . They include a note that we (the sub) have to give permission to remove our proprietary markings for submission the USG. We are asserting limited /unlimited rights on the technical data. From my reading of the clause, I understand the regulations are clear on what can or can not be marked when submitting to the USG. Question: What are the best ways to protect our limited rights data from both the prime/ USG if we have to give permission to the prime to remove our proprietary markings? I've done some research with some mentioning that a specific NDA should be signed to address these things and specifying that the prime must assert the same limited rights statement on their submission as the original. I just wanted to pick everyones' brains and see if others have dealt with this in different manners or if they even see it as an issue? Senior management is pushing that we push back, not give our explicit permission and inform them that they can notify us if any data with limited rights asserted will be needed to submit to the USG and we would give our written permission once evaluating the request. Would you say that's a standard approach as well? Just trying to see if there is an industry standard on how this is addressed. Thanks in advance.
I had a question presented to me about Intellectual Property and appropriate marking of data under a government contract. Specifically, the since the FAR/DFARS outlines in detail markings for limited, government purpose, and special license rights but is otherwise silent on unlimited rights markings. The work related to this drawing was properly segregated and identified as being produced solely with government funds for the first time under the government contract. The person asking the question assumed this meant government ownership of the drawing with a license to my Company. Protocol at my company is to mark our developed drawings with the “XYZ Company propriety” statement which may pose a conflict. My quick response was no, we can’t include the “proprietary” statement on the drawings. The DFARS defines the acceptable markings. There are no “unlimited rights” marking requirements for IP submitted to the U.S. Government. Another Contracts Administrator more senior was also consulted however, and told them that we can and should include our proprietary marking. I believe we should only mark with a distribution statement as defined by the customer, an ITAR statement and a maybe copyright notice. Please advise as to whether or not I'm misinterpreting the DFARS/FAR on marking of IP. In my response to the person posing the question I also offered the following : Although this drawing is developed under the government contract with government funds, unless specifically requested in the contract, ownership remains with our company but the government has unlimited rights. This gives the government (and our company) the right to use, disclose, reproduce, prepare derivative works, distribute copies to the public, publicly perform and display the material in any manner and for any purpose it desires (ITAR limitations would apply). With regards to My Company’s proprietary marking, the “XYZ proprietary" would be nonconforming as 252.227-7013(f) states what markings are permitted – “proprietary” not being one of them for documents delivered to the customer. We would still be able to use this marking on the document otherwise. There are no required markings in instances where the government has unlimited rights. The purpose of the markings are to clarify the government’s rights. Any unmarked deliverable will be presumed unlimited. Although Unlimited rights gives the government the right disclose and distribute, those rights don’t automatically imply that the government WILL disclose or distribute. In this case a Copyright may offer, and our company may want to consider some level of protection against those who illegally obtain the IP. DoD generally allows the contractor to own the copyright for original works created under a DoD contract (DFARS 227.7103-9, DFARS 252.227-7013-4). In such cases, the government obtains a nonexclusive, royalty-free license to use the copyrighted material in perpetuity. NOTE: This license allows any government agency (not just the original contracting agency) to use the copyrighted material. Copyright markings, are allowed in accordance with this same paragraph as prescribed under 17 U.S.C. 401 or 402. We will need to request authorization for copyright in accordance with 52.227-14. Articles are not required to be marked or registered to be considered copyrighted. Should we decide to copyright the IP, we would need to include wording similar to this below/or other wording approved by our Legal department: ©2014 XYZ Company Inc. This work, authored by XYZ Company Inc, was funded in whole or in part by the U.S. Government under U.S. Government contract #xxxxxx, and is, therefore, subject to the following license: The Government is granted for itself and others acting on its behalf a paid-up, nonexclusive, irrevocable worldwide license in this work to reproduce, prepare derivative works, distribute copies to the public, and perform publicly and display publicly, by or on behalf of the Government. All other rights are reserved by the copyright owner.