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My company produces a commercial item that it will supply to the DoD through its Prime Contractor as a first tier sub. As, we will make slight modifications to our item for the purposes of integration into the Prime's product for sale to the government, the Prime Contractor wants to negotiate rights to technical data, specifically asking for exclusivity "on behalf of the government" that we will not further market the item. I have asked the Prime if the government has specifically requested exclusivity. I didn't get a straight answer (a we want to protect the govts rights) but I assume as I did when the request was made that the answer is no. Prime confirmed that the modification is being funded under the USG contract and not by their own R&D. It seems to me that the push for exclusivity is coming from the Prime and not from the government. Either way I have a few questions:

1. If I'm understanding things correctly, we can grant to the government standard commercial rights under DFARS 252.227-7015 for our existing IP and government purpose rights under 252.227-7013. Is my assumption correct?

2. I believe that as the modification is minor, does not significantly alter the nongovernmental function or essential physical characteristic of the item or change the purpose of the process and therefore does not affect the commerciality of our product?

3. If commerciality is in tact can I assert -7015 rights for the entire product? (I don't think so. But if we can...)

4. We will grant the prime a limited use license for fulfillment of the requirements under the existing government contract. Any suggestions on language for this clause?

5. Are we required to assert data rights for our commercial IP? I'm not finding a requirement to do so but think it may be a good idea to eliminate confusion. Thoughts?

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I mean this in the nicest possible way: do you not have access to legal counsel? These are really important questions and I think you really need the best expert answer you can get. I'm not thinking this is the place for such answers, even if you get them.

In my experience, very very few senior contract folks would attempt you answer the questions you've asked; they would pick up the phone and call their attorney.That said, I have worked at different contractors and some have attorneys who are actively engaged and others do not. You may not be able to pick up a phone and WIFCON may be your best remaining option. If so, that's a shame, because you may have a lot of future revenue at stake. It would seem to be important to get the answers to these questions right.

Hope this helps

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Guest Vern Edwards

I agree with here_2_help, but there is an easy way to handle this.

It doesn't make sense to me that the Government would ask for "exclusive rights." Tell the prime to give you a letter signed by its contracting officer stating exactly what rights the Government wants in what specific technical data and to whom it wants you to give those rights and that upon receipt of that letter you'll seek legal advice. Tell the prime that until receipt of such a letter you cannot discuss the matter further.

You may be a subcontractor under a Government prime contract, but you don't have to be naive or stupid.

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