A special program for Government contract professionals — key guidance and analysis for software developers, suppliers, contractors, professional advisors, and Government buyers.
Two concentrated days on the most critical issues software providers and Government purchasers face when dealing with licensing. — How to ensure product protection and contract efficiency while minimizing problems and disputes. Learn how to succeed and manage the process at every step with the dynamic information presented in this course:
- Analysis of how software developers can protect proprietary information.
- The danger signs and warning signals to look for in solicitations.
- Up-to-date reviews of the latest regulations and DFARS requirements.
- Government and contractor rights and responsibilities.
- Detailed review of the types of licenses available and how they should be written.
- How licensing is affected by the way software development is financed.
- Includes coverage of the new plain language rewrite of FAR part 27
The regulations and contract clauses pertaining to the Government’s rights when obtaining licenses to computer software programs and documentation are complex and highly unique, differing greatly from commercial transactions. The software licensing landscape had changed greatly from a threeyear rewrite by the Department of Defense and from acquisition streamlining legislation. The result was an entirely new Part 227, Rights in Technical Data and Computer Software, of the Department of Defense Federal Acquisition Regulation Supplement (the DFARS). And there are new developments.
These licensing regulations contain clauses dedicated exclusively to computer software documentation. They substantially revise the basis on which a contractor can assert proprietary interests when licensing software products to the Government. These changes join the wide range of regulations, rights, and responsibilities already in existence on the licensing of commercial and specially contracted for software. In short, this is a complex, dynamic subject — one that software providers must know about, understand, and be able to effectively manage at every step.
This special course provides clear, authoritative analysis and instruction on software licensing, offering answers to vital questions and issues including:
- How can software providers/contractors maximize their rights and product protections?
- What types of licensing rights are available? How should they be written?
- What software and documentation do the new regulations require to be delivered with a license for unlimited rights?
- What danger/warning signals should you be looking for in solicitations?
- How do the new regulations define software “developed at private expense”?
- How is the licensing software treated when it is developed withindirect costs?
- How can proprietary source codes be protected?
- How can software developers protect proprietary applications to which the standard contract language would give the Government unlimited rights?
The Course Curriculum
-
- When the Government Buys/Licenses Intellectual Property: The Foundations
- The Basics Clauses
- Military and Civilian Rules
- Frequently Changing Rules
- Rights in Paper and Code-Not Technology
- Licenses, Not Ownership
- Development as a Key Concept
- The Source of Funding
- Government Enforcement
- Administrative Burdens
- Resolving Disputes
- Technical Data and Computer
Software Defined
- What Is Technical Data? What Is Not?
- Computer Software
- Commercial vs. Noncommercial
- 1988 regulations
- 1995 regulations
- Data rights clause
- Commercial item purchases
- Unlimited Rights in Technical Data
and Software
- "Unlimited Rights" Defined
- Technical Data & Unlimited Rights
- Items developed with Government funds
- 1988 and 1995 regulations
- Data created with Government funds
- Experimental, research data
- Changes to Government-furnished data
- "Form, fit & function data
- Manuals
- Publicly available & non-secret data
- Other categories
- Expired-rights data
- Commercial technical data
- Computer Software & Unlimited Rights
- "Required to be originated" or "generated as a necessary part"
- Adoption of unlimited-rights categories of technical data
- Corrections to Government furnished software & public software
- Software resulting from experimental research
- Databases
- Rights In Non-Deliverables
- Limited Rights in Technical Data
- "Limited Rights" Defined
- Technical Data and Limited Rights
- "Item, component or process"
- "Developed"
- "At private expense"
- Confidentiality & Marking
- Commercial Technical Data
- Restricted Rights in Computer
Software
- 1988 and 1995 Regulations
- FASA Revisions
- Software & Restricted Rights
- Noncommercial Software & Restricted Rights
- Commercial Software & Restricted Rights
- Marking Requirements
- Government Purpose and
Nonstandard Rights
- Government Purpose License Rights
- Nonstandard License Rights
- Licensing Considerations and Issues
- Litigation
- Licensing "Government Purpose" Rights
- Modified Government purpose licenses
- Promising technical assistance
- Payment
- Delivery of data packages and qualification of vendors
- Term of license
- Postponement of disputes
- Protection and security of data
- Warranties and indemnification
- Special considerations
- Licensing Commercial Software
- Problems with current licenses
- Five regulatory schemes
- What rights does the Government take?
- How to mark commercial software
- When Is Software Commercial?
- "Offered for license" test
- "Source of funding" test
- Two tests combined
- Modified commercial software
- Modified from a Government version
- Writing The Standard License
- Addressing Federal purchases
- Calling the software commercial
- Including language from previous DFARS
- Specifying other useful terms
- A suggested license
- Variants
- Protecting Rights in Technical Data
and Software When Involved in
Licensing
- Contractors' Essential Duties & Strategies
- Develop at private expense
- Keep evidence
- Avoid developing items directly in performance
- Refine the scope of "Government purposes"
- Provide written notice prior to award
- Give notice during performance
- Reach agreements
- Mark data and software
- Protect proprietary information
- Taking advantage of every commercial product possibility
- Reviewing Past Deliverables
- Why audit them?
- How to accomplish an audit
- Protecting Future Deliverables
- Practices
- Records
- Spotting Danger Signals In Solicitations
- Reviewing the descriptions of what is to be delivered
- Analysis of boilerplate wording
- Estimate of what will have to be developed
- Considering calls for help
- Reviewing the recurring duties
- Contractors' Essential Duties & Strategies
- Remedies for Licensing Problems
- The Government's Administrative Remedies
- Withholding payments and terminating
- Statutory requirements for resolving disputes
- Validation Procedures
- Duration of right to challenge
- Request for information
- Challenge
- Final decision
- Appeal or suit
- Developers' Remedies for Threatened Disclosure-Injunctive Relief
- Form of remedy
- Purpose of action
- District Court actions in non-Scanwell suits
- Court of Federal Claims
- Remedies In Bid Protest Cases
- The Scanwell suit in the District Courts
- Bid protest suits in US Court of Federal Claims
- Bid protests in the GAO
- Software Developers' Remedies For Release
- Damages in Court of Federal Claims for breach of contract
- Equitable adjustments in the Boards of Contract Appeal
- The Government's Administrative Remedies
- When the Government Buys/Licenses Intellectual Property: The Foundations
Course Faculty
W. Jay DeVecchio Partner in the Washington, DC law offices of Jenner & Block, concentrating on Government procurement issues. Mr. DeVecchio's practice includes litigation and counseling in virtually all areas of procurement law, including Medicare, TRICARE, and FEHBP matters, as well as representation in related issues such as criminal and civil fraud, qui tam actions, and internal investigations. His principal clients are in the aerospace, health care, and service industries.
Mr. DeVecchio has written and spoken extensively. He is a guest instructor at the University of Virginia, as well as the George Washington University Law School government Contracts Program, and he lectures nationwide for Federal Publications. He conducts seminars on a wide range of subjects, including Contract Pricing, Compliance Programs, the Anti-Kickback Act, Qui Tam Litigation, Rights in Technical Data and Computer Software, Claims, and Teaming Agreements. Mr. DeVecchio also has developed and appears in a series of training videotapes, used by over one hundred companies, addressing Labor Charging, Materials Charging, and Procurement Integrity. Mr. DeVecchio holds an Undergraduate degree, cum laude, from Duke University, law degree, with distinction, from the Catholic University School of Law where he served as an Editor of the Law Review.