Rights in Technical Data & Computer Software in Government Contracts

An essential twoday program for Government contract professionals.

Includes coverage of Data Rights issues in Federal Supply Schedule contracting, new developments in Open Source Software issues, and the FAR Part 27 Plain English Rewrite.

Coverage of new developments in both defense and civilian agency procurements.
Special coverage of the final DOD regulations and of the Information Technology Management Reform Act (ITMRA).
How product ownership is negotiated and determined.
Contractor and Government options, rights, and responsibilities.

If you’re involved in Government contracting, you undoubtedly know how vital patents, technical data, and computer software rights are. If you don’t know, then you must learn, for these rights mean product ownership of intellectual property in both the present and future, and how ownership will be determined between the Government and the contractor.

It is, however, an unusually complex area containing a wide range of variables and circumstances. In addition, the difficulties are compounded by the Government’s determination to completely retain title to the patents and technical data for products it has contracted for, and from the unique problems that can arise when computer software is the product at hand.

The purpose of this specialized program is to provide the most practical information possible on computer software, patents, and technical data rights from the perspective of both the Government and contractors and their professional advisors. It is a clear, incisive analysis of each side’s rights, responsibilities, and remedies.

The detailed Course Curriculum tells the story. In addition, the program will be presented by an expert Course Faculty — Government contract professionals with exhaustive experience in this crucial area of procurement who have authored an extensive Course Manual for participants.

Rights in Technical Data & Computer Software in Government Contracts Course Curriculum

Data Rights Policies-The Competing Interests
1. Government
  1. As buyer
  2. As maker of economic policy
2. Contractor
  1. Developers
  2. Parts replicators
The Allocation of Rights
1. Unique Concepts and Terms
2. The Basic Clause
3. Military vs. Civilian Rules
4. Frequent Changes
5. Rights in Drawings, Not Technology
6. Licenses vs. Ownership
7. Development and Source of Development Funding
8. Government Enforcement
9. Administrative Burdens
10. Seeking Compromise
Regulatory Revisions
1. Early Protection of Proprietary Data
2. Multiple Revisions of Data Rights Policies
3. Cause of Recent Changes
  1. Section 800 Committee
  2. Section 807 Committee
  3. National Performance Review
  4. Federal Acquisition Streamlining Act
Technical Data and Computer Software Defined
1. Technical Data
2. Computer Software
3. Commercial vs. Non-Commercial
  1. Current regulations
  2. Proposed regulations
Unlimited Rights in Software and Technical Data
1. What Are “Unlimited Rights”?
2. What Technical Data Must Be Delivered with Unlimited Rights?
  1. Items developed with Government funds
  2. Data developed with Government funds
  3. Experimental, research data
  4. Changes to Government-furnished data
  5. “Form, fit, and function” data
  6. Manuals
  7. Publicly available and non-secret data
  8. Otherwise-defined unlimited rights data
  9. Expired-rights data
  10. Commercial technical data
3. What Computer Software Must Contractors Deliver with Unlimited Rights
  1. “Required to be originated” or “generated as a necessary part”
  2. Adoption of unlimited rights categories of technical data
  3. Corrections to Government-furnished software and public software
  4. Software resulting from experimental research
  5. Databases
4. Rights in Undelivered Data
Limited Rights in Technical Data
1. “Limited Rights” Defined
2. Data That May Be Delivered with Limited Rights
  1. “Item, component, or process”
  2. “Developed”
  3. “At private expense”
3. Confidentiality and Marking
4. Commercial Technical Data
Restricted Rights in Computer Software
1. What Software Qualifies for Restricted Rights
  1. Current and proposed regulations
  2. Segregation of computer code
  3. Development of software
2. Noncommercial Software
3. Commercial Software
4. Marking Requirements
5. Current and Proposed Regulations
GPLR and GPR
1. Government Purpose License Rights
2. Government Purpose Rights
3. What They Are
Non-Standard Rights
1. In the Current Regulations
2. In the Proposed Regulations
Protecting Rights in Technical Data and Computer Software
1. The Essentials
  1. Develop at private expense
  2. Retaining evidence
  3. Avoiding development of items directly in performance
  4. Providing written notice prior to award
  5. Giving notice during performance
  6. Reaching agreements
  7. Marking data and software
  8. Protecting proprietary information
2. Desirability of Reviewing Past Deliverables
  1. Why audit past deliverables?
  2. How to accomplish an audit
3. Instituting Practices to Protect Future Deliverables
  1. Desirable practices
  2. What records to retain
4. Recognizing Danger Signals in Solicitations
  1. Descriptions of deliverables
  2. Looking at the boilerplate
  3. Estimating what will have to be developed
  4. Calling for help
  5. The eight recurring duties
Licensing: A Solution to Data Rights Disputes
1. Modified Government Purpose Licenses
2. Technical Assistance
3. Payments to the Contractor
4. Delivery of Data Packages and Qualification of Vendors
5. Term of the License
6. Postponement of Disputes
7. Conditions of Protection and Security
8. Warranties and Indemnification
9. Additional Considerations for Software
Remedies for Misuse of Proprietary Information
1. Administrative Remedies
  1. Withholding payments and termination
  2. Starting the validation process
2. Contractor Remedies for Threatened Disclosure
  1. Injunctive relief
  2. Bid protest remedies
3. Contractor’s Remedies for Actual Release
  1. District Courts
  2. Court of Federal Claims
  3. Boards of Contract Appeals
Patent Rights
1. Government Rights
2. Government Acquisition of Principal Rights
3. Contractor Retention of Principal Rights
4. Deferred and Greater Rights Determinations
5. Proposal Of Equivalent Merit
6. Selecting Appropriate Contract Clauses
7. Reversionary Interests
8. Disputes Over Patent Rights
9. Remedies for Infringement
Using the Freedom of Information Act
1. The Act
2. Obtaining Information
3. Protecting Contract Information

The Course Faculty

Louis D. Victorino Practices law in the Washington, D.C. office of Sheppard Mullin Richter & Hampton LLP • Mr. Victorino’s practice involves both counseling and litigation in the Public Contract Law field, representing domestic and foreign concerns that sell products or services to Federal, State, or local government agencies. In his 33 year career, he has litigated in excess of forty matters before the Court of Federal Claims, the Boards of Contract Appeals, the Comptroller General, various state and Federal District Courts • Mr. Victorino has also participated in multiple International Chamber of Commerce and American Arbitration Association arbitrations • Admitted to the bars of the District of Columbia, California, U.S. Court of Federal Claims, and the Federal District Courts for the Northern and Central Districts of California, Colorado, Idaho, Michigan, Rhode Island, and Washington • Graduate of Stanford University, and the UCLA School of Law, where he was an Associate Editor of the UCLA Law Review • Author and lecturer on Government Contracts Law including:

"The Patent Rights and Technical Data Rights Clauses," Chapter 1, Rights in Technical Data and Patents Under Government Contracts (Federal Publications Seminars LLC)
"Practical Tips and Considerations for Subcontract Negotiations: A Subcontractor's Perspective, " Briefing Papers
"Enforcing Data Rights, Briefing Papers
"More Contract Clauses (the Inspections, Warranty, and Termination Clauses)," Chapter 6, Fundamentals of Government Contracting (Federal Publications Seminars LLC)
"Multiple Award Task & Delivery Order Contracts" Briefing Papers
"Advanced Subcontracting," Chapter 1, Teaming Agreements & Advanced Subcontracting Issues (Federal Publications Seminar LLC)

W. Jay DeVecchio Partner in the Washington, D.C. 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.• 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.