Office of the Undersecretary of Defense (Acquisition, Technology & Logistics), Intellectual Property: Navigating Through Commercial Waters (Oct. 15, 2001) (full-text).
This guide is intended to provide a straightforward discussion of the information contracting officers need to negotiate IP arrangements. Such negotiations should strive to balance the needs of the Government and industry, resulting in a win-win solution.
- a description of the fundamental principles and concepts of negotiating IP rights;
- a foundational framework of IP's key aspects and its treatment in Government contracting;
- a description of the various planning activities, especially market research, that may reduce IP-related problems later in the acquisition process; and
- a description of the major IP issues that keep some companies from responding to Government solicitations, as well as possible solutions to attract their involvement.
In addition, this guide provides background and reference materials, included as appendices:
- Appendix A ("USD(AT&L) Policy Letters") presents the policy context against which this guide was created.
- Appendix B ("IP Basics—Supplemental Materials") provides a general understanding of the IP basics, including trade secrets, copyrights, trademarks, patents, technical data, and computer software.
- Appendix C ("Federal Acquisition Regulation Clause Summary") provides an easy reference and summary analysis of all IP clauses contained in the Federal Acquisition Regulation (FAR).
- Appendix D ("Defense Federal Acquisition Regulation Supplement Clause Summary") provides an easy reference and summary analysis of all IP clauses contained in the DFARS.
- Appendix E ("History") provides a chronological history of patent law and describes how technical data requirements came into the procurement process.
- Appendix F ("References") lists IP-related educational materials and references for further reading.
- Appendix G ("Intellectual Property Resources") identifies key agency points of contact available to provide advice and strategies as needed.
Throughout this guide, the FAR and DFARS clauses relating to IP are discussed. The specific terms in this guide are primarily focused on FAR-based contracts. However, the solutions cited here can be applied, with appropriate legal counsel, to negotiating alternative vehicles such as “other transactions,” cooperative agreements, cooperative research and development agreements (CRADAs), and grants.
This guide's primary focus is on the issues associated with nontraditional Defense contractors in commercial industry. Traditional Defense contractors have similar issues, but, because of their familiarity and long-standing involvement, they have a better working understanding of the FAR and DFARS clauses. With either non-traditional or traditional contractors, the Government's policy is to obtain only the minimum necessary rights.