The document discusses data rights in the Department of Defense. It notes that data is handled differently depending on whether it involves a CRADA (Cooperative Research and Development Agreement), public assistance agreement, or contract. Major issues concerning data rights include data deliverables not being defined, using the wrong vehicle (e.g. public assistance for deliverables), deliverables not being reviewed properly, and contracts missing the right clauses around technical data and commercial vs. non-commercial data. The presentation provides guidance on understanding data requirements, the different vehicles for acquiring data, and one's role in the data acquisition process to help address these issues.
1. Data Rights
In the Department of Defense
3/28/2012
1
USAMRAABi-MonthMeeting
2. Disclaimers
2
DISTRIBUTION STATEMENT A. Approved for public release; distribution is unlimited.
U.S. GOVERNMENT DISCLAIMER NOTICE. The views expressed in this
presentation are those of the author and do not necessarily reflect the
official policy or position of the Department of the Army, Department of
Defense, or the U.S. Government. The information appearing on this
presentation is for general informational purposes only and is not
intended to provide legal advice to any individual or entity. Please
consult with your own legal advisor before taking any action based on
information appearing in this presentation or any sources to which it may
cite.
UNLESS OTHERWISE STATED
3. Who is this guy?
Marcus A. Streips
Attorney-Advisor (Intellectual Property)
United States Army Medical Research & Materiel Command
Office of the Staff Judge Advocate
521 Fraim Street
Fort Detrick, MD 21702
3/28/2012
3
USAMRAABi-MonthMeeting
5. USAMRMC Vision
We are the world’s experts and leaders in
the military relevant biomedical research
and medical materiel communities,
delivering the best medical solutions to
enhance, protect, treat, and heal our
Warfighters.
3/28/2012
5
USAMRAABi-MonthMeeting
6. Definition:
research |rēsərCH, risərCH|
noun
the systematic investigation into and study of materials and sources in order to
gather information and establish facts to reach new conclusions
information |infərmāSHən|
Noun
data that is processed, stored, or transmitted.
data |datə, dātə|
noun [ treated as sing. or pl. ]
facts and statistics collected together for reference or analysis. See also datum.
Source: New Oxford American Dictionary
3/28/2012
6
USAMRAABi-MonthMeeting
7. MRMC Mission is to develop
Data
Research Information Data
3/28/2012
7
USAMRAABi-MonthMeeting
8. How is Data Handled in the
DoD?
Data in
the
DoD
Public
Assistance
ContractCRADA
3/28/2012
8
USAMRAABi-MonthMeeting
9. CRADAS
Federal Technology Transfer Act of 1986
15 USC § 3710
• Cooperative R&D Agreements (CRADAs)
• Must be a lab, must be R&D
• Government can give resources but NOT funds (CICA)
• No competition required
• Partner has option for exclusive license
• Established incentives for laboratories and researchers
• Army Regulation 70-57 and DODI 5535.8
3/28/2012
9
USAMRAABi-MonthMeeting
10. CRADAS
A CRADA is a specific legal document (not a procurement contract) which
defines the collaborative venture. It is intended to be developed at the
laboratory level, with limited agency review.
The USAMRMC Office of Research and Technology Applications (ORTA)
coordinates Cooperative Research and Development Agreements (CRADAs),
Material Transfer Agreements (MTAs), Interagency Agreements (IAAs),
Nondisclosure agreements (NDAs), and other technology transfer
transactions.
Federal Technology Transfer Act of 1986
15 USC § 3710
3/28/2012
10
USAMRAABi-MonthMeeting
11. Public Assistance Agreements
Stevenson-Wydler Technology Transfer Act of 1980
15 USC § 3701 (as later amended)
• (DoDGARS) DoD 3210.6-R
• Covers Assistance Instruments (Grants/Cooperative
Agreements)
• Public Purpose / No Profits / NOT Goods & Services
• Classified by level of Involvement (collaboration)
• Merit-Based/Competitive Award Procedures
3/28/2012
11
USAMRAABi-MonthMeeting
12. Public Assistance Agreements
Stevenson-Wydler Technology Transfer Act of 1980
15 USC § 3701 (as later amended)
• Part 32 - Non-Profit Organization (section 32.36)
• Part 34 – For-Profit (section 34.25)
• Both rely on “Federal Purpose” license (data)
• ISSUE - No contemplation of deliverables
• ISSUE – Few rules regarding data
3/28/2012
12
USAMRAABi-MonthMeeting
13. Contracts
• DoD does NOT use FAR clauses in most cases (DFAR 227.400)
• FAR 52.227-14 -- Rights in Data – General (Not Tech/Software).
• DFARS Subpart 227.71-- Rights in Technical Data
• DFARS Subpart 227.72-- Rights In Computer Software & Docs.
• Commercial vs. Non-Commercial
• DFAR Default Non-Commercial Clauses: (255.227-7013/7014)
• Commercial Software/Data Policy (227.7202-3/227.7102-1)
3/28/2012
13
USAMRAABi-MonthMeeting
14. Contracts
• K Owns Title to Copyrights except Special Works (DFARS 255.227-7020)
• K Must Provide Assertion List/Restrictive Legends prior to Award
• Government Receives 1 of 3 Licenses:
1. Unlimited
2. Government Use
3. Restricted - Limited (no less than)
• Parties MAY negotiate special terms
• Contractor must secure third party copyrights
• Use commercial terms not contrary to federal law (FAR 52.215-8)
• SBIR contracts have special rules regarding data!
3/28/2012
14
USAMRAABi-MonthMeeting
15. Issues
1. DATA DELIVERABLE NOT DEFINED
2. WRONG VEHICLE UTILIZED
3. DELIVERABLES NOT REVIEWED
4. WRONG/MISSING CLAUSES
3/28/2012
15
USAMRAABi-MonthMeeting
17. Describing Requirement
3/28/2012USAMRAABi-MonthMeeting
17
SUBPART 215.2—SOLICITATION AND RECEIPT OF PROPOSALS AND
INFORMATION
DFARS 215.470 Estimated data prices.
(a) DoD requires estimates of the prices of data in order to evaluate
the cost to the Government of data items in terms of their
management, product, or engineering value.
(b) When data are required to be delivered under a contract, include
DD Form 1423, Contract Data Requirements List, in the solicitation.
18. Describing Requirement
3/28/2012USAMRAABi-MonthMeeting
18
•The ordering and delivery of data which the Government requires are
specified and scheduled through the use of the Contract Data
Requirements List (CDRL), DD Form 1423, in conjunction with the
appropriate Data Item Description (DID), DD Form 1664.
•The CDRL is used to order the data required and tailor the DID.
•The DID’s use is to describe the data’s format and content
requirements.
23. What should you do?
3/28/2012USAMRAABi-MonthMeeting
23
• Understand why Data is important to the MRMC Mission
• Understand how Data is handled differently in the DoD
• Understand your client’s long-term data requirements
• Understand your role in the data acquisition process
24. Sources
3/28/2012USAMRAABi-MonthMeeting
24
1. Army Guide for the Preparation of a Program Product Data
Management Strategy (8/31/2010), US Army Product Data &
Engineering Working Groups (AMC)
2. Intellectual Property: Navigating Through Commercial
Waters (10/15/2001), Under Secretary of Defense for
Acquisition, Technology and Logistics
3. Department of Defense Handbook for Preparation of
Statement of Work (SOW), MIL-HDBK-245D (4/3/1996)