Breakout Session 812 John Ablard, Research Consultant Logistics Management Institute

1. NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

2. Improving Intellectual Property for Implementation in the Department of Defense Breakout Session 812 John Ablard, Research ConsultantLogistics Management Institute April 28, 2004 3:00–4:00 p.m. NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

3. Agenda • Background and Issues • Study Approach • Findings • Recommendations NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

4. Background • What are IP license rights? • Contractual rights affecting government’s use of technology embodied in technical data and computer software • What is the problem? • Use of standard or default licenses • Government sometimes wants excessive license rights • So others can use the technology • Companies sometimes are unwilling to license if government demands excessive rights • Result: government can lose access to critical technology • What is the key issue? • Flexibility: finding ways to meet mutual needs of company and government NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

5. Progress has been made...But concerns remain • DoD efforts • USD(AT&L) goal • OUSD(AT&L) IP guidebook published in October 2001 • DFARS Transformation • Congressional concerns • Section 821 of National Defense Authorization Act for FY 2003 • DoD response • Answered Section 821 requirements with short report • Promised additional steps • This study was one of the additional steps NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

6. Study Issues • Study examines implementation of IP flexibility in DoD contracting community • Do policies offer adequate flexibility? • Is training adequate so that flexibility is understood? • Study concentrates on license rights to non-commercial technical data and computer software • IP flexibility depends on two issues • What technical data or computer software government requires contractor to deliver • What license rights government receives in those technical data or computer software (i.e., what rights government has to use or disclose the data). NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

7. Agenda • Background and Issues • Study Approach • Findings • Recommendations NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

8. Study Approach • Conducted literature search • Surveyed 98 DoD IP Attorneys • 68 responded • Queried their familiarity with IP negotiations and availability of training • Interviewed representatives from government and industry • 34 interviewees from DoD workforce • 10 industry interviews, including 5 with nontraditional vendors • Queried them about IP policy, knowledge of IP issues, and adequacy of training NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

9. Government Interviewees Represent a Cross Section By organization By community NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

10. Agenda • Background and Issues • Study Approach • Findings • Recommendations NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

11. Findings Related to DoD IP Policy • Generally, adequate policy concerning flexibility exists • Statute and DFARS cover both components of IP flexibility • However, coverage is not prominent • DoD IP policy is not well understood by those involved • Government and industry interviewees agree on this • Lack of understanding in industry is just as important as in government • Primes especially important because technology insertion is most likely to happen at subcontractor level NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

12. Findings Related to DoD IP Policy (Continued) • Some lack awareness of flexibility and tradeoff possibilities • 62 percent of government interviewees claim some knowledge • But interviews suggest limited understanding • Government rarely is proactive in using available flexibility • Other interview results support this finding • Contracting officers rely on attorneys, but attorneys are not oriented toward business aspects • Use of Other Transaction authority may reflex lack of awareness of available DFARS flexibility • House staff member who drafted Section 821 is concerned and interested in results NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

13. Findings Related to IP Training • Existing training does not adequately address flexibility for IP negotiation • 75 percent of IP Attorneys surveyed mentioned two commercial seminars as key source of training • In-house courses ranked distant third • 25 percent of interviewees volunteered opinions on need to improve training • Problems with courses • Taken infrequently • Do not concentrate on relevant DFARS coverage • Discussion of flexibility is limited Back-up section summarizes available training resources NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

14. Findings Related to IP Training (Continued) • New types of training are needed • Government interviewees believe: • New training is needed for contracting community • Two-day seminar may be appropriate • On-the-job training or Web-based course also possible • Training should be business oriented • PMs/technical communities also need training • DAU should play a major role in IP training NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

15. Agenda • Background and Issues • Study Approach • Findings • Recommendations NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

16. Recommendations • Develop business-oriented IP seminar • 2 days long • Specifically for contracting community • Focus on business aspects of technical data, computer software • Assess lost opportunities • Mini-study to determine actual problems associated with IP • Impact of DoD’s lost opportunities to include technology because of IP problems? • Improve existing training vehicles • Encourage use of IP awareness module and expand its coverage • Continue and expand Army JAG School’s IP course offerings • Provide IP resources on DAU website • Update IP guidebook • Add IP to existing DAU Program Management curricula NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

17. Recommendations (Continued) • Increase number of IP experts • Focus training on selected individuals • Consider “Warranted IP Contracting Officer” concept • Support DFARS Transformation • Ensure key sections highlight IP flexibility • Change organization of 10 U.S.C. 2320 to clarify intent • If DFARS transformation does not highlight flexibility, seek to make flexibility more prominent in law NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

18. Back-Up Section:Summary of Available IP Training Resources NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

19. Summary of Available IP Training Resources (Government) • DAU • IP topics are briefly covered in Contracting (CON) 101, 202, and 210, and • More briefly in Program Manager course (PMT-352) • Army JAG School • New, two-hour IP elective • New, one-week IP course • OUSD(AT&L) IP awareness module • Good for general awareness, but more is needed • OUSD(AT&L) IP guidebook • Valuable source of instructional material; covers IP issues and flexibility in depth NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”

20. Summary of Available IP Training Resources (Commercial) • ESI International’s “Patents, Technical Data and Computer Software” • Federal Publications Seminars • “Rights in Technical Data and Computer Software” • “The Government Contract Intellectual Property Institute” NCMA World Congress 2004 “Maximizing Value to Stakeholders…Contract Management in the Business World”