As part of the broader Revolutionary FAR Overhaul (RFO), Federal Acquisition Regulation (FAR) Part 27, which addresses patents, data, and copyrights was revised. While most changes were driven by the need for plain language, greater clarity, improved readability, and streamlined procedures, a few notable changes were introduced that will impact the treatment of intellectual property in federal government contracting.
Special and Existing Works
FAR Sections 27.405-1 and 27.405-2, which address special works and existing works, were revised. Notably, the prescriptions to use FAR clauses 52.227-17, Rights in Data-Special Works, and 52.227-18 Rights in Data-Existing Works, were deleted. Although FAR 52.227-18 was deleted from the FAR, FAR 52.227-17 remains, however, it is no longer a prescribed clause. Instead of specific clauses, these sections now provide that the contract must specifically address the government’s rights to use, disclose, modify, distribute, and reproduce special and existing works and authorize agencies to specially negotiate related terms and rights.
Commercial Computer Software
The overhaul deleted FAR clause 52.227-19, Commercial Computer Software License, which was never a mandatory clause. Although this clause was deleted, the underlying policy for the clause remains the same, that is, “commercial computer software or commercial computer software documentation must be acquired under licenses customarily provided to the public to the extent the license is consistent with Federal law and otherwise satisfies the Government’s needs.”
Rights to Technical Data in Successful Proposals
The overhaul also deleted FAR clause 52.227-23, Rights to Proposal Data (Technical), which allowed the government to acquire unlimited rights in technical data in a contractor’s successful proposal. However, contractors were afforded the opportunity to specifically identify pages in their proposals containing technical data it wished to be excluded from the grant of unlimited rights to the government. Instead of a prescribed contract clause, the new Section 27.407, Rights to Technical Data in Successful Proposals, now consists of a single sentence, which directs agencies to negotiate license rights in technical data in successful proposals.
Key Clauses Remain the Same
While the overhaul deleted some contract clauses, many of the key clauses remain the same, including: FAR 52.227-1, Authorization and Consent; FAR 52.227-2, Notice and Assistance Regarding Patent and Copyright Infringement; FAR 52.227-3, Patent Indemnity; FAR 52.227-11, Patent Rights—Ownership by the Contractor; FAR 52.227-13, Patent Rights—Ownership by the Government; FAR 52.227-14, Rights in Data—General; and FAR 52.227-20, Rights in Data—SBIR Program.
Key Policies Removed
The overhaul removed certain key policies. Notably, the overhaul removed Section 27.402, Policy, which explained the government’s need for data and required agencies to balance those needs with contractors’ proprietary interests in its data. Additionally, Section 27.102, General Guidance, was moved to the FAR Companion. This section instructed agencies to limit it’s “demands for delivery” of data “developed at private expense” and to “acquire only those rights essential to its needs.”
If you have questions about the FAR Part 27 overhaul, or the RFO in general, please contact Cy Alba, Jacqueline Unger, Joseph Loman, or another member of PilieroMazza’s Government Contracts or Intellectual Property & Technology Rights practice groups. For more coverage on the RFO, visit our Resource Center here.
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