DoD Technical Data Rights – Oh My!

May 10, 2023

Well, the DoD is certainly trying to get companies to participate in their SBIR programs with their AFWERX program and the Army’s new “surprise us” open topics with 90 day performance periods.  But navigating DSIP is never fun, and frankly sometimes it seems to be designed to be almost as difficult as possible.  But maybe that’s just me.

There is, however, an issue that is really, really important, especially with the DoD, and that’s Technical Data Rights.  With the NSF and other agencies, you own the stuff, the government’s march-in rights have never been exercised that anyone “in the know” knows about, and you don’t have to do anything special to get that protection. And if you are building on work you’ve previously done, you don’t have to do anything special – they respect the ownership rights of work funded privately or funded by other agencies.

But that is NOT true with the DoD.  With the DoD, you MUST declare UP FRONT, if you are building on or leveraging any other work.  And if you don’t declare it up front…. well it seems to imply that they claim unlimited rights to it.  Okay, I know some people might dispute that, but legal stuff is legal stuff, so don’t get caught without declaring! Oh, and if you send anything to them (like software or technical data), you’d better LABEL it with a special label claiming those rights, every time you do.

Don't be Afraid to pay for legal helpSo, this matters.  And the instructions the DoD provides?  They send you to the DFAR (Defense Federal Acquisition Register). If you want to scramble your brain, feel free to read even 1 page of the DFAR or the related Letter from Office of the Under Secretary of Defense which helpfully refers to somewhat improved SBIR rights as a “deviation”!

Here are a couple of suggestions that might be more helpful.

The team at Pitt has put together a somewhat less confusing Technical Data Rights template, I suggest you start there. I’ll note that it’s intended for university research teams, but look for the special “SBIR” rights. Again, it’s at least a start and they show you the table you’re supposed to put together.
It also turns out sbir.gov has a tutorial on technical data rights although you’ll get a clue as to how complex it is when you see ALL the sub-parts of the tutorial!  Still, at least they’ve worked on it.
Here’s a snippet, “The government receives a limited nonexclusive license, or right to use, SBIR Data, but such use cannot include disclosing it in any way. This nondisclosure obligation is accompanied by a Data Rights protection period. In its May 2, 2019 SBIR/STTR Policy Directive, SBA changed the Data Rights protection period for both SBIR and STTR funding agreements to a uniform 20-year period that begins on the date of award. This start date for the protection period is new, as is the 20-year period.”
A couple of law firms, including Wilson Sonsini, have some suggestions as well.
So take Technical Data Rights Seriously, and remember that putting together a Technical Data Rights Assertion for a proposal may take several hours or more, so don’t put it off!

If you want more in depth help, either a proposal review or help developing your proposal, you can apply for a spot in our one-on-one VentureWrench SBIR Coaching after you’ve gone through the course.  Email us at venturewrenchcommunity [at] gmail.com with questions.

And if you need help with any part of your SBIR process – proposal (Phase I or II), TABA, proposal management, or contract finalization, just email us at venturewrenchcommunity [at] gmail.com with questions.

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