10 U.S.C. § 2320...2322 (ARMED FORCES)
[§§ 2320 to 2322. Repealed. Pub. L. 116–283, div. A, title XVIII, § 1881(a), Jan. 1, 2021, 134 Stat. 4293]
text: Section 2320, added Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2595; amended Pub. L. 98–577, title III, § 301(b), Oct. 30, 1984, 98 Stat. 3076; Pub. L. 99–145, title IX, § 961(d)(1), Nov. 8, 1985, 99 Stat. 703; Pub. L. 99–500, § 101(c) [title X, § 953(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, and Pub. L. 99–591, § 101(c) [title X, § 953(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169; Pub. L. 99–661, div. A, title IX, formerly title IV, § 953(a), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, § 7(a)(4), Apr. 21, 1987, 101 Stat. 275; Pub. L. 100–180, div. A, title VIII, § 808(a), (b), Dec. 4, 1987, 101 Stat. 1128, 1130; Pub. L. 101–189, div. A, title VIII, § 853(b)(2), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 103–355, title VIII, § 8106(a), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 108–136, div. A, title VIII, § 844, Nov. 24, 2003, 117 Stat. 1553; Pub. L. 109–364, div. A, title VIII, § 802(a), Oct. 17, 2006, 120 Stat. 2312; Pub. L. 111–84, div. A, title VIII, § 821, Oct. 28, 2009, 123 Stat. 2411; Pub. L. 111–383, div. A, title VIII, §§ 801(a), 824(b), Jan. 7, 2011, 124 Stat. 4253, 4269; Pub. L. 112–81, div. A, title VIII, §§ 802(b), 815(a), Dec. 31, 2011, 125 Stat. 1485, 1491; Pub. L. 114–328, div. A, title VIII, § 809(a)–(e), Dec. 23, 2016, 130 Stat. 2266, 2267; Pub. L. 115–91, div. A, title VIII, § 835(c), Dec. 12, 2017, 131 Stat. 1471; Pub. L. 115–232, div. A, title VIII, § 836(c)(7), Aug. 13, 2018, 132 Stat. 1866; Pub. L. 116–283, div. A, title VIII, § 804(b)(2)(A), title XVIII, § 1833(b)(1), (c)(1), (d), (e)(1), (f)(1), Jan. 1, 2021, 134 Stat. 3738, 4226, 4228–4230, related to rights in technical data.
text: Section 2321, added Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2597; amended Pub. L. 99–500 § 101(c) [title X, § 953(b)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–171, and Pub. L. 99–591, § 101(c) [title X, § 953(b)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–171; Pub. L. 99–661, div. A, title IX, formerly title IV, § 953(b), Nov. 14, 1986, 100 Stat. 3951, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273, Pub. L. 100–26, § 7(a)(5), Apr. 21, 1987, 101 Stat. 276; Pub. L. 100–180, div. A, title XII, § 1231(6), Dec. 4, 1987, 101 Stat. 1160; Pub. L. 103–35, title II, § 201(g)(4), May 31, 1993, 107 Stat. 100; Pub. L. 103–355, title VIII, § 8106(b), Oct. 13, 1994, 108 Stat. 3393; Pub. L. 109–364, div. A, title VIII, § 802(b), Oct. 17, 2006, 120 Stat. 2313; Pub. L. 110–181, div. A, title VIII, § 815(a)(2), Jan. 28, 2008, 122 Stat. 223; Pub. L. 111–350, § 5(b)(18), Jan. 4, 2011, 124 Stat. 3844; Pub. L. 111–383, div. A, title VIII, § 824(c), Jan. 7, 2011, 124 Stat. 4269; Pub. L. 112–81, div. A, title VIII, § 815(b), Dec. 31, 2011, 125 Stat. 1492; Pub. L. 113–291, div. A, title X, § 1071(a)(5), Dec. 19, 2014, 128 Stat. 3504; Pub. L. 114–92, div. A, title VIII, § 813(a), Nov. 25, 2015, 129 Stat. 891; Pub. L. 115–232, div. A, title VIII, §§ 836(c)(8), 865, 866(a), Aug. 13, 2018, 132 Stat. 1866, 1901; Pub. L. 116–92, div. A, title VIII, § 808(b), Dec. 20, 2019, 133 Stat. 1486; Pub. L. 116–283, div. A, title X, § 1081(d)(4)(B)(ii), title XVIII, § 1833(h)(1), (i)(1), (j)(1), (k), (l)(1), (m), Jan. 1, 2021, 134 Stat. 3874, 4231–4233; Pub. L. 117–81, div. A, title X, § 1081(a)(28), Dec. 27, 2021, 135 Stat. 1921, related to validation of proprietary data restrictions.
text: Section 2322, added Pub. L. 115–91, div. A, title VIII, § 802(a)(1), Dec. 12, 2017, 131 Stat. 1450; Pub. L. 116–283, div. A, title XVIII, §§ 1833(o)(1), 1877(b), Jan. 1, 2021, 134 Stat. 4234, 4291, related to management of intellectual property matters within Department of Defense.
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 2321 of this title was contained in chapter 138 and was renumbered section 2341 of this title.
A prior section 2322, added Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2598; amended Pub. L. 100–26, § 7(a)(6), Apr. 21, 1987, 101 Stat. 278; Pub. L. 100–180, div. A, title XII, § 1231(7), Dec. 4, 1987, 101 Stat. 1160, limited small business set-asides under the Foreign Military Sales Program and provided that the section expired Jan. 17, 1987, prior to repeal by Pub. L. 102–484, div. A, title X, § 1052(25)(A), Oct. 23, 1992, 106 Stat. 2500.
Another prior section 2322 was contained in chapter 138 and was renumbered section 2342 of this title.
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date of Repeal
text: Repeal effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as a note preceding section 3001 of this title.
heading: Regulations
text: Pub. L. 109–364, div. A, title VIII, § 802(c), Oct. 17, 2006, 120 Stat. 2313, provided that: “Not later than 180 days after the date of the enactment of this Act [Oct. 17, 2006], the Secretary of Defense shall revise regulations under section 2320 of title 10, United States Code [see 10 U.S.C. 3771 et seq.], to implement subsection (e) of such section [see 10 U.S.C. 3774(a), (b)] (as added by this section), including incorporating policy changes developed under such subsection into Department of Defense Directive 5000.1 and Department of Defense Instruction 5000.2.”
Pub. L. 99–500, § 101(c) [title X, § 953(d)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–172, Pub. L. 99–591, § 101(c) [title X, § 953(d)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–172, and Pub. L. 99–661, div. A, title IX, formerly title IV, § 953(d), Nov. 14, 1986, 100 Stat. 3952, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273, required that proposed regulations under subsec. (a)(1) of this section be published in Federal Register for comment not later than 90 days after Oct. 18, 1986, and that proposed final regulations be published in Federal Register not later than 180 days after Oct. 18, 1986.
heading: Pilot Program on Intellectual Property Evaluation for Acquisition Programs
text: Pub. L. 116–92, div. A, title VIII, § 801, Dec. 20, 2019, 133 Stat. 1481, provided that:
“(a) Pilot Program.—
Not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense and the Secretaries of the military departments may jointly carry out a pilot program to assess mechanisms to evaluate intellectual property (such as technical data deliverables and associated license rights), including commercially available intellectual property valuation analysis and techniques, in acquisition programs for which each such Secretary is responsible to better understand the benefits associated with these mechanisms on—
“(1) the development of cost-effective intellectual property strategies;
“(2) the assessment and management of the value and acquisition costs of intellectual property during acquisition and sustainment activities (including source selection evaluation factors) throughout the acquisition lifecycle for any acquisition program selected by such Secretary; and
“(3) the use of a commercial product (as defined in section 103 of title 41, United States Code, as in effect on January 1, 2020), commercial service (as defined in section 103a of title 41, United States Code, as in effect on January 1, 2020), or nondevelopmental item (as defined in section 110 of title 41, United States Code) as an alternative to a product or service to be specifically developed for a selected acquisition program, including evaluation of the benefits of reduced risk regarding cost, schedule, and performance associated with commercial products, commercial services, and nondevelopmental items.
“(b) Activities.—
Activities carried out under the pilot program may include the following:
“(1) Establishment of a team of Department of Defense and private sector subject matter experts (which may include the cadre of intellectual property experts established under section 2322(b) of title 10, United States Code [see 10 U.S.C. 1707]) to—
“(A) recommend acquisition programs to be selected for the pilot program established under subsection (a);
“(B) recommend criteria for the consideration of types of commercial products, commercial services, or nondevelopmental items that can used as an alternative to a product or service to be specifically developed for a selected acquisition program; or
“(C) identify, to the maximum extent practicable at each milestone established for each selected acquisition program, intellectual property evaluation techniques to obtain quantitative and qualitative analysis of intellectual property during the procurement, production and deployment, and operations and support phases for the [sic] each selected acquisition program.
“(2) Assessment of commercial valuation techniques for intellectual property for use by the Department of Defense.
“(3) Assessment of the feasibility of agency-level oversight to standardize intellectual property evaluation practices and procedures.
“(4) Assessment of contracting mechanisms to speed delivery of intellectual property to the Armed Forces or reduce sustainment costs.
“(5) Assessment of agency acquisition planning to ensure procurement of appropriate intellectual property deliverables and intellectual property rights necessary for Government-planned sustainment activities.
“(6) Engagement with the private sector to—
“(A) support the development of strategies and program requirements to aid in acquisition planning for intellectual property;
“(B) support the development and improvement of intellectual property strategies as part of life-cycle sustainment plans; and
“(C) propose and implement alternative and innovative methods of intellectual property valuation, prioritization, and evaluation techniques for intellectual property.
“(7) Recommendations to the relevant program manager of an acquisition program selected under subsection (a), including evaluation techniques and contracting mechanisms for acquisition and sustainment activities.
“(c) Report.—
Not later than November 1, 2020, and annually thereafter through November 1, 2023, the Secretary of Defense, in coordination with the Secretaries concerned, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a joint report on the pilot program conducted under this section. The report shall, at a minimum, include—
“(1) a description of the acquisition programs selected by the Secretary concerned;
“(2) a description of the specific activities in subsection (c) that were performed under each program;
“(3) an assessment of the effectiveness of the activities;
“(4) an assessment of improvements to acquisition or sustainment activities related to the pilot program; and
“(5) an assessment of the results related to the pilot program, including any cost savings and improvement to mission success during the operations and support phase of the selected acquisition program.”
heading: Revision of the Defense Federal Acquisition Regulation Supplement
text: Pub. L. 115–232, div. A, title VIII, § 866(b), Aug. 13, 2018, 132 Stat. 1901, which required the Secretary of Defense to revise the Defense Federal Acquisition Regulation Supplement to implement amendments to section 2321 of this title made by section 866(a) of Pub. L. 115–232, was repealed by Pub. L. 116–92, div. A, title VIII, § 808(a), Dec. 20, 2019, 133 Stat. 1486.
heading: Guidance on Technical Data Right Negotiation
text: Pub. L. 115–232, div. A, title VIII, § 866(d), Aug. 13, 2018, 132 Stat. 1901, which required the Secretary of Defense to develop certain policies on the negotiation of technical data rights for noncommercial software, was repealed by Pub. L. 116–92, div. A, title VIII, § 808(a), Dec. 20, 2019, 133 Stat. 1486.
heading: Guidance Relating to Rights in Technical Data
text: Pub. L. 111–383, div. A, title VIII, § 824(a), Jan. 7, 2011, 124 Stat. 4269, provided that:
“Not later than 180 days after the date of the enactment of this Act [Jan. 7, 2011], the Secretary of Defense shall review guidance issued by the military departments on the implementation of section 2320(e) of title 10, United States Code [see 10 U.S.C. 3774(a), (b)], to ensure that such guidance is consistent with the guidance issued by the Under Secretary of Defense for Acquisition, Technology, and Logistics and the requirements of this section [amending former sections 2320 and 2321 of this title]. Such guidance shall be designed to ensure that the United States—
“(1) preserves the option of competition for contracts for the production and sustainment of systems or subsystems that are developed exclusively with Federal funds as defined in accordance with the amendments made by this section; and
“(2) is not required to pay more than once for the same technical data.”
heading: Technical Data Rights Under Non-FAR Agreements
text: Pub. L. 110–417, [div. A], title VIII, § 822, Oct. 14, 2008, 122 Stat. 4532, as amended by Pub. L. 111–383, div. A, title X, § 1075(e)(13), Jan. 7, 2011, 124 Stat. 4375, provided that:
“(a) Policy Guidance.—
Not later than 270 days after the date of the enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall issue policy guidance with respect to rights in technical data under a non-FAR agreement. The guidance shall—
“(1) establish criteria for defining the legitimate interests of the United States and the party concerned in technical data pertaining to an item or process to be developed under the agreement;
“(2) require that specific rights in technical data be established during agreement negotiations and be based upon negotiations between the United States and the potential party to the agreement, except in any case in which the Secretary of Defense determines, on the basis of criteria established in such policy guidance, that the establishment of rights during or through agreement negotiations would not be practicable; and
“(3) require the program manager for a major weapon system or an item of personnel protective equipment that is to be developed using a non-FAR agreement to assess the long-term technical data needs of such system or item.
“(b) Requirement to Include Provisions in Non-FAR Agreements.—
A non-FAR agreement shall contain appropriate provisions relating to rights in technical data consistent with the policy guidance issued pursuant to subsection (a).
“(c) Definitions.—
In this section:
“(1) The term ‘non-FAR agreement’ means an agreement that is not subject to laws pursuant to which the Federal Acquisition Regulation is prescribed, including—
“(A) a transaction authorized under section 2371 of title 10, United States Code [now 10 U.S.C. 4021]; and
“(B) a cooperative research and development agreement.
“(2) The term ‘party’, with respect to a non-FAR agreement, means a non-Federal entity and includes any of the following:
“(A) A contractor and its subcontractors (at any tier).
“(B) A joint venture.
“(C) A consortium.
“(d) Report on Life Cycle Planning for Technical Data Needs.—
Not later than 270 days after the date of enactment of this Act [Oct. 14, 2008], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the implementation of the requirements in section 2320(e) of title 10, United States Code [see 10 U.S.C. 3774(a), (b)], for the assessment of long-term technical data needs to sustain major weapon systems. Such report shall include—
“(1) a description of all relevant guidance or policies issued;
“(2) a description of the extent to which program managers have received training to better assess the long-term technical data needs of major weapon systems and subsystems; and
“(3) a description of one or more examples, if any, where a priced contract option has been used on major weapon systems for the future delivery of technical data and one or more examples, if any, where all relevant technical data were acquired upon contract award.”
heading: Government-Industry Committee on Rights in Technical Data
text: Pub. L. 102–190, div. A, title VIII, § 807, Dec. 5, 1991, 105 Stat. 1421, as amended by Pub. L. 102–484, div. A, title VIII, § 814, Oct. 23, 1992, 106 Stat. 2454; Pub. L. 105–85, div. A, title X, § 1073(d)(3), Nov. 18, 1997, 111 Stat. 1905, provided that not later than Sept. 15, 1992, the Secretary of Defense was to prescribe final regulations required by subsec. (a) of this section that supersede the interim regulations prescribed before Dec. 5, 1991, for the purposes of this section and contained various provisions relating to a government-industry advisory committee, reports to Congress, publication of the regulations, and application of the regulations.
heading: Control of Government Personnel Work Product
text: Pub. L. 102–190, div. A, title VIII, § 808, Dec. 5, 1991, 105 Stat. 1423, required Secretary of Defense to prescribe regulations ensuring that any Department of Defense employee or member of the armed forces with an appropriate security clearance who is engaged in oversight of an acquisition program maintains control of the employee’s or member’s work product, provided that procedures for protecting unauthorized disclosure of classified information by contractors do not require such an employee or member to relinquish control of his or her work product to any such contractor, required implementing regulations not later than 120 days after Dec. 5, 1991, and provided that this section would cease to be effective on Sept. 30, 1992.