10 U.S.C. § 3771 (ARMED FORCES)
§ 3771. Rights in technical data: regulations
(a) Regulations Required.—
(1) In general.—
The Secretary of Defense shall prescribe regulations to define the legitimate interest of the United States and of a contractor or subcontractor in technical data pertaining to an item or process. Such regulations shall be included in regulations of the Department of Defense prescribed as part of the Federal Acquisition Regulation.
(2) Other rights not impaired.—
Regulations prescribed under paragraph (1) may not impair—
(A) any right of the United States or of any contractor or subcontractor with respect to patents or copyrights or any other right in technical data otherwise established by law; or
(B) the right of a contractor or subcontractor to receive from a third party a fee or royalty for the use of technical data pertaining to an item or process developed exclusively at private expense by the contractor or subcontractor, except as otherwise specifically provided by law.
(b) Required Provisions.—
Regulations prescribed under subsection (a) shall include the following provisions:
(1) Development exclusively with federal funds.—
In the case of an item or process that is developed by a contractor or subcontractor exclusively with Federal funds (other than an item or process developed under a contract or subcontract to which regulations under section 9(j)(2) of the Small Business Act (15 U.S.C. 638(j)(2)) apply), the United States shall have the unlimited right to—
(A) use technical data pertaining to the item or process; or
(B) release or disclose the technical data to persons outside the government or permit the use of the technical data by such persons.
(2) Development exclusively at private expense.—
Except as provided in paragraphs (3), (4), and (7), in the case of an item or process that is developed by a contractor or subcontractor exclusively at private expense, the contractor or subcontractor may restrict the right of the United States to release or disclose technical data pertaining to the item or process to persons outside the government or permit the use of the technical data by such persons.
(3) Exception to paragraph (2).—
Paragraph (2) does not apply to technical data that—
(A) constitutes a correction or change to data furnished by the United States;
(B) relates to form, fit, or function;
(C) is necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data, including such data pertaining to a major system component); or
(D) is otherwise publicly available or has been released or disclosed by the contractor or subcontractor without restriction on further release or disclosure.
(4) Exception to paragraph (2).—
Notwithstanding paragraph (2), the United States may release or disclose technical data to persons outside the Government, or permit the use of technical data by such persons, if—
(A) such release, disclosure, or use—
(i) is necessary for emergency repair and overhaul;
(ii) is a release, disclosure, or use of technical data pertaining to an interface between an item or process and other items or processes necessary for the segregation of an item or process from, or the reintegration of that item or process (or a physically or functionally equivalent item or process) with, other items or processes; or
(iii) is a release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the United States and is required for evaluational or informational purposes;
(B) such release, disclosure, or use is made subject to a prohibition that the person to whom the data is released or disclosed may not further release, disclose, or use such data; and
(C) the contractor or subcontractor asserting the restriction is notified of such release, disclosure, or use.
(5) Development with mixed funding.—
(A) In general.—
Except as provided in paragraphs (6) and (7), in the case of an item or process that is developed in part with Federal funds and in part at private expense, the respective rights of the United States and of the contractor or subcontractor in technical data pertaining to such item or process shall be established as early in the acquisition process as practicable (preferably during contract negotiations) and shall be based on negotiations between the United States and the contractor, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiations would not be practicable.
(B) Factors to be considered.—
The establishment of such rights shall be based upon consideration of all of the following factors:
(i) The statement of congressional policy and objectives in section 200 of title 35, the statement of purposes in section 2(b) of the Small Business Innovation Development Act of 1982 (15 U.S.C. 638 note), and the declaration of policy in section 2 of the Small Business Act (15 U.S.C. 631).
(ii) The interest of the United States in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture.
(iii) The interest of the United States in encouraging contractors to develop at private expense items for use by the Government.
(iv) Such other factors as the Secretary of Defense may prescribe.
(6) Interfaces developed with mixed funding.—
Notwithstanding paragraph (5), the United States shall have government purpose rights in technical data pertaining to an interface between an item or process and other items or processes that was developed in part with Federal funds and in part at private expense, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiation of different rights in such technical data would be in the best interest of the United States.
(7) Modular system interfaces developed exclusively at private expense or with mixed funding.—
(A) Notwithstanding paragraphs (2) and (5), the United States shall have government purpose rights in technical data pertaining to a modular system interface developed exclusively at private expense or in part with Federal funds and in part at private expense and used in a modular open system approach pursuant to section 4401 of this title, except in any case in which the Secretary of Defense determines that negotiation of different rights in such technical data would be in the best interest of the United States.
(B) Such modular system interface shall be identified in the contract solicitation and the contract.
(C) For technical data pertaining to a modular system interface developed exclusively at private expense for which the United States asserts government purpose rights, the Secretary of Defense shall negotiate with the contractor the appropriate and reasonable compensation for such technical data.
(8) Limitations on requirements related to contractor or subcontractor rights in technical data.—
A contractor or subcontractor (or a prospective contractor or subcontractor) may not be required, as a condition of being responsive to a solicitation or as a condition for the award of a contract—
(A) to sell or otherwise relinquish to the United States any rights in technical data except—
(i) rights in technical data described in paragraph (1) for which a use or release restriction has been erroneously asserted by a contractor or subcontractor;
(ii) rights in technical data described in paragraph (3); or
(iii) under the conditions described in paragraph (4); or
(B) to refrain from offering to use, or from using, an item or process to which the contractor is entitled to restrict rights in data under paragraph (2).
(9) Actions authorized if necessary to develop alternative sources of supply and manufacture.—
The Secretary of Defense may—
(A) negotiate and enter into a contract with a contractor or subcontractor for the acquisition of rights in technical data not otherwise provided under paragraph (3) or (4), if necessary to develop alternative sources of supply and manufacture;
(B) agree to restrict rights in technical data otherwise accorded to the United States under this subchapter if the United States receives a royalty-free license to use, release, or disclose the data for purposes of the United States (including purposes of competitive procurement); or
(C) permit a contractor or subcontractor to license directly to a third party the use of technical data which the contractor is otherwise allowed to restrict, if necessary to develop alternative sources of supply and manufacture.
(c) Secretary of Defense to Define Terms.—
The Secretary of Defense shall define the terms “developed”, “exclusively with Federal funds”, and “exclusively at private expense” in regulations prescribed under subsection (a). In defining such terms, the Secretary—
(1) shall specify the manner in which indirect costs shall be treated; and
(2) shall specify that amounts spent for independent research and development and bid and proposal costs shall not be considered to be Federal funds for the purposes of the definitions under this subsection.
(Added and amended Pub. L. 116–283, div. A, title XVIII, § 1833(a)(1), (b), Jan. 1, 2021, 134 Stat. 4226.)
heading: Editorial Notes
heading: Codification
text: The text of subsec. (a) of section 2320 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1833(b), was based on Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2595; 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), Dec. 4, 1987, 101 Stat. 1128; Pub. L. 101–189, div. A, title VIII, § 853(b)(2), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 111–383, div. A, title VIII, § 824(b), Jan. 7, 2011, 124 Stat. 4269; Pub. L. 112–81, div. A, title VIII, § 815(a)(1), Dec. 31, 2011, 125 Stat. 1491; Pub. L. 114–328, div. A, title VIII, § 809(a), (b), (e), Dec. 23, 2016, 130 Stat. 2266, 2267; Pub. L. 116–283, div. A, title VIII, § 804(b)(2)(A)(i), Jan. 1, 2021, 134 Stat. 3738. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 generally amended section 2320(a) substantially identically; as executed, text reflected amendment by Pub. L. 99–661.
heading: Amendments
text: 2021—Pub. L. 116–283, § 1833(b)(1), (2)(A), transferred subsec. (a) of section 2320 of this title to this section, effectively redesignated par. (1) as subsec. (a), and redesignated pars. (2) and (3) as subsecs. (b) and (c), respectively.
Subsec. (a). Pub. L. 116–283, § 1833(b)(2)(A), (B)(i), after redesignation of par. (1) of section 2320(a) of this title as subsec. (a) of this section, inserted subsec. heading and, in existing provisions, designated first two sentences as par. (1) and the remainder as par. (2) and inserted par. headings. Amendment designating “the third sentence as paragraph (2)” was executed by including the fourth sentence within par. (2) as well, to reflect the probable intent of Congress.
Subsec. (a)(2). Pub. L. 116–283, § 1833(b)(2)(B), substituted “Regulations prescribed under paragraph (1) may not” for “Such regulations may not”, inserted dash after “impair”, reorganized remainder of text into designated subpars. (A) and (B), and, at end of subpar. (A), substituted “by law; or” for “by law. Such regulations also may not impair”.
Subsec. (b). Pub. L. 116–283, § 1833(b)(3)(A), (B), after redesignation of par. (2) of section 2320(a) of this title as subsec. (b) of this section, inserted heading, substituted “Regulations prescribed under subsection (a)” for “Such regulations” in introductory provisions, and redesignated subpars. (A) to (I) as pars. (1) to (9), respectively.
Subsec. (b)(1). Pub. L. 116–283, § 1833(b)(3)(C), redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.
Subsec. (b)(2). Pub. L. 116–283, § 1833(b)(3)(D), substituted “paragraphs (3), (4), and (7)” for “subparagraphs (C), (D), and (G)”.
Subsec. (b)(3). Pub. L. 116–283, § 1833(b)(3)(E), substituted “paragraph (2)” for “subparagraph (b)” in heading and “Paragraph (2) does not” for “Subparagraph (B) does not” in introductory provisions and redesignated cls. (i) to (iv) as subpars. (A) to (D), respectively.
Subsec. (b)(4). Pub. L. 116–283, § 1833(b)(3)(F), substituted “paragraph (2)” for “subparagraph (b)” in heading and “Notwithstanding paragraph (2)” for “Notwithstanding subparagraph (B)” in introductory provisions and redesignated cl. (i), its subcls. (I) to (III), cl. (ii), and cl. (iii) as subpar. (A), cls. (i) to (iii), subpar. (B), and subpar. (C), respectively.
Subsec. (b)(5). Pub. L. 116–283, § 1833(b)(3)(G), in existing provisions, designated first sentence as subpar. (A), inserted heading, and substituted “Except as provided in paragraphs (6) and (7),” for “Except as provided in subparagraphs (F) and (G),” and designated second sentence as subpar. (B), inserted heading, and realigned margin.
Subsec. (b)(6). Pub. L. 116–283, § 1833(b)(3)(H), substituted “paragraph (5)” for “subparagraph (E)”.
Subsec. (b)(7). Pub. L. 116–283, § 1833(b)(3)(I), in existing provisions, designated first sentence as subpar. (A) and substituted “Notwithstanding paragraphs (2) and (5)” for “Notwithstanding subparagraphs (B) and (E)” and “section 4401” for “section 2446a” and designated second and third sentences as subpars. (B) and (C), respectively.
Subsec. (b)(8). Pub. L. 116–283, § 1833(b)(3)(J)(i), (ii), inserted heading and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively.
Subsec. (b)(8)(A). Pub. L. 116–283, § 1833(b)(3)(J)(iii)–(vi), redesignated subcl. (I) as cl. (i) and substituted “paragraph (1)” for “subparagraph (A)”, redesignated subcl. (II) as cl. (ii) and substituted “paragraph (3)” for “subparagraph (C)”, and redesignated subcl. (III) as cl. (iii) and substituted “paragraph (4)” for “subparagraph (D)”.
Subsec. (b)(8)(B). Pub. L. 116–283, § 1833(b)(3)(J)(vii), substituted “paragraph (2)” for “subparagraph (B)”.
Subsec. (b)(9). Pub. L. 116–283, § 1833(b)(3)(K), inserted heading, redesignated cl. (i) as subpar. (A) and substituted “paragraph (3) or (4)” for “subparagraph (C) or (D)”, redesignated cl. (ii) as subpar. (B) and substituted “this subchapter” for “this section”, and redesignated cl. (iii) as subpar. (C).
Subsec. (c). Pub. L. 116–283, § 1833(b)(4), inserted heading, substituted “subsection (a)” for “paragraph (1)” and “this subsection” for “this paragraph”, inserted dash after “terms, the Secretary”, and reorganized remainder of text into designated pars. (1) and (2).
heading: Statutory Notes and Related Subsidiaries
heading: Effective Date
text: Section and amendment by Pub. L. 116–283 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 an Effective Date of 2021 Amendment note preceding section 3001 of this title.
heading: Addressing Insufficiencies in Technical Data
text: Pub. L. 119–60, div. A, title VIII, § 805, Dec. 18, 2025, 139 Stat. 944, provided that:
“(a) Establishment of Technical Data System.—
Not later than 90 days after the date of the enactment of this Act [Dec. 18, 2025], the Secretary of Defense shall develop and implement a digital system to track, manage, and enable the assessment of covered data related to covered systems, and to verify the compliance of contractors and subcontractors with contract requirements related to technical data for covered systems.
“(b) Review of Requirements for Covered Data.—
The Secretary of Defense shall identify relevant contracts or other agreements for each covered system and conduct a review of the requirements contained in such contracts or other agreements with respect to covered data, including requirements for both data delivered and data otherwise accessible by the Department of Defense on a non-deliverable basis.
“(c) Assessment of Available Covered Data.—
“(1) In general.—
The Secretary of Defense shall assess the covered data required under the requirements with respect to covered data reviewed under subsection (b) and, for each such requirement—
“(A) describe the physical or electronic storage location of the covered data that is in the possession of the Department of Defense, or the method by which the Department accesses the covered data, as applicable;
“(B) evaluate whether the covered data delivered to the Department under such requirement complies with—
“(i) the marking and rights requirements for such covered data under or pursuant to the contract containing such reviewed requirement; and
“(ii) the applicable provisions of chapter 275 of title 10, United States Code; and
“(C) describe the category of rights in technical data applicable under section 3771 of title 10, United States Code, to the covered data delivered to the Department under such reviewed requirement, including an identification of whether the delivery or access to such covered data under such reviewed requirement is subject to a customized commercial license or a specially negotiated license.
“(2) Findings.—
The Secretary of Defense shall record in the digital system implemented under subsection (a) the findings of the review conducted under subsection (b) and the assessment under paragraph (1).
“(d) Identification of Insufficiency in Covered Data.—
Based on the review of requirements for covered data required by subsection (b) and the assessment of available covered data required by subsection (c), the Secretary of Defense shall identify any insufficiency in covered data that negatively affects the ability of the Secretary to effectively operate a covered system and maintain such covered system in a cost-effective manner considering factors, including the years remaining in the lifecycle of the covered system, projected inventory numbers of the covered system, or a cost analysis of continuing the current operations or maintenance approach for the covered system.
“(e) Addressing an Insufficiency in Covered Data.—
“(1) In general.—
For each covered system acquired by the Department of Defense, the Secretary of Defense shall—
“(A) distinguish between—
“(i) covered data, the delivery of or access to which was required by the contract or other agreement under the review in subsection (b); and
“(ii) covered data that was not required by the contract or other agreement but that the Department identified as an insufficiency in subsection (d);
“(B) for covered data described in subparagraph (A)(i) that is identified as insufficient under subsection (d), seek to address such insufficiency with the relevant contractor, including by receiving access to such covered data on a non-deliverable basis;
“(C) for covered data described in subparagraph (A)(i) that identified as improperly marked pursuant to subsection (c)(1)(B), seek to address such improper marking with the relevant contractor;
“(D) for covered data described in subparagraph (A)(ii), initiate a streamlined process to—
“(i) request the relevant contractor to provide the Government with options for the covered data required to address the insufficiency in such covered data identified under subsection (d), which may include access agreements, priced contract options, negotiated direct licenses with government authorized repair contractors, or direct licenses for systems or components produced by subcontractors that are covered defense equipment for access to the required covered data;
“(ii) allow the contractor to propose terms for using commercially accepted valuation practices, including income-based, cost-based, and market-based pricing; and
“(E) consider the use of escrow agreements or similar arrangements under a specifically negotiated license for the required covered data with the original contractor or subcontractor of the covered system in the event such contractor or subcontractor decides to exit the business or no longer support maintenance of the covered system.
“(2) Insufficiency.—
With respect to an insufficiency identified under subsection (d) in covered data for a commercial product—
“(A) the Secretary of Defense shall ensure that pricing and terms and conditions offered by the contractor for are commensurate with commercial practices for granting similar access; and
“(B) if the Secretary seeks access to technical data, software, or other information in a manner that differs from the manner in which such contractor customarily provides to a buyer of such commercial product, the Secretary shall seek to negotiate a customized commercial license for such access.
“(f) Records Retention.—
In carrying out this section, the Secretary of Defense shall ensure that all technical data, computer software, contract files, and related records acquired or generated in connection with a covered system are retained and managed by the Department of Defense until, at a minimum, the Department has totally divested from such covered system.
“(g) Quarterly Updates to Congress.—
Not later than April 1, 2026, and every 90 days thereafter until the Secretary of Defense completes the assessment required under subsection (c), the Secretary of Defense shall provide to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a briefing on—
“(1) progress made toward completing the requirements of this section;
“(2) a summary of findings from such assessment, including report of the position of the Government as to whether such data meet marking and rights requirements;
“(3) the efforts of the Department of Defense to address any insufficiencies in covered data identified under subsection (d), including a summary of the actions by the Department to fund such efforts;
“(4) a description of the methods used by the Department in negotiating with any relevant contractor to access covered data identified as an insufficiency in subsection (d); and
“(5) any lessons learned to improve the actions of the Department in planning for and acquiring covered data related to covered systems acquired by the Department.
“(h) Rules of Construction.—
Nothing in this section shall be construed—
“(1) as modifying any rights, obligations, or limitations of the Government, contractor, or subcontractor with respect to rights in technical data under subchapter I of chapter 275 of this title;
“(2) as altering the requirements in section 2464 and 2466 of title 10, United States Code; or
“(3) as altering or expanding any license rights the Government has acquired in contracts or agreements.
“(i) Definitions.—
In this section:
“(1) The term ‘covered data’ means technical data and computer software required—
“(A) to enable the Department of Defense or government authorized repair contractors performing under a support contract, the primary purpose of which is to furnish repair or maintenance services on site at a depot, installation or operating location of the Government in support of the share of depot-level maintenance and repair workload of the Government in accordance with section 2466 of this title; or
“(B) to maintain a core logistics capability in accordance with section 2464 of this title provided for use by third parties without restriction for the maintenance of the covered system.
“(2) The term ‘covered system’ means—
“(A) a major defense acquisition program, as defined in section 4201 of title 10, United States Code; or
“(B) an acquisition program or project that is carried out using the rapid prototyping or rapid fielding acquisition pathway under section 3602 of such title that is estimated by the Secretary of Defense to require an eventual total expenditure described in section 4201(a)(2) of such title;
“(3) The term ‘maintain or repair’ excludes the manufacture of new items.
“(4) The term ‘digital system’ means a secure, electronic platform required by subsection (a) that—
“(A) is connected to authoritative systems for product lifecycle management and contracting data repositories and other systems where contractor data are stored or accessed; and
“(B) identifies technical data owed under contract terms, verify compliance of received data with marking and rights requirements, detect omissions or errors, and track metadata for decision-making.
“(5) The term ‘service acquisition executive’ has the meaning given in section 101 of title 10, United States Code.”
heading: Reverse Engineering or Re-Engineering for Production of Items
text: Pub. L. 118–159, div. A, title VIII, § 882, Dec. 23, 2024, 138 Stat. 2017, provided that:
“(a) Reverse Engineering or Re-engineering Process.—
Not later than one year after the date of the enactment of this Act [Dec. 23, 2024], the Under Secretary of Defense for Acquisition and Sustainment, in coordination with each Secretary of a military department and the Director of the Defense Logistics Agency, shall establish a process to—
“(1) identify items for which—
“(A) technical data is not available; or
“(B) rights in such technical data does not allow for manufacturing of the item; and
“(2) create streamlined procedures for production of a item identified under paragraph (1) through reverse engineering or re-engineering—
“(A) if production of the item may be required for point of use manufacturing or for a contested logistics environment (as defined in section 2926 of title 10, United States Code);
“(B) if the manufacturer of the item will not meet the schedule for delivery required by the contracting officer to maintain weapon system readiness or responsiveness in the event of mobilization; or
“(C) with respect to a [sic] item for which a head of the contracting activity can only acquire by entering into a sole source contract, if such head submits to the service acquisition executive (as defined in section 101 of title 10, United States Code) a written determination that such reverse engineering or re-engineering is beneficial to sustain training or operations of the Department of Defense with respect to such item.
“(b) Annual Report.—
“(1) In general.—
Not later than one year after the date of the enactment of this Act, and annually thereafter until December 31, 2030, the Under Secretary of Defense for Acquisition and Sustainment, in coordination with each Secretary of a military department and the Director of the Defense Logistics Agency, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the use of reverse engineering or re-engineering carried out pursuant to the process required under subsection (a).
“(2) Contents.—
Each report required by paragraph (1) shall include the following:
“(A) A list of items produced through reverse engineering or re-engineering, disaggregated by element of the Department of Defense described in section 111(b) of title 10, United States Code that used the process established under subsection (a).
“(B) Representative case studies of items listed under subparagraph (A), including a description of the use case of each item, the efforts used to acquire the technical data or technical data rights needed to manufacture the item, and the estimated cost or time savings obtained, the estimated cost or time savings obtained over an estimated time horizon of ten years of acquisition requirements, including the identification of recurring and nonrecurring costs.
“(C) Recommendations and lessons learned that may inform contracting guidance and procedures, especially regarding the creation of technical data packages and technical data rights through reverse engineering or re-engineering.”