Legal Alerts/Details

SBA Announces a Major Change to SBIR/STTR Data Rights Protection

August 30, 2019
  1. SBIR and STTR are U.S.-based programs focused on stimulating innovation by bringing together small U.S. businesses and federally funded research and development through federally funded grants and resources. Its focus is on commercializing new technologies.
  2. SBA defines Data as: “All recorded information, regardless of the form or method of recording or the media on which it may be recorded. The term does not include information incidental to contract or grant administration, such as financial, administrative, cost or pricing or management information.”
    SBA defines Computer Software as: “Computer Programs, source code, source code listings, object code listings, design details, algorithms, processes, flow charts, formulae, and related material that would enable the software to be reproduced, recreated, or recompiled. Computer Software does not include Computer Databases or Computer Software Documentation.”
    SBA defines Technical Data as: “Recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including Computer Software Documentation and Computer Databases). The term does not include Computer Software or financial, administrative, cost or pricing, or management information, or other data incidental to contract or grant administration. The term includes recorded Data of a scientific or technical nature that is included in Computer Databases.”
  3. SBIR/STTR Program Policy Directive, 84 FR 12794-01.
  4. SBIR/STTR Program Policy Directive, 84 FR 12794-01. Section 3. Definitions (h)(h)
  5. See e.g. FAR Section 27.201-1, showing that the sole remedy for patent or copyright infringement claims against the government is monetary damages and not injunctive relief, and that there is no direct cause of action against a third party where the third party received government authorization and consent for use of a company’s IP; See also, FAR Section 27.302 discussing a contractors right to elect title and government assignment of title.
  6. SBA defines Unlimited Rights as: “The Federal Government’s rights to use, modify, prepare derivative works, reproduce, release, perform, display, disclose, or distribute Data in whole or in part, in any manner and for any purpose whatsoever, and to have or authorize others to do so.”
    SBA defines Form, Fit & Function Data as: “Data relating to items, components, or processes that are sufficient to enable physical and functional interchangeability, and data identifying source, size, configuration, mating and attachment characteristics, functional characteristics, and performance requirements. For Computer Software it means data identifying source, functional characteristics, and performance requirements, but specifically excludes the source code, algorithms, processes, formulas, and flow charts of the software.”
  7. SBA defines Government Purpose as: “Any activity in which the United States Government is a party, including cooperative agreements with international or multinational defense organizations or sales or transfers by the United States Government to foreign governments or international organizations. Government purposes include competitive procurement, but do not include the rights to use, modify, reproduce, release, perform, display, or disclose Technical Data or Computer Software for commercial purposes or authorize others to do so."
  8. These authorities are the Atomic Energy Act of 1954, Public Law 83-703, 42 U.S.C. 2013(b); Energy Reorganization Act of 1974 (ERA), Public Law 93-438, 42 U.S.C. 5813(7); and the Department of Energy Organization Act of 1977 (DEOA), 42 U.S.C. 7112(5).
  9. See, SBIR/STTR Program Policy Directive, 84 FR 12794. Page 12810.

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