By Devon L. Suits, Army News ServiceDecember 11, 2018
WASHINGTON -- Secretary of the Army Mark T. Esper approved the new Intellectual Property Management Policy on Dec. 7, which provides the force with a "deliberate and balanced" strategy to sustain readiness, drive modernization, and foster private innovation.
"More than ever before, the Army faces unprecedented challenges from emerging threats, proliferation of technology, and rapid innovation by our adversaries," Esper wrote in the policy memorandum. "We recognize that we cannot overcome these challenges with outdated weapons, equipment, and policies."
The Army, he wrote, has embarked on several modernization and acquisition reforms to more quickly develop and deliver new warfighting capabilities than ever before.
"To help enable these reforms, we are now changing our approach to intellectual property management," he wrote.
Intellectual property, or IP, is loosely defined as the "the works of the mind," which often result in the implementation of a copyright, trademark, patent, or trade secret, according to Alexis Ross, Deputy Assistant Secretary of the Army for Strategy and Acquisition Reform.
The Army, for instance, considers IP to be the manufacturing and hardening process used to create an alternative metal alloy to help reinforce and lighten a vehicle's armor. Likewise, IP is the technical data -- like blueprints or drawings -- used to build a specific system, or specialized computer software used in a weapon system, Ross said.
"Intellectual property is critically important -- not just to the Army, but to industry," she said. "As such, it should be protected and fairly compensated."
A NECESSARY CHANGE
Prior to the new policy, she added, the Army lacked a coordinated strategy to secure IP rights and fulfill its long-term sustainment goals.
"Without a consistent Army-wide approach to intellectual property, you are left with this inconsistent, kind of ad-hoc methodology," Ross said.
Previous examples of the acquisition process have shown that the Army's way of securing IP have culminated in one of two scenarios: requesting too little or too much IP, Ross said.
During the first scenario -- requesting not enough IP rights -- the Army would fail to secure access to a system's technical data, or neglected to negotiate proper licensing options for future support. As a result, the Army would get locked into a lengthy agreement, obligating the force to the original equipment manufacturer for sustainment or spare parts, Ross said.
On the other hand, there are instances when the Army has tried to acquire too much IP or proprietary information.
"The Army would seek the maximum amount of access to the technical data … even if we didn't have a plan to use it or keep it up to date," Ross said. "This kind of approach would drive away industry."
The policy attempts to kick off a cultural change within the Army, she added, while steering toward the sweet spot in the middle.
"It is critically important that we strike a balance. We must identify and address our long-term IP needs without disincentivizing industry innovation or partnership," said Assistant Secretary of the Army for Acquisition, Logistics & Technology Bruce D. Jette.
"If we don't consider our IP needs upfront, we will no longer be in control of our own destiny," Jette said.
Ultimately, the need to create a ready and modern force continues to be the catalyst for acquisition reform, Ross said.
"Regarding readiness, if we think of a weapons system as being a long-term prospect, we need to be able to maintain that weapon system," she said. "If we have access to the technical data or understand the manufacturing process, the Army is able to maintain and sustain that weapons system 30 years from now, especially if the manufacturing company goes out of business or it stops producing that line of product."
With the implementation of the Army's six modernization priorities and creation of Army Futures Command, the force is also driving necessary change to achieve technological overmatch against peer or near-peer adversaries.
"The Army is focusing on what the defense industry can do to support, but we are also eager to work more with non-traditional defense companies in the innovative entrepreneurial sector of U.S. business," Ross said.
Historically, non-traditional defense companies have avoided working with the Department of Defense due to its complicated contracting process tied to federal acquisition regulations.
"The acquisition process is not for the faint of heart," Ross said. "It makes the DOD a bit unapproachable.
"This IP management policy is taking a different approach. We can attract more business to achieve our modernization goals," Ross said.
CORE TENETS OF IP POLICY
With the implementation of a new policy, the Army will now be able to maintain a proactive approach to IP management and acquisition, Ross said.
"There is no one size fits all approach. We must consider the unique needs of each weapon system, and its components," Ross said. "Then we need to start thinking: 'What's our plan? What data do we want for which part? What do we plan on using that technical data for?'
"When you start answering those types of questions, then you start developing this skeleton of a tailored IP strategy for an acquisition program," Ross said.
The strategy can be divided into four core tenets that provide the Army with a deliberate and balanced IP management policy approach. It also focuses on long-term sustainment of weapon systems.
Ross said the four tenets are:
-- Plan early and develop long-term IP requirements that address the lifecycle.
-- Negotiate with industry for custom IP rights, and seek only what is necessary to meet the Army's needs.
-- Negotiate prices for licensing rights early in the process, while competition still exists.
-- Communicate with industry early and often to meet the Army's needs.
Additionally, the Army can make changes to its IP management policy as IP laws and regulations continue to evolve, Ross said.
"This is the beginning of a cultural change, so it's going to take time," she said. "We think we've got the steps in place to be able to achieve it, so now it's just a matter of enforcing it … and being patient to ensure that we see the change as it takes hold.