Program Executive Office for Intelligence, Electronic Warfare & Sensors (PEO IEW&S) is a complex portfolio of software and hardware systems designed to deliver advanced technologies that give Soldiers a decisive edge to pace and outpace the threat of enemies. To meet customers’ needs, PEO IEW&S relies on the innovation of industry to deliver sensors intelligence, electronic warfare and cyber solutions that provide command or decision makers the best information possible to achieve strategic initiatives.
The partnership between the Army and industry is vital to the ecosystem that advances mission success both now and in the future. Industry provides solutions that the Army procures, develops and fields. The challenge that exists is that industry wants to protect their investments and keep their intellectual property, while the government wants to avoid paying for intellectual property it doesn’t need or to continue to pay for licensing after they have paid for or invested in the development of the property in the first place. Both parties have vested interest in negotiating for the proper level of rights to technical data and intellectual property.
The acquisition of technological solutions and the services required to sustain those products is one of the most important issues facing both the government and private industry alike. While industry needs to maintain its stake in its own investments, the government purchases products that may need customization, development and sustainment, within a limited budget. Therefore, negotiating intellectual property, including data rights, in government contracting is an important piece of the puzzle.
UNDERSTANDING THE TERMINOLOGY
To understand the complexities of this issue, we first need to understand the terminology involved in intellectual property and data rights.
- Intellectual property (IP) describes information, products or services that are protected by law as intangible property, including data (e.g., technical data and computer software), technical know-how, inventions, creative works of expression and trade names.
- Data rights is a shorthand way to refer to the government's license rights in two major categories of valuable intellectual property: technical data and computer software.
- IP deliverables are products or services (including information products and services) that are required to be delivered or provided to the U.S. government by contract or other legal instrument and that include or embody IP (e.g., technical data and computer software).
- IP rights are the legal rights governing IP, including ownership as well as license or other authorization to engage in activities with IP (e.g., make, use, sell, import, reproduce, distribute, modify, prepare derivative works, release, disclose, perform or display IP).
- Commercial computer software means software developed or regularly used for non-governmental purposes which has been sold, leased or licensed to the public or has been (or will be) offered for sale, lease or license to the public.
- Noncommercial computer software, also known as “other than commercial computer software,” means software that does not qualify as commercial computer software under the definition of “commercial computer software” listed above.
- Technical data means recorded information, regardless of the form or method of the recording, of a scientific or technical nature (including computer software documentation). The term does not include computer software or data financial, administrative, cost or pricing, or management information, or information incidental to contract administration.
- Computer software means 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 data bases or computer software documentation.
- Computer software documentation (CSD) includes owner's manuals, user's manuals, installation instructions, operating instructions and other similar items, regardless of storage medium, that explain the capabilities of the computer software or provide instructions for using the software. CSD rights are considered to fall under technical data, rather than computer software.
It is also important to understand the regulations in government contracting that primarily deal with IP. They are clauses found in Federal Acquisition Regulations (FAR) and Defense Federal Acquisition Regulations Supplement (DFARS), specifically the following:
- FAR 52.227-14 – Rights in Data—General: This clause governs the rights to technical data and computer software developed or delivered under a government contract. It outlines the government’s right to use, reproduce, and disclose data, which can include modifications or improvements made by the government.
- DFARS 252.227-7013 – Rights in Technical Data—Noncommercial Items: This clause applies to contracts involving technical data that is not commercially available. Under this clause, the government can acquire unlimited rights, government purpose rights, or limited rights depending on the funding source and type of data.
- DFARS 252.227-7014 – Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation: For tech firms dealing with custom software development, this clause outlines the government’s rights to use, modify, and distribute software.
- FAR 52.227-11 – Patent Rights—Ownership by the Contractor: This clause allows contractors to retain title to any invention developed during the contract, provided the government gets a non-exclusive, royalty-free license to use the invention.
PEO IEW&S Contracting division has paid particular attention to intellectual property and data rights as they have important implications to several products within the PEO’s portfolio. They leverage the expertise of the Intellectual Property Law Division, Army Materiel Command Legal Center to review contract strategy and language as it refers to IP. Since PEO IEW&S is an organization that provides broad capabilities in a multidomain, cross functional environment, the additional aspect of global partnerships must be considered. Foreign governments may not have the IP laws that are necessary in working with U.S. vendors. For example, DOD Instruction 5230.24 for Distribution Statements on DOD Technical Information and DOD Directive 5230.25 for the Export Administration Regulations and the International Traffic in Arms Regulations are needed to be followed.
HOW IP AND DATA RIGHTS ARE HANDLED
Project Manager Intelligence Systems and Analytics’ (PM IS&A) mission is to develop and field modernized intelligence systems that enable situational understanding on the battlefield. A key program the organization is responsible for is the Tactical Intelligence Targeting Access Node (TITAN), which is an artificial intelligence enabled ground station currently in rapid prototyping phase. It will receive sensor data from space, high altitude, aerial and terrestrial layer sensors to provide actionable targeting information in support of multidomain operations, Joint All-Domain Operations, and Long-Range Precision Fires providing Multidomain Deep Sensing, Analysis and Processing, Exploitation, and Dissemination.
Intellectual property and data rights are a critical component of any program, and TITAN is no different. TITAN was pursued as a competitive effort leveraging an Other Transaction Agreement, and IP and data rights were considerations in evaluating proposals and prototypes during the competitive phases. Working with commercial and non-traditional vendors can necessitate different perspectives on intellectual property. PM IS&A has been working with their contracts teams, legal teams and industry, and have worked to define the appropriate IP rights for TITAN, while mandating modular and open system architecture approaches to allow for future integration of third-party components and extension of TITAN. The TITAN prototypes include commercial off the shelf, open source, developmental and government off the shelf software and hardware components. PM IS&A will monitor and manage data, data rights and licensing of all products included in the TITAN baseline throughout the system life cycle to assess the effectiveness of the IP, data rights and Modular Open Systems Approach (MOSA) strategies and continue applying the lessons learned across the TITAN program and overall PM IS&A portfolio.
TITAN was selected by the assistant secretary of the Army for acquisition, logistics and technology (ASA(ALT)) as the Army’s National Defense Authorization Act (NDAA) 2024 Section 808 pilot which focused on the IP and data rights as it relates to operations, maintenance, installation and training (OMIT) data. The Section 808 pilot is a congressional mandate that provides for the establishment of a program for the use of innovative intellectual property strategies that meet specific criteria described to acquire the necessary technical data rights required for the operation, maintenance, installation and training for the designated programs. With organic (unit personnel) operation and maintenance being one of the desired characteristics for TITAN, strategies associated with obtaining the appropriate OMIT data are important to achieving those objectives. This becomes a bigger focus as the TITAN program transitions from prototyping into production, which is scheduled to occur in fiscal year 2026.
PEO IEW&S Integration Directorate assists the project managers (PM’s ) in leveraging the MOSA and ensures that this requirement is included in their acquisition artifacts. MOSA is an integrated business and technical strategy to achieve competitive and affordable acquisition and sustainment over the system life cycle. It applies a system architecture that allows major system components at the appropriate level to be incrementally added, removed or replaced throughout the life cycle of a major system platform to afford opportunities for enhanced competition and innovation. This requires these components to work together, despite coming from different industry or government solutions. The Integration Directorate assists in defining the necessary open interfaces and standards for a program to ensure that industry can retain the ownership of the IP it is concerned about while maintaining exposing the necessary parts hardware and software that the programs need visibility into. MOSA implementation is required under DOD regulations and is key to avoiding vendor lock scenarios.
MOSA is a key initiative throughout the portfolio, to include Project Manager Electronic Warfare and Cyber (PM EW&C). PM EW&C’s mission is to develop and field integrated capabilities for spectrum warfare. Their Terrestrial Layer System – Echelons Above Brigade (TLS EAB) and Terrestrial Layer System – Brigade Combat Team (TLS BCT) systems provide situational awareness in multidomain operations. By implementing the C5ISR/Electronic Warfare Modular Open Suite of Standard, or CMOSS, into the prototyping efforts of both TLS BCT and TLS EAB from their inception, the government has been able to assert satisfactory rights to the systems and fully understand all associated data rights of the hardware and software throughout the continuous prototyping effort.
Project Manager Position, Navigation, Timing (PNT) provides mounted and dismounted solutions that enable assured PNT for multidomain operations in denied or contested environments. NorthStar will be the next generation mounted assured positioning, navigation and timing capability. NorthStar is intended to leverage a government-designed and -owned architecture at the center of its capability. The MOSA requirement will ensure the system is upgradable and affordable to overmatch present and future threats. The IP and data rights strategy here is to mandate that architecture at the center of the system, going forward, a new vendor can enter the program without IP and data rights considerations.
STRATEGIES FOR SUCCESSFUL NEGOTIATION
Because of the complexities of managing IP, each DOD program must have a detailed IP strategy. This strategy should identify and manage all IP related matters such as technical data, computer software deliverables, patented technologies and license rights, from the inception of a program and updated throughout the entire product life cycle. This IP strategy is included in the acquisition documentation, Statement of Work and Acquisition Strategy.
Important points in developing the statements within contracts regarding IP, including data rights, is to be clear and understand what is necessary in the inception phase of a product life cycle. A program manager needs to be prepared, monitor the contract and the product through its life cycle. Different phases of the life cycle require different approaches. A product in sustainment may require different technical data, versus a product in development. Foreign partner use and global implications are to be considered as well.
PEO IEW&S pays particular attention to the acquisition processes for all products within the portfolio and the implications of a thoughtful and robust plan for IP strategies. “Through diligent adherence to contracting regulations, leveraging organizational expertise, applying adaptable, negotiable strategies, developing the acquisition workforce and continuous monitoring of the portfolio, PEO IEW&S can retain the right levels of intellectual property as necessary while providing superior products to customers within budget” said Nicholaus Saacks, Deputy Program Executive Officer for IEW&S. “The good news story is that we can avoid being locked into 15-year contracts with a singular vendor while allowing for competition within the community. PEO IEW&S is committed to a proactive, nuanced and deliberate approach to navigating the complexities of Intellectual Property in its contracting efforts.”
CONCLUSION
For FY25, the trend of rapid advancements in technology, including Artificial Intelligence, continues. IP laws continue to evolve, budgets continue to shrink, vendors want to protect their investments. Managing intellectual property and its costs will continue to be a consideration for acquisition professionals to navigate well into the future.
Read more about PEO IEW&S and their products here: https://peoiews.army.mil/
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