Technical Data Rights Protections Eroded by FY19 NDAA

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The Fiscal Year (“FY”) 2019 National Defense Authorization Act (“NDAA”), H.R. 5515, 115th Cong., 2d Sess. (2018), passed both chambers of Congress at breakneck speed this year, the fastest pace in approximately 20 years, and was presented to President Trump on August 3, 2018. The bill enjoyed substantial bipartisan support in both the Senate and the House. It authorizes a $717 billion national defense budget and also reforms certain practices.

One change is to the Department of Defense’s (“DoD”) technical data rights disputes process under Title 10, section 2321 of the United States Code. The change grants DoD an exception to the injunctive-like relief in the current procedure for resolving how DoD may use the data. This relief essentially “freezes” DoD’s use of the disputed technical data until a final decision is issued by the agency Board of Contract Appeals or the U.S. Court of Federal Claims. Government contractors who develop products with components utilizing proprietary information should note that this exception will enable the Government to release disputed technical data before litigation is concluded, even though the contactor’s limited rights assertions, which generally preclude such release, may ultimately be upheld.

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