Government Contracts, Investigations & International Trade Blog : Government Contracts Lawyer & Attorney : Sheppard Mullin Law Firm : Bids, Licenses, Awards, Conflict of Interest.

By David S. Gallacher

Those familiar with Government contracting know at least a little bit about the elusive and fickle regulatory requirements for Independent Research and Development (“IR&D” or “IRAD”) costs. IR&D is a means by which the U.S. Government supports a Contractor’s independent R&D efforts. By reimbursing a Contractor’s independent R&D costs, the Government long has hoped to advance the state of the art without stifling a contractor’s innovation under the weight of a federal bureaucracy, while simultaneously banking on the fact that the U.S. Government also will benefit from the technology advancements. But two recent developments may change the essential nature of IR&D, making it less “independent” and more “dependent” on Government rights and oversight. To quote Bob Dylan – “the times they are a changin’.” 
 

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By Louis D. Victorino

A great deal of discussion has transpired regarding recent legislation that reportedly could alter significantly the established “follow-the-funds” test used for the allocation of intellectual property rights in data developed under a government contract. The legislation involved is a provision of the National Defense Authorization Act for Fiscal Year 2011 (the “Act”), signed into law on January 7, 2011. In particular, Section 824 of the Act provides “Guidance Relating to Rights in Technical Data” and, more importantly, amends Section 2320(a) of Title 10 of the United States Code, the provision that defines the allocation of rights in intellectual property under Government contracts.
 

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The Department of Homeland Security recently updated its website to identify agency intellectual property that should not be used without prior authorization from the agency. The website identifies a long list of agency related trademarks including those applicable to well known agency programs.  Whether all of the claimed trademarks would prove enforceable if challenged remains to be seen. The agency's asserted blanket "no use" prohibition without prior consent also is legally suspect. Regardless, the newly published list serves as a reminder that contractors must use the government identifiers with care in connection with any promotional or advertising materials.

Even absent such a trademark designation, federal, state and foreign laws and regulations restrict the use in promotional or advertising materials of government personnel images, uniforms and insignia without specific, prior authorization. Indeed, applicable laws, in many cases, impose civil or criminal sanctions for such misuse.
 

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