Thinking Outside the Box: Last Call for Input Regarding DoD's Evaluation and Valuation of IP

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Late last year in the Holland & Knight blog post, "DOD's New IP Rules May Impact Contractors' Rights in Computer Software and Technical Data," the firm reported on new intellectual property (IP) rules proposed by the U.S. Department of Defense (DoD) affecting the valuation and evaluation of IP rights in Government solicitations and contracts. Now, the DoD wants to hear from you.

The DoD issued a Federal Register Notice, "Request for Information Related to IP Evaluation and Valuation Methods and Techniques," on July 1, "soliciting information from the public (including, but not limited to, the private sector, academia, and other interested parties) related to Intellectual Property (IP) evaluation and valuation methods and techniques." But the clock is ticking: the deadline for submitting comments in response is Aug. 2, 2021.

DoD Requests Input

As part of its "Pilot Program on IP Evaluation for Acquisition Programs" under Section 801 of the National Defense Authorization Act (NDAA) for fiscal year 2020, the DoD is seeking to gain a better understanding of how to value and evaluate IP. It is asking for input from industry, academia and the public concerning these broad topic areas:

  1. Assessment mechanisms for program IP evaluation – DoD is interested in learning what IP evaluation mechanisms and techniques are used by organizations, industry and academia in general, as well as how these mechanisms and techniques could be adapted for use in DoD acquisition programs. Respondents are asked to rank the IP evaluation mechanisms from "the most beneficial to those that are less promising" and provide relevant examples and rationale. DoD is also asking respondents to identify "any other emerging, innovative, novel, or otherwise 'outside of the box' methods for IP valuation, prioritization, and IP evaluation techniques[.]"
  2. Development of cost-effective IP strategies – DoD wants to know what organizations, industry and academia consider "best practices" for utilizing IP valuation and evaluation methods to develop cost-effective IP strategies as well as what factors it should use in developing such strategies to account for "uncertainties" associated with "downstream events" (such as "design, requirement changes; emergence of disruptive technologies; selection of particular vendors; defining the sustainment strategy").
  3. Assessment and management of IP value and costs – DoD is asking for input regarding how it can best "identify, assess, and validate the value of different kinds of IP across the acquisition lifecycle" considering the "specialized mechanisms governing IP acquisitions in the national defense mission space[.]"
  4. Cross-functional team of subject matter experts – DoD is interested in "IP Management Teams" or groups similar to DoD's IP Cadre, as required by 10 U.S.C. § 2322(b) (requiring the establishment of "a cadre of personnel who are experts in intellectual property matters"), how such groups are structured and what "functional areas of expertise" are represented.
  5. Engagement with private sector – DoD wants to know how best to engage with the public to support and inform its IP strategies. Let DoD know what processes and procedures would work best for increasing engagement with your organization (and interested parties, in general) in "identifying appropriate IP evaluation methods in the development of IP strategies, preservation of program flexibility, increases in cost-effectiveness, and improvements in sustainment efforts[.]"
  6. Future activities – DoD wants to know what specific topics and questions not discussed in the Notice that it should consider in future requests for information. Comments, critiques and recommendations welcome.

As a reminder, submissions are due by Aug. 2, 2021, by submitting a formal comment on the Federal Register page. Be sure to include the agency's name (DoD), Docket ID No. DOD-2021-OS-0055 and title of the Notice ("Request for Information Related to IP Evaluation and Valuation Methods and Techniques"). Remember to submit only public information, as any comments and submission will be available for members of the public to view. In other words, please do not include proprietary, confidential or business sensitive information.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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