8 Patents and Data Rights
8 Patents and Data Rights 271
8.1 General Policies 271
8.1.1 Acquiring Intellectual Property Rights 271
8.1.1.a General. 271
8.1.1.b Non-Impairment of Private Rights. 271
8.1.1.c Commercial Application 271
8.1.1.d Indemnification for Use of Private Patents for Commercial Items. 271
8.1.1.e Claims Against USPS. 271
8.2 Acquisition of Rights 272
8.2.1 General 272
8.2.2 Acquisition of Patent Rights 272
8.2.2.a Covered Contracts. 272
8.2.2.b Postal Service Title. 272
8.2.2.c Less than Postal Service Title. 272
8.2.2.d Alternate Proposals 273
8.2.2.e Alternate Agreements After Award. 273
8.2.2.f Other Contracts. 273
8.2.3 Use of Private Patents 273
8.2.3.a Authorization and Consent 273
8.2.3.b Notice and Assistance 274
8.2.4 Patent Indemnification 274
8.2.4.a Indemnification by Postal Service. 274
8.2.4.b Indemnification by Supplier 274
8.2.4.c Waiver or Modification of Patent Indemnity 274
8.3 Rights in Data 275
8.3.1 Definitions 275
8.3.1.a Computer. 275
8.3.1.b Computer Database. 275
8.3.1.c Computer Program. 275
8.3.1.d Computer Software. 275
8.3.1.e Computer Software Documentation. 275
8.3.1.f Data. 275
8.3.1.g Firmware. 275
8.3.1.h Form, Fit, and Function Data. 275
8.3.1.i Limited Rights. 276
8.3.1.j Limited Rights Data. 276
8.3.1.k Restricted Computer Software. 276
8.3.1.l Restricted Rights. 276
8.3.1.m Technical Data. 276
8.3.1.n Unlimited Rights. 276
8.3.2 Data Rights Acquisition Policy 276
8.3.2.a General. 276
8.3.2.b Unlimited Rights in Data 276
8.3.2.c Acquisition of Rights in Data. 277
8.3.2.d Privately Developed Data 277
8.3.2.e Unmarked or Improperly Marked Technical Data or Software 278
8.3.2.f Copyrighted Data 278
8.3.2.g Acquisition of Additional Rights in Data 279
8.3.2.h Manuals and Instructional Materials. 280
8.3.2.i Technical Data Necessary to Procure Repair Parts 280
8.3.2.j Subcontracts. 280
8.3.2.k Modification of Postal Service Rights. 281
8.3.3 Data Ordering 281
8.3.3.a Basic Policy. 281
8.3.3.b Additional Ordering of Data. 281
8.3.4 Solicitations 281
8.3.4.a Supplier's Representation 281
8.3.4.b Data Offered with Restrictions. 281
8.3.4.c Alternate Proposals 282
8.3.5 Technical Data Contract Clauses 282
8.3.5.a Basic Clauses 282
8.3.5.b Alternate Arrangements. 282
8.3.5.c Computer Software. 282
8.3.6 Acquisition of Rights in Computer Software 282
8.3.6.a Covered Contracts. 282
8.3.6.b Computer Software Developed at Private Expense 282
8.3.6.c Marking of Computer Software. 283
8.3.6.d Clauses 284
8.3.7 Special Works 284
8.3.7.a Covered Contracts. 284
8.3.7.b Restrictions on Release 284
8.3.7.c Assignment of Copyrights. 284
8.3.7.d Indemnification. 285
8.3.7.e Clauses. 285
8.3.8 Existing Works 285
8.3.8.a Covered Contracts. 285
8.3.8.b Clause. 285
8.3.9 Royalties 285
8.3.9.a Reporting Royalties 285
8.3.9.b Refunds of Royalties. 285
8.3.10 Professional Services 285
8 Patents and Data Rights
8.1 General Policies
8.1.1 Acquiring Intellectual Property Rights
8.1.1.a General. Patents, copyrights, and other rights in data are valuable intellectual
property. The Postal Service acquires patents, copyrights, and other rights in
data as necessary to:
1. Enhance the competitive purchasing process;
2. Ensure the ability to use, maintain, repair, and modify equipment or
products procured under Postal Service contracts;
3. Recoup development costs of, and fund improvements in, Postal
products and equipment;
4. Develop products and equipment for Postal Service and public use; and
5. Protect its position in the competitive market place.
8.1.1.b Non-Impairment of Private Rights. The Postal Service's efforts directed
toward competition must not improperly demand or use data relating to
privately developed intellectual property rights. The Postal Service complies
with applicable laws regarding intellectual property rights. The Postal Service,
however, will not refuse to award a contract on the grounds that the
prospective supplier might infringe a patent (see 8.2.3).
8.1.1.c Commercial Application. The Postal Service encourages commercial
application of inventions made under its contracts consistent with its
expressed policies for acquisition of data rights and inventions.
8.1.1.d Indemnification for Use of Private Patents for Commercial Items. The Postal
Service seeks indemnification for a supplier's use of private patents when the
supplies or services procured are sold in the commercial open market.
8.1.1.e Claims Against USPS. Suppliers must protect the Postal Service against
claims resulting from suppliers' use of data not supplied by the Postal
Service.
8.2 Acquisition of Rights
8.2.1.a The Postal Service acquires patent rights, rights in data, and rights in
software to the degree necessary to protect the Postal Service's interests.
Those rights can include:
1. Postal Service title to patents.
2. Less than Postal Service title to patents, such as nonexclusive licenses.
3. Unlimited rights or title to technical data and software.
4. Limited rights to technical data and restricted rights in software. These
rights may be exclusive or nonexclusive.
8.2.1.b Because the Postal Service is charged with behaving in a businesslike
manner, it is appropriate for it to consider acquiring these rights in manners
consistent with its business purpose. Determinations in this regard are made
by the contracting officer, with the advice of the requiring activity and
assigned counsel, giving full consideration to the costs and benefits of the
chosen approach. Thus, for example, decisions to acquire Postal Service title
to patents or unlimited rights to technical data developed by the supplier at
private expense must take into account the impact on the cost of the contract
and the extent to which prospective offerors may not wish to part with such
rights. Conversely, determinations to take only lesser rights must consider the
effect on the Postal Service of the exploitation of those rights by the supplier
or others.
8.2.2 Acquisition of Patent Rights
8.2.2.a Covered Contracts. This part applies to all contracts and subcontracts for
research, experimental, developmental, or engineering work or for initial
production of products or equipment developed under a Postal Service
contract.
8.2.2.b Postal Service Title. Postal Service title must be acquired to subject
inventions under a covered contract unless the contracting officer, after
consultation with the purchase team and the patent counsel, determines that
an alternate arrangement is in the best interests of the Postal Service. The
determination concerning alternate arrangements may be made at the time of
solicitation.
8.2.2.c Less than Postal Service Title. When appropriate, the Postal Service may
acquire less than title to subject inventions under covered contracts.
However, in no case may the Postal Service acquire less than a nonexclusive
royalty-free license to make, use and sell each subject invention throughout
the world on behalf of the Postal Service. If the Postal Service takes less than
title, it may allow the supplier to retain title to all subject inventions, or may
allow the supplier to elect whether to retain title on an invention-by-invention
basis. When suppliers are allowed to retain title, the contract must provide
adequate provisions allowing the Postal Service to control the supplier's sale
of the invention to competitors of the Postal Service. As an alternative, the
contracting officer may consider providing for a sharing of revenue for all
commercial sales of the invention, subject to a requirement that any sale of a
subject invention to an organization which provides postal or parcel delivery
services in competition with the Postal Service requires the advance written
approval of the contracting officer. Any such alternative must be coordinated
with the patent counsel.
8.2.2.d Alternate Proposals
1. The contracting officer may consider any alternate proposal giving a
supplier greater rights in an invention made in the performance of a
contract than the solicitation contemplates if it will yield a net benefit to
the Postal Service.
2. Provision 8-1, Alternate Intellectual Property Rights Proposals,
may be included in all solicitations for covered contracts, and alternate
proposals may be considered as part of the evaluation process.
8.2.2.e Alternate Agreements After Award. An alternate agreement on patent rights
for inventions developed at supplier expense but intended for delivery under
a covered contract may be negotiated after award when in the interest of the
Postal Service. Before initiating negotiations, the contracting officer must
seek the advice of patent counsel.
8.2.2.f Other Contracts. The contracting officer may provide for Postal Service
acquisition of patent rights or may solicit alternate agreements for contracts
not covered by this part with the concurrence of patent counsel. Particular
consideration should be given to including such provisions in non-covered
contracts if it appears likely that the supplier will make an invention in
performing the contract.
8.2.2.g Clauses. Clause 8-1, Patent Rights, must be included in contracts in
which the Postal Service will take title to inventions. Clause 8-15,
Patent Rights Supplier Retention, must be included in contracts providing for
the supplier's election to retain invention rights. If an alternate patent
proposal is accepted, the clause must be appropriately modified, with the
concurrence of counsel, to reflect the specific rights in subject inventions that
will be acquired by the Postal Service. The modified clause must clearly state
that all other Postal Service rights in subject inventions remain in effect with
full force. When Clause 8-15 is included in contracts, Clause
8-16, Postal Service Title in Technical Data and Computer Software,
must also be included.
8.2.3 Use of Private Patents
8.2.3.a Authorization and Consent
1. When the government has authorized or consented to the manufacture
or use of an invention described in and covered by a U.S. patent, suit
for recovery of the reasonable and entire compensation for the
manufacture or use of the invention by or for the United States by a
supplier (including a subcontractor at any tier) can be maintained only
against the government in the United States Court of Federal Claims
and not against the supplier or subcontractor (28 U.S.C. 1498). To
ensure that work by a supplier or subcontractor under a Postal Service
contract may not be enjoined by reason of patent infringement, the
Postal Service provides its authorization and consent to the use of
private patents by its suppliers and subcontractors in certain situations.
Broad authorization and consent is provided in the conduct of research
and development activities so that the supplier or subcontractor need
not avoid or invent around particular technology areas. In contracts for
supplies or construction, a more limited authorization and consent is
provided.
2. The liability of the Postal Service for damages in a suit of the nature
described in subparagraph a.1 against it may ultimately be borne by the
supplier or subcontractor in accordance with the terms of any patent
indemnity clause included in the contract, and an authorization and
consent clause does not detract from any patent indemnification
commitment by the supplier or subcontractor. Therefore, both a patent
indemnity clause and an authorization and consent clause may be
included in the same contract.
3. Clause 8-2, Authorization and Consent, must be included in all
covered contracts except those awarded using commercial procedures
(see 4.3) or performed outside the United States.
8.2.3.b Notice and Assistance
1. Clause 8-3, Notice and Assistance Regarding Patent and
Copyright Infringement, must be included in all covered contracts
except those awarded using commercial procedures (see 4.3)
or performed outside the United States.
2. If the contracting officer receives notice of an infringement claim, patent
counsel must be notified immediately.
8.2.4 Patent Indemnification
8.2.4.a Indemnification by Postal Service. The contracting officer may not use any
contract clause providing for indemnification by the Postal Service for patent
infringement by a supplier or subcontractor.
8.2.4.b Indemnification by Supplier
1. The Postal Service's policy is to acquire indemnification for the use, by
or on behalf of the Postal Service, of private patents without the
authorization or consent of the patentee, when the use relates to
supplies or services that the supplier offers or provides to the
commercial open market.
2. Except as provided in 8.2.4.c, Clause 8-4, Patent Indemnity,
must be included in all contracts not awarded using simplified
procedures. The clause may be used in other contracts if patent
infringement is likely.
8.2.4.c Waiver or Modification of Patent Indemnity
1. If it is in the interest of the Postal Service to do so, the contracting
officer may waive or modify the right to patent indemnification, with the
prior approval of patent counsel. If the waiver or modification to the
right to patent indemnification is for research or development, Clause
8-5, Waiver of Indemnity, must be used, and the contract must
be modified as applicable patents are identified.
2. If patent indemnification will be waived completely, Clause 8-4
may not be used.
3. Clause 8-5 must be used if the waiver applies only to specific
patents. Those patents to which the waiver applies must be listed in the
clause.
8.3 Rights in Data
8.3.1 Definitions
8.3.1.a Computer. A device capable of accepting data, performing prescribed
operations on the data, and supplying the results of those operations. It
includes any device that operates on (1) discrete data by performing
arithmetic and logic processes on the data or (2) analog data by performing
physical processes on the data.
8.3.1.b Computer Database. A collection of data in a form capable of being
processed and operated on by a computer.
8.3.1.c Computer Program. Instructions or statements including, but not limited to,
source code, object code, and algorithms, in computer usable form, that
cause a computer to perform specified operations. Computer programs may
be machine-dependent or machine-independent, and may be general or
specific in purpose.
8.3.1.d Computer Software. Computer programs, computer data bases, and their
documentation.
8.3.1.e Computer Software Documentation. Information, including computer listings
and printouts in human-readable form, that (1) documents the design or detail
of computer software, (2) explains its capabilities, or (3) provides operating
instructions for using it.
8.3.1.f Data. Recorded information, regardless of form or the medium on which it
may be recorded. The term includes technical data and computer software.
The term does not include information incidental to contract administration,
such as financial, administrative, cost or pricing, or management information.
8.3.1.g Firmware. Hardware-embedded and hardware-oriented programming that is
used for machine control, error recovery, mathematical functions, applications
programs, and the like, including firmware furnished with a computer,
commercially available proprietary firmware acquired separately, and all
related vendor documentation and manuals.
8.3.1.h Form, Fit, and Function Data. Data relating to an item component, or process
that are sufficient to enable physical and functional interchangeability, as well
as data identifying source, size, configuration, mating and attachment
characteristics, functional characteristics, and performance requirements;
except that for computer software, it means data identifying origin, functional
characteristics, and performance requirements but specifically excludes the
source code, algorithm, process, formulas, and machine-level flow charts of
the computer software.
8.3.1.i Limited Rights. The rights of the Postal Service in limited rights data, as set
forth in a Limited Rights Notice if included in a data rights clause of the
contract.
8.3.1.j Limited Rights Data. Data, other than computer software, developed at
private expense.
8.3.1.k Restricted Computer Software. Computer software developed at private
expense that is a trade secret, is commercial or financial and confidential or
privileged, or is published copyrighted computer software, including minor
modifications of this computer software.
8.3.1.l Restricted Rights. The rights of the Postal Service in restricted computer
software, as set forth in a Restricted Rights Notice included in a computer
software rights clause of the contract, or as otherwise may be included or
incorporated in the contract.
8.3.1.m Technical Data. Data, other than computer software, of a scientific or
technical nature.
8.3.1.n Unlimited Rights. The rights of the Postal Service in technical data and
computer software to use, disclose, reproduce, prepare derivative works,
distribute copies to the public, and perform and display publicly, in any
manner and for any purpose, and to have or permit others to do so.
8.3.2 Data Rights Acquisition Policy
8.3.2.a General. It is the policy of the Postal Service to acquire only the technical
data, computer software and firmware and the rights to them essential to its
needs. These needs include competition, operation and maintenance of
equipment and supply items, dissemination of research and development
contract data to users, recoupment of investments in technology or product
developments and position in the competitive marketplace, personnel
training, inspection and quality assurance, logistics support, and packaging.
These needs must be balanced against the valid economic interest that
commercial organizations have in technical data and computer software
developed at their own expense for competitive purposes.
8.3.2.b Unlimited Rights in Data
1. Unless 8.3.2.c applies, technical data in the following categories must
be acquired with unlimited rights (except for copyrights):
(a) Data first produced in the performance of a Postal Service
contract (except to the extent that they constitute minor
modifications of data that are limited rights data).
(b) Form, fit, and function data (including such data describing
Limited Rights Data subject to the contract) delivered under the
contract.
(c) Data that constitute manuals or instructional and training
materials for installation, operation, or routine maintenance and
repair of items, components, or processes delivered or furnished
for use under the contract (but see 8.3.2.g).
(d) All other technical data delivered under the contract unless they
are limited rights data (see 8.3.2.c).
2. If any of the foregoing data are published copyrighted data, the Postal
Service acquires them under a copyright license, as provided in 8.3.2.f,
rather than with unlimited rights.
3. Unless 8.3.2.c applies, computer software in the following categories is
acquired with unlimited rights:
(a) Computer software first produced in the performance of a Postal
Service contract (except to the extent that it constitutes minor
modifications of computer software that is restricted computer
software).
(b) Form, fit, and function data (including such data describing
restricted computer software subject to the contract) required to
be delivered under the contract.
(c) All other computer software delivered under the contract unless it
is restricted computer software.
8.3.2.c Acquisition of Rights in Data. When it has been determined by the purchase
team, with the consultation and concurrence of the patent counsel, that it is in
the best interests of the Postal Service to take title to technical data or
computer software first produced in the performance of a Postal Service
contract, Clause 8-16, Postal Service Title in Technical Data and
Computer Software, must be incorporated into the contract.
8.3.2.d Privately Developed Data
1. Data developed at private expense, including minor modifications
thereof, is usually acquired with limited rights. To assert that technical
data are limited rights data, the supplier must identify such data in
accordance with Provision 8-2, Representation of Rights in
Data, and, when they are delivered to the Postal Service, place on
them the limited rights legend required by the contract.
2. Restricted computer software normally is acquired with restricted rights.
Suppliers claiming that software is restricted computer software must
identify such software in accordance with Provision 8-2, and,
when it is delivered to the Postal Service, place on it the
contract-required restricted rights legend.
3. When computer software developed at private expense is modified or
enhanced as a necessary part of performing a contract, only that
portion of the resulting product in which the original product is
recognizable will be deemed to be computer software developed at
private expense to which restricted rights may attach.
4. A supplier's claim that data or software has been developed at private
expense must be supported by clear and convincing evidence that the
data or software was developed and is related to a workable device,
computer program, or software routine (including separately identifiable
components, modules, subsystems, and subroutines) incorporated into
larger systems or programs responsive to a contract requirement,
before Postal Service funding was introduced into the development
process.
5. The Postal Service's recognition of Limited Data Rights or Restricted
Computer Software Rights must be incorporated into the contract using
Clause 8-17, Delivery of Limited Rights Data and Restricted
Computer Software.
8.3.2.e Unmarked or Improperly Marked Technical Data or Software
1. Technical data or software received without a restrictive legend are
deemed to have been furnished with unlimited rights. However, the
contracting officer may permit the supplier to place a restrictive legend
on the technical data or software within six months of delivery if the
supplier demonstrates that (a) its omission was inadvertent, and (b) use
of the legend is authorized. The Postal Service has no liability with
respect to the use or disclosure of the technical data or software made
before the actual addition of the legend to the data or software.
2. Technical data or software received with a restrictive legend not
permitted by the terms of the contract may only be used with limited
rights pending inquiry to the supplier. If no response has been received
within 30 days, or if the response fails to show that the restriction is
authorized, the contracting officer may obliterate the legend, notify the
supplier accordingly, and thereafter use the technical data or software
as if they were acquired with unlimited rights.
3. If the contract authorizes the supplier to furnish technical data or
software with limited rights, but the restrictive legend employed by the
supplier is not in the form prescribed by the contract, the technical data
or software must be used with limited rights, and the supplier will be
required to amend the legend to conform with that specified in the
contract. If the supplier fails to so amend the legend within 30 days
after notice, the contracting officer may correct the legend and notify
the supplier of the action.
4. The procedures of this paragraph e may be modified in accordance
with regulations implementing the Freedom of Information Act (5 U.S.C.
552) (see 1.7.4) if necessary to respond to a request under the
Freedom of Information Act. The supplier is not precluded from bringing
a claim in connection with any dispute that may arise as the result of
the Postal Service's action to remove any markings on technical data,
unless the action occurs as the result of a final disposition of the matter
by a court of competent jurisdiction.
8.3.2.f Copyrighted Data
1. Under contracts for basic research, suppliers may establish claim to
copyright in technical or scientific articles based on, or containing, data
first produced in the performance of work under a Postal Service
contract only if the data are to be published in academic, technical,
or professional journals, symposia proceedings, or similar works.
Otherwise, the permission of the contracting officer must be obtained if
the supplier desires to establish claim to copyright in data first produced
in the performance of a contract.
2. Unless otherwise approved by the contracting officer with concurrence
of patent counsel, whenever a supplier establishes claim to copyright
first produced in the performance of a contract, the supplier must grant
the Postal Service a paid-up, nonexclusive, irrevocable, worldwide
license to reproduce, prepare derivative works, distribute to the public,
and perform and display publicly by or on behalf of the Postal Service,
covering all such data.
3. If any data not first produced in performing a contract are subject to a
claim of copyright, the supplier may not incorporate them in data
delivered under the contract without either:
(a) Acquiring for or granting to the Postal Service copyright license
rights in them; or
(b) Obtaining permission from the contracting officer to do otherwise.
4. The copyright license the Postal Service acquires for the data in
subparagraph e.3 will normally be of the same scope as discussed
in subparagraph e.2. However, contracting officers may, on a
case-by-case basis, obtain a license of different scope if the contracting
officer determines that it is consistent with the purpose of acquiring the
data. If a license of a different scope is acquired, it must be so stated in
the contract and clearly set forth in a conspicuous place on the
delivered data. In addition, if computer software not first produced in
the performance of a Postal Service contract is delivered with a claim of
copyright, the Postal Service's license will be as set forth in paragraph c
of Clause 8-9, Rights in Computer Software, or as otherwise
may be provided in a collateral agreement incorporated in or made part
of the contract.
5. If supplier action causes limited rights data or restricted computer
software to be published with the claim of copyright after the data have
been delivered to the Postal Service without a notice, the Postal
Service is relieved of disclosure and use limitations and restrictions
regarding the data, and the supplier should advise the Postal Service,
request that a copyright notice be placed on the copies of the data
delivered to the Postal Service, and acknowledge that the applicable
copyright license described in subparagraph f.2 applies.
8.3.2.g Acquisition of Additional Rights in Data
1. The Postal Service may purchase as a separately priced contract item
specific rights in privately developed data (such as, unlimited rights in
limited rights data) when the contracting officer determines that there is
a clear need for these rights in order to accomplish an essential
function of the Postal Service. The acquisition of such data rights must
be based on a specific written determination of the contracting officer
evaluating all alternative methods of accomplishing the function and
demonstrating that the acquisition of data rights is the most
cost-effective method available to the Postal Service.
2. When additional rights in data are needed, it is possible that the Postal
Service does not need unlimited rights but only the right to use the data
for Postal Service purposes. One method of acquiring additional rights
is to acquire the right to direct the supplier to license other suppliers to
use the data to perform work for the Postal Service.
3. When additional rights are acquired, Clause 8-14, Acquisition
of Additional Rights in Data, must be included in the contract and the
contract Schedule must list:
(a) The items, components, or processes for which additional rights
in technical data will be furnished; and
(b) The computer software for which additional rights will be
furnished.
4. This list must specify for each listed item whether the supplier will
furnish unlimited rights, limited rights, directed license rights (see
subparagraph f.2 ), or some other form of rights agreed to by the
parties.
8.3.2.h Manuals and Instructional Materials. Manuals or instructional and training
materials comprising technical data must be obtained with unlimited rights to
allow use by Postal Service employees and Postal Service suppliers in the
course of installation, training operation, or routine maintenance and repair of
equipment. Suppliers may request the exclusion of specified limited rights
data from the specifications for manuals or training materials. However, if the
contracting officer determines that such data are necessary to perform any of
these functions, the data must be delivered with unlimited rights.
8.3.2.i Technical Data Necessary to Procure Repair Parts
1. When a solicitation is for the development or manufacture of equipment
or a supply item that will require the future purchase of substantial
quantities of repair parts, and it appears likely that the supplier will
incorporate limited rights data in the drawings and specifications, the
contracting officer must consider including in the contract the Postal
Service right to use the data to obtain competition in procuring repair
parts. When unknown factors, such as cost, make the feasibility of
acquiring such rights uncertain, the solicitation may include the rights
as a separately priced optional line item.
2. If the solicitation contemplates the acquisition of this additional right,
Provision 8-3, Use of Limited Rights Data for Purchasing of
Repair Parts, must be included in the solicitation, and the Limited
Rights Notice in Clause 8-6, Rights in Technical Data, must be
modified by Clause 8-18, Manufacture of Repair Parts.
8.3.2.j Subcontracts. It is the responsibility of the supplier to obtain from
subcontractors all the data and rights in data necessary to fulfill the supplier's
obligations under the contract. If a subcontractor refuses to accept a
supplier's terms giving the Postal Service the required data and rights in data,
the supplier must notify the contracting officer and seek approval for the
subcontract data provisions.
8.3.2.k Modification of Postal Service Rights. The Postal Service's rights in technical
data and computer software may not be modified except as provided in this
part or in 8.3.4. Acceptance from one source of technical data or computer
software subject to limited or restricted rights does not affect the Postal
Service's rights in such data or similar data acquired from other sources.
8.3.3 Data Ordering
8.3.3.a Basic Policy. To the extent that the Postal Service's requirements for data are
known at the time of contract award, the contract should specify the data to
be delivered to the Postal Service.
8.3.3.b Additional Ordering of Data. In some cases, such as experimental,
developmental, research, or demonstration contracts, it may not be feasible
to ascertain all the data requirements at the time of contract award. Clause
8-8, Additional Data Requirements, is used to enable the later
ordering of additional data as the actual requirements become known. The
clause must be used in solicitations and contracts involving experimental,
developmental, research, or demonstration work unless there is certainty that
all the requirements for data are specified in the contract. The contracting
officer may permit the supplier to identify in the contract data not to be
ordered for delivery under Clause 8-8, if they are not necessary to
meet the Postal Service's requirements.
8.3.4 Solicitations
8.3.4.a Supplier's Representation
1. When the Postal Service needs title to data first developed under the
Postal Service contract or data with unlimited rights, but there is a
possibility that one or more offerors will propose to deliver technical
data or computer software with restrictions on use or disclosure, the
solicitation must contain Provision 8-2, Representation of
Rights in Data.
2. The solicitation may require the supplier to identify all limited rights data
and restricted computer software after award if identification is
impracticable before award, and to identify limited rights data and
restricted computer software relating to any changed requirements.
8.3.4.b Data Offered with Restrictions. After review of the data to be furnished with
restrictions, the purchase team may recommend to:
1. Negotiate to acquire unlimited rights or an option for unlimited rights;
2. Modify the requirement for title or unlimited rights;
3. Negotiate to acquire additional data rights necessary to accomplish the
purpose for which the data are being acquired; or
4. Reject the proposal as not in the interest of the Postal Service.
8.3.4.c Alternate Proposals
1. The Postal Service may consider an alternate proposal giving a
supplier greater rights in data if they are necessary to permit the
commercial use of the data or yield a net benefit to the Postal Service.
2. Provision 8-1, Alternate Intellectual Property Rights Proposals,
may be included in all solicitations for contracts requiring the delivery of
data, and alternate proposals must be considered as part of the
evaluation process.
8.3.5 Technical Data Contract Clauses
1. Clause 8-6, Rights in Technical Data, and Clause 8-7,
Withholding Payment (Technical Data and Computer Software), must
be included in the contract when technical data will be acquired.
2. Clause 8-16, Postal Service Title in Technical Data and
Computer Software, must be included in the contract when title to
technical data or computer software will be acquired.
3. If the data requirements are not adequately fixed and specified at the
time of contracting, Clause 8-8, Additional Data Requirements,
must also be included in the contract.
8.3.5.b Alternate Arrangements. When, in accordance with 8.3.2.f, the contracting
officer determines to acquire specific technical data items with Postal Service
rights greater than those specified in Clause 8-6, the contract must
specifically describe the applicable data items sought and Clause
8-14, Acquisition of Additional Rights in Data, must also be included
in the contract. If an alternate data rights proposal is accepted in accordance
with 8.3.4.c, Clause 8-6 (see subparagraph a.1) must be
appropriately modified by special provision to reflect the data rights being
acquired.
8.3.5.c Computer Software. When computer software is to be generated or produced
under a contract, the contracting officer must include Clause 8-9,
Rights in Computer Software, in the contract in addition to the appropriate
clauses prescribed in paragraphs a and b above.
8.3.6 Acquisition of Rights in Computer Software
8.3.6.a Covered Contracts. This part applies to contracts under which computer
software (computer programs, computer data bases, and their
documentation) will be generated, developed, or modified using Postal
Service funds and those for specific acquisition of computer software
developed at private expense.
8.3.6.b Computer Software Developed at Private Expense
1. If restricted computer software will be delivered, Clause 8-9
must be used. Unless otherwise agreed to, the restricted rights
obtained by the Postal Service are as set forth in the Restricted Rights
Notice contained in the clause. Restricted computer software may not
be used or reproduced by or disclosed outside the Postal Service,
except to the extent provided for by the contract. The restricted
computer software may be:
(a) Used or copied for use in or with the computer or computers for
which it was acquired, including use at any Postal Service
installation to which the computer or computers may be
transferred;
(b) Used or copied for use in or with a backup computer if any
computer for which it was acquired becomes inoperative;
(c) Reproduced for safekeeping (archives) or backup purposes;
(d) Modified, adapted, or combined with other computer software,
provided the modified, adapted, or combined portions of any
derivative software incorporating restricted computer software are
made subject to the same restricted rights, unless otherwise
agreed to by the parties;
(e) Disclosed to and reproduced for use by support service suppliers,
subject to the same restriction under which the Postal Service
acquired the software; and
(f) Used in accordance with b.1(a) through (e), without disclosure
prohibitions, if the computer software is published copyrighted
computer software.
2. The restricted rights set forth in subparagraph b.1 are the minimum
rights the Postal Service normally obtains in restricted computer
software and automatically apply when it is provided under the
Restricted Rights Notice of Clause 8-9. Either greater or lesser
rights, consistent with the purposes and needs for which the software is
to be procured, may be specified by the contracting officer in a
particular contract. For example, consideration should be given to any
networking needs or any requirements for use of the computer software
from remote terminals. Also, in addressing such needs, the scope of
the restricted rights may be different for the documentation
accompanying the computer software than for the programs and data
bases. Any additions to, or limitations on, the restricted rights set forth
in the Restricted Rights Notice must be expressly stated in the contract
or in a collateral agreement incorporated in the contract, and the notice
modified accordingly.
3. When needed to determine whether restricted computer software must
be delivered by a supplier, Provision 8-2, Representation of
Rights in Data, may be included in any solicitation containing Clause
8-9. This representation requests that an offeror state, to the
extent feasible, whether restricted computer software is likely to be
used in meeting the contract requirements.
8.3.6.c Marking of Computer Software. Restricted computer software delivered to the
Postal Service must contain the legend prescribed by paragraph g of Clause
8-9, if the supplier desires to protect the restricted computer
software. All markings (notices, legends, identifications) concerning
restrictions on the use, duplication, or disclosure of computer software
required or authorized by the terms of the contract under which delivery is
made must be in human-readable form that can be readily and visually
perceived, and in addition may be in machine-readable form as appropriate
and feasible under the circumstances. These markings must be affixed by the
supplier to the computer software before its delivery to the Postal Service.
1. Contracts that call for the delivery of computer software and contracts
that call for development, generation, or modification of computer
software (whether or not delivery of the computer software is required)
must include Clause 8-9 and Clause 8-7, Withholding
Payment (Technical Data and Computer Software).
2. If technical data, as well as computer software, are to be delivered,
Clause 8-6, Rights in Technical Data, must also be included in
the contract.
3. If the computer software deliverables are not fixed at the time of
contract award, Clause 8-8, Additional Data Requirements,
must be included in the contract.
8.3.7 Special Works
8.3.7.a Covered Contracts. This part applies to all contracts for special works if the
Postal Service specially commissions the works and requires ownership and
control of them. Examples of such contracts may include those for (1) the
production of audiovisual works (including motion pictures and television
recordings) or the preparation of motion picture scripts, musical
compositions, sound tracks, translations, adaptions, and the like; (2) histories
of the Postal Service; (3) works pertaining to recruiting, morale, training, or
career guidance; (4) surveys of facilities; (5) works pertaining to the
instruction or guidance of Postal Service employees in the discharge of their
official duties; or (6) production of technical reports, studies, or similar
documents not otherwise covered by 8.3.2.
8.3.7.b Restrictions on Release
1. Because the release of works covered by this part by the supplier
preparing the works would prejudice the Postal Service's activities,
release must be restricted.
2. Contracts for items such as audiovisual works and sound recordings
may include limitations in connection with music licenses, talent
releases, and the like that are consistent with the purpose for which the
works are acquired.
8.3.7.c Assignment of Copyrights. The contract must enable the Postal Service to
obtain ownership of the copyright in the works described above. This is to be
accomplished by contract provisions requiring the supplier to assign
copyrights to the Postal Service in those works in which the Postal Service
would not otherwise be considered the author under section 201(b) of Title
17, United States Code.
8.3.7.d Indemnification. Preparation of certain types of copyright works requires
talent releases and other permission from artists, models, and in some cases
other copyright owners. Therefore, an indemnification for any liability that
may be incurred by the Postal Service for any violation of proprietary rights,
including copyrights, or right of privacy or publicity, or for libelous or other
unlawful matter arising out of or contained in any production or compilation of
data, should be acquired from the supplier.
8.3.7.e Clauses. Clause 8-10, Rights in Data - Special Works, must be
included in covered contracts. When appropriate, Clause 8-7,
Withholding Payment (Technical Data and Computer Software), may also be
included in the contract.
8.3.8 Existing Works
8.3.8.a Covered Contracts. Contracts for the procurement of existing works (other
than computer programs and audiovisual works), such as books and
periodicals, generally require no specific contract coverage for data rights.
When reproduction rights are required in such works, specific contract
coverage is needed.
8.3.8.b Clause. If reproduction rights are to be obtained for existing works (other than
computer programs and audiovisual works), Clause 8-11, Rights in
Data - Existing Works, must be included in the contract.
8.3.9.a Reporting Royalties
1. Provision 8-4, Royalty Report, must be included in any
solicitation that may result in other than a firm-fixed-price contract.
2. The contracting officer must forward any information received regarding
royalties to the General Counsel.
3. The General Counsel must advise the contracting officer concerning
any royalties that are excessive or that the Postal Service is not
obligated to pay.
8.3.9.b Refunds of Royalties. When the price of a contract described in
subparagraph a.1 is based in part on a contingency for patent royalties that
may not have to be paid by the supplier, Clause 8-12, Refund of
Royalties, must be included in the contract.
8.3.10 Professional Services
Contracts for professional consultant, research, technical development or
other specialized support services may require access to Postal Service
information. The products of such contracts may not otherwise be covered by
the policies of 8.2 or 8.3, and generally have unknown long-term implications
and therefore require broad rights in intellectual property to flow to the Postal
Service. Clause 8-13, Intellectual Property Rights, must be included
in such contracts.
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