Interview transcript:
Terry Gerton: So there’s a new book on the shelves from DOD, the IP guidance book. Tell us about that and why it’s important.
Dan Ramish: So Terry, the long-awaited guidance issued by DOD’s IP cadre, which is a group of IP experts that were called for by statute to update DOD IP policies and procedures, issued this new guidebook that’s really geared toward DOD acquisition professionals in developing and implementing intellectual property strategies. And the guide, as DOD describes it, provides guidance on the implementation of IP laws and regulations. Explains the legal and operational challenges in acquiring IP and associated rights, and then also promotes engagement with industry. So it’s really trying to establish policy and provide documentation that supports acquisition professionals in ensuring that they’re considering IP interests.
Terry Gerton: What’s significant about the timing now? I mean, this has been in the writing stage for quite a while.
Dan Ramish: I think it just took a long time to put this guide together. So it was in the works before the change in administration. It’s 80 pages plus. It’s very complex and technical, although they’ve made efforts to try to make it accessible to acquisition professionals as well. Certainly a part of the broader strategy around improving DOD procurement of IP is helping the workforce and educating the workforce. And so this guide was put together very intentionally. It was a major effort to do. I think this is just the earliest they could finish it. But there are other changes of foot that kind of will play into and interact with how the guide is used.
Terry Gerton: Well, it seems even though it was started under the Biden administration, it certainly aligns with many of Secretary Hegseth’s initiatives in DOD, especially the idea to in-source IT sustainment and even other equipment sustainment, which DOD can’t do if it doesn’t have the IP. So how does this guidebook help? Why is it important at this particular time?
Dan Ramish: So the guidebook in significant part captures kind of the current approach of DOD to procuring intellectual property. And there’s a little figure in the guide that shows kind of the evolution over time in how DOD thinks about intellectual property and the rights that are needed. It has kind of a three subdivided timeframes, starting with a government rights approach, which was their label for the post-World War II era of government-unique development. Ran through the issuance of the Federal Acquisition Regulation rules in 1984 and involved a lot of focus on acquiring rights and technical data. That period, DOD has stressed before, was also largely a period where government had a much larger share of overall research and development. And so over time in the post-war period, the government spending on R&D started going down and the private investment in R&D started going up. And so that kind of brought in the commercial rights approach, which really spanned starting in the ’90s, with the Federal Acquisition Streamlining Act that really emphasized procuring commercial products and services and went through into the aughts with a shift to buying commercial and acknowledging that commercial buying doesn’t necessarily require the same level of rights and technical data. And sort of the modern era, which I think this guide is really geared toward, they characterize as a balanced approach. Which recognizes that we, DOD, are still buying commercial products and services. But we also have unique needs with the procurement life cycle on DOD programs that can last decades. And so having a sufficient intellectual property not only early in the program, but for maintenance and sustainment for upgrades that need to happen and eventually for re-procurement is really important to DOD. And there are a lot of concerns around vendor lock. And so there’s also an acknowledgement in this balanced approach that industry also has legitimate interests here in protecting its crown jewels and many companies will say that their IP is the lifeblood of the company or that it is the company. It’s really fundamental to industry as well. And so having a tailored approach and using some of the tools that are In more detail in the guide is important to kind of have that interest based negotiation to reach license rights that meet the needs of both parties.
Terry Gerton: So Dan, it sounds like the pendulum is kind of swinging a little bit back to the middle in this balanced approach. What’s actually in the guide and who’s it for? Is it for DOD’s contractors? Is it industry? Should everybody put this under their pillow and sleep on it?
Dan Ramish: So it’s written targeting acquisition professionals. There’s also acknowledgement that one of the major themes in modern DOD IP acquisition is that you really need a cross-functional team involved in intellectual property strategy, that it’s not just the program staff, it’s just the contracting officer, but you need test managers and contracting and subject matter experts and legal data managers, all working together to ensure that the government’s needs are met. And there is some expectation that other stakeholders and other role players within the government will look at this guide. I’m sure that the IP cadre was also anticipating the industry would look at it, even though they’re not the specific targeted audience, because it is useful to understand where the government is coming from in approaching procuring IP.
Terry Gerton: So how does a procurement officer then use this? What are the specific things that they should be looking for if they’re on a contract where they’re going to need to be procuring or securing the IP?
Dan Ramish: So the guide both handles the structure of the procurement process and the life cycle, talking about the different phases of developing and then implementing and maintaining an IP strategy, starting from as early in the process as you can get it, and then continuing and handling data management, things like reviewing markings on submissions, deliverables, and ensuring that they’re valid. So the intent is for acquisition professionals to think about this early, to think about the whole process from the front end, to also be cognizant that data deliverables are separate from data rights. And so, the standard IP licenses are set forth in clauses in the Defense Federal Acquisition Regulation Supplements and those don’t address what is actually going to be delivered, which is critical to DoD being able to use the intellectual property in the future. So planning for all of these needs at the front end and then having ongoing management of the IP strategy. And it also talks about tools that are available to implement that balanced approach.
Terry Gerton: IP and artificial intelligence are very closely related and sometimes in opposition. How does this guy deal with that relationship, AI and IP?
Dan Ramish: So Terry, this was one of the surprises to me that this guide never mentions artificial intelligence, or AI, at all, given where we are in 2025, given the new administration’s emphasis on adoption of AI by government, I think it would have been nice to see some acknowledgement of this emerging issue and area. I also appreciate that this guide was in the works for a long time. Also AI is a complex area, and the law around AI is evolving in real time. There isn’t a consensus around what the regulatory approach should be to AI. So I understand why it wouldn’t specifically be treated, but certainly it’s one of the things I think many readers of the guide will be thinking about in the background as they look at the guide.
Terry Gerton: So maybe that’s in the future for a volume two.
Dan Ramish: There you go, I think with the new administration, handling of AI will be a priority and there’ll be plenty of more material to include around that topic.
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