DoD Instruction 5010.44 Intellectual Property (IP) Acquisition and

DOD INSTRUCTION 5010.44

NTELLECTUAL PROPERTY (IP) ACQUISITION AND LICENSING

Originating Component: Office of the Under Secretary of Defense for Acquisition and Sustainment

Effective: October 16, 2019

Releasability: Cleared for public release. Available on the Directives Division Website

at https://www.esd.whs.mil/DD/.

Incorporates and Cancels: Paragraph 6.a.(4) of Enclosure 2 of DoD Instruction 5000.02, “Operation

of the Defense Acquisition System,” January 7, 2015, as amended

Approved by: Ellen M. Lord, Under Secretary of Defense for Acquisition and

Sustainment

Purpose: In accordance with the authority in DoD Directive 5134.01 and the July 13, 2018 Deputy

Secretary of Defense Memorandum, this issuance:

• Establishes policy, assigns responsibilities, and prescribes procedures for the acquisition, licensing,

and management of IP pursuant to Sections 2320, 2321, and 2322(a) of Title 10, United States Code

(U.S.C.).

• Establishes the DoD IP Cadre, pursuant to Section 2322(b) of Title 10, U.S.C.

• Designates the Assistant Secretary of Defense for Acquisition (ASD(A)) as the senior DoD official

overseeing development and implementation of DoD policy and guidance for acquisition, licensing, and

management of IP for DoD.

DoDI 5010.44, October 16, 2019

TABLE OF CONTENTS 2

TABLE OF CONTENTS

SECTION 1: GENERAL ISSUANCE INFORMATION .............................................................................. 3

1.1. Applicability. .................................................................................................................... 3

1.2. Policy. ............................................................................................................................... 3

SECTION 2: RESPONSIBILITIES ......................................................................................................... 5

2.1. ASD(A). ............................................................................................................................ 5

2.2. President, Defense Acquisition University (DAU). .......................................................... 5

2.3. General Counsel of the Department of Defense. .............................................................. 5

2.4. DoD Component Heads with Acquisition Authority or Contract Administrative

Responsibilities. .................................................................................................................. 5

SECTION 3: THE IP CADRE .............................................................................................................. 8

3.1. Cadre Purpose. .................................................................................................................. 8

3.2. Organization and Management. ........................................................................................ 8

3.3. Roles and Responsibilities. ............................................................................................... 8

SECTION 4: IP IMPLEMENTATION GUIDANCE ................................................................................. 10

4.1. IP Strategy. ...................................................................................................................... 10

4.2. DoD Component IP Requirements. ................................................................................ 10

GLOSSARY ..................................................................................................................................... 12

G.1. Acronyms. ...................................................................................................................... 12

G.2. Definitions. ..................................................................................................................... 12

REFERENCES .................................................................................................................................. 13

DoDI 5010.44, October 16, 2019

SECTION 1: GENERAL ISSUANCE INFORMATION 3

SECTION 1: GENERAL ISSUANCE INFORMATION

1.1. APPLICABILITY. This instruction:

a. Applies to:

(1) OSD, the Military Departments, the Office of the Chairman of the Joint Chiefs of

Staff and the Joint Staff, the Combatant Commands, the Office of the Inspector General of the

Department of Defense, the Defense Agencies, the DoD Field Activities, and all other

organizational entities within the DoD (referred to collectively in this instruction as the “DoD

Components”).

(2) Acquisition, licensing, and management of IP that is acquired, created by or for, or

used by or on behalf of the DoD for purposes relating to the acquisition, operation, maintenance,

modernization, and sustainment of defense products and services, regardless of the legal

instrument governing such activities, and regardless of whether the IP is treated as a product or a

service.

b. Does not apply to:

(1) Licensing or other technology transfer of U.S. Government-owned IP or technology

covered by DoD Directive 5535.03 and DoD Instruction 5535.8.

(2) Branding and trademark licensing by DoD Components covered by DoD

Directive 5535.09 and DoD Instruction 5535.12.

1.2. POLICY. Weapon and information systems acquired by DoD in support of the warfighter

are, and will be, increasingly dependent on technology for its operation, maintenance,

modernization, and sustainment. Acquiring and licensing the appropriate IP is vital for ensuring

the systems will remain functional, sustainable, upgradable and affordable. Because balancing

the interests of the U.S. Government and industry in IP can be difficult, early and effective

understanding, planning, and communications between the U.S. Government and industry is

critical, as is ensuring delivery, acceptance, and management of the necessary IP deliverables

(e.g., technical data and computer software), with appropriate license rights. The DoD requires

fair treatment of IP owners, and seeks to create conditions that encourage technologically

advanced solutions to meet DoD needs.

a. It is DoD policy to acquire, license, and manage IP to:

(1) Enable coordination and consistency across DoD Components in developing and

implementing strategies for acquiring and licensing IP and communicating with industry.

(2) Ensure that program managers are aware of the rights and obligations of the Federal

Government and contractors in IP, and that program managers fully consider and use all

available techniques and best practices for acquiring and licensing IP early in the acquisition

process.

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SECTION 1: GENERAL ISSUANCE INFORMATION 4

(3) Encourage customized IP strategies for each system based on, at a minimum, the

unique characteristics of the system and its components, the product support strategy for the

system, the organic industrial base strategy of the military department concerned, and the

commercial market.

b. The following core principles govern the DoD acquisition, licensing, and management of

IP:

(1) Integrate IP planning fully into acquisition strategies and product support strategies

to protect core DoD interests over the entire life cycle. Seek to acquire only those IP

deliverables and license rights necessary to accomplish these strategies, bearing in mind the

long-term effect on cost, competition, and affordability.

(2) Ensure acquisition professionals have relevant knowledge of how IP matters relate to

their official duties. Cross-functional input and coordination is critical to planning and life-cycle

objectives.

(3) Negotiate specialized provisions for IP deliverables and associated license rights

whenever doing so will more effectively balance DoD and industry interests than the standard or

customary license rights. This is most effective early in the life cycle, when competition is more

likely.

(4) Communicate clearly and effectively with industry regarding planning, expectations

and objectives for system upgrade and sustainment. Avoid requirements and strategies that limit

the DoD’s options in accessing vital technology and commercial solutions available from

industry.

(5) Respect and protect IP resulting from technology development investments by both

the private sector and the U.S. Government.

(6) Clearly identify and match data deliverables with the license rights in those

deliverables. Data or software deliverables are of no value unless and until the license rights to

use it are attached, and the U.S. Government actually obtains and accepts those deliverables.

DoDI 5010.44, October 16, 2019

SECTION 2: RESPONSIBILITIES 5

SECTION 2: RESPONSIBILITIES

2.1. ASD(A). Under the authority, direction, and control of the Under Secretary of Defense for

Acquisition and Sustainment, the ASD(A):

a. Serves as the senior DoD official overseeing development and implementation of DoD IP

policy and guidance for DoD.

b. Manages a cadre of personnel who are experts in the acquisition, licensing, and

management of IP, coordinating their development and activities, including:

(1) Establishing an appropriate leadership structure and office for the IP Cadre.

(2) Ensuring the Cadre has the appropriate number of staff and such staff possesses the

necessary skills, knowledge, and experience to carry out the duties in Paragraph 3.3., including

in relevant areas of law, program management, contracting, acquisition, logistics, configuration

management, engineering, financial analysis, and valuation.

2.2. PRESIDENT, DEFENSE ACQUISITION UNIVERSITY (DAU). Under the authority,

direction, and control of the ASD(A), the President, DAU:

a. In collaboration with the IP Cadre lead, develops and updates IP curricula and reference

materials, making use of IP lessons learned from actual case studies to derive experiential

learning materials for the acquisition workforce.

b. Provides IP training to help the U.S. Government identify, acquire, and license IP at the

earliest appropriate time and at the most affordable cost, while treating industry fairly and

providing incentives to participate in the defense marketplace.

c. Provides and continuously improves training and education tailored to the various

disciplines that must implement and manage IP acquisition and licensing activities.

2.3. GENERAL COUNSEL OF THE DEPARTMENT OF DEFENSE. Pursuant to Section

140 of Title 10, U.S.C., and DoD Instruction 1442.02, the General Counsel of the Department of

Defense, as the chief legal officer of the DoD, and as Director, Defense Legal Services Agency,

provides legal advice and services in support of this issuance and in support of the IP Cadre

established in Section 3.

2.4. DOD COMPONENT HEADS WITH ACQUISITION AUTHORITY OR

CONTRACT ADMINISTRATIVE RESPONSIBILITIES. The DoD Component heads with

acquisition authority or contract administrative responsibilities:

a. Oversee implementation of this issuance, and identify one or more offices with

responsibility to coordinate matters related to the functions described below with the IP Cadre.

DoDI 5010.44, October 16, 2019

SECTION 2: RESPONSIBILITIES 6

b. Ensure that program personnel engaged in all stages of the acquisition life cycle have

relevant knowledge of the rights and obligations of the Federal Government and contractors

regarding IP matters, IP law and regulations, program management, logistics, contracts, data

management, valuation, and other disciplines as appropriate. Program personnel must fully

consider and use all available techniques and best practices early in the acquisition process for

identifying, acquiring, licensing, and enforcing the U.S. Government’s rights to IP necessary to

support operation, maintenance, modernization, and sustainment.

c. Incorporate consideration of types of IP deliverables and level of associated license rights

into source selection evaluation factors, and as negotiation objectives in sole-source awards, as

appropriate. Ensure there is sufficient clarity in contractors’ identification and assertion of

restrictions on IP rights to enable the U.S. Government to assess how those assertions may affect

DoD interests over the life cycle, e.g., by requiring contractors to align assertions to specific IP

deliverables, to particular system components or/processes, and to development or modernization

funding.

d. Facilitate coordination and consistency across the DoD in strategies for determining the IP

deliverables and IP rights necessary for operation, maintenance, modernization, and sustainment.

e. Incorporate IP planning elements into acquisition strategies, emphasizing the criticality of

long-term analysis and planning during the earliest phases of the program, while preserving

flexibility to address developments in the program sustainment strategy. Planning before

solicitation for programs will address costs and benefits of procuring required IP and IP rights in

light of corresponding investment and the government’s means to reuse and adapt same. This

includes configuration management planning that considers how mixes of contractor and

government changes impacting delivered IP and data reuse and the ability to compete life-cycle

support.

f. Communicate clearly and effectively with industry on IP matters early in the program life

cycle. When both DoD and industry are making and planning technology investments, IP

considerations will be critical to recognizing a return on such investments. For example, DoD

Component heads will ensure IP matters are prioritized and included in such things as industry

days, draft solicitations, one-on-one meetings with potential offerors, and presolicitation notices.

g. When communicating with industry, explore ways to share appropriate details about the

program’s IP strategy and product support strategy. During such communications, address the

need for competitive and affordable product support and upgrades while providing appropriate

protections for privately developed IP.

h. Acquire the necessary IP deliverables and associated license rights at fair and reasonable

prices, while supporting the product support and reuse strategy. Improve the quality and

consistency of financial analysis and valuation practices for determining fair and reasonable

prices and appropriate needs for IP and IP rights in order to develop program budgets and

evaluate proposals.

i. Ensure that IP strategies identify and enable actions to ensure return on U.S. Government

investment in IP developed in whole or in part at U.S. Government expense, including by

DoDI 5010.44, October 16, 2019

SECTION 2: RESPONSIBILITIES 7

negotiating for delivery of that IP and acquiring the appropriate associated license rights,

preferably at the time of development of the technology.

j. Ensure IP deliverables (e.g., technical data and computer software) and associated license

rights are acquired and managed as necessary to support the use of modular open systems

approaches pursuant to Chapter 144B of Title 10, U.S.C.

k. Establish and maintain IP management procedures to ensure that time-sensitive actions

are executed as appropriate to avoid an unintentional loss of IP rights, e.g., inspection and

acceptance of IP deliverables, challenge and validation of asserted restrictions on deliverable IP,

exercise of time-limited contract options for IP deliverables or IP rights.

DoDI 5010.44, October 16, 2019

SECTION 3: THE IP CADRE 8

SECTION 3: THE IP CADRE

3.1. CADRE PURPOSE. The IP Cadre facilitates the development and use of a highly

competent and consistent approach across the DoD for acquiring, licensing, and managing IP, by

providing timely expert advice, assistance, and resources to the acquisition workforce on IP

matters. IP Cadre members will advise, assist, and provide resources to DoD Components on IP

matters at various stages of the life cycle of a system.

3.2. ORGANIZATION AND MANAGEMENT. The IP Cadre is established under the

authority, direction, and control of the ASD(A). It will consist of a director, and such

subordinate organizational elements and members as established within resources assigned. The

IP Cadre will interact with the DoD Components to facilitate a highly competent and consistent

approach to assigned areas. In performance of assigned functions and responsibilities, the

director of the IP Cadre will:

a. Provide oversight and coordination on all acquisition and licensing policy and procedures

for DoD IP.

b. Coordinate actions and exchange information with other DoD organizations that have

collateral or related functions.

c. Identify and distribute best practices.

d. Interface on assigned functions with Congress, industry, academia, as well as

organizations throughout the DoD engaged in activities throughout the life-cycle of programs.

e. Support development of requirements for training and credentialing the acquisition

workforce.

f. Provide assistance, when requested by the DoD Components, within the scope of the IP

Cadre roles and responsibilities.

3.3. ROLES AND RESPONSIBILITIES. Members of the IP Cadre:

a. Issue and interpret policies relating to acquisition, licensing, and management of IP,

consistent with law and regulation.

b. Advise and assist in the development of an acquisition strategy, product support strategy,

and IP strategy for a system.

c. Conduct or assist with the financial analysis and valuation of IP.

d. Assist program offices in drafting relevant IP provisions in solicitations, contracts, other

transaction agreements, and licenses.

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SECTION 3: THE IP CADRE 9

e. Assist contracting officers in interactions with contractors, including communications and

negotiations with contractors regarding solicitations and awards.

f. Assist contracting officers in the conduct of challenges to contractors’ asserted restrictions

on IP or if IP deliverables are incomplete or do not comply with the terms of a contract.

g. Coordinate with the DAU, academia, and industry to develop and update IP curricula and

reference materials, including guidance, training courses, and case studies.

h. Address the management of IP deliverables and IP rights to support the creation and

sustainment of a competitive environment, from program inception through sustainment.

i. Facilitate coordination and consistency across the DoD in strategies for determining the IP

deliverables and IP rights necessary for operation, maintenance, modernization and sustainment.

DoDI 5010.44, October 16, 2019

SECTION 4: IP IMPLEMENTATION GUIDANCE 10

SECTION 4: IP IMPLEMENTATION GUIDANCE

4.1. IP STRATEGY. Each DoD program will have a robust IP strategy to identify and manage

the full spectrum of IP and related matters (e.g., technical data and computer software

deliverables, patented technologies, and license rights) from the inception of a program and

updated throughout entire product life cycle—initially as part of the acquisition strategy, and

during the operations and support phase as part of the life-cycle sustainment plan.

a. The IP strategy will describe, at a minimum:

(1) How program management will assess long-term program requirements, and total

ownership costs of IP deliverables and associated license rights necessary for competitive and

affordable operation, maintenance, modernization, and sustainment over the entire product life

cycle. This includes integrating, for all systems, the IP planning elements required by

Paragraph (S-70) of Section 207.106 of the Defense Federal Acquisition Regulation Supplement

for major weapon systems and subsystems thereof.

(2) How IP and related matters necessary to support the program’s use of modular open

systems approaches, including in accordance with Sections 2320 and 2446a through 2446c of

Title 10, U.S.C., will be addressed. This includes providing guidance for how solicitations and

contracts will:

(a) Identify and require all major systems interfaces to be based on widely supported

and consensus-based standards (if available and suitable), which are preferably non-proprietary.

(b) Include requirements to acquire the appropriate IP rights in such major systems

interfaces.

interfaces necessary to segregation and reintegration activities).

b. Customize IP strategies based on, at a minimum, the common, shared, and unique

characteristics of the system and its components, the system architecture and interfaces, the

product support strategy, the organic industrial base strategy of the DoD Component concerned,

whether the item can be found in the commercial market, and whether the standard commercial

licensing terms meet DoD needs.

c. IP strategies must consider the use of specially negotiated licenses to acquire customized

IP deliverables (e.g., technical data, computer software) and associated license rights appropriate

for particular elements of the product support strategy.

4.2. DOD COMPONENT IP REQUIREMENTS.

a. Program management offices will use both direct competition at various levels and

indirect means, such as best value considerations over the life cycle, to create competitive

environments that encourage improved performance and cost control. Strategies to be

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SECTION 4: IP IMPLEMENTATION GUIDANCE 11

considered include, but are not limited to, competitive prototyping, dual sourcing, modular open

systems approaches that enable competition for upgrades, acquisition of complete technical data

packages for selected systems and components, competition at the subsystem level, and

opportunities for small business and organizations employing the disabled.

b. Regarding IP developed at private expense, in whole or on part, the DoD Components

will use all available techniques and best practices for developing and continuously refining

requirements for the acquisition and licensing of IP and IP rights necessary for operation,

maintenance, modernization, and sustainment, showing preference for modular open system

approaches. The DoD Components will negotiate specialized licenses and delivery requirements

whenever doing so will more effectively balance DoD and industry interests than the more

limited standard license categories.

c. DoD Components will consider and use all available techniques and best practices,

including modular open systems approaches when cost effective and feasible. Doing so will

ensure visibility into the U.S. Government’s and industry’s relative investments in the

development of the IP, and the approach to managing the associated IP rights as part of a strategy

for return on such investments. This approach will reduce the risk of paying more than once for

IP and IP rights. DoD Components will ensure these efforts account for IP rights that are not

based on the source of development funding, e.g., technical data necessary for operation,

maintenance, installation, and training; form, fit, and function data.

d. Information systems used to provide authorized access, retention, integration, sharing,

transferring, and conversion of IP deliverables throughout their programs’ life cycles must

support product configuration management, data loss prevention, and data sharing or exchange.

DoDI 5010.44, October 16, 2019

GLOSSARY 12

GLOSSARY

G.1. ACRONYMS.

ASD(A) Assistant Secretary of Defense for Acquisition

DAU Defense Acquisition University

IP intellectual property

U.S.C. United States Code

G.2. DEFINITIONS. These terms and their definitions are for the purpose of this issuance.

IP. Information, products, or services that are protected by law as intangible property, including

data (e.g., technical data and computer software), technical know-how, inventions, creative

works of expression, trade names.

IP deliverables. Products or services (including information products and services) that are

required to be delivered or provided to the U.S. Government by contract or other legal

instrument and that include or embody IP (e.g., technical data and computer software).

IP rights. The legal rights governing IP, including ownership as well as license or other

authorization to engage in activities with IP (e.g., make, use, sell, import, reproduce, distribute,

modify, prepare derivative works, release, disclose, perform, or display IP). When the IP

involves access to classified information, DoD Directive 5535.02, DoD Instruction 2000.03, and

Volume 2 of DoD Manual 5220.22 may apply.

DoDI 5010.44, October 16, 2019

REFERENCES 13

REFERENCES

Defense Federal Acquisition Regulation Supplement, current edition

Deputy Secretary of Defense Memorandum, “Establishment of the Office of the Under Secretary

of Defense for Research and Engineering and the Office of the Under Secretary of Defense

for Acquisition and Sustainment,” July 13, 2018

DoD Directive 5134.01, “Under Secretary of Defense for Acquisition, Technology, and Logistics

(USD(AT&L)),” December 9, 2005, as amended

DoD Directive 5535.02, “DoD Patent Security Review Process,” March 24, 2010, as amended

DoD Directive 5535.03, “DoD Domestic Technology Transfer (T2) Program,” May 21, 1999, as

amended

DoD Directive 5535.09, “DoD Branding and Trademark Licensing Program,” December 19,

2007

DoD Instruction 1442.02, “Personnel Actions Involving Civilian Attorneys,” September 30,

2010

DoD Instruction 2000.03, “International Interchange of Patent Rights and Technical

Information,” January 17, 2006, as amended

DoD Instruction 5535.8, “DoD Technology Transfer (T2) Program,” May 14, 1999, as amended

DoD Instruction 5535.12, “DoD Branding and Trademark Licensing Program Implementation,”

September 13, 2013

DoD Manual 5220.22, Volume 2, “National Industrial Security Program: Industrial Security

Procedures for Government Activities,” August 1, 2018

United States Code, Title 10