Title 10 — Armed ForcesRelease 119-73not60
§3771 Rights in Technical Data: Regulations
Title 10 › Subtitle Subtitle A— General Military Law › Part V— ACQUISITION › Subpart D— General Contracting Provisions › Chapter 275— PROPRIETARY CONTRACTOR DATA AND RIGHTS IN TECHNICAL DATA › Subchapter I— RIGHTS IN TECHNICAL DATA › § 3771
Summary
The Secretary of Defense must write rules that say what rights the United States and contractors have in technical data about an item or process. Those rules must be put into the Department of Defense parts of the Federal Acquisition Regulation. The rules cannot take away patent, copyright, or other legal rights, and they cannot stop a contractor from getting fees or royalties for data the contractor paid for, unless another law says so. If the item or process was paid for only with federal money, the United States can use the technical data and can share it with people outside the government. If the item or process was paid for only by the contractor, the contractor can usually stop the government from sharing the data outside the government, except for certain kinds of data (such as corrections to government data, form/fit/function info, needed operation/maintenance/installation/training info, or data already public). The government may share data outside the government in emergencies, to separate or reconnect parts, or with a foreign government for evaluation, but only if the recipient is barred from re-sharing and the contractor is told. For items paid for partly by the government and partly by the contractor, rights should be set early by negotiation, with special rules that give the government rights to interface data and to modular system interfaces used under the modular open systems approach unless the Secretary decides otherwise. Contractors cannot be forced to give up data rights just to bid on or get a contract, except in limited situations. The Secretary may buy rights, accept limits if the United States gets a royalty-free license, or allow contractors to license others to help create more sources. The Secretary must also define key terms like “developed,” “exclusively with Federal funds,” and “exclusively at private expense,” explain how indirect costs count, and say that independent research and development and bid costs are not federal funds.
Full Legal Text
Title 10, §3771
Armed Forces — Source: USLM XML via OLRC
(a)(1)The Secretary of Defense shall prescribe regulations to define the legitimate interest of the United States and of a contractor or subcontractor in technical data pertaining to an item or process. Such regulations shall be included in regulations of the Department of Defense prescribed as part of the Federal Acquisition Regulation.
(2)Regulations prescribed under paragraph (1) may not impair—
(A)any right of the United States or of any contractor or subcontractor with respect to patents or copyrights or any other right in technical data otherwise established by law; or
(B)the right of a contractor or subcontractor to receive from a third party a fee or royalty for the use of technical data pertaining to an item or process developed exclusively at private expense by the contractor or subcontractor, except as otherwise specifically provided by law.
(b)Regulations prescribed under subsection (a) shall include the following provisions:
(1)In the case of an item or process that is developed by a contractor or subcontractor exclusively with Federal funds (other than an item or process developed under a contract or subcontract to which regulations under section 9(j)(2) of the Small Business Act (15 U.S.C. 638(j)(2)) apply), the United States shall have the unlimited right to—
(A)use technical data pertaining to the item or process; or
(B)release or disclose the technical data to persons outside the government or permit the use of the technical data by such persons.
(2)Except as provided in paragraphs (3), (4), and (7), in the case of an item or process that is developed by a contractor or subcontractor exclusively at private expense, the contractor or subcontractor may restrict the right of the United States to release or disclose technical data pertaining to the item or process to persons outside the government or permit the use of the technical data by such persons.
(3)Paragraph (2) does not apply to technical data that—
(A)constitutes a correction or change to data furnished by the United States;
(B)relates to form, fit, or function;
(C)is necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data, including such data pertaining to a major system component); or
(D)is otherwise publicly available or has been released or disclosed by the contractor or subcontractor without restriction on further release or disclosure.
(4)Notwithstanding paragraph (2), the United States may release or disclose technical data to persons outside the Government, or permit the use of technical data by such persons, if—
(A)such release, disclosure, or use—
(i)is necessary for emergency repair and overhaul;
(ii)is a release, disclosure, or use of technical data pertaining to an interface between an item or process and other items or processes necessary for the segregation of an item or process from, or the reintegration of that item or process (or a physically or functionally equivalent item or process) with, other items or processes; or
(iii)is a release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government that is in the interest of the United States and is required for evaluational or informational purposes;
(B)such release, disclosure, or use is made subject to a prohibition that the person to whom the data is released or disclosed may not further release, disclose, or use such data; and
(C)the contractor or subcontractor asserting the restriction is notified of such release, disclosure, or use.
(5)(A)Except as provided in paragraphs (6) and (7), in the case of an item or process that is developed in part with Federal funds and in part at private expense, the respective rights of the United States and of the contractor or subcontractor in technical data pertaining to such item or process shall be established as early in the acquisition process as practicable (preferably during contract negotiations) and shall be based on negotiations between the United States and the contractor, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiations would not be practicable.
(B)The establishment of such rights shall be based upon consideration of all of the following factors:
(i)The statement of congressional policy and objectives in section 200 of title 35, the statement of purposes in section 2(b) of the Small Business Innovation Development Act of 1982 (15 U.S.C. 638 note), and the declaration of policy in section 2 of the Small Business Act (15 U.S.C. 631).
(ii)The interest of the United States in increasing competition and lowering costs by developing and locating alternative sources of supply and manufacture.
(iii)The interest of the United States in encouraging contractors to develop at private expense items for use by the Government.
(iv)Such other factors as the Secretary of Defense may prescribe.
(6)Notwithstanding paragraph (5), the United States shall have government purpose rights in technical data pertaining to an interface between an item or process and other items or processes that was developed in part with Federal funds and in part at private expense, except in any case in which the Secretary of Defense determines, on the basis of criteria established in the regulations, that negotiation of different rights in such technical data would be in the best interest of the United States.
(7)(A)Notwithstanding paragraphs (2) and (5), the United States shall have government purpose rights in technical data pertaining to a modular system interface developed exclusively at private expense or in part with Federal funds and in part at private expense and used in a modular open system approach pursuant to section 4401 of this title, except in any case in which the Secretary of Defense determines that negotiation of different rights in such technical data would be in the best interest of the United States.
(B)Such modular system interface shall be identified in the contract solicitation and the contract.
(C)For technical data pertaining to a modular system interface developed exclusively at private expense for which the United States asserts government purpose rights, the Secretary of Defense shall negotiate with the contractor the appropriate and reasonable compensation for such technical data.
(8)A contractor or subcontractor (or a prospective contractor or subcontractor) may not be required, as a condition of being responsive to a solicitation or as a condition for the award of a contract—
(A)to sell or otherwise relinquish to the United States any rights in technical data except—
(i)rights in technical data described in paragraph (1) for which a use or release restriction has been erroneously asserted by a contractor or subcontractor;
(ii)rights in technical data described in paragraph (3); or
(iii)under the conditions described in paragraph (4); or
(B)to refrain from offering to use, or from using, an item or process to which the contractor is entitled to restrict rights in data under paragraph (2).
(9)The Secretary of Defense may—
(A)negotiate and enter into a contract with a contractor or subcontractor for the acquisition of rights in technical data not otherwise provided under paragraph (3) or (4), if necessary to develop alternative sources of supply and manufacture;
(B)agree to restrict rights in technical data otherwise accorded to the United States under this subchapter if the United States receives a royalty-free license to use, release, or disclose the data for purposes of the United States (including purposes of competitive procurement); or
(C)permit a contractor or subcontractor to license directly to a third party the use of technical data which the contractor is otherwise allowed to restrict, if necessary to develop alternative sources of supply and manufacture.
(c)The Secretary of Defense shall define the terms “developed”, “exclusively with Federal funds”, and “exclusively at private expense” in regulations prescribed under subsection (a). In defining such terms, the Secretary—
(1)shall specify the manner in which indirect costs shall be treated; and
(2)shall specify that amounts spent for independent research and development and bid and proposal costs shall not be considered to be Federal funds for the purposes of the definitions under this subsection.
Legislative History
Notes & Related Subsidiaries
Editorial Notes
Codification The text of subsec. (a) of section 2320 of this title, which was transferred to this section and amended by Pub. L. 116–283, § 1833(b), was based on Pub. L. 98–525, title XII, § 1216(a), Oct. 19, 1984, 98 Stat. 2595; Pub. L. 98–577, title III, § 301(b), Oct. 30, 1984, 98 Stat. 3076; Pub. L. 99–145, title IX, § 961(d)(1), Nov. 8, 1985, 99 Stat. 703; Pub. L. 99–500, § 101(c) [title X, § 953(a)], Oct. 18, 1986, 100 Stat. 1783–82, 1783–169, and Pub. L. 99–591, § 101(c) [title X, § 953(a)], Oct. 30, 1986, 100 Stat. 3341–82, 3341–169; Pub. L. 99–661, div. A, title IX, formerly title IV, § 953(a), Nov. 14, 1986, 100 Stat. 3949, renumbered title IX, Pub. L. 100–26, § 3(5), Apr. 21, 1987, 101 Stat. 273; Pub. L. 100–26, § 7(a)(4), Apr. 21, 1987, 101 Stat. 275; Pub. L. 100–180, div. A, title VIII, § 808(a), Dec. 4, 1987, 101 Stat. 1128; Pub. L. 101–189, div. A, title VIII, § 853(b)(2), Nov. 29, 1989, 103 Stat. 1518; Pub. L. 111–383, div. A, title VIII, § 824(b), Jan. 7, 2011, 124 Stat. 4269; Pub. L. 112–81, div. A, title VIII, § 815(a)(1), Dec. 31, 2011, 125 Stat. 1491; Pub. L. 114–328, div. A, title VIII, § 809(a), (b), (e), Dec. 23, 2016, 130 Stat. 2266, 2267; Pub. L. 116–283, div. A, title VIII, § 804(b)(2)(A)(i), Jan. 1, 2021, 134 Stat. 3738. Pub. L. 99–500, Pub. L. 99–591, and Pub. L. 99–661 generally amended section 2320(a) substantially identically; as executed, text reflected amendment by Pub. L. 99–661.
Amendments
2021—Pub. L. 116–283, § 1833(b)(1), (2)(A), transferred subsec. (a) of section 2320 of this title to this section, effectively redesignated par. (1) as subsec. (a), and redesignated pars. (2) and (3) as subsecs. (b) and (c), respectively. Subsec. (a). Pub. L. 116–283, § 1833(b)(2)(A), (B)(i), after redesignation of par. (1) of section 2320(a) of this title as subsec. (a) of this section, inserted subsec. heading and, in existing provisions, designated first two sentences as par. (1) and the remainder as par. (2) and inserted par. headings. Amendment designating “the third sentence as paragraph (2)” was executed by including the fourth sentence within par. (2) as well, to reflect the probable intent of Congress. Subsec. (a)(2). Pub. L. 116–283, § 1833(b)(2)(B), substituted “
Regulations
prescribed under paragraph (1) may not” for “Such
Regulations
may not”, inserted dash after “impair”, reorganized remainder of text into designated subpars. (A) and (B), and, at end of subpar. (A), substituted “by law; or” for “by law. Such
Regulations
also may not impair”. Subsec. (b). Pub. L. 116–283, § 1833(b)(3)(A), (B), after redesignation of par. (2) of section 2320(a) of this title as subsec. (b) of this section, inserted heading, substituted “
Regulations
prescribed under subsection (a)” for “Such
Regulations
” in introductory provisions, and redesignated subpars. (A) to (I) as pars. (1) to (9), respectively. Subsec. (b)(1). Pub. L. 116–283, § 1833(b)(3)(C), redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively. Subsec. (b)(2). Pub. L. 116–283, § 1833(b)(3)(D), substituted “paragraphs (3), (4), and (7)” for “subparagraphs (C), (D), and (G)”. Subsec. (b)(3). Pub. L. 116–283, § 1833(b)(3)(E), substituted “paragraph (2)” for “subparagraph (b)” in heading and “Paragraph (2) does not” for “Subparagraph (B) does not” in introductory provisions and redesignated cls. (i) to (iv) as subpars. (A) to (D), respectively. Subsec. (b)(4). Pub. L. 116–283, § 1833(b)(3)(F), substituted “paragraph (2)” for “subparagraph (b)” in heading and “Notwithstanding paragraph (2)” for “Notwithstanding subparagraph (B)” in introductory provisions and redesignated cl. (i), its subcls. (I) to (III), cl. (ii), and cl. (iii) as subpar. (A), cls. (i) to (iii), subpar. (B), and subpar. (C), respectively. Subsec. (b)(5). Pub. L. 116–283, § 1833(b)(3)(G), in existing provisions, designated first sentence as subpar. (A), inserted heading, and substituted “Except as provided in paragraphs (6) and (7),” for “Except as provided in subparagraphs (F) and (G),” and designated second sentence as subpar. (B), inserted heading, and realigned margin. Subsec. (b)(6). Pub. L. 116–283, § 1833(b)(3)(H), substituted “paragraph (5)” for “subparagraph (E)”. Subsec. (b)(7). Pub. L. 116–283, § 1833(b)(3)(I), in existing provisions, designated first sentence as subpar. (A) and substituted “Notwithstanding paragraphs (2) and (5)” for “Notwithstanding subparagraphs (B) and (E)” and “section 4401” for “section 2446a” and designated second and third sentences as subpars. (B) and (C), respectively. Subsec. (b)(8). Pub. L. 116–283, § 1833(b)(3)(J)(i), (ii), inserted heading and redesignated cls. (i) and (ii) as subpars. (A) and (B), respectively. Subsec. (b)(8)(A). Pub. L. 116–283, § 1833(b)(3)(J)(iii)–(vi), redesignated subcl. (I) as cl. (i) and substituted “paragraph (1)” for “subparagraph (A)”, redesignated subcl. (II) as cl. (ii) and substituted “paragraph (3)” for “subparagraph (C)”, and redesignated subcl. (III) as cl. (iii) and substituted “paragraph (4)” for “subparagraph (D)”. Subsec. (b)(8)(B). Pub. L. 116–283, § 1833(b)(3)(J)(vii), substituted “paragraph (2)” for “subparagraph (B)”. Subsec. (b)(9). Pub. L. 116–283, § 1833(b)(3)(K), inserted heading, redesignated cl. (i) as subpar. (A) and substituted “paragraph (3) or (4)” for “subparagraph (C) or (D)”, redesignated cl. (ii) as subpar. (B) and substituted “this subchapter” for “this section”, and redesignated cl. (iii) as subpar. (C). Subsec. (c). Pub. L. 116–283, § 1833(b)(4), inserted heading, substituted “subsection (a)” for “paragraph (1)” and “this subsection” for “this paragraph”, inserted dash after “terms, the Secretary”, and reorganized remainder of text into designated pars. (1) and (2).
Statutory Notes and Related Subsidiaries
Effective Date
Section and amendment by Pub. L. 116–283 effective Jan. 1, 2022, with additional provisions for delayed implementation and applicability of existing law, see section 1801(d) of Pub. L. 116–283, set out as an
Effective Date
of 2021 Amendment note preceding section 3001 of this title. Reverse Engineering or Re-Engineering for Production of Items Pub. L. 118–159, div. A, title VIII, § 882, Dec. 23, 2024, 138 Stat. 2017, provided that: “(a) Reverse Engineering or Re-engineering Process.—Not later than one year after the date of the enactment of this Act [Dec. 23, 2024], the Under Secretary of Defense for Acquisition and Sustainment, in coordination with each Secretary of a military department and the Director of the Defense Logistics Agency, shall establish a process to—“(1) identify items for which—“(A) technical data is not available; or “(B) rights in such technical data does not allow for manufacturing of the item; and “(2) create streamlined procedures for production of a item identified under paragraph (1) through reverse engineering or re-engineering—“(A) if production of the item may be required for point of use manufacturing or for a contested logistics environment (as defined in section 2926 of title 10, United States Code); “(B) if the manufacturer of the item will not meet the schedule for delivery required by the contracting officer to maintain weapon system readiness or responsiveness in the event of mobilization; or “(C) with respect to a [sic] item for which a head of the contracting activity can only acquire by entering into a sole source contract, if such head submits to the service acquisition executive (as defined in section 101 of title 10, United States Code) a written determination that such reverse engineering or re-engineering is beneficial to sustain training or operations of the Department of Defense with respect to such item. “(b) Annual Report.—“(1) In general.—Not later than one year after the date of the enactment of this Act, and annually thereafter until December 31, 2030, the Under Secretary of Defense for Acquisition and Sustainment, in coordination with each Secretary of a military department and the Director of the Defense Logistics Agency, shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on the use of reverse engineering or re-engineering carried out pursuant to the process required under subsection (a). “(2) Contents.—Each report required by paragraph (1) shall include the following:“(A) A list of items produced through reverse engineering or re-engineering, disaggregated by element of the Department of Defense described in section 111(b) of title 10, United States Code that used the process established under subsection (a). “(B) Representative case studies of items listed under subparagraph (A), including a description of the use case of each item, the efforts used to acquire the technical data or technical data rights needed to manufacture the item, and the estimated cost or time savings obtained, the estimated cost or time savings obtained over an estimated time horizon of ten years of acquisition requirements, including the identification of recurring and nonrecurring costs. “(C) Recommendations and lessons learned that may inform contracting guidance and procedures, especially regarding the creation of technical data packages and technical data rights through reverse engineering or re-engineering.”
Reference
Citations & Metadata
Citation
10 U.S.C. § 3771
Title 10 — Armed Forces
Last Updated
Apr 3, 2026
Release point: 119-73not60