2012 Defense Act Could Weaken Contractors' IP Rights
February 27, 2012 — Government Contracts Law360
Washington, D.C.-based Government Contracts Group partner John E. McCarthy, Jr. speaks with Government Contracts Law360 about Congress' effort to increase competition among defense contractors by giving the U.S. military more leeway to demand technical data that is used to design the weapons it purchases. However, the broad and ambiguous wording of the law could leave contractors scrambling to protect their intellectual property rights.
According to McCarthy, "Companies can spend millions of dollars on developing their intellectual property, and they want clarity on whether or not they can retain that IP. If the regulations attempt to push the envelope, it's going to be very troublesome for many contractors."
High Court Term Yields Mixed Rulings For Contractors
July 8, 2011 — Government Contracts Law360
Government Contracts Group partner John E. McCarthy, Jr. is featured for his comments on the U.S. Supreme Court’s recent rulings in Schindler Elevator Corp. v. United States ex rel. Kirk, The Board of Trustees of Leland Stanford Junior University v. Roche Molecular Systems Inc., and General Dynamics Corp. v. United States. These cases tackled a range of issues including, False Claims Act standing, contractor legal defenses that implicate state secrets privilege, and the Bayh-Dole Act as it relates to the ownership of inventions funded by federal money.
Addressing the Schindler case, McCarthy said, ‘The high court's decision barring an agency's response to a FOIA request from disclosure under the FCA clarified an issue that had divided the circuit courts…The Schindler case is a win for contractors…Presumably, for whistleblower suits you want people who are involved and have direct knowledge rather than people who are fishing around with FOIA requests.".”
In the Stanford case, McCarthy believes the outcome is a wakeup call for both universities and government contractors generally. He is “more inclined to agree with the dissent, noting the ruling meant that contractors should go over all their patent assignment agreements to make sure they have the strongest possible language.”
Lastly, in the General Dynamics case, McCarthy believes the decision will “likely apply only rarely to future cases as the high court focused on the specific issues in the case rather than dealing broadly with state secrets.”
Interim Rule Allows Diclosure of Proprietary Data to Government Support Contractors
March 9, 2011 — BNA's Federal Contracts Report
Washington, D.C. – based Government Contracts Group partner John McCarthy talks about the interim rule that gives certain government contractors access to proprietary technical data that typically belongs to prime contractors and other third parties. The rule amends the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 821 of the National Defense Authorization Act for Fiscal Year 2010.
According to McCarthy, “It’s a great idea to have a single rule that applies uniform standards across DOD to this practice [of sharing propriety data], which has to happen.” According to the article, “McCarthy endorsed the requirement for individual support contractors to enter into bilateral agreements with owners of proprietary data.”