DOD Revises IP Commercial Item Rules

On September 20, 2011, DOD issued a final rule amending DFARS Part 227 and the associated clauses to eliminate the presumption of development at private expense for commercial items (other than commercially available off-the-shelf items) for major systems or subsystems. However, the implementation of this rule introduces great uncertainty as to the government’s rights to commercial item technical data and commercial computer software when there has been even a minimal government investment, particularly as it relates to the applicability of commercial licenses and marking requirements.