Sec. 862 — Intellectual Property Ombudsman; voluntary expert mediation for certain intellectual property matters

Statutory text

(a) In general. Subchapter III of chapter 275 of title 10, United States Code, is amended by inserting after section 3791 the following new sections:3792.Intellectual Property Ombudsman

(a) Designation

(1) The Secretary of Defense, acting through the Assistant Secretary of Defense for Industrial Base Policy, shall designate a senior official, to be known as the Intellectual Property Ombudsman, to serve as ombudsman on matters involving intellectual property acquired or licensed (or proposed to be acquired or licensed) by the Department.

(2) The Ombudsman shall be a senior official with—(A)demonstrated expertise in matters involving intellectual property acquired or licensed (or proposed to be acquired or licensed) by the Department, including the provisions of the Department of Defense Supplement to the Federal Acquisition Regulation that relate to technical data and computer software; and(B)at least 5 years of experience on intellectual property matters, of which at least 2 years must have been representing or advising covered contractors of the Department on matters involving intellectual property acquired or licensed (or proposed to be acquired or licensed) by the Government.

(b) Preservation of independence

(1) The Ombudsman shall serve within the Office of the Assistant Secretary and report directly to the Assistant Secretary, without intervening authority, and shall not report to or receive direction from any military department, agency, combatant command, or other element of the Department.

(2) The Assistant Secretary may assign to the official serving as Ombudsman other primary or collateral duties to the extent the official remains able to carry out his or her duties as Ombudsman, except that the official—(A)may not perform any duty, or engage in any activity, that could compromise his or her independence as Ombudsman; and(B)may not advise on, or participate in, any source selection process, except to the extent necessary to carry out his or her duties as Ombudsman.

(3) The Ombudsman shall not be subject to removal, demotion, or other adverse personnel action based on the substance of any advice, guidance, opinion, or recommendation provided by the Ombudsman to a covered contractor or to a contracting officer or other Department official.

(c) Personnel and resources. The Assistant Secretary shall ensure that the Ombudsman is provided with personnel and resources sufficient to carry out his or her duties as Ombudsman.

(d) Duties

(1) The Ombudsman shall, with respect to questions or disputes involving intellectual property acquired or licensed (or proposed to be acquired or licensed) by the Department, including questions or disputes involving rights and obligations relating to the delivery of, or access to, such intellectual property—(A)serve as the focal point for assisting covered contractors of the Department on such questions or disputes;(B)facilitate communication between covered contractors and appropriate senior officials of the Department on such questions or disputes;(C)promote the use of collaborative alternative dispute resolution techniques such as mediation to facilitate the expeditious and cost-effective resolution of such questions or disputes, when appropriate; (D)provide guidance to covered contractors and contracting officers with respect to such questions or disputes; and (E)upon request of a covered contractor or contracting officer involved in such a question or dispute—(i)within 45 days after the request was made—(I)obtain from the covered contractor (and any subcontractor involved in the question or dispute) and from the contracting officer information relevant to the question or dispute; and(II)complete a review of such information; (ii)promptly thereafter, develop and provide guidance to the covered contractor, the contracting officer, or both on matters relevant to the question or dispute, such as—(I)relevant laws and regulations and how they apply to the question or dispute;(II)alternative approaches to acquisition or licensing that may be available under applicable laws and regulations, such as specifically negotiated licenses (including specially negotiated licenses under section 3774(c) of this title); and(III)appropriate valuation of intellectual property under standard industry valuation techniques, including cost, value, capability, market, and income-based techniques; and(iii)facilitate communications, and participate in meetings, between the covered contractor and the contracting officer.

(2) Notwithstanding paragraph (1), the authority of the Ombudsman shall extend only to questions and disputes between covered contractors and the Department, and shall not extend to questions or disputes between or among covered contractors.

(e) Nature of guidance. Guidance provided by the Ombudsman under this section—(1)may include analyses, opinions, and recommendations;(2)shall be independent and neutral with respect to the covered contractor, the contracting officer, and the Government, and(3)shall be advisory only and not binding on the covered contractor, the contracting officer, or the Government.

(f) Communications between contractor and Ombudsman; confidentiality; restrictions on Government

(1) Any communication between a covered contractor and the Ombudsman, including the fact that such a communication occurred, shall be treated as confidential and shall not be disclosed to any person or entity that is not a party to the question or dispute or does not have an interest in the specific question or dispute without the consent of the covered contractor.

(2) The Government shall not require a covered contractor to disclose any such communication and shall not use any such communication as a basis for evaluating a proposal, making an award, or challenging a restriction.

(3) A requirement to publish a copy of, or any other information with respect to, communications between a covered contractor and the Ombudsman shall not apply to the extent such copy (or portion thereof) or information would be