January 19, 2021 - Federal Circuit Insights

The Federal Circuit, in Boeing, Backs Contractors’ Proprietary Markings, but Leaves Open an Important Question on Scope

Below is an excerpt from one of Morrison & Foerster’s blogs, Government Contracts, where our lawyers offer a real-time assessment of the statutory, regulatory, legal, and business-related developments and trends that are shaping the industry. The blog’s regularly-published Insights provide an in-depth analysis of developments and trends affecting government contracting. To read this post in full on our Government Contracts blog, please click here.

Federal contractors received some good news from the Federal Circuit this holiday season.  The court held, in Boeing Co. v. Secretary of the Air Force, that the Department of Defense (DoD) Federal Acquisition Regulation Supplement (DFARS) data rights clauses do not prohibit a contractor from applying its own proprietary markings to technical data in addition to the government-specific markings prescribed by the clauses.  This is true, according to the court, even for technical data describing technologies the government has paid the contractor to develop, i.e., “unlimited rights data.”  The decision marks a victory for contractors seeking to leverage their intellectual property rights in such data in the commercial marketplace or in the government supply chain, but the decision’s true impact remains to be seen on remand to the Armed Services Board of Contract Appeals.