(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
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.
The Ombudsman shall be a senior official with—
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
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
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.
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—
may not perform any duty, or engage in any activity, that could compromise his or her independence as Ombudsman; and
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.
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
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—
serve as the focal point for assisting covered contractors of the Department on such questions or disputes;
facilitate communication between covered contractors and appropriate senior officials of the Department on such questions or disputes;
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;
provide guidance to covered contractors and contracting officers with respect to such questions or disputes; and
upon request of a covered contractor or contracting officer involved in such a question or dispute—
within 45 days after the request was made—
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—
facilitate communications, and participate in meetings, between the covered contractor and the contracting officer.
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—
may include analyses, opinions, and recommendations;
shall be independent and neutral with respect to the covered contractor, the contracting officer, and the Government, and
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
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.
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.
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 subject to withholding from public disclosure under section 552 of title 5.
(g) Inferences
The decision of a covered contractor to request, or decline to request, assistance from the Ombudsman shall not give rise to any inference regarding the validity of the covered contractor’s assertions related to intellectual property and shall not be disclosed or referenced in any validation challenge, litigation, or other legal proceeding.
(h) Consultation
The Assistant Secretary shall establish a mechanism for regular consultation with the defense industry, portfolio acquisition executives, program managers, product support managers, and other officials of the Department responsible for sustainment of defense systems regarding the utility and effectiveness of the Ombudsman function and emerging intellectual property issues.
(i) Public reporting of statistics
On an annual basis, the Ombudsman shall make publicly available a report providing statistical information on the assistance specified in subsection (e) that was provided to covered contractors during the annual period covered by the report. The statistical information shall be presented in an aggregated or anonymized format and shall include information on the number of requests, the nature of requests, the nature of the contractors (such as small business concerns), the disposition of the requests, and the number of days from receipt of request to final disposition of the request.
(j) Reports to Congress
On an annual basis, the Ombudsman shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the activities performed during the annual period covered by the report, including any recommendations for changes in law, regulation, policy, procedure, or practice that the Ombudsman considers appropriate.
(k) Definitions
In this section—
the term covered contractor includes a contractor or subcontractor (or prospective contractor or subcontractor); and
the term subcontractor includes a subcontractor at any tier.
3792a. Rights in covered data: voluntary expert mediation
(a) Establishment and availability of process
The Secretary of Defense shall establish an expert mediation process under this section and shall make that process available to covered contractors and contracting officers to facilitate the resolution of questions or disputes related to covered data.
(b) Matters addressed
The process established under subsection (a) may be used to address any intellectual property matters relevant to the resolution of the question or dispute, including matters such as the following:
The scope, terms, or interpretation of any relevant agreement with respect to the intellectual property.
The scope of the rights acquired or licensed (or proposed to be acquired or licensed) by the Government in the intellectual property.
To the extent the Government’s rights in intellectual property are insufficient, or perceived as insufficient, to meet the Department’s identified requirement, any matters necessary to address the insufficiency.
To the extent the intellectual property involves more than one covered contractor, any matters necessary to address the respective rights of the Government and each such contractor.
(c) Availability and effect
The process established under subsection (a) shall be available whenever a question or dispute covered by subsection (a) has arisen, including before, during, or after a procurement and before, during, or after the administration of a contract. It shall be available without regard to, and without effect on, any other dispute resolution processes that may be available, and without tolling any periods or deadlines under any other dispute resolution processes or under any applicable statute of limitations.
(d) Participation is voluntary
Participation in the process established under subsection (a) shall be strictly voluntary, both on the part of the contracting officer and on the part of the covered contractor, except as provided in subsection (h).
(e) Initiation and participation
Within 10 days after receiving a request under this subsection, a party shall submit to the other party a written response either accepting or declining the request.
A party submitting a written request to initiate, or any written response accepting such a request, shall include facts supporting the position of the party that the requirements of paragraphs (1) and (2) of subsection (a) are met.
If the request to initiate is accepted, a panel shall be established under subsection (f) and mediation shall commence under subsection (g).
(f) Establishment of panel
Mediation under the process established under subsection (a) shall be conducted by a panel established under this subsection.
The Secretary may use existing authorities, including those in paragraphs (2), (3), (4), and (6) of section 1707(d) of this title, to establish the panel.
The panel shall be composed of three members, each of whom shall be an individual with—
at least 5 years of experience in alternative dispute resolution; and
demonstrated expertise in at least two of the following areas: intellectual property law, patent licensing, government contracts data rights, technical data classification, and software licensing.
Of the three members—
one shall be selected by the covered contractor and shall have significant experience in intellectual property or data rights matters;
one shall be selected by the Department and shall have significant experience in intellectual property or data rights matters in government contracts, such as through service as a contracting officer, agency counsel, board of contract appeals judge, or Court of Federal Claims judge; and
one shall be selected by the other two members and shall serve as the panel chair.
If the question or dispute involves the valuation of intellectual property, the member selected under paragraph (4)(C) shall have significant experience with standard industry valuation techniques, including cost, market, and income.
An individual may not serve as a member of the panel if that individual has a financial interest in the outcome or any other conflict of interest that would undermine impartiality.
In a case in which there is a vacancy in the membership of the panel, a new member of the panel shall be selected as soon as practicable to fill the vacancy in accordance with paragraph (4).
(g) Mediation period
The panel shall be established as soon as practicable and shall commence the mediation not later than 30 days after the date on which the panel is established, except to the extent the parties agree to a later date. The mediation shall end not later than 90 days after the date on which the mediation commenced, except to the extent the parties agree to a later date.
(h) Effect of mediation settlement or panel recommendations
Except as provided in paragraphs (2) and (4), the results of the mediation shall be advisory only and shall not be binding on either party.
To the extent the parties reach a resolution, the parties shall memorialize the resolution in a settlement agreement, which shall be binding upon the parties. Any such agreement shall—
be executed by the contracting officer and an authorized representative of the covered contractor;
specifically reference the mediation; and
be incorporated into any applicable contract by modification.
To the extent the parties do not reach a full resolution—
either party may pursue any remedy otherwise available under chapter 71 of title 41 or other applicable law; and
the mediation shall not be deemed to have resolved the dispute for purposes of chapter 71 of title 41.
In a case in which the request to initiate the mediation regarding a contract entered into after the date of the enactment of this section was made by the Department and no resolution is reached, the following shall apply:
The panel may recommend to the Secretary of Defense that the covered contractor with rights in the subject covered data be required to provide non-deliverable access to such covered data if—
the panel finds that access to such covered data is necessary—
the requirement for such covered data was reviewed under section 805 of the National Defense Authorization Act for Fiscal Year 2026 ( 10 U.S.C. 3771 note) and an insufficiency was identified under subsection (d) of such section.
Such a recommendation—
shall ensure release rights consistent with commercially reasonable terms and conditions (subject to later definitized consideration to reflect development at private expense); and
may include a right to release to a covered government support contractor (as defined in section 3775 of this title)—
If the Secretary approves the recommendation, the recommendation shall be binding on the covered contractor and the Department, subject to the availability of appropriations. The parties shall memorialize the recommendation in a settlement agreement, as described in paragraph (2). To the extent the recommendation does not reach a full resolution of the dispute, paragraph (3) shall apply.
(i) Confidentiality; protection of information
The mediation shall be conducted in accordance with section 574 of title 5.
Each member of the panel shall—
sign a nondisclosure agreement, as appropriate, to protect proprietary or nonpublic data;
access and use proprietary or nonpublic data furnished to the panel only for the purposes of the mediation;
take all reasonable steps to protect proprietary and nonpublic data furnished to the panel; and
not use proprietary or nonpublic data furnished to the panel to compete for Government or nongovernment contracts.
(j) Definitions
In this section—
the term covered contractor includes a contractor or subcontractor;
the term covered data means technical data and computer software required to enable the Department of Defense or government authorized repair contractors performing under a support contract, to perform repair or maintenance actions on a covered system;
the term covered system means—
a major defense acquisition program, as defined in section 4201 of this title; or
the term non-deliverable access means a model under which the contractor provides access to intellectual property, including any associated license agreements for such intellectual property; and
the term subcontractor includes a subcontractor at any tier.
(b) Implementation
Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall—
provide a briefing to the congressional defense committees on the implementation of such sections; and
submit to the congressional defense committees an assessment of, and recommendations for, pay and compensation under current law to provide competitive compensation for the Intellectual Property Ombudsman established under section 3792 of title 10, United States Code, as inserted by this Act.
(c) Annual report
(1) In general
Not later than March 1, 2028, and each of the next five years thereafter, the Under Secretary of Defense for Acquisition and Sustainment shall submit to the congressional defense committees an annual report on the effectiveness of the Intellectual Property Ombudsman established under section 3792 of title 10, United States Code, as inserted by this Act, and the mediation process established under section 3792a of title 10, United States Code, as inserted by this Act, on—
encouraging prime contractors and subcontractors of the Department of Defense to quickly and equitably resolve disputes with the Department concerning intellectual property in order to address critical operational readiness issues;
encouraging contractors to leverage privately-funded innovation and offer their full range of relevant technologies when competing for and performing defense contracts;
improving clarity for both Department and contractor personnel regarding rights in technical data, computer software, and computer software documentation during the procurement process;
resolving data rights disputes more rapidly and collaboratively than through litigation, while protecting contractors’ legitimate investments in privately funded innovation; and
expeditiously addressing the Department’s national security, sustainment, and competitive procurement needs.
(2) Recommendations
The report required by paragraph (1) shall also include recommendations by the Under Secretary to address any gaps in statute, regulation, or policy that undermine the Department’s ability to access technical data necessary for maintenance and sustainment, asserting existing rights, or protecting interests in intellectual property, and any other recommendations the Under Secretary considers appropriate.