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Protecting Your IP as a Government Contractor

chip

Date: September 21, 2016
Time:
12:00 PM – 01:30 PM PDT
Venue:
Dentons’ San Diego office
4655 Executive Drive
Suite 700
San Diego, CA 92121
United States

Please join us for a complimentary networking lunch and presentation on intellectual property (IP) and the federal contracting process. The 90-minute lunch program will provide practical information on how companies that provide products or services to the government, as well as their investors, can best manage IP rights, from the bidding stage to project closeout and with regard to the full-range of contracts and other funding vehicles.

The program will be led by skilled Government Contracts lawyers from our offices across the nation. CLE credit is pending.

Overview of IP issues for emerging technologies: patents, copyrights, trademarks

  • Background on the IP rules in government contracts that impact emerging technologies
  • The government’s expectations regarding allocation of IP rights (patents, copyrights and trademarks) developed under government contracts
  • How to address IP in contracts, Small Business Innovative Research (SBIR) agreements, grants, cooperative agreements and “other transactions”

To register or for questions on the event, please email Sofia Abraham Mendoza at sofia.Mendoza@dentons.com.

Protecting Your IP as a Government Contractor

Dentons’ Silicon Valley Institute on Government and Technology: Protecting Your IP Program Series

Silcon_Valley_Banner with AFCEA logo

Date: September 22, 2016
Time:
12:00 PM – 01:30 PM PDT
Venue:
Dentons’ Palo Alto office
1530 Page Mill Road
Suite 200
Palo Alto, CA 94304
United States

Protecting your intellectual property: A series of monthly programs presented by our Government Contracts team

Please join us for the first installment of a new series of programs on intellectual property (IP) and the federal contracting process. These 90-minute complimentary lunch programs will provide practical information on how companies that provide products or services to the government, as well as their investors, can best manage IP rights, from the bidding stage to project closeout, and with regard to the full range of contracts and other funding vehicles.

Our kickoff program, in September, will provide a high-level overview of the issues every company needs to consider. Our second program, in October, will focus on the protection of commercial software and data rights.

Additional programs to take us through year-end (dates TBD) will include a session on noncommercial software development issues and one on effective alternatives for handling disputed rights in software and technology under federal contracts.

All programs will be led by skilled Government Contracts lawyers from our offices across the nation and will be held in an informal setting: the new Accelerator Space in Dentons’ Silicon Valley office. CLE credit is pending.

Program 1: Overview of IP issues for emerging technologies: patents, copyrights and trademarks

The program will cover the following topics:

  • Background on the IP rules in government contracts that impact emerging technologies
  • The government’s expectations regarding allocation of IP rights (patents, copyrights and trademarks) developed under government contracts
  • How to address IP in contracts, Small Business Innovative Research (SBIR) agreements, grants, cooperative agreements and “other transactions”

Program 2: Rights in commercial data and commercial software

Scheduled for October 20, 2016; more information to follow

  • How tech companies should navigate government rights in commercial data and commercial software
  • Practical suggestions for maximizing protection of data and software rights under various forms of government agreements

To attend, please register here. For questions about the program series, please contact Sofia Abraham Mendoza at sofia.mendoza@dentons.com.

Dentons’ Silicon Valley Institute on Government and Technology: Protecting Your IP Program Series

Government Contracts Legislative and Regulatory Update

legreg-update

We are pleased to offer you the inaugural issue of our newsletter, “Government Contracts Legislative and Regulatory Update.” Our aim is to keep you up-to-date on legislative and regulatory ‎changes relevant to government contractors.

For decades, we have provided a similar update to the National Contract Management Association for publication in its monthly Contract Management Magazine. Our clients have told us they find the succinctly presented information helpful, so we decided to offer the update directly to our clients and friends.

We hope that you will find it useful and welcome your feedback.

 

Government Contracts Legislative and Regulatory Update

2016 Intellectual Property Webinar Series

Dentons Government Contracts lawyers jointly with the Public Contracting Institute (PCI) will present this intellectual property series addressing governments’ and contractors’ respective rights in intellectual property in connection with the performance of government contracts. For contractors, IP rights can be critical business assets. For government agencies, they can be important to life cycle costing.

Whether you are a contractor or agency staff member, these seminars will provide you with the information and tools you need to identify and protect your intellectual property rights, including in patented inventions, technical data, computer software and other complex areas.

Second Thursday of the month

12:00 p.m. to 1:15 p.m. ET

April 7 – Overview, Inventions/Patents, Copyrights, and Trademarks

May 12 – Rights in Non-Commercial Technical Data and Computer Software

June 9 – Commercial Data and Commercial Software

July 14 – Intellectual Property Protection, Challenges, and Disputes

For more information, or if you would like to attend a course (complimentary to clients), please reach out to Sofia Abraham Mendoza at sofia.mendoza@dentons.com. All four webinars are CLE-accredited, and will be recorded and available to watch online for one year after the live date.

 

2016 Intellectual Property Webinar Series

Silicon Valley Institute on Government and Technology

 

Silcon_Valley_Banner with AFCEA logo

June 9, 2016
07:30 AM – 01:30 PM PDT
Menlo Park, CA
United States

Following our successful launch of the Silicon Valley Institute on Government and Technology, we invite you to attend the next installment of our conference series examining the federal government’s acquisition of technology and the issues tech companies must understand in doing business with the government.

The complimentary conference will include presentations on the following timely topics:

  • Expanding Presence in Silicon Valley: DHS Office Pushing for Deeper Access to Technology Innovation from Local Tech Companies
  • The Government and IoT: Securely Knitting Together a Leviathan of Information
  • Cloud 9 or Storms Ahead?: Challenges and Solutions for Migrating Government Data to the Cloud

The program will conclude with a special luncheon program featuring a moderated discussion with Lieutenant General (Ret) Mark S. Bowman, Immediate Past Director, Command, Control, Communications and Computers / Cyber, Joint Staff, J6, The Pentagon.

For more information, including a list of speakers and agenda, please click here.

This event is co-sponsored by AFCEA International

RSVP/Questions

Please contact Sofia Abraham Mendoza at +1 202 496 7316.

Silicon Valley Institute on Government and Technology

2016 Denver Government Contracts Briefing

White House

May 10, 2016
08:00 AM – 05:00 PM MDT
Denver, CO
United States

Please join us for the 2016 Denver Government Contracts Briefing, which offers an exciting and insightful program. The briefing will feature a panel discussion regarding key issues in the sale and acquisition of government contractors. We will also highlight several hot topic sessions including independent research and development; navigating recent cybersecurity developments; supply chain; GSA commercial items; export controls; 2015-2016 legislative and regulatory developments; and litigation spotlight: protecting your trade secrets and data rights and practical tips for hiring employees from competitors. As we do every year, we will also feature updates on contract performance, procurement, fraud and compliance, and cost and pricing issues.

In addition to our program, we will present a special keynote session in which our senior advisors, former Governor Howard Dean and former Speaker of the House Newt Gingrich will join us and share their observations on the potential policy implications of the 2016 presidential election for government contractors.

The program is complimentary to our clients. CLE credit is pending. For more information and to receive an invitation, please contact Sofia Abraham Mendoza.

2016 Denver Government Contracts Briefing

Congratulations to the participants of the Dentons “Gilbert A. Cuneo” Government Contracts Moot Court Competition

Dentons’ Government Contracts practice congratulates the winners and participants of the 16th annual Dentons “Gilbert A. Cuneo” Government Contracts Moot Court Competition. On April 7, our Washington, DC office hosted the reception and awards ceremony after the competition’s final round. Named after one of our practice founders, and a pioneer in the field of government contracts as a legal practice area, this competition has become a hallmark of George Washington University Law School and is something of which we are very proud. Over the years, a number of Dentons lawyers have been participants in and winners of the annual competition. Jessica Abrahams, Dentons’ Government Contracts practice leader, together with Dana Pashkoff, one of the editors of this blog and GW Law Government Contracting Industry Advisory Board member, welcomed GW Law School students, faculty, alumni, sitting judges and government contracts practitioners. Jessica Abrahams and Katherine Veeder (a former moot court winner) delivered remarks on the history of the moot court competition and our market-leading Government Contracts practice.

2016 moot court judges and finalists

cropped winners 2016 moot court winners2016 moot court - Jessica Dana Pashkoff and Steve Schooner 2016 moot court

Congratulations to the participants of the Dentons “Gilbert A. Cuneo” Government Contracts Moot Court Competition

Speaking up about DOD’s proposed Independent Research and Development costs rule

A February 8, 2016, Department of Defense (DOD) advance notice of proposed rulemaking sought input to help address agency concerns regarding substantial future Independent Research and Development (IR&D) when such effort is undertaken as a means of reducing evaluated bid prices in competitive source selections. The proposed rule, if made final, would require the government to add costs (for proposal evaluation purposes) to any contractor offers that rely on IR&D efforts. In a recent client alert, Dentons encouraged contractors to participate in the comment process on the proposed rulemaking.

Dentons partners Thomas A. Lemmer and Steven M. Masiello submitted comments on the proposed rule. Specifically, they describe the relevant decisional authority establishing the appropriate methodology for distinguishing between direct costs of contract effort versus indirect costs of IR&D effort. Based upon this relevant authority, DOD’s concerns underlying the proposed rulemaking initiative to attribute IR&D project costs to the proposed price for evaluation purposes are misplaced.

Indeed, contrary to DOD’s concerns, relevant decisional authority confirms that IR&D efforts properly permit contractors willing to undertake, at their own risk, IR&D projects, to gain a relative price and technical advantage. Moreover, DOD should not discourage innovation by penalizing contractors for conducting IR&D projects resulting in innovation relevant to a competitive government procurement. Finally, IR&D costs are not contract costs, and treating them as such for evaluation purposes during the competitive procurement process misconstrues their nature and may skew award decisions.

You can read Dentons’ comments in full here.

Additionally, Dentons lawyers advised the American Bar Association Section of Public Contract Law on its comments on the proposed rule, which can be found here.

Speaking up about DOD’s proposed Independent Research and Development costs rule

Fourth Circuit refines Rockwell public disclosure bar analysis

In US ex rel. Beauchamp v. ACADEMI Training Center, the US Court of Appeals for the Fourth Circuit recently vacated dismissal of a False Claims Act (FCA) qui tam suit on the ground that the trial court improperly applied the Supreme Court’s holding in Rockwell International Corp. v. United States, 549 US 457 (2007). Rockwell held that in qui tam suits where relators allege new claims of fraud in amended complaints, courts should look to the date of the amended complaint to determine the applicability of the public disclosure bar under 31 USC § 3730(e)(4).

This holding is occasionally referred to as the last-pleading rule, because the Rockwell relator’s last amended complaint contained the first instance of an alleged fraud that was being challenged under the public disclosure bar. The Fourth Circuit found in Beauchamp that the trial court’s dismissal misconstrued the Supreme Court’s reasoning and led to an erroneous mechanical application of the Rockwell holding.

More specifically, the Fourth Circuit held that the date of the first pleading that alleges an FCA fraud with particularity (i.e., not necessarily the last amended pleading in the case) is determinative for purposes of a public disclosure bar analysis. The Fourth Circuit’s decision aligns with some other courts’ interpretation of Rockwell in cases involving public disclosure bar timing questions (see US ex rel Jamison v. McKesson Corp., 649 F. 3d 322 (5th Cir. 2011)). In an overall FCA context, this ruling represents a narrowing of options for FCA defendants seeking pretrial dismissal, at least in the Fourth Circuit.

In Rockwell, the relator filed an initial qui tam suit alleging a theory of fraud based on his direct and independent knowledge of the fraud. During discovery, the relator identified a second, unrelated theory of fraud that he did not have knowledge of previously, and included that new theory in subsequent filings. At the suggestion of the trial court, the relator and the government filed a joint amended complaint that ultimately did not include the first theory of fraud.

The defendant argued for dismissal on the ground that the second theory of fraud was based entirely on a qualifying public disclosure under 31 USC § 3730(e)(4), and that the relator had no knowledge of that theory until the public disclosure. Given those facts, the Supreme Court held that it was appropriate to use the complaint as amended to determine whether the second theory of fraud was prohibited by the public disclosure bar.

The Fourth Circuit found the facts in Beauchamp distinguishable from Rockwell, and held that trial court’s rigid application of the Rockwell holding was inconsistent with the Supreme Court’s rationale. The Beauchamp relators’ initial sealed complaint, filed in April 2011, alleged that the defendant, ACADEMI Training Center, submitted false reports and bills to the US State Department. Shortly after the initial complaint, the Beauchamp relators filed their first amended complaint, which included a new allegation that ACADEMI had failed to satisfy its contractual obligations to adequately qualify its employees on two firearms as required by the contract.

While the first amended complaint was pending, an unrelated wrongful termination suit was filed by another employee against ACADEMI, alleging specific facts relating to the failed weapons qualifications of ACADEMI employees. In July 2013, Wired published an article online about the alleged fraudulent weapons qualification scheme. Armed with the additional facts disclosed by this article, the Beauchamp relators further amended their complaint (second amended complaint), which became the operative pleading.

ACADEMI moved to dismiss the qui tam suit on a number of grounds, including the argument that the Wired article preceded the second amended complaint triggering the public disclosure bar. ACADEMI argued that the article qualified as a public disclosure under the FCA,  and that the relators’ second amended complaint was the proper pleading for the trial court’s analysis under the Rockwell last-pleading rule. The trial court agreed and dismissed the case.

In vacating the dismissal, the Fourth Circuit found that the Beauchamp trial court erred in applying the last-pleading rule without also conducting a claim-by-claim analysis of the alleged theories of fraud to determine if any predated the Wired article. Specifically, the Fourth Circuit pointed out that the weapons-qualification-related theory of fraud appeared in the relators’ first amended complaint, which predated the Wired article by about a year. As such, the Fourth Circuit found that the public disclosure bar is inapplicable.

Fourth Circuit refines Rockwell public disclosure bar analysis

Cybersecurity and your supply chain: What you don’t know may hurt you

Recently revised cybersecurity regulations affecting US defense contractors and their subcontractors seek to address gaps in government contractor supply chains and expand the breadth of regulations in this area. In the February issue of Contract Management magazine, Dentons Partners Phillip Seckman and Erin Sheppard and Counsel Michael McGuinn provide guidance to contractors seeking to enhance subcontractor compliance under these regulations. In the attached article, entitled “Cybersecurity and your supply chain: What you don’t know may hurt you,” the authors provide a three-step approach to ensuring compliance with the updated Defense Federal Acquisition Regulation Supplement (DFARS) covered defense information regulations within a contractor’s supply chain. Please feel free to contact the authors with questions.

Cybersecurity and your supply chain: What you don’t know may hurt you