Intellectual Property Fights Par for the Course F-35 Program

[spazsinbad]

Intellectual Property Fights Par for the Course in F-35 Program [LOTs Omitted - Best Read at SOURCE]
08 Sep 2016 Sandra I. Erwin

"When the Pentagon embarked on the acquisition of the F-35 joint strike fighter in 2001, little thought was given to who legally owned the rights to the technical data and intellectual property associated with the aircraft.

Fifteen years later, the lack of clear contractual language about ownership of technical data and software code has put the Pentagon in a bind and has limited the government’s options on how to maintain, upgrade and manage the Pentagon’s largest weapons acquisition, according to the officer who runs the F-35 program, Air Force Lt. Gen. Christopher Bogdan.

“I am playing catch-up now every which way I turn when it comes to intellectual property rights in the F-35 program,” Bogdan told a group of government and industry executives who are reviewing the existing body of laws and regulations regarding rights in technical data.

Bogdan spoke in stark terms about the frequent disputes over intellectual property rights that he has witnessed during four years at the helm of the F-35 program. The rights to technical data — an arcane and complex issue even for industry and contracting attorneys — have become an increasing source of contention in military weapon programs as the Defense Department finds it has to defer to contractors on many equipment-related decisions because the manufacturers own those rights....

...In the F-35 and many other cutting-edge systems, the software is the secret sauce. What Bogdan often hears from contractors: We are never going to give you that source code. He can understand why, but still finds it frustrating that the government does not have rights to the operational flight plan, or OFP software which enables that system to perform interactive tasks. Bogdan has sought rights to the OFP to build training devices, for example. Suppliers have pushed back on grounds that some of the code was developed at their expense. “Then I have to disprove that it wasn’t. I have to get a group of people and do a forensic autopsy on when that software was created.”

Such IP squabbles are disruptive to programs. In the F-35, he said, “I want to use the OFP in a different environment than the airplane or simulator, I want to create a virtual constructive environment that is not a Lockheed Martin product. But I need the interface to take the OFP and put it into a different environment, and I can’t get there,” he said. That is another illustration of how the training needs of combat units today and the technology available to train could not have been predicted 15 years ago. “We ought to be able to somehow accommodate that change. That applies to both sides.”

Despite his grim assessment of reality, Bogdan offered some words of encouragement to Ginman’s panel. “I applaud you for trying to put some clarity in the way the government deals with this,” he said. “It’s sorely needed.”

Source: http://www.nationaldefensemagazine.org/ ... px?ID=2293

[popcorn]

Good news for lawyers.

[Dragon029]

$5 says this is tied (not in a big way though) to the extended LRIP 9 / 10 negotiations.

[sferrin]

I'm not seeing the problem. I doubt there's a jet flying that doesn't have things like this to one degree or another, but since it's the F-35, well. . .

(more hysteria from our new favorite basement dweller over at defence-aerospace.com)

"(EDITOR’S NOTE: What this means, in the final analysis, is that the US military, as well as foreign operators of the F-35, will have to pay whatever Lockheed and Pratt & Whitney decide to charge to maintain, upgrade and modify the aircraft.
Although not mentioned in this article, Lockheed also owns all the IP rights for the Autonomic Logistic Information System (ALIS), which controls all F-35 operations and without access to which the F-35 can neither operate nor be maintained.
ALIS can also prevent aircraft from taking off, as was shown by malfunctions during its initial operations.
So all aspects of F-35 operations will be subject to industry control, including the fact that Lockheed can even ground aircraft fleets at will.
This is catastrophic news for the national sovereignty of the countries that will operate the F-35.
It is also catastrophic news for their defense budgets because, again, Lockheed and Pratt can charge whatever they like to allow F-35s to operate and be maintained.
This is something that may, hopefully, shake politicians out of their pro-F-35 complacency, and show that the F-35 hold many more risks and dangers than its well-documented technical shortcomings and ballooning costs.)"

[blindpilot]

I'm not seeing the problem. I doubt there's a jet flying that doesn't have things like this to one degree or another, but since it's the F-35, well. . .

"(EDITOR’S NOTE: [b]What this means, in the final analysis, is that the US military, as well as foreign operators of the F-35, will have to pay whatever... owns all the IP rights for"[ etc. etc. ]

Well it is certainly true that this issue exists across every modern system, aircraft or toilet. But that doesn't mean it is not a problem. We fought through this with an Army contract, just trying as a prime to define and fix the interfaces for add on features. (like what the Israeli's are doing on the F-35)

Just because it is not a "black eye" on the F-35, but systemic, doesn't mean that it is not a more and more urgent issue that needs to be dealt with, or new buys like the B-21 could get really ugly. Once again Bogdan has his finger on the pulse of things that matter. I wouldn't be surprised if this was part of the LRIP 9/10 delay as well. There are only so many places you can hold contractors hostage, before "they own it."

MHO
BP

[smsgtmac]

This campaign has been coming for a while now and it is basically the USG drones acting surprised that TANSTAAFL is a b*tch. Saw this coming two years ago in a GAO report and my view still holds:

The GAO ‘Need More Control’ Over Tech Data Rant (Pgs 22-23)
It would be too much reading for most people, so I’m not going to post all the GAO’s ramblings lamenting the F-35 program tech data strategy. My response as to ‘why’ the lamentation is pernicious and only an invitation to trouble and more costs-- is long enough.

Bottom line: The F-35 program was undertaken using one strategy for tech data. In the last few years (and well after the F-35 program was started) the DoD has changed their preferred strategy.

Now the GAO is b*tching about the F-35 program not being in ‘compliance’ with a newer strategy. The original F-35 strategy was to only pay for the tech data the F-35 operators and maintainers would actually use. Pretty smart huh? Unless you are working in certain parts of the USG and believe EVERYTHING should be under the direct control of the USG.

When the government decided to buy only the tech data they needed, it does not mean the rest of the tech data they desire is just sitting there for the asking. I doubt in most cases it even exists, much less is already in hands of the suppliers ready to go. And it most probably does not exist (yet) for the simple reason that no company these days can afford to expend effort on tasks that for which they are not contracted to deliver. The proprietary KNOWLEDGE needed to create the data exists in the hands of the suppliers, but there probably is no USG-grade (deliverable) tech data extant beyond what the F-35 Program is already paying for.

On acquisition contract programs, the government:
1.By law owns the data it pays to own under the contracts,
2.Has limited rights to related contractor data that allows the USG to use that data for the DoD’s own purposes but cannot be shared with a third party, and
3.May include a mechanism reserving rights to buy more data from the contractors that contains the tribal knowledge they want…but they still have to pay for it to be developed and delivered.

To change the strategy NOW to buy more data would cost bigger bucks than anyone involved would ever be willing to talk about. The GAO may get to whine about this for decades.

If the F-35 program, GAO, or other agency managed to get a wild hair up the ‘nethers’ and insist the contractors produce data over and above that already agreed to be delivered, and then turn it over to the Government for free, It would cost the taxpayers even MORE money to settle the lawsuits (perhaps dozens that could last decades) over what would, in essence, be the USG compelling the contractors to turn over their prosperity (proprietary data) for use by competitors. This information would not only allow those competitors to compete against the incumbent contractors using the incumbent’s own trade secrets on the F-35 program but also on any number of future competitions as well.

If this GAO ‘whine’ gains political traction, it will be ‘Stupid’ on steroids

.

Bogden sniping at decisions made by others before his time is his standard m.o.

[sferrin]

Sounds like they have a choice to make. Demand everything poured into a program be government funded, and re-invented if need be (cha-ching), demand any contractor bidding on a program give up any IP they plan to use on said program, or accept that they aren't going to have full control over contractor-owned IP.

[SpudmanWP]

This is one of the problems that caused the failure of the A-12 (Navy Avenger2).

MD's bid based on the assumption that the DoD owned the rights to the stealth work done on the F-117 & maybe the B-2 (not sure if they knew it existed) and would share that info with them.

They found out the hard way that they had to do all the research work themselves.

[sferrin]

This is one of the problems that caused the failure of the A-12 (Navy Avenger2).

MD's bid based on the assumption that the DoD owned the rights to the stealth work done on the F-117 & maybe the B-2 (not sure if they knew it existed) and would share that info with them.

They found out the hard way that they had to do all the research work themselves.

As always, you get what you pay for (or don't, as the case may be). If you don't want to do the basic research, and industry does it on their dime, you're going to pay through the nose for it.

[blindpilot]

Sounds like they have a choice to make. Demand everything poured into a program be government funded, and re-invented if need be (cha-ching), demand any contractor bidding on a program give up any IP they plan to use on said program, or accept that they aren't going to have full control over contractor-owned IP.

"either or" ? Nah, Mac s right, this is standard mess. What Bogdan is edging for and likely will get at some level, is as much data as he can get, but LM will not lose its IP lock. This "squealing" is just trying to get as much as you can bleed, so it's more like 10% or 20%, but you still press the issue. Bogdan doesn't whine without a very specific achievable objective.

MHO
BP

[spazsinbad]

Pentagon and Lockheed Martin in fight over F-35 FRACAS data, says former programme official
11 Mar 2020 Pat Host

"...The Pentagon wants a specific set of data from Lockheed Martin if it is to consider entering a performance-based logistics (PBL) arrangement for the F-35 Lightning II Joint Strike Fighter (JSF), according to a former programme official.

A failure reporting, analysis, and corrective action system (FRACAS) provides a process for reporting, classifying, and analysing failures, as well as planning corrective action in response to those failures. The former official told Jane's on 9 March that FRACAS data covers operational and maintenance (O&M) data, such as mean time between failure, not just at the aircraft level but two, three, and even four subsystems and tiers below.

For example, FRACAS data covers average time between failure data such as how specific systems and components perform on a day-to-day basis, how often a radar breaks, how often certain parts need to be repaired, and how often they are taken off the aircraft. This data could allow the Pentagon's Joint Program Office (JPO) to identify components that were supposed to have 10,000 hours of life but instead have only 5,000 hours of life, as well as parts that take much longer to repair compared with what standard repair manuals claim.

The problem, the former programme official said, is that Lockheed Martin claims that this data is their intellectual property (IP), and therefore owns the rights to it unless the Pentagon pays for it. The former official disagreed with this assessment, saying that IP is restricted to the design of the aircraft and its engineering, which the Pentagon can never own, and not FRACAS data."

Source: https://www.janes.com/article/94828/pen ... e-official