Congress is considering so-called “right to repair” legislation that could produce one of the most consequential changes to Department of War (“DoW”) intellectual property rights in decades. Provisions advanced during consideration of the Fiscal Year (“FY”) 2027 National Defense Authorization Act (“NDAA”) would make Government Purpose Rights the default for certain technical data, computer software, and computer software documentation delivered under future DoW contracts, subcontracts, and other agreements.  Contractors seeking to deviate from Government Purpose Rights to impose more restrictive rights would bear the burden of identifying the affected material and establishing the basis for those restrictions by “clear and convincing evidence.”

The provisions respond to concerns that DoW may lack access to the technical information needed to maintain and repair military equipment without relying on the original manufacturer.  But the proposed solution appears to have impacts that go beyond DoW’s right to repair and broadly affect DoW rights to contractors’ internally funded technology.  At a minimum, this approach would require contractors to place a renewed emphasis on proposal and marking practices and relationships with suppliers; at worst, it may undermine industry’s willingness to incorporate commercial or dual-use technology into defense systems.