Defense Federal Acquisition Regulation Supplement: Modification of DFARS Clause “Release of Past Infringement” (DFARS Case 2019-D012), 48499-48500 [2019-19559]

Agencies

• Defense Acquisition Regulations System
• DEPARTMENT OF DEFENSE

[Federal Register Volume 84, Number 178 (Friday, September 13, 2019)]
[Rules and Regulations]
[Pages 48499-48500]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-19559]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Part 252

[Docket DARS-2019-0049]
RIN 0750-AK49


Defense Federal Acquisition Regulation Supplement: Modification 
of DFARS Clause ``Release of Past Infringement'' (DFARS Case 2019-D012)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to update pronouns used in a 
clause.

DATES: Effective September 13, 2019.

FOR FURTHER INFORMATION CONTACT: Ms. Carrie Moore, telephone 571-372-
6093.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD is amending the DFARS to update the pronouns used in DFARS 
clause 252.227.7001, Release of Past Infringement. This clause is 
included, when necessary, in contracts that contain patent release and 
settlement agreements, license agreements, and assignments. The clause 
addresses the release of claims or demands of certain inventions 
associated with the contract. Within the clause text the contractor is 
identified using the pronouns ``he'' or ``him.'' Current drafting 
convention simplifies and clarifies clause language by referring to a 
contractor as ``the contractor'' in clause text. This rule updates this 
clause to conform the text to current drafting conventions.

II. Discussion and Analysis

    The modification of this DFARS text implements a recommendation 
from the DoD Regulatory Reform Task Force. On February 24, 2017, the 
President signed Executive Order (E.O.) 13777, ``Enforcing the 
Regulatory Reform Agenda,'' which established a Federal policy ``to 
alleviate unnecessary regulatory burdens'' on the American people. In 
accordance with E.O. 13777, DoD established a Regulatory Reform Task 
Force to review and validate DoD regulations, including the DFARS. A 
public notice of the establishment of the DFARS Subgroup to the DoD 
Regulatory Reform Task Force, for the purpose of reviewing DFARS 
provisions and clauses, was published in the Federal Register at 82 FR 
35741 on August 1, 2017, and requested public input. One public comment 
was received on this clause.
    Comment: The respondent advised that the clause is never used and 
should be deleted from the DFARS. The respondent recommended that, 
instead of the clause, a policy statement permitting DoD to enter into 
settlement agreements where patent and copyright infringement is 
alleged by a third party owner of a patent or copyright would suffice.
    Response: DFARS clause 252.227-7001 serves as an agreement, through 
incorporation in the contract, between DoD and the contractor that, by 
execution of the contract, the contractor releases DoD from all claims 
and demands the contractor has (or will have) against DoD for the use 
or manufacture by DoD of inventions specifically covered by patents and 
applications identified under the contract. The clause applies to the 
requirements and content of the individual contract. As such, the 
clause is necessary, when applicable, in the contract to represent the 
agreement to such terms by both parties, as they relate to the specific 
contract. A general statement of policy does not fulfill the intent of 
this clause. Additionally, the clause is available for use, when 
applicable and necessary, and can be modified to meet particular

[[Page 48500]]

circumstances for the specific requirement, with consultation with 
cognizant patent or legal counsel.
    This clause is beneficial to DoD by facilitating a standard and 
uniform incorporation of more common terms and conditions associated 
with patent and license agreements and assignments into applicable 
contracts, without having to draft the language of these more common 
terms and conditions with each contract. This approach also ensures the 
same language is incorporated into each contract, which helps DoD avoid 
miscommunications or misunderstanding and maintain consistency in 
negotiating such terms and conditions DoD-wide.
    The DoD Regulatory Reform Task Force reviewed the requirements of 
DFARS clause 252.227-7001 and determined that the DFARS clause should 
only be updated to conform to current drafting standards.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule only updates pronouns used in DFARS clause 252.227-7001. 
The rule does not impose any new requirements on contracts at or below 
the simplified acquisition threshold and for commercial items, 
including commercially available off-the-shelf items

IV. Publication of This Final Rule for Public Comment Is Not Required 
by Statute

    The statute that applies to the publication of the Federal 
Acquisition Regulation is Office of Federal Procurement Policy statute 
(codified at title 41 of the United States Code). Specifically, 41 
U.S.C. 1707(a)(1) requires that a procurement policy, regulation, 
procedure or form (including an amendment or modification thereof) must 
be published for public comment if it relates to the expenditure of 
appropriated funds, and has either a significant effect beyond the 
internal operating procedures of the agency issuing the policy, 
regulation, procedure, or form, or has a significant cost or 
administrative impact on contractors or offerors. This final rule is 
not required to be published for public comment, because DoD is not 
issuing a new regulation; rather, this rule merely updates the contact 
information already provided for in existing clauses.

V. Executive Orders 12866 and 13563

    E.O.s 12866 and 13563 direct agencies to assess all costs and 
benefits of available regulatory alternatives and, if regulation is 
necessary, to select regulatory approaches that maximize net benefits 
(including potential economic, environmental, public health and safety 
effects, distributive impacts, and equity). E.O. 13563 emphasizes the 
importance of quantifying both costs and benefits, of reducing costs, 
of harmonizing rules, and of promoting flexibility. This is not a 
significant regulatory action and, therefore, was not subject to review 
under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated 
September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

VI. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section IV. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required, and none has been prepared.

VIII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 252

    Government procurement.

Jennifer Lee Hawes,
Regulatory Control Officer, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 252 is amended as follows:

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
1. The authority citation for part 252 continues to read as follows:

    Authority: 41 U.S.C. 1303 and 48 CFR chapter 1.


252.227-7001  [Amended]

0
2. Amend section 252.227-7001 by--
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a. Removing the clause date of ``(AUG 1984)'' and adding ``(SEP 2019)'' 
in its place; and
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b. In the clause text, removing ``which he'', ``acquired by him'', and 
``(description of subject matter)'' and adding ``which the 
Contractor'', ``acquired by the Contractor'', and ``[description of 
subject matter]'' in their places, respectively.
[FR Doc. 2019-19559 Filed 9-12-19; 8:45 am]
BILLING CODE 5001-06-P