Selling to the Government Without Giving Away the Technology: Data Rights, Bayh-Dole, and Marking
By Casey Scott McKay ·
Selling technology to the federal government transfers rights that most companies never intended to give, and the transfer happens through clauses incorporated by operation of law rather than by negotiation. This article works the technical data and software rights categories - unlimited, government purpose, limited, restricted, and specifically negotiated - and explains what determines which one applies. It sets out the assertions table and marking requirements that preserve restrictions, the validation challenge process that tests them, and what happens when a marking is wrong or missing. It works Bayh-Dole for subject inventions, including election of title, the government license, march-in rights, and the US manufacture preference. It closes with Section 1498, FOIA exemption four after Argus Leader, and SBIR data rights.
IP and Technology > IP and IT in Corporate Transactions | Article | Published 3 March 2026 - Updated 4 August 2026 | Casey Scott McKay - marksy.us
Summary. Selling technology to the federal government transfers rights that most companies never intended to give, and the transfer happens through clauses incorporated by operation of law rather than by negotiation. This article works the technical data and software rights categories — unlimited, government purpose, limited, restricted, and specifically negotiated — and explains what determines which one applies. It sets out the assertions table and marking requirements that preserve restrictions, the validation challenge process that tests them, and what happens when a marking is wrong or missing. It works Bayh-Dole for subject inventions, including election of title, the government license, march-in rights, and the US manufacture preference. It closes with Section 1498, FOIA exemption four after Argus Leader, and SBIR data rights.
Keywords: government contracts IP · technical data rights · unlimited rights · government purpose rights · limited rights · restricted rights · computer software rights · DFARS 252.227-7013 · assertions table · restrictive markings · validation challenges · Bayh-Dole · subject inventions · election of title · government license · march-in rights · US manufacture preference · section 1498 · FOIA exemption four · SBIR data rights
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