Negotiating and Protecting Data Rights in Federal Contracts: A Practitioner's Guide to Rights Categories, Assertions, Marking, and Bayh-Dole
By Casey Scott McKay ·
This guide builds the practice that keeps a technology company's rights intact when it sells to the federal government. It starts with the funding analysis at component level, because that determines every rights category and it is an accounting exercise rather than a legal one. It works the commercial item determination, the scope of delivery negotiation, and the specifically negotiated license that fits software better than the standard categories do. It sets out the assertions table, the marking discipline, the delivery quality gate, and how to respond to a validation challenge within the period. It then covers Bayh-Dole administration - disclosure, election, filing, marking, and reporting - and closes with subcontractor flow-down, FOIA submitter responses, and transaction diligence.
IP and Technology > IP and IT in Corporate Transactions | Guide | Published 15 September 2023 - Updated 14 November 2025 | Casey Scott McKay - marksy.us
Summary. This guide builds the practice that keeps a technology company's rights intact when it sells to the federal government. It starts with the funding analysis at component level, because that determines every rights category and it is an accounting exercise rather than a legal one. It works the commercial item determination, the scope of delivery negotiation, and the specifically negotiated licence that fits software better than the standard categories do. It sets out the assertions table, the marking discipline, the delivery quality gate, and how to respond to a validation challenge within the period. It then covers Bayh-Dole administration — disclosure, election, filing, marking, and reporting — and closes with subcontractor flow-down, FOIA submitter responses, and transaction diligence.
Keywords: federal data rights · rights categories · funding analysis · component level accounting · commercial item determination · assertions table · restrictive legends · delivery quality control · validation challenge response · government purpose rights clock · specifically negotiated license · data item descriptions · subject invention disclosure · election of title · government license · section 204 waiver · SBIR marking · subcontractor flow down · novation · FOIA submitter response
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