Sec. 404. Requirements for modular open system approach and modifications to rights in technical data
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Section 4401 of title 10, United States Code, is amended to read as follows: The Secretary of Defense shall ensure that a covered system to be procured is designed and developed, to the maximum extent practicable, with a modular open system approach. Before designing or developing a covered system, the Secretary of Defense shall conduct an assessment to identify the open systems objectives to be achieved by the design and development of the covered system. Such assessment shall identify and document how such approach would— support the objectives of the defense acquisition system established pursuant to section 3102 of this title; align with the preference for the acquisition of commercial products in section 3453 of this title to retain, to the maximum extent practicable, the commercial viability of subsystems and components of the covered system; reduce the complexity and increase the speed by which new technology can be integrated into a covered system to enhance miliary effectiveness and responsiveness to emerging threats; enable the use of iterative development cycles and discontinue or terminate the development of capabilities— that no longer align with approved capability requirements (as defined in section 181 of this title) or priorities; or that are experiencing significant cost growth, performance deficiencies, or delays in schedule; promote a robust and responsive defense industrial base, and foster competition amongst offerors of subsystems and components of the covered system through the life cycle of the covered system, especially at the module level; reduce schedule delays and development timelines; increase and enable interoperability of a covered system with the joint force as changes to force design evolve; and enable effective life-cycle management and product support of a covered system— in accordance with the requirements of section 4322 of this title; and to ensure that the covered system will meet applicable operational readiness requirements (as defined in such section 4322) and materiel readiness objectives (established under section 118(c) of this title) in the most cost-effective manner practicable.
In developing an architecture for the procurement of a covered system using a modular open system approach, the Secretary shall ensure that the architecture— adequately designates and defines modules, module interfaces, key interfaces, and openness characteristics of the covered system necessary to achieve the open systems objectives described in subsection (b); to the extent practicable, is based on— widely accepted, consensus-based standards that are available at no cost or under fair and reasonable license terms; or if such standards are not available or suitable, incremental standards that define relationships between module interfaces and key interfaces; and is designed and developed to accelerate the procurement and integration of commercial products as modules, module interfaces, and key interfaces.
The Secretary shall consider input from private entities as early as possible to inform decisions regarding the level in the architecture at which a modular open system approach will be implemented for a covered system. The architecture described in this subsection shall be included in any draft and final solicitations for procurement of a covered system. Consistent with the requirements of subchapter I of chapter 275 of this title, the Secretary shall include in the solicitation for the covered system a description of the desired openness characteristics of the covered system necessary to achieve the open systems objectives described in subsection (b), including the following:
The open systems objectives identified as result of the assessment required by subsection (b). A description of the application of specifications or standards for module interfaces to achieve such objectives. A description of the minimum technical data package elements necessary to achieve such objectives. The desired license rights in module interfaces or key interfaces based on such objectives, including desired license rights to enable the replacement of a module or module interface with an alternative or new module or module interface.
In applying the requirements of this section to a covered system that includes a commercial product, the Secretary of Defense shall— implement modular open system approaches in accordance with such approaches used in the ordinary course of business for such commercial product on the commercial marketplace; for a commercial product that is commercial technical data or commercial software, procure such commercial product under license terms similar to such terms that are customarily provided to the public, unless the Secretary has specifically negotiated different license terms; when applicable, obtain the delivery of commercial software development kits with license rights necessary to support the desired openness characteristics for the covered system; and to the maximum extent practical, conduct negotiations for desired license rights in accordance with the preference for specially negotiated licenses in section 3774(c) of this title.
In this section: The term covered system means a system acquired or developed under— an acquisition program of the Department of Defense; or a research and development program of the Department to address a capability requirement or joint capability requirement (as defined in section 181 of this title). The term incremental standard means a specification for a module interface or key interface that includes— software-defined syntax and properties that specifically govern how values are validly passed and received between subsystems and components in machine-readable format; a machine-readable definition of the relationship between the module interface or key interface and existing common standards or interfaces available in Department databases; and documentation with functional descriptions of software-defined interfaces, conveying semantic meaning of elements of the module interface or key interface.
The term key interface means a shared boundary between any system, subsystem of a covered system, or set of modules, defined by various physical, logical, functional characteristics, such as electrical, mechanical, fluidic, optical, radio frequency, data, networking, or software. The term modular open system approach means the application of a strategy that leverages an architecture that enables modules to be incrementally added, removed, or replaced throughout the life cycle of the covered system to achieve a set of objectives.
The term module means a self-contained functional hardware or software unit— that can be developed, tested, and deployed independently of a module interface or key interface; and that can simultaneously interact with another self-contained functional hardware or software unit described in subparagraph
(A)through a module interface or key interface. The term module interface means a shared boundary between modules, defined by physical, logical, and functional characteristics, such as electrical, mechanical, fluidic, optical, radio frequency, data, networking, or software. The term software development kit means a collection of software tools and programs such as libraries, application programming interfaces, integrated development environments, testing tools, or documentation used to create applications that are appropriate for a specific software platform. . Not later than 180 days after the date of the enactment of this Act, the Secretary of Defense shall issue guidance to carry out the requirements of section 4401 of title 10, United States Code, as amended by this section. The requirements of section 4401 of title 10, United States Code, as amended by this section, shall apply with respect to a contract entered into on or after the date of the enactment of this Act. Section 3771 of title 10, United States Code, is amended— in subsection (a)— in paragraph (2)(A), by striking or copyrights and inserting , copyrights, trade secrets, ; and by adding at the end the following new paragraph: Regulations prescribed under paragraph
(1)may not affect or limit any right described in paragraph (2)(A) or the ability of a contractor or subcontractor to enforce such a right against a third party that has not otherwise obtained a license for such a right from the United States or from the contractor or subcontractor. ; and in subsection (b)— in paragraph (2), by striking paragraphs (3), (4), and (7), and inserting paragraphs
(3)and (4), ; by amending paragraph
(3)to read as follows: Unless otherwise negotiated, paragraph
(2)does not apply to technical data that— constitutes a correction or change to data furnished by the United States; or is otherwise publicly available or has been released or disclosed by the contractor or subcontractor without restriction on further release or disclosure. ; by amending paragraph
(4)to read as follows: Notwithstanding paragraph (2), unless otherwise negotiated, the United States shall have government purpose rights, in perpetuity, in technical data that— relates to form, fit, or function of an item or process; or is necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data) of an item or process. Notwithstanding paragraph (2), the United States may release or disclose technical data to persons outside the Government, or permit the use of technical data by such persons, if such release, disclosure, or use— is necessary for emergency repair and overhaul; is a release or disclosure of technical data (other than detailed manufacturing or process data) to, or use of such data by, a foreign government, where such release or disclosure is in the interest of the United States and is required for evaluation or informational purposes; is made subject to a prohibition that the person to whom the data are released or disclosed may not further release, disclose, or use such data; and the contractor or subcontractor asserting the restriction is notified of such release, disclosure, or use. ; in paragraph (6)— in the paragraph heading, by striking and inserting Interfaces ; Module interfaces of an item by inserting , in perpetuity, after government purpose rights ; and by striking an interface between an item or process and other items or processes and inserting a module interface of an item ; and in paragraph (7)— in the paragraph heading, by striking and inserting Modular system interfaces ; Key interfaces of an item in subparagraph (A)— by striking paragraphs
(2)and
(5)and inserting paragraph
(5)and except as otherwise provided by subsection
(e)of section 4401 of this title, ; by inserting , in perpetuity, after government purpose rights ; and by striking modular system interface and inserting key interface of an item ; in subparagraph (B), by striking modular system interface and inserting a key interface ; and in subparagraph (C), by striking modular system interface and inserting key interface of an item . Section 3775(b) of title 10, United States Code, is amended to read as follows: In this subchapter, the terms key interface , modular open system approach , and module interface have the meanings given, respectively, in section 4401 of this title. . Section 3791(c)(1) of title 10, United States Code, is amended— in subparagraph (A), by striking section 4401(b) of this title and inserting section 4401 of this title ; and in subparagraph (D)(iv), by striking modular system interfaces (as defined in section 4401(b) of this title) and inserting module interfaces (as defined in section 4401(f) of this title) . Section 4402 of title 10, United States Code, is repealed. Section 4403 of title 10, United States Code, is repealed. Section 4425 of title 10, United States Code, is amended to read as follows: In this subchapter: The term major system platform means the highest level structure of a major weapon system that is not physically mounted or installed onto a higher level structure and on which a major system component can be physically mounted or installed. The term weapon system component — means a high level subsystem or assembly, including hardware, software, or an integrated assembly of both, that can be mounted or installed on a major system platform through a key system interface (as defined in section 4401(f) of this title); and includes a subsystem or assembly that is likely to have additional capability requirements, is likely to change because of evolving technology or threat, is needed for interoperability, facilitates incremental deployment of capabilities, or is expected to be replaced by another subsystem or assembly described in subparagraph (A). . Section 804 of the National Defense Authorization Act for Fiscal Year 2021 ( 10 U.S.C. 4401 note) is repealed.
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Sec. 404
Requirements for modular open system approach and modifications to rights in technical data
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