Traditional cost-plus and FAR contracting serves NASA well with traditional contractors when budgets were more flexible. In many areas where the contractor will do the majority of the development and innovation, traditional contracting approaches fail because NASA is a title taking agency. As a title taking agency, anything intellectual property developed under a traditional NASA contract belongs to NASA. Traditionally, this has discouraged innovative companies from working with NASA.
Under NASA’s COTS, CCDev and CCiCap programs, unmanned space freighters and astronaut-carrying space taxis are currently under development by several innovative companies. Substantial development has been done by these companies which are valuable from the perspective of working with NASA, but potentially more valuable in the commercial sector. The use of Space Act Agreements and providing a clear path to returning ownership of intellectual property to the companies doing the development has played a pivotal role in making these programs successful from NASA’s standpoint and from a commercial standpoint. Let’s take a look at the structure of these agreements and how they are being implemented.
The Commercial Crew integrated Capability (CCiCap) program is the third round of NASA’s program to spur the development of a private space taxi capable of ferrying astronauts to and from the International Space Station. Over a billion dollars in funding has been awarded via Space Act Agreement (SAA) to three companies, SNC, SpaceX, and Boeing, which will supplement private development monies. New spacecraft using new technologies will most likely emerge from this program over the next several years, providing new options for getting people to both private and public space destinations.
Because new technologies and vehicles are being developed by NASA’s private partners, the type of work being performed under CCiCap is “inventive.” Typically, NASA requires the private partner to establish invention reporting procedures which ensure that all patent rights are preserved during development. NASA also automatically takes ownership of inventions made under SAA where inventive work is performed.
Under the SAAs used to carry out the CCiCap program, NASA lays out a clear path to keeping IP rights in the hands of participating companies. Article 13 of SpaceX’s CCiCap SAA states:
“…the interest of the United States would be served by waiving to SpaceX, in accordance with … the provisions of 14 C.F.R. Part 1245, Subpart 1, rights to any inventions or class of inventions made by SpaceX in the performance of work under this Agreement. Therefore, upon petition submitted by SpaceX … NASA will waive such rights to SpaceX.”
This clause lays out a path for keeping IP rights with the participating company. The participating company may simply apply for an advance waiver of NASA’s rights to inventions developed under a CCiCap agreement.
Importantly, 14 CFR Part 1245 does not exempt SpaceX, or any other CCiCap company from the invention reporting requirement of the SAA. Even if SpaceX, SNC, or Boeing receives an advance waiver, they must identify and notify NASA of inventions made under their CCiCap agreement.