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DFARS 227



Part 227—Patents, Data, and Copyrights

TABLE OF CONTENTS

(Revised December 6, 2013)

SUBPART 227.3--PATENT RIGHTS UNDER GOVERNMENT CONTRACTS

227.303 Contract clauses.

227.304 Procedures.

227.304-1 General.

SUBPART 227.4--RIGHTS IN DATA AND COPYRIGHTS

227.400 Scope of subpart.

SUBPART 227.6--FOREIGN LICENSE AND TECHNICAL ASSISTANCE
AGREEMENTS

227.670 Scope.

227.671 General.

227.672 Policy.

227.673 Foreign license and technical assistance agreements between the
Government and domestic concerns.

227.674 Supply contracts between the Government and a foreign government
or concern.

227.675 Foreign license and technical assistance agreements between a
domestic concern and a foreign government or concern.

227.675-1 International Traffic in Arms Regulations.

227.675-2 Review of agreements.

227.676 Foreign patent interchange agreements.

SUBPART 227.70--INFRINGEMENT CLAIMS, LICENSES, AND
ASSIGNMENTS

227.7000 Scope.

227.7001 Policy.

227.7002 Statutes pertaining to administrative claims of infringement.

227.7003 Claims for copyright infringement.

227.7004 Requirements for filing an administrative claim for patent infringement.

227.7005 Indirect notice of patent infringement claims.

227.7006 Investigation and administrative disposition of claims.

227.7007 Notification and disclosure to claimants.

227.7008 Settlement of indemnified claims.

227.7009 Patent releases, license agreements, and assignments.

227.7009-1 Required clauses.

227.7009-2 Clauses to be used when applicable.

227.7009-3 Additional clauses—contracts except running royalty contracts.

227.7009-4 Additional clauses—-contracts providing for payment of a running
royalty.

227.7010 Assignments.

227.7011 Procurement of rights in inventions, patents, and copyrights.

227.7012 Contract format.

227.7013 Recordation.

SUBPART 227.71--RIGHTS IN TECHNICAL DATA

227.7100 Scope of subpart.

227.7101 Definitions.

227.7102 Commercial items, components, or processes.

227.7102-1 Policy.

227.7102-2 Rights in technical data.

227.7102-3 Government right to review, verify, challenge and validate asserted restrictions.

227.7102-4 Contract clauses.

227.7103 Noncommercial items or processes.

227.7103-1 Policy.

227.7103-2 Acquisition of technical data.

227.7103-3 Early identification of technical data to be furnished to the

227.7103-4 License rights.

227.7103-5 Government rights.

227.7103-6 Contract clauses.

227.7103-7 Use and non-disclosure agreement.

227.7103-8 Deferred delivery and deferred ordering of technical data.

227.7103-9 Copyright.

227.7103-10 Contractor identification and marking of technical data to be

227.7103-11 Contractor procedures and records.

227.7103-12 Government right to establish conformity of markings.

227.7103-13 Government right to review, verify, challenge and validate asserted

227.7103-14 Conformity, acceptance, and warranty of technical data.

227.7103-15 Subcontractor rights in technical data.

227.7103-16 Providing technical data to foreign governments, foreign contractors,

227.7103-17 Overseas contracts with foreign sources.

227.7104 Contracts under the Small Business Innovation Research (SBIR)

227.7105 Contracts for the acquisition of existing works.

227.7105-1 General.

227.7105-2 Acquisition of existing works without modification.

227.7105-3 Acquisition of modified existing works.

227.7106 Contracts for special works.

227.7107 Contracts for architect-engineer services.

227.7107-1 Architectural designs and data clauses for architect-engineer or

227.7107-2 Contracts for construction supplies and research and development

227.7107-3 Approval of restricted designs.

227.7108 Contractor data repositories.

SUBPART 227.72--RIGHTS IN COMPUTER SOFTWARE AND COMPUTER
SOFTWARE DOCUMENTATION

227.7200 Scope of subpart.

227.7201 Definitions.

227.7202 Reserved.

227.7202-1 Policy.

227.7202-2 Obtaining commercial computer software or commercial computer

227.7202-3 Rights in commercial computer software or commercial computer

227.7202-4 Contract clause.

227.7203 Noncommercial computer software and noncommercial computer

227.7203-1 Policy.

227.7203-2 Acquisition of noncommercial computer software and computer

227.7203-3 Early identification of computer software or computer software

227.7203-4 License rights.

227.7203-5 Government rights.

227.7203-6 Contract clauses.

227.7203-8 Deferred delivery and deferred ordering of computer software and

227.7203-9 Copyright.

227.7203-10 Contractor identification and marking of computer software or

227.7203-11 Contractor procedures and records.

227.7203-12 Government right to establish conformity of markings.

227.7203-13 Government right to review, verify, challenge and validate asserted

227.7203-14 Conformity, acceptance, and warranty of computer software and

227.7203-15 Subcontractor rights in computer software or computer software

227.7203-16 Providing computer software or computer software documentation

227.7203-17 Overseas contracts with foreign sources.

227.7204 Contracts under the Small Business Innovation Research Program.

227.7205 Contracts for special works.

227.7206 Contracts for architect-engineer services.

227.7207 Contractor data repositories.

SUBPART 227.3--PATENT RIGHTS UNDER GOVERNMENT CONTRACTS

(Revised December 7, 2011)

227.303 Contract clauses.

(1) Use the clause at 252.227-7039, Patents—Reporting of Subject Inventions, in solicitations and contracts containing the clause at FAR 52.227-11, Patent Rights—Ownership by the Contractor.

227.304 Procedures.

227.304-1 General.

Interim and final invention reports and notification of all subcontracts for experimental, developmental, or research work may be submitted on DD Form 882, Report of Inventions and Subcontracts.

SUBPART 227.4--RIGHTS IN DATA AND COPYRIGHTS

227.400 Scope of subpart.

DoD activities shall use the guidance in Subparts 227.71 and 227.72 instead of the guidance in FAR Subpart 27.4.

SUBPART 227.6--FOREIGN LICENSE AND TECHNICAL ASSISTANCE AGREEMENTS

227.670 Scope.

This subpart prescribes policy with respect to foreign license and technical assistance agreements.

227.671 General.

In furtherance of the Military Assistance Program or for other national defense purposes, the Government may undertake to develop or encourage the development of foreign additional sources of supply. The development of such sources may be accomplished by an agreement, often called a foreign licensing agreement or technical assistance agreement, wherein a domestic concern, referred to in this subpart as a “primary source,” agrees to furnish to a foreign concern or government, herein referred to as a “second source;” foreign patent rights; technical assistance in the form of data, know-how, trained personnel of the primary source, instruction and guidance of the personnel of the second source, jigs, dies, fixtures, or other manufacturing aids, or such other assistance, information, rights, or licenses as are needed to enable the second source to produce particular supplies or perform particular services. Agreements calling for one or more of the foregoing may be entered into between the primary source and the Government, a foreign government, or a foreign concern. The consideration for providing such foreign license and technical assistance may be in the form of a lump sum payment, payments for each item manufactured by the second source, an agreement to exchange data and patent rights on improvements made to the article or service, capital stock transactions, or any combination of these. The primary source's bases for computing such consideration may include actual costs; charges for the use of patents, data, or know-how reflecting the primary source's investment in developing and engineering and production techniques; and the primary source's “price” for setting up a second source. Such agreements often refer to the compensation to be paid as a royalty or license fee whether or not patent rights are involved.

227.672 Policy.

It is Government policy not to pay in connection with its contracts, and not to allow to be paid in connection with contracts made with funds derived through the Military Assistance Program or otherwise through the United States Government, charges for use of patents in which it holds a royalty-free license or charges for data which it has a right to use and disclose to others, or which is in the public domain, or which the Government has acquired without restriction upon its use and disclosure to others. This policy shall be applied by the Departments in negotiating contract prices for foreign license technical assistance contracts (227.675) or supply contracts with second sources (227.674); and in commenting on such agreements when they are referred to the Department of Defense by the Department of State pursuant to Section 414 of the Mutual Security Act of 1954 as amended (22 U.S.C. 1934) and the International Traffic in Arms Regulations (see 227.675).

227.673 Foreign license and technical assistance agreements between the Government and domestic concerns.

227.674 Supply contracts between the Government and a foreign government or concern.

In negotiating contract prices with a second source, including the redetermination of contract prices, or in determining the allowability of costs under a cost-reimbursement contract with a second source, the contracting officer:

227.675 Foreign license and technical assistance agreements between a domestic concern and a foreign government or concern.

227.675-1 International Traffic in Arms Regulations.

Pursuant to Section 414 of the Mutual Security Act of 1954, as amended (22 U.S.C. 1934), the Department of State controls the exportation of data relating to articles designated in the United States Munitions List as arms, ammunition, or munitions of war. (The Munitions List and pertinent procedures are set forth in the International Traffic in Arms Regulations, 22 CFR, et seq.) Before authorizing such exportation, the Department of State generally requests comments from the Department of Defense. On request of the Office of the Assistant Secretary of Defense (International Security Affairs), each Department shall submit comments thereon as the basis for a Department of Defense reply to the Department of State.

227.675-2 Review of agreements.

Reviewing personnel shall verify this information or, where the primary source does not furnish it, obtain such information from Governmental sources so far as practicable.

227.676 Foreign patent interchange agreements.

SUBPART 227.70--INFRINGEMENT CLAIMS, LICENSES, AND ASSIGNMENTS

(Revised January 20, 2011)

227.7000 Scope.

This subpart prescribes policy, procedures, and instructions for use of clauses with respect to processing licenses, assignments, and infringement claims.

227.7001 Policy.

Whenever a claim of infringement of privately owned rights in patented inventions or copyrighted works is asserted against any Department or Agency of the Department of Defense, all necessary steps shall be taken to investigate, and to settle administratively, deny, or otherwise dispose of such claim prior to suit against the United States. This subpart 227.70 does not apply to licenses or assignments acquired by the Department of Defense under the Patent Rights clauses.

227.7002 Statutes pertaining to administrative claims of infringement.

Statutes pertaining to administrative claims of infringement in the Department of Defense include the following: the Foreign Assistance Act of 1961, 22 U.S.C. 2356 (formerly the Mutual Security Acts of 1951 and 1954); the Invention Secrecy Act, 35 U.S.C. 181-188; 10 U.S.C. 2386; 28 U.S.C. 1498; and 35 U.S.C. 286.

227.7003 Claims for copyright infringement.

The procedures set forth herein will be followed, where applicable, in copyright infringement claims.

227.7004 Requirements for filing an administrative claim for patent infringement.

In addition in the foregoing, if claimant can provide a statement that the investigation may be limited to the specifically identified accused articles or processes, or to a specific procurement, it may materially expedite determination of the claim.

227.7005 Indirect notice of patent infringement claims.

227.7006 Investigation and administrative disposition of claims.

An investigation and administrative determination (denial or settlement) of each claim shall be made in accordance with instructions and procedures established by each Department, subject to the following:

227.7007 Notification and disclosure to claimants.

When a claim is denied, the Department responsible for the administrative determination of the claim shall so notify the claimant or his authorized representative and provide the claimant a reasonable rationale of the basis for denying the claim. Disclosure of information or the rationale referred to above shall be subject to applicable statutes, regulations, and directives pertaining to security, access to official records, and the rights of others.

227.7008 Settlement of indemnified claims.

Settlement of claims involving payment for past infringement shall not be made without the consent of, and equitable contribution by, each indemnifying contractor involved, unless such settlement is determined to be in the best interests of the Government and is coordinated with the Department of Justice with a view to preserving any rights of the Government against the contractors involved. If consent of and equitable contribution by the contractors are obtained, the settlement need not be coordinated with the Department of Justice.

227.7009 Patent releases, license agreements, and assignments.

This section contains clauses for use in patent release and settlement agreements, license agreements, and assignments, executed by the Government, under which the Government acquires rights. Minor modifications of language (e.g., pluralization of “Secretary” or “Contracting Officer”) in multidepartmental agreements may be made if necessary.

227.7009-1 Required clauses.

227.7009-2 Clauses to be used when applicable.

227.7009-3 Additional clauses--contracts except running royalty contracts.

The following clauses are examples for use in patent release and settlement agreements, and license agreements not providing for payment by the Government of a running royalty.

227.7009-4 Additional clauses—contracts providing for payment of a running royalty.

The clauses set forth below are examples which may be used in patent release and settlement agreements, and license agreements, when it is desired to cover the subject matter thereof and the contract provides for payment of a running royalty.

227.7010 Assignments.

227.7011 Procurement of rights in inventions, patents, and copyrights.

Even though no infringement has occurred or been alleged, it is the policy of the Department of Defense to procure rights under patents, patent applications, and copyrights whenever it is in the Government's interest to do so and the desired rights can be obtained at a fair price. The required and suggested clauses at 252.227-7004 and 252.227-7010 shall be required and suggested clauses, respectively, for license agreements and assignments made under this paragraph. The instructions at 227.7009-3 and 227.7010 concerning the applicability and use of those clauses shall be followed insofar as they are pertinent.

227.7012 Contract format.

The format at 252.227-7012 appropriately modified where necessary, may be used for contracts of release, license, or assignment.

227.7013 Recordation.

Executive Order No. 9424 of 18 February 1944 requires all executive Departments and agencies of the Government to forward through appropriate channels to the Commissioner of Patents and Trademarks, for recording, all Government interests in patents or applications for patents.

SUBPART 227.71--RIGHTS IN TECHNICAL DATA

(Revised February 28, 2014)

227.7100 Scope of subpart.

This subpart—

227.7101 Definitions.

227.7102 Commercial items, components, or processes.

227.7102-1 Policy.

227.7102-2 Rights in technical data.

227.7102-3 Government right to review, verify, challenge and validate asserted restrictions.

Follow the procedures at 227.7103-13 and the clause at 252.227-7037, Validation of Restrictive Markings on Technical Data, regarding the validation of asserted restrictions on technical data related to commercial items.

227.7102-4 Contract clauses.

(2) Use the clause at 252.227-7015 with its Alternate I in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, for the development or delivery of a vessel design or any useful

article embodying a vessel design.

at 252.227-7013.

227.7103 Noncommercial items or processes.

227.7103-1 Policy.

(g) The Government's rights in a vessel design, and in any useful article embodying a vessel design, must be consistent with the Government's rights in technical data pertaining to the design (10 U.S.C. 7317; 17 U.S.C. 1301(a)(3)).

227.7103-2 Acquisition of technical data.

227.7103-3 Early identification of technical data to be furnished to the Government with restrictions on use, reproduction or disclosure.

227.7103-4 License rights.

227.7103-5 Government rights.

The standard license rights that a licensor grants to the Government are unlimited rights, government purpose rights, or limited rights. Those rights are defined in the clause at 252.227-7013, Rights in Technical Data–Noncommercial Items. In unusual situations, the standard rights may not satisfy the Government's needs or the Government may be willing to accept lesser rights in data in return for other consideration. In those cases, a special license may be negotiated. However, the licensor is not obligated to provide the Government greater rights and the contracting officer is not required to accept lesser rights than the rights provided in the standard grant of license. The situations under which a particular grant of license applies are enumerated in paragraphs (a) through (d) of this subsection.

227.7103-6 Contract clauses.

227.7103-7 Use and non-disclosure agreement.

Use and Non-Disclosure Agreement

 

The undersigned, __________(Insert Name)__________, an authorized representative of the __________(Insert Company Name)__________, (which is hereinafter referred to as the “Recipient”) requests the Government to provide the Recipient with technical data or computer software (hereinafter referred to as “Data”) in which the Government's use, modification, reproduction, release, performance, display or disclosure rights are restricted. Those Data are identified in an attachment to this Agreement. In consideration for receiving such Data, the Recipient agrees to use the Data strictly in accordance with this Agreement:

 

    (1) The Recipient shall—

 

      (a) Use, modify, reproduce, release, perform, display, or disclose Data marked with government purpose rights or SBIR data rights legends only for government purposes and shall not do so for any commercial purpose. The Recipient shall not release, perform, display, or disclose these Data, without the express written permission of the contractor whose name appears in the restrictive legend (the “Contractor”), to any person other than its subcontractors or suppliers, or prospective subcontractors or suppliers, who require these Data to submit offers for, or perform, contracts with the Recipient. The Recipient shall require its subcontractors or suppliers, or prospective subcontractors or suppliers, to sign a use and non-disclosure agreement prior to disclosing or releasing these Data to such persons. Such agreement must be consistent with the terms of this agreement.

 

      (b) Use, modify, reproduce, release, perform, display, or disclose technical data marked with limited rights legends only as specified in the attachment to this Agreement. Release, performance, display, or disclosure to other persons is not authorized unless specified in the attachment to this Agreement or expressly permitted in writing by the Contractor. The Recipient shall promptly notify the Contractor of the execution of this Agreement and identify the Contractor's Data that has been or will be provided to the Recipient, the date and place the Data were or will be received, and the name and address of the Government office that has provided or will provide the Data.

 

      (c) Use computer software marked with restricted rights legends only in performance of Contract Number __________(insert contract number(s))__________. The recipient shall not, for example, enhance, decompile, disassemble, or reverse engineer the software; time share, or use a computer program with more than one computer at a time. The recipient may not release, perform, display, or disclose such software to others unless expressly permitted in writing by the licensor whose name appears in the restrictive legend. The Recipient shall promptly notify the software licensor of the execution of this Agreement and identify the software that has been or will be provided to the Recipient, the date and place the software were or will be received, and the name and address of the Government office that has provided or will provide the software.

      (d) Use, modify, reproduce, release, perform, display, or disclose Data marked with special license rights legends (To be completed by the contracting officer. See 227.7103-7(a)(2). Omit if none of the Data requested is marked with special license rights legends).

 

    (2) The Recipient agrees to adopt or establish operating procedures and physical security measures designed to protect these Data from inadvertent release or disclosure to unauthorized third parties.

 

    (3) The Recipient agrees to accept these Data “as is” without any Government representation as to suitability for intended use or warranty whatsoever. This disclaimer does not affect any obligation the Government may have regarding Data specified in a contract for the performance of that contract.

 

    (4) The Recipient may enter into any agreement directly with the Contractor with respect to the use, modification, reproduction, release, performance, display, or disclosure of these Data.

 

    (5) The Recipient agrees to indemnify and hold harmless the Government, its agents, and employees from every claim or liability, including attorneys fees, court costs, and expenses arising out of, or in any way related to, the misuse or unauthorized modification, reproduction, release, performance, display, or disclosure of Data received from the Government with restrictive legends by the Recipient or any person to whom the Recipient has released or disclosed the Data.

 

    (6) The Recipient is executing this Agreement for the benefit of the Contractor. The Contractor is a third party beneficiary of this Agreement who, in addition to any other rights it may have, is intended to have the rights of direct action against the Recipient or any other person to whom the Recipient has released or disclosed the Data, to seek damages from any breach of this Agreement or to otherwise enforce this Agreement.

 

    (7) The Recipient agrees to destroy these Data, and all copies of the Data in its possession, no later than 30 days after the date shown in paragraph (8) of this Agreement, to have all persons to whom it released the Data do so by that date, and to notify the Contractor that the Data have been destroyed.

 

    (8) This Agreement shall be effective for the period commencing with the Recipient's execution of this Agreement and ending upon _________(Insert Date)_________. The obligations imposed by this Agreement shall survive the expiration or termination of the Agreement.

 

Recipient's Business Name

_________________________________

   

By____________________________

    Authorized Representative

_________________________________

Date

   

Representative’s Typed Name

_________________________________

and Title

_________________________________

   

(End of use and non-disclosure agreement)


227.7103-8 Deferred delivery and deferred ordering of technical data.

227.7103-9 Copyright.

227.7103-10 Contractor identification and marking of technical data to be furnished with restrictive markings.

227.7103-11 Contractor procedures and records.

227.7103-12 Government right to establish conformity of markings.

227.7103-13 Government right to review, verify, challenge and validate asserted restrictions.

227.7103-14 Conformity, acceptance, and warranty of technical data.

227.7103-15 Subcontractor rights in technical data.

227.7103-16 Providing technical data to foreign governments, foreign contractors, or international organizations.

Technical data may be released or disclosed to foreign governments, foreign contractors, or international organizations only if release or disclosure is otherwise permitted both by Federal export controls and other national security laws or regulations. Subject to such laws and regulations, the Department of Defense—

227.7103-17 Overseas contracts with foreign sources.

227.7104 Contracts under the Small Business Innovation Research (SBIR) Program.

disclose SBIR technical data or computer software to any person except as authorized for limited rights technical data or restricted rights computer software, respectively.

227.7105 Contracts for the acquisition of existing works.

227.7105-1 General.

227.7105-2 Acquisition of existing works without modification.

227.7105-3 Acquisition of modified existing works.

Use the clause at 252.227-7020, Rights in Special Works, in solicitations and contracts for modified existing works in lieu of the clause at 252.227-7021, Rights in Data–Existing Works.

227.7106 Contracts for special works.

227.7107 Contracts for architect-engineer services.

This section sets forth policies and procedures, pertaining to data, copyrights, and restricted designs unique to the acquisition of construction and architect-engineer services.

227.7107-1 Architectural designs and data clauses for architect-engineer or construction contracts.

227.7107-2 Contracts for construction supplies and research and development work.

Use the provisions and clauses required by 227.7103-6 and 227.7203-6 when the acquisition is limited to—

227.7107-3 Approval of restricted designs.

The clause at 252.227-7024, Notice and Approval of Restricted Designs, may be included in architect-engineer contracts to permit the Government to make informed decisions concerning noncompetitive aspects of the design.

227.7108 Contractor data repositories.

SUBPART 227.72--RIGHTS IN COMPUTER SOFTWARE AND COMPUTER SOFTWARE DOCUMENTATION

(Revised February 28, 2014)

227.7200 Scope of subpart.

This subpart—

227.7201 Definitions.

227.7202 Commercial computer software and commercial computer software documentation.

227.7202-1 Policy.

227.7202-2 Reserved.

227.7202-3 Rights in commercial computer software or commercial computer software documentation.

227.7202-4 Contract clause.

A specific contract clause governing the Government's rights in commercial computer software or commercial computer software documentation is not prescribed. As required by 227.7202-3, the Government’s rights to use, modify, reproduce, release, perform, display, or disclose computer software or computer software documentation shall be identified in a license agreement.

227.7203 Noncommercial computer software and noncommercial computer software documentation.

227.7203-1 Policy.

227.7203-2 Acquisition of noncommercial computer software and computer software documentation.

227.7203-3 Early identification of computer software or computer software documentation to be furnished to the Government with restrictions on use, reproduction or disclosure.

227.7203-4 License rights.

227.7203-5 Government rights.

The standard license rights in computer software that a licensor grants to the Government are unlimited rights, government purpose rights, or restricted rights. The standard license in computer software documentation conveys unlimited rights. Those rights are defined in the clause at 252.227-7014, Rights in Noncommercial Computer Software and Noncommercial Computer Software Documentation. In unusual situations, the standard rights may not satisfy the Government's needs or the Government may be willing to accept lesser rights in return for other consideration. In those cases, a special license may be negotiated. However, the licensor is not obligated to provide the Government greater rights and the contracting officer is not required to accept lesser rights than the rights provided in the standard grant of license. The situations under which a particular grant of license applies are enumerated in paragraphs (a) through (d) of this subsection.

227.7203-6 Contract clauses.

227.7203-8 Deferred delivery and deferred ordering of computer software and computer software documentation.

227.7203-9 Copyright.

227.7203-10 Contractor identification and marking of computer software or computer software documentation to be furnished with restrictive markings.

227.7203-11 Contractor procedures and records.

227.7203-12 Government right to establish conformity of markings.

227.7203-13 Government right to review, verify, challenge and validate asserted restrictions.

227.7203-14 Conformity, acceptance, and warranty of computer software and computer software documentation.

227.7203-15 Subcontractor rights in computer software or computer software documentation.

227.7203-16 Providing computer software or computer software documentation to foreign governments, foreign contractors, or international organizations.

Computer software or computer software documentation may be released or disclosed to foreign governments, foreign contractors, or international organizations only if release or disclosure is otherwise permitted both by Federal export controls and other national security laws or regulations. Subject to such laws and regulations, the Department of Defense—

227.7203-17 Overseas contracts with foreign sources.

227.7204 Contracts under the Small Business Innovation Research Program.

When contracting under the Small Business Innovation Research Program, follow the procedures at 227.7104.

227.7205 Contracts for special works.

227.7206 Contracts for architect-engineer services.

Follow 227.7107 when contracting for architect-engineer services.

227.7207 Contractor data repositories.

Follow 227.7108 when it is in the Government's interests to have a data repository include computer software or to have a separate computer software repository. Contractual instruments establishing the repository requirements must appropriately reflect the repository manager's software responsibilities.

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