Defense Right-to-Repair Proposals Shouldn’t Compromise IP, Innovation, or Safety
Military readiness and sustainment represent a vital imperative; in fact, of the six “top Department of Defense (DOD) management and performance challenges” identified in a recent DOD Inspector General report, “Increasing Military Readiness” ranked first. It’s certainly critical that the DOD has access to the data and information it and U.S. servicemembers need to conduct maintenance, repair, and overhaul of defense systems. However, it’s also crucial that companies which have invested private resources to innovate defense technologies and systems—many of which have commercial product applications—retain ownership of the novel intellectual property (IP) they’ve created. Unfortunately, legislation currently circulating in Congress to advance aggressive right-to-repair (RTR) provisions would upset the delicate balance Congress and the DOD have long tried to maintain in protecting contractors’ IP rights while preserving DOD access to critical data and information regarding weapons systems. The proposed legislation represents a solution in search of a problem, and one that would unnecessarily undermine incentives for private-sector defense innovation.
In the Senate, Section 835 of the Senate Armed Services Committee-passed FY 2026 National Defense Authorization Act (NDAA) proposes a concept called “instructions for continued operational readiness” (ICOR) as a mandatory requirement of all future defense contracts. As the National Defense Industrial Association (NDIA) explains, “ICOR includes data, tools, and software for operations, maintenance, installation, and training, which could include sensitive and proprietary technical and manufacturing data and IP developed at the contractor’s private expense.” The proposed legislation would allow the DOD to provide these parts, tools, and information to any authorized third-party contractor, including an innovative contractor’s direct competitors. The proposal further authorizes “alternative maintenance or repair actions” for equipment, which could include reverse engineering or fabrication of parts by the DOD or third parties. The proposed legislation would give DOD the ability to impose fines or penalties for non-compliance (i.e., if the contractor didn’t comply with the request for compelled disclosure of information) and incorporates no appeals process.
The House Armed Services Committee-passed FY 2026 NDAA (H.R. 3838) includes a similar RTR proposal, which would mandate that contractors agree to allow DOD “fair and reasonable” access to all repair tools and information, including proprietary IP, which DOD could then provide to third parties, even direct competitors. It also includes a provision that contractors would have to offer repair materials at a price that is equivalent to or better than the most favorable prices, terms, and conditions offered to a reseller or distributor. (This ignores that companies have varying business models and often offer discounts when customers are purchasing in bulk quantities.)
But the core concern is that both proposals would essentially require contractors to agree to license their privately funded commercial or defense-unique IP to aftermarket competitors (for virtually any purpose)—so long as there would be some connection to operational readiness—as a condition of contracting.
The proposed legislation is disruptive—and foundationally unnecessary. That’s so because the government already possesses the rights needed to maintain or repair defense equipment under existing laws and regulations. Under current DOD contracts, the government obtains “unlimited rights” in any deliverable technical data necessary for operation, maintenance, installation, or training (other than detailed manufacturing or process data) as well as in deliverable technical data of technology development fully funded by the government. And even when contractors have fully funded technology development at their own expense, the government obtains “limited rights” in deliverable technical data (including disclosure externally for emergency repair and overhaul).
It’s also important to note that Congress has already provided two different authorities to incorporate contractor depot artisans into their organic depot capabilities. (“Contractor depot artisans” refers to highly skilled tradespeople working in a specific depot environment, often a military maintenance or manufacturing facility, to repair, upgrade, or build complex equipment and systems.) So, while the current legislation is being sold on the Hill as being about “a U.S. servicemember’s right-to-repair,” the reality is that when servicemembers are required to perform a repair or when a government employee at a service depot performs a repair, the existing Limited Rights of Commercial Rights license allows DOD personnel to perform a needed repair.
A further concern about the legislation is that while proponents contend the provisions would only apply to routine maintenance and repair information, it could also apply to detailed manufacturing or process data (so-called “DMPD”), design methods, source codes, algorithms, or trade secrets. Further, while the Senate legislation contains a carve-out in its provisions for “unmodified commercial products,” there are no exemptions from the proposed rules for “modified commercial products” or for privately financed commercial or defense-unique products.
As the NDIA correctly notes, “When a company develops new technology, it has potential future value, not only for the DOD but also for the commercial market,” but if a company risks compromising its IP if it does business with the government, it may simply decide not to do so in the first place. For instance, in NDIA’s Vital Signs 2025 Survey, 37 percent of private-sector respondents reported their company decided not to include certain technologies in defense contract bids because of IP concerns (an increase of 9 percentage points over the previous year’s survey). Further, 36 percent of private-sector respondents chose not to bid on certain DOD contracts “out of fear that DOD requirements for IP would put the company’s IP rights at risk.” That response rate represented an increase of 14 percent from the prior year. As NDIA notes, the data show “that even before the RTR mandates, more companies are already choosing not to contract with DOD over fear of losing their IP,” a situation which would certainly be worsened by the proposed Congressional RTR mandates.
The proposed right-to-repair legislation also raises potentially serious safety and liability concerns, especially in the defense environment. As NDIA observes, “Manufacturing an aileron for a military aircraft outside of an extremely controlled environment with highly trained personnel would simply introduce too great a risk to the performance of the aircraft or the safety of the pilot.” Congress should not be compelling the disclosure of data that would empower third parties that really shouldn’t be in the business of modifying or repairing complex aeronautical components.
In fact, that’s one reason why, on the commercial side, the Federal Aviation Administration has decided not to disclose certain type data on jet engines; it doesn’t want third parties with no business repairing commercial jet engines doing so. Further to this point, forcing the disclosure of contractors’ proprietary data could facilitate IP misappropriation by international competitors, including potential U.S. adversaries.
As noted at the outset, it’s of course critical that the DOD has access to the information it needs to maintain and repair weapons systems, but to the extent there are gaps in the DOD’s current ability to do so, there are better approaches to address this gap than the proposed Congressional RTR legislation. One innovative approach would be to implement a “Data as a Service” (DaaS) model. Under this concept, the DOD could contract for access to a defense contractor’s full technical library on a “pay-per-use” basis, so that the DOD could access and use data for specific repairs when needed, ensuring needed defense readiness while allowing a contractor to protect its IP from broad disclosure. It’s also important that servicemembers and policymakers alike be better educated on the full extent of existing authorities.
At a time when the DOD is trying to encourage more private-sector capital to flow into defense innovation, it’s not the time to roll out RTR rules that could potentially compel the forced disclosure of proprietary IP. In a July 2025 House Armed Services Committee hearing on “Reforming Defense Acquisition to Deliver Capability at the Speed of Relevance,” the Undersecretary of Defense for Acquisition and Sustainment, Michael Duffy, stated that the DOD is striving to find “a balance between preserving the intellectual property and providing the department with the access we need,” further noting that “the innovation of industry and the protection of that intellectual property is clearly a [U.S.] competitive advantage.”
That’s precisely right. It’s very difficult to achieve innovation without the protection of ideas. Protecting private-sector IP rights is certainly in the long-term interest of U.S. national security and defense innovation. Policymakers on the Hill should reconsider the overly extensive RTR rules being proposed in the currently circulating House and Senate FY 2026 NDAA proposals.
