Ukraine Conflict Pushes US Defense Industry to Weigh Wartime IP

War in the 21st century has posed a new problem for the Pentagon: how to protect the intellectual property behind weapons systems developed by the private sector.

The war in Ukraine has provided the Department of Defense a window into legal issues likely to arise in future conflicts, as the use of advanced manufacturing becomes more common. Advanced manufacturing refers to the use of automation, 3D printing, data networking, and other innovative techniques for faster and more accurate production.

Early in the conflict, Ukraine was reverse-engineering and producing parts that the US couldn’t supply because of time, distance, demand, or readiness requirements, Chris Lowman, assistant secretary of defense for sustainment, told Bloomberg Government.

Although the Pentagon’s acquisition chief Bill LaPlante joked in January that the US might have to send IP lawyers to Ukraine “to help make sure they don’t get in trouble after the war,” DOD did acknowledge companies’ needs to protect their intellectual property rights. This comes as the DOD and its private industry partners are investing in additive manufacturing to replenish US stockpiles depleted by support for Ukraine in its war with Russia and increased demand from other countries.

It all adds up to pressure on the US defense industry to change its approach to IP on the battlefield. Until the conflict in Ukraine, “the volume and the delivery requirements really didn’t cause industry to change how they’re producing,” said Scott Baum, Elbit America’s vice president of strategy and growth and former DOD acting assistant secretary for industrial policy.

“I think all of us stand back and recognized that when demand spikes, you have to change your model,” he said from the defense industry perspective.

IP as a Service

The Pentagon began working on transferring IP “where the government owns it and there’s no exportability concerns,” Lowman said, which has allowed Ukraine to produce parts. Where the government doesn’t own the rights, the DOD has been negotiating data accessibility with specific weapon manufacturers.

The concept of leasing IP rights where a contractor isn’t producing any goods for the government is a new model for the DOD. The department is “still working through the exportability” on non-government-owned IP and hasn’t yet requested funds for cases where it could need to buy the IP outright.

Most of the IP that the US has transferred to Ukraine is in high-use metal components for artillery systems, Lowman said.

To help facilitate access to needed parts for US-donated weapon systems as well as legacy Soviet-era equipment, the US is also providing advanced manufacturing commercial-grade printers to Ukraine via the Ukraine Security Assistance Initiative, which delivers capabilities directly from private-sector partners.

The Pentagon is now working on a concept that Lowman calls “IP as a service,” in which the DOD licenses IP rights from suppliers on a royalties basis: Every time a part is printed, the DOD would pay a negotiated royalty to the defense contractor.

“Think of it kind of like the music industry,” Lowman said. “Radio station plays a song, there’s a royalty back to the artist. Every time the song is played, the artist gets the negotiated royalty. IP can work the same way.”

“We do have a pretty good idea of the suite of equipment that we’d like to transfer IP for in the future,” Lowman said. “That’s what we’re working towards.”

Future Strategy

In previous conflicts, the US military operated without “much strategic risk to logistics,” Lowman wrote in a Defense Acquisition University article. “We operated from secure bases, got comfortable with large numbers of contractors in theater, and relied on contractor-provided distribution of critical supplies.”

As the DOD pivots to the Asia-Pacific region, the military will face contested logistics problems with kinetic (conventional weaponry) and non-kinetic disruptions, like electromagnetic or behavioral warfare tactics, he wrote.

Due to the geographic complexity of the area, the DOD is grappling with strategies to overcome communication and transportation barriers over water, land, and air. This will make delivering spare parts, sustaining military readiness, and servicing broken or damaged assets more difficult.

Many of the sustainment options the Pentagon would prefer to use would require locating technologies or capabilities “closer to the point of need” with geographically dispersed equipment and help from US partner and allied countries. Examples Lowman mentioned include Australia’s subsurface assets for maintenance and overhaul of weapons and Japan’s surface fleet repair capabilities.

A complimentary effort, the Rapid Sustainment Improvement Program, RSIP, is designed to leverage emerging technology to reduce sustainment costs and improve military readiness. In January 2023 the program asked for industry partners with expertise in predictive, digital maintenance and remote inspection. The department says it has planned $238 million for RSIP projects across fiscal 2024 and 2025.

RSIP project blueprints for 2025 include robotic sheet forming and “printing on the move” for dynamic scenarios like repairs on a Navy ship or an Army Humvee. The program is currently soliciting industry input for fiscal 2026.

The House (H.R. 2670) and Senate (S. 2226) versions of the 2024 defense policy bill would authorize millions of dollars for additive manufacturing in a number of programs like low-cost missile applications, aerospace parts, and energetics, a field that includes materials in rocket and missile motors, ammunition, and warheads. Overall, Congress is calling for greater federal investment in those technologies as well as reports to lawmakers on use cases, locations, and barriers to establishing scaled advanced manufacturing infrastructure.

The annual defense policy bill, or the National Defense Authorization Act, is considered a must-pass measure that authorizes spending and sets policy for programs at the Pentagon, Energy Department, and other agencies. The Senate and House versions were passed in July but lawmakers will have to iron out differences between their bills before finalizing an agreement by the end of the year.