Petition for Writ of Certiorari — CANVS Corporation, Petitioner v. Barbara M. Barrett, Secretary of the Air Force

Supreme Court briefMar 31, 2020

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Text

No.

In the

Supreme Court of the United States

CANVS CORPORATION,

Petitioner,

SECRETARY OF THE AIR FORCE,

Respondent.

-----------------------------------------ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

------------------------------------------

APPENDIX TO

PETITION FOR WRIT OF CERTIORARI

------------------------------------------

Joseph J. Zito

Counsel of Record

DNL ZITO CASTELLANO

1250 Conn. Avenue, N.W.

Suite 700

Washington, DC 20036

(202) 466-3500

jzito@dnlzito.com

Counsel for Petitioner

GibsonMoore Appellate Services, LLC

206 East Cary Street ♦ Richmond, VA 23219

804-249-7770 ♦ www.gibsonmoore.net

TABLE OF CONTENTS

Appendix

Page:

Judgment

United States Court of Appeals

for the Federal Circuit

entered January 9, 2020 ..................................... 1a

Opinion by

Administrative Judge Peacock

Armed Services Board of Contract Appeals

entered November 15, 2019 ................................ 3a

Opinion by

Administrative Judge Peacock

on Appellant's Motion to Recuse

Armed Services Board of Contract Appeals

entered September 30, 2016 ........................... 129a

Government Exhibit 138

undated Powell Summary ............................... 148a

[ENTERED JANUARY 9, 2020]

NOTE: This disposition is nonprecedential.

United States Court of Appeals

for the Federal Circuit

______________________

CANVS CORPORATION,

Appellant

SECRETARY OF THE AIR FORCE,

Appellee

______________________

2019-1190

______________________

Appeal from the Armed Services Board of Contract

Appeals in Nos. 57784, 57987, Administrative Judge

J. Reid Prouty, Administrative Judge Richard

Shackleford, Administrative Judge Robert T.

Peacock.

______________________

JUDGMENT

______________________

JOSEPH J. ZITO, DNL ZITO, Washington, DC,

argued for appellant. Also represented by LUIZ

FELIPE DE OLIVEIRA.

PATRICIA M. MCCARTHY, Commercial Litigation

Branch, Civil Division, United States Department of

Justice, Washington, DC, argued for appellee. Also

represented by ANTHONY F. SCHIAVETTI,

JOSEPH

HUNT,

KIRSCHMAN, JR.

ROBERT

EDWARD

______________________

THIS CAUSE having been heard and considered, it is

ORDERED and ADJUDGED:

PER CURIAM (LOURIE, MOORE, and STOLL,

Cir cuit Judges).

AFFIRMED. See Fed. Cir. R. 36.

ENTERED BY ORDER OF THE COURT

January 9, 2020

Date

/s/ Jarrett B. Perlow

Jarrett B. Perlow

Chief Deputy Clerk

[ENTERED NOVEMBER 15, 2018]

ARMED SERVICES BOARD OF

CONTRACT APPEALS

Appeals of -)

CANVS Corporation

)

Under Contract No.

)

USZA22-03-C-0027

)

ASBCA Nos. 57784, 57987

APPEARANCE FOR THE APPELLANT:

Joseph J. Zito, Esq.

DNL ZITO

Washington, DC

APPEARANCES FOR THE GOVERNMENT:

Jeffrey P. Hildebrant, Esq.

Air Force Deputy Chief Trial Attorney

Chun-I Chiang, Esq.

Joel B. Lofgren, Esq. Trial Attorneys

OPINION BY ADMINISTRATIVE

JUDGE PEACOCK

These appeals arise from a contracting officer's

deemed denial and final decision involving a claim

for $100 million asserting breach of contract for

the

unauthorized

disclosure

allegedly

proprietary information delivered under the

contract Only entitlement is before us for decision.

We dismiss ASBCA No. 57784 as duplicative. We

deny ASBCA No. 57987 for the reasons indicated

below.

FINDINGS OF FACT

A. The Small Business Innovation Research

(SBIR) Program

1. The SBIR program assists small business

concerns in obtaining and performing innovative

research and development (R&D) work. See Small

Business Innovation Development Act of 1982,

Pub. L. No. 97-219, sec. 4, § 9, 96 Stat. 217

(codified as amended at 15 U.S.C. § 638). The

SBIR program has three phases.

Phase I

"determining ...the scientific and technical merit

and feasibility of ideas that appear to have

commercial potential." 15 U.S.C. § 638(e)(4)(A).

Phase II "further develop[s] proposals which meet

particular program needs."

15 U.S.C. §

638(e)(4)(B).

Phase III involves "commercial

applications of SBIR-funded research or research

and development" or "products or services intended

for use by the Federal Government, by follow-on

non-SBIR Federal funding awards" or "the

continuation of research or research and

development that has been competitively selected

using peer review or merit based selection

procedures." 15 U.S.C. § 683(e)(4)(C). (GPF ¶ 1)1

2. The federal agency in charge of overseeing

the SBIR program is the Small Business

Administration (SBA) (GPF ¶ 2). To implement the

SBIR legislation, the SBA issued policy directives

and regulations (GPF ¶ 3).

3. SBA Regulations require the small business

receiving an SBIR contract to conduct research

and development during SBIR Phase I and Phase

II. The primary objective of a Phase I SBIR

1 The Board issued a Briefing Order requiring the parties to

propose, in their initial post-hearing briefs, numbered and

detailed findings of fact with supporting citations to the

record. The parties were directed to note detailed, specific

objections to the opposing party's proposed findings (GPFs or

APFs) and citations to the record in the initial brief, if any.

Accordingly, the Board has adopted undisputed (or

undisputed portions) of the parties' proposed findings as our

own factual findings, without the accompanying supporting

citations to the record.

However, for reasons discussed in the Decision portion of this

Opinion, appellant failed substantively to comply with the

Briefing Order.

Consequently, we have relied to a

considerable extent on the government's proposed findings in

our Findings of Fact herein.

contract is to prepare a paper study. A prototype is

permitted to be developed and delivered under a

SBIR Phase II contract. (GPF if 4) A SBIR Phase

III contract is not funded by SBIR appropriations

(tr. 6/64, 68, 135-36, 8/166-67, 180). The 2002 SBIR

Policy Directive stated that "SBIR Phase III...is

funded by sources other than the SBIR Program"

(GPF ¶ 6).

4. Department of Defense (DoD) Federal

Acquisition Regulation Supplement (DFARS)

clause

252.227-7018,

RIGHTS

NONCOMMERCIAL TECHNICAL DATA AND

COMPUTER SOFTWARE-SMALL BUSINESS

INNOVATION RESEARCH (SBIR) PROGRAM

(JUN 1995) (the 7018 clause), is the technical data

rights clause used in the DoD SBIR program

contracts. See DFARS 227.7104(a) (prescribing

the use of the 7018 clause).

B. Background of Night and Color Vision

Science as of June 2005

5. In general, visible light, e.g., light visible to

the human eye, spans a narrow range of the

electromagnetic spectrum, ranging between 400

and 700 nanometers (mn) in wavelengths.

Wavelengths below 400 mn begin to transition into

the ultraviolet (UV) range and those greater than

700 mn begin to transition into the infrared (IR)

range. The wavelength range between 700 and

900 mn is referred to as "near infrared." (GPF ¶¶

54-56)

6. Under low light conditions, such as night,

the sensitivity of the human eye drifts towards the

lower frequencies or the infrared range. Typically,

the human eye is sensitive to visible and infrared

light in the range between 400 and 600 nm. This

wavelength range is typically referred to as the

"photopic band." (GPF ¶ 57)

7. In the context of human perception, the term

"color'' has a scientific definition and the term

"color'' denotes a perception, not wavelengths. The

term "true color" has a scientific definition and it

means that the perceived color is the same

irrespective of the different levels of illuminationi.e., all viewers would agree that a green wire is

green, a red is red, a purple wire is purple,

regardless if there are clouds out, if it is daytime, or

if there is artificial lighting. (GPF ¶¶ 58-59) The

term '"life-like color" has a scientific definition and

it means those colors associated with a scene that

are within our experience. The term "pseudo color"

has a scientific definition and it means the

assignment of a color to a brightness level. The

term "false color'' has a scientific definition and it

means the assignment of a color to an image taken

in a specific spectral band. (GPF ¶¶ 60-62)

8. The term "contrast" has a scientific

definition and it means the brightness of a

particular spot in the scene. The term "contrast"

has no relationship to color. (GPF ¶¶ 63-64)

9. The term "color contrast" has a scientific

definition and it means a comparison or

differentiation of the level of brightness. Human

perception of color is created out of color contrast.

It is a surreal notion that colors are a perception

and do not actually exist. Oranges are not actually

orange, but generally humans perceive them as

orange. The sky is not actually blue, but generally

humans perceive it as blue. (GPF ¶¶ 65-66)

10. A monocular percept is a percept generated

in the human or biological brain as a result of an

input to just one eye. The term "monocular color"

has a scientific definition and it means a percept

generated in the brain as a result of color contrast

signals input into just one eye. (GPF ¶¶ 67-68)

11. If a red image and green image are

presented one on top of another to a monocular

visual process, a yellow percept is created. Color

perception is a monocular visual process that

creates a stable and lasting percept. Because color

perception is a monocular visual process, if a red

image is presented to one eye, and a green image is

presented to another eye, color mixing is not

possible, and as a result, there will not be a yellow

percept. When both eyes perceive the same colored

scene, each colored scene is still generated by the

monocular visual process for one eye independent

of a separate monocular visual process that

generates an identical color scene for the other eye.

The color percept for each eye is still monocular

color. (GPF ¶¶ 69-72)

12. The term "binocular vision" has a scientific

definition and it means a percept generated in the

brain that is a result of inputs to both eyes.

Binocular vison allows humans to perceive depth.

(GPF ¶ 73) The term "binocular rivalry" has a

scientific definition and it means a percept

generated in the brain that is a result of disparate

inputs to two eyes, prompting the brain to shutoff

the input from one eye. The brain could also

alternate the inputs from the two eyes. The

binocular rivalry phenomenon is well established

and was first documented in the 1830s. (GPF ¶ 74)

The term "binocular color rivalry" has a scientific

definition and it occurs when the color perceived by

one eye is different from the color perceived by the

other eye causing the brain to shut down the color

10a

pathway from one eye. When one eye is viewing a

single color, there is no contrast that would permit

a stable color percept, causing that color to fade to

gray. When one eye is viewing a scene consisting of

a single color and the other eye is viewing a scene

consisting of an entirely different color, there is no

color contrast in either eye. This results in color

rivalry where the brain will alternate between the

inputs. (GPF ¶ 75)

13. One deleterious physiological side effect of

binocular color rivalry is nausea. Another

deleterious side effect of binocular color rivalry is

headache. (GPF ¶ 76)

14. In the 1950s, Dr. Edwin H. Land, the

founder of Polaroid Corporation, conducted a series

of experiments that led to the Land's Retinex

Theory of Color Vision (Land Theory). Dr. Land

proved definitively that color percept does not

directly correspond to wavelengths. Rather, he

proved that one can achieve nearly full true color

with only two narrow bands of visible light

wavelength.

In his experiments, Dr. Land

separated the photopic band into thirds: a short

wavelength band (generally understood to be blue),

a medium wavelength band (generally understood

to be yellow), and a long wavelength band

(generally understood to be orange/red). He then

11a

eliminated completely the short wavelength band,

but was still able to achieve full color perception,

including blue percepts, from the remaining two

wavelength bands. (GPF ¶ 77) Importantly, Dr.

Land's work involved the superimposition of the

two wavelength bands prior to a monocular

presentation to each eye-i.e., each eye saw the

same thing (tr. 6/195-96; ex. G-149). His work did

not involve the presentation of one waveband band

to one eye and another waveband to another eye

(GPF ¶ 78).

15. At night, the amount of visible light is low

while other parts of the spectrum, such as nearinfrared, are more abundant. As a result, various

night vision technologies have been created to help

both amplify what little visible light that may exist

at night and to convert non-visible light into visible

light. (GPF ¶ 79)

16. Night vision goggles are devices which

permit users to perceive images under low light or

night conditions. Each night vision goggle includes

at least one image intensifier tube that receives,

amplifies, and displays an image under low light or

night conditions.

When using a night vision

goggle, the low light and infrared radiation

entering that goggle first encounters a transparent

objective lens that focuses the radiation onto an

12a

input window of an image intensifier tube. (GPF

¶¶ 80-82)

17. Image intensifier tubes are one of the

primary light amplification mechanisms used in

night vision technologies. The current generations

of image intensifier tubes are capable of amplifying

visible light and infrared under low light

conditions. The current generation of tubes also

convert the amplified infrared into visible light for

the user. An image intensifier tube is frequently

referred to as an "12 tube." The components of an

image intensifier include a photocathode, a

microchannel plate, a phosphor screen, a fiber

optic twist, and an eyepiece. (GPF ¶¶ 83-84) The

focused radiation, consisting of photons, impacts

on a photocathode of the image intensifier tube

that transforms photons to electrons (GPF ¶ 85).

Each electron then passes through a microchannel

plate that generates tens of thousands of

additional electrons. This process is also referred

to as intensification. (GPF ¶ 86) The electrons

then strike a phosphor screen that converts

electrons to photons (GPF ¶ 87).

18. A

"green-color

phosphor"

stimulates

responsive cells, primarily medium wavelength

cones, in the retina which eventually would lead to

a percept of "green color." A "red-color phosphor"

13a

stimulates responsive cells in the retina, primarily

long wavelength cones, which eventually would

lead to a percept of "red color." A "white-color

phosphor'' stimulates responsive cells in the retina

which eventually would lead to a percept of "white

color." (GPF ¶¶ 89-91)

19. A tint of one color is generally referred to as

monochromatic. In turn, the photons constitute an

amplified or intensified image of a previously low

light or infrared image. (GPF ¶ 92-93)

20. In conventional image intensifier tubes, the

selected phosphor is of the P-43 type or an

equivalent, which creates a green percept to users

(GPF ¶ 94).

21. In general, multicolored phosphors have

been used in color television tubes since the 1960s.

A full color cathode ray tube (CRT) television

typically has three phosphors that correspond to

the primary colors of the display-red, green and

blue (referred to as RGB). (GPF ¶ 95)

22. By 2002, it was general knowledge that a

phosphor screen for an image intensifier tube may

employ phosphors of different colors, including redcolor phosphors. For example, the German

company Proxitronic in 1997 offered to sell image

14a

intensifier tubes that employed phosphor screens

of different colors. (GPF ¶ 96)

23. U.S. Patent No. 5,233,183 (1993 Field

Patent), reflecting an invention by Mr. Robert J.

Field, Jr., of ITT Corporation (ITT), disclosed the

use of different colored phosphors in a single image

intensifier tube. On 3 August 1993, the date that

the 1993 Field Patent issued, the use of different

colored phosphors in an image intensifier tube was

publicly available information. (GPF ¶ 97)

24. U.S. Patent No. 3,987,299 (Mulder Patent),

reflecting an invention by Mr. Hendrik Mulder of a

Dutch corporation, also disclosed the use of two

different colored phosphors in an image intensifier

tube. On 19 October 1976, the date that the Mulder

Patent issued, the use of two different colored

phosphors in a single image intensifier tube was

publicly available information. (GPF ¶ 98)

25. By 1988, Litton Industries was already

manufacturing image intensifier tubes having red

color phosphor screens (GPF ¶ 99). By 2002, ITT

was willing to manufacture image intensifier tubes

having phosphor screens of different colors beside

the green color. It was capable of manufacturing

image intensifier tubes with red color phosphor

screens. (GPF ¶ 100)

15a

26. By 2002, there were only two manufacturers

of image intensifier tubes in the United States-ITT

and Litton (GPF ¶ 101).

27. By 2002, image intensifier tubes having

white color phosphor screens were also available.

In its 1998 proposal for the ACT II contract (the

Act II contract is discussed in finding 61), CANVS

asked the Army to provide white-color phosphor

image intensifier tubes manufactured by Litton

Industries as government-furnished equipment

(GFE) items.

Litton did provide white-color

phosphor image intensifier tubes for incorporation

into the color night vision camera systems

delivered under the ACT II contract. (GPF ¶ 102)

28. When a human eye views an image

projected from an I2 tube's phosphor screen, such

viewing is often referred to as "direct viewing."

Direct view devices are distinguished from indirect

view devices which use a video screen. (GPF ¶ 103)

A night vision device permitting use by two eyes is

referred to as a binocular device. A binocular night

vision device employs two image intensifier tubes

such that each tube presents an image to one eye.

This presentation to two separate eyes creates

some perception of depth or stereopsis. By 2002,

there were several monochromatic binocular night

vision goggles such as the AN/AVS-6 or ANVIS

16a

(Aviator's Night Vision Imaging System), the

AN/AVS-9, the AN/PVS-5, the F4949, and the

F5050 goggles. (GPF ¶¶ 108-10)

29. The term "multi-spectral" relative to

imaging technology means the formation of a scene

taken

from

different

segments

the

electromagnetic energy spectrum, for example,

visible and infrared. Multiple segments or bands of

different wavelengths may be used-for example, for

three, or up to ten segments. These multiple bands

of different wavelengths may be created by a

combination of image intensifier tubes and filterse.g., red-color phosphor tube in combination with

green-color phosphor tube, or white-color tubes

with red and green filters. (GPF ¶¶ 111-12)

30. Night Vision and Electronic Sensors

Directorate (NVESD), Ft. Belvoir, Virginia, is a

subordinate organization of the U.S. Army

Research,

Development

and

Engineering

Command (RDECOM). NVESD is also sometimes

referred to by its earlier name-the Night Vision

Laboratory (NVL). (GPF ¶ 113) NVESD for the

past 50 years has been the primary federal

government agency identifying and developing

promising night vision technology to the point of

production for implementation into actual

equipment (GPF ¶ 114).

17a

31. Until his retirement in early 2015, Mr.

Edward Bender had been an engineer with

NVESD since 1974. Mr. Bender had extensive

experience with the technical aspects of night

vision devices, especially night vision devices using

image intensifier tubes.

He authored or coauthored about 25 publications. For the 15 years

prior to his retirement, Mr. Bender held the

position of Subject Matter Expert for image

intensifier tubes. (GPF ¶¶ 115-16)

32. In 1987, inspired by the Land Theory, Mr.

Bender designed a binocular night vision goggle

having a green-phosphor image intensifier tube in

one channel and a red-phosphor image intensifier

tube in the other channel, along with external

objective lens filters that permitted the

transmission of appropriate ranges of wavelengths.

This night vision goggle was called the Chromatic

PVS-5. (GPF ¶ 117)

33. Mr. Bender's 1987 design was prompted by

the Army's requirement for night vision goggles

that would be capable of distinguishing colors at

night so as to permit nighttime repair and

maintenance of aircraft, including distinguishing

color-coded electrical wires (GPF ¶ 118).

18a

34. The design of the Chromatic PVS-5 goggle is

nearly identical to appellant's CNVS-4949 goggle

(GPF ¶119). Below is a sketch of the functional

design of the Chromatic PVS-5:

FUNCTIONAL DESIGN

(Id.; ex. G-9 at 2100)

35. In creating the Chromatic PVS-5 goggle, Mr.

Bender realized that Dr. Land's work did not

involve the presentation of one waveband band to

one eye and another waveband to another eye, and

Mr. Bender identified this design as an

engineering risk (GPF ¶ 120). The design of the

Chromatic PVS-5 night vision goggle varied from

the standard production model by substituting one

of the identical green phosphor tubes with a red

phosphor tube (tr. 6/199). It provided a greencolored scene in one optical channel and a redcolored scene in the other channel (GPF ¶ 121).

Mr. Bender used appropriate external objective

19a

lens filters with this goggle (GPF ¶ 122; exs. G-10,

-180.2, -180.3).

36. Mr. Bender, his colleague Mr. Daniel Hosek,

and other colleagues at NVESD operated the

Chromatic PVS-5 goggle during the 1988 time

period. None were able to obtain any consistent,

reproducible true-color views. (GPF ¶¶ 126-29; tr.

6/206-09, 211)

37. NVESD generated a purchase order, dated 2

February 1987, for the purchase of a standard

AN/PVS-5A binocular night vison goggle having

one image intensifier tube capable of operating in

the wavelength range of 610-650 run. This

wavelength range is best accomplished by a redcolor phosphor screen image intensifier tube.

NVESD forwarded this purchase order to the

corporations

which

were

that

time

manufacturing not only image intensifier tubes but

also entire PVS-5 goggles-ITT, Litton Systems, and

Varo. The purchase orders contained no

restrictions on the manufacturers' ability to use

the information therein. (GPF ¶¶ 130-31; ex. G-9

at G2094-95; tr. 6/199-201, 214)

38. NVESD issued Contract No. DAAK70-87-P1009, dated 19 May 1987, to Litton for the

purchase of a modified AN/PVS-5 goggle having a

20a

standard green-color phosphor image intensifier

tube and a red-color phosphor image intensifier

tube (GPF ¶ 132). Via this purchase order, Mr.

Bender's design was made known to the night

vision technology industry. Mr. Bender discussed

his design in some detail with Litton

representatives. (GPF ¶ 133) Litton was not

required to sign any nondisclosure agreement

(NDA) to protect Mr. Bender's design (GPF ¶ 134).

39. NVESD received the Chromatic PVS-5

goggle in mid-December 1987. This goggle was

released into Mr. Bender's custody in January 1988.

(GPF ¶ 136) Mr. Bender did not consider his design

to be a trade secret (GPF ¶ 135). NVESD did not

treat the Chromatic PVS-5 night vision goggle as a

trade secret. Mr. Bender discussed the Chromatic

PVS-5 goggle with Litton representatives, even

after delivery. Mr. Bender distributed his design

schematics to other government personnel. (GPF ¶

137; tr. 6/212, 240-41)

40. The Chromatic PVS-5 night vision goggle

was displayed in a glass exhibit display case

located in the hallway of the NVESD building,

accessible to both government and private sector

personnel, for several years (GPF ¶ 139). CANVS'

expert witness, Mr. Brian Gillespie, recalls

observing the Chromatic PVS-5 goggle in the glass

21a

display case prior to 2000, and he recalls ,it "using

these two different color phosphor tubes in the

systems, and filtering the imagery that came-I

mean light that came into the tubes" (GPF ¶ 140).

Mr. Bender's design of the Chromatic PVS-5 night

vision goggle was generally known in the night

vision technology industry (GPF ¶ 141).

41. U.S. Patent No. 5, 162,647 (1992 Field

Patent), invented by Mr. Robert J. Field, Jr., of

ITT Corporation, disclosed the simultaneous

presentation of a reddish image and a greenish

image by a binocular night vision goggle, utilizing

color input and output filters (ex. G-169; tr. 9/9499). On 10 November 1992, the date that the 1992

Field Patent issued, the simultaneous presentation

of a reddish image in one optical channel and a

greenish image in the other optical channel of a

binocular night vision goggle was publicly

available information (GPF ¶ 142).

42. In 1998, Mr. John Walkenstein, appellant's

president, filed two patent applications, U.S. Patent

Application Serial Nos. 09/062,141 and 09/206,992,

directed towards a night vision goggle with one

channel that appears green and one channel that

appears red (GPF ¶ 143). Both patent applications

were rejected by the U.S. Patent and Trademark

Office examiner for lack of patentability in light of

22a

previous inventions by others.

For both

applications, the primary references cited for these

rejections was the 1992 Field Patent.

Other

references cited as part of the rejection included the

1993 Field Patent (ex. G-170), the 1976 Mulder

Patent (ex. G-168), and the 1993 Chiu Patent (ex.

G-171). All the claims in both applications were

rejected based on either 35 U.S.C. § 102 for lack of

novelty, or 35 U.S.C. § 103 for obviousness in light

of prior patents (ex. G-165 at 144-54, 236-51, ex. G166 at 98-114). Mr. Walkenstein failed to overcome

these rejections, and later, he abandoned both

patent applications (GPF ¶ 144).

43. In October 1994, Dr. William McLean of the

U.S. Army Aeromedical Research Laboratory

(USAARL), Ft. Rucker, Alabama, presented his

work regarding merging or fusing images viewed

through different spectral bands at a technical

conference (GPF ¶ 146). The mission of USAARL is

to support operational research, and develop and

evaluate equipment used on aircraft. One area of

focus is directed to biomedical issues that might

have an impact on aviators, including night vision.

(GPF ¶ 147) Dr. McLean is a research optometrist

who has extensive experience in analyzing,

evaluating, and testing night vision devices,

including night vision goggles (exs. G-182, -183; tr.

23a

1/130, 7/8-10, 128). He authored or co-authored

over 50 publications and received three U.S.

patents (GPF ¶ 148).

44. One benefit of multi-spectral imaging is that

different objects are perceived under different

ranges of wavelengths. Specifically, multi-spectral

imaging provides better contrast between objects

such that different details might be discerned.

(GPF ¶ 152) According to Dr. McLean, multispectral images generated by night vision goggles

where optical channels have different spectral

ranges are not true color or life-like color images

(GPF ¶ 153).

45. The October 1994 conference was an open

conference and Dr. McLean's presentation was an

unclassified presentation without any distribution

restrictions (tr. 7/20). Thus, information presented

by Dr. McLean as to his work on multi-spectral

imaging of image intensified scenes became

knowledge that was publicly available as of 1994

(GPF ¶ 154). Representatives of all the key

participants and developers in the night vision

technology industry were present at the 1994

conference. For example, Dr. Allen Waxman, the

government's principal expert, attended the 1994

conference. Thus, the information presented by

Dr. McLean as to his work on multi-spectral

24a

imaging of image intensified scenes became

general knowledge in the night vision industry.

(GPF ¶ 155) Participants at the 1994 conference

did not sign any nondisclosure agreements (GPF ¶

156).

46. In his September 1996 technical report, Dr.

McLean described the use of a binocular night

vision goggle where one image intensifier tube

employed a yellowish, green-color phosphor screen

and the other tube employed a deeper green-color

phosphor screen. The spectral content of the

image provided by one image intensifier tube is

different from the spectral content of the other

image. (GPF ¶ 157) Dr. McLean's September 1996

technical report was released to the general public

(GPF ¶ 158).

47. Dr. McLean continued to develop, analyze,

and test multi-spectral night vision goggles. He

generated multi-spectral scenes by placing

different spectral filters over the image intensifier

tubes. In April 1999, he placed a filter that

blocked red-color wavelengths over one optical

channel of a monochromatic binocular night vision

goggle, the AN/PVS-5, and a separate filter that

blocked near-infrared wavelengths over the other

optical channel, creating multi-spectral scenes.

25a

The multi-spectral scenes provided better color

contrast. (GPF ¶ 159)

48. Dr. McLean also suggested the use of image

intensifier tubes having different colored phosphor

screens to generate multi-spectral scenes. For

example, a binocular would have a green-color

phosphor screen image intensifier tube and an

orange-color phosphor screen image intensifier

tube. (GPF ¶ 160)

49. By 1999, Dr. McLean did not consider the

use of external filters with binocular night vision

goggles to be a trade secret (tr. 7/39-40). By 1999,

he did not consider providing different color

images to different eyes by night vision goggles

equipped with different spectral filters to be a

trade secret (GPF ¶ 162).

50. An April 1997 Armada International article,

described a Delft Sensor Systems' camera system

where two image intensifier tubes were used to

observe the same scene (ex. G-159 at 4). Because

the same scene was observed in two different

wavelength bands, the spectral response of one

tube is different from the spectral band of the

other tube such that the difference between the

two responses was used to generate color images

by means of spectral filtering (GPF ¶ 163). By

26a

2003, the Delft Sensor System was described and

shown in greater detail at technical conferences

and in publications (GPF ¶ 164).

51. Along with CANVS' multi-spectral imaging

project there were three other SBIR Phase I

awardees-Equinox, I Technology Applications, and

LSA (R4, tab 28 at 227-282).

During the

competition for a Phase II award in 2002, Equinox

submitted a Phase II Proposal entitled Multispectral Intensified Night Vision (GPF ¶ 165). In

this proposal, Equinox discussed [R E D A C T E D

R E D A C T E] multi-spectral night vision system

where the image from [R E D A C T E D R E D A C

TEDREDACTEDREDACTEDREDA

C T E D R E D A C T E D] (ex. G-4 at 916; tr. 9/99).

Specifically, the proposal explained that [R E D A

CTEDREDACTEDREDACTEDRED

ACTEDREDACTEDREDACTEDRE

DACTEDREDACTEDREDACTEDR

EDACTEDREDACTEDREDACTED

REDACTEDREDACTEDREDACTE

D] (GPF ¶ 166). The [REDACTED] design

discussed in the Equinox Proposal also suggested

using [R E D A C T E D R E D A C T E D R E D A

C T E D R E D A C T E D R E D] (GPF if 167). The

Citations to the government's Rule 4 files are to

consecutively-numbered pages unless indicated otherwise.

27a

[REDACTED] design discussed in the Equinox

Proposal differed from the CANVS design in that it

would [R E D A C T E D R E D A C T E D R E D A

C T E D], creating monocular color (GPF ¶ 168).

While the Equinox SBIR Phase II Proposal was not

a public document, the [REDACTED] design

discussed in that Proposal illustrates what was

generally known in the industry prior to CANVS'

SBIR Phase II contract in 2002. After reviewing

the Equinox Proposal, CANVS' expert witness, Mr.

Gillespie, admitted that as of 2001 "others in the

industry knew of this approach." (GPF ¶ 169)

52. By 2002, it was general knowledge that a

binocular night vision goggle may employ viewing

components capable of providing different spectral

responses,

i.e.,

different

wavelengths

frequencies. By 2002, it was general knowledge

that a binocular night vision goggle may be

capable of presenting multi-spectral, nonmonochromatic images. By 2002, it was general

knowledge that the images generated by multispectral, non-monochromatic images provide high

contrasts.

Relative to certain objects, multispectral imaging creates better contrast between

objects. By 2002, it was general knowledge that

there are several different types of filters that are

capable of transmitting or blocking certain

28a

wavelengths, for example, glass filters or dielectric

filters. By 2002, it was general knowledge that the

vernacular term "red filter" means a filter that

passes a range of wavelengths that would be

perceived by an observer to be red. By 2002, it was

general knowledge that the vernacular term "green

filter" means a filter that passes a range of

wavelengths that would be perceived by an

observer to be green. By 2002, it was general

knowledge that the perceived coloration of the

reflected light from a filter may be dependent on

the direction of the light source and the viewing

angle. By 2002, it was general knowledge that a

reddish image may be created by using an image

intensifier tube having either green, white or redcolor phosphor in conjunction with appropriate

external filters.

By 2002, it was general

knowledge that a greenish image may be created

by using an image intensifier tube having either

green, white or red-color phosphor in conjunction

with appropriate external filters. By 2002, it was

generally known as to how to create

simultaneously a reddish image in one channel of a

night vision goggle and a greenish image in the

other channel by using appropriate phosphors for

the image intensifier tubes and appropriate filters.

(GPF ¶ 170-79)

29a

C. CANVS' Corporate Practices Regarding

Nondisclosure Agreements

53. Mr. Walkenstein is and has been the

president of CANVS Corporation since its

establishment in 1998 (GPF ¶ 181). He has a

background in applied physics. He also has

experience in several different experimental fields.

He gained this experience during his tenure with

the Nonlinear Dynamics Laboratory (NDL) of the

University of Miami, Coral Gables, Florida,

spanning between 1983 and 2009. (GPF ¶ 182)

Mr. Walkenstein does not hold a bachelors or a

graduate degree (GPF ¶ 183).

54. Mr. Walkenstein was knowledgeable as to

the design and operation of conventional night

vision goggles and image intensifier tubes since

the mid- l990s. By the early 2000s, he was aware

that image intensifier tubes employed either green

or white-color phosphors. Mr. Walkenstein served

in the U.S. Army as a warrant officer between

1994 and 1996, during which he was assigned for a

period in 1996 to USAARL. (GPF ¶¶ 185-87)

55. When assigned to assist Dr. McLean at

USAARL in 1996, Mr. Walkenstein completed a

project where he transformed black-and-white

photographs of night vision scenes into color

30a

scenes. For this work, Dr. McLean issued a letter

of recommendation in which he stated that the

assigned task merged:

[V]ideo images to simulate characteristics of

a theoretical color night vision goggle

(NVG). WOl [Warrant Officer] Walkenstein

was shown black and white video tapes of

scenes imaged through colored and near

infrared filters that replicated spectral

responses of candidate photocathodes of

night imaging devices. Using a computer

and auxiliary hardware, he digitized the

images adding false colors and combined the

images into all possible combinations.

(GPF ¶¶ 188-89)

56. As early as the mid-1990s, Mr. Walkenstein

was knowledgeable as to computer video recording

equipment. To carry out the project assigned by

Dr. McLean in 1996, Mr. Walkenstein used a

generally

well-known

computer

software

technique. After leaving the Army in 1996, Mr.

Walkenstein embarked on developing night vision

devices. (GPF ¶¶ 190-92)

57. Mr. Walkenstein understood that one

mechanism for protecting confidential information

is by using nondisclosure agreements. It was

31a

standard business practice for CANVS to use

nondisclosure

agreements

when

disclosing

confidential information. Mr. Walkenstein held the

view that nondisclosure agreements would be

needed if CANVS were to disclose proprietary

information to commercial entities. He understood

that a nondisclosure agreement would permit

parties to discuss proprietary information without

fear of that information being retransmitted to

others. (GPF ¶¶ 212-14)

58. Mr. Walkenstein held the view that a

nondisclosure agreement would even preclude a

recipient from disclosing public information if that

recipient had received it under that nondisclosure

agreement (GPF ¶ 215).

59. Mr. Walkenstein held the view that

nondisclosure agreements are not needed to

protect proprietary information when it is

disclosed to federal, state or local government

officials (GPF ¶¶ 223-24). Mr. Walkenstein held

the view that nondisclosure agreements are not

needed when disclosing proprietary information to

government officials if that meeting took place in a

classified setting because additional safeguards

would have been in place. He stated that laws and

regulations for protecting national security

32a

information added another layer of protection for a

contractor's proprietary information. (GPF ¶ 226)

D. CANVS' Early Night Vision Technology

60. In 1998, CANVS submitted a proposal,

entitled "Dismounted Color Night Vision Systems,"

to the U.S. Army regarding color night vision

equipment. In its proposal, CANVS stated that

actual component's specifications were not yet

finalized and components not yet purchased. It

proposed to purchase critical hardware such as

tubes, objective lenses, eyepieces, filters, etc. (Ex.

G-19 at 857) CANVS specifically asked the

government to provide white-color phosphor image

intensifier tubes as GFE items (GPF ¶¶ 242-43).

61. In response to CANVS' proposal, the U.S.

Army

Communications-Electronics

Command

(CECOM), Ft. Monmouth, New Jersey, awarded

Contract No. DAAB07-99-C-K752 to CANVS in

December 1998. The contract is referred to by the

parties and herein as the K752 or "ACT II

contract." (GPF ¶¶ 245-46)

62. The contracting officer's representative

(COR) for the ACT II contract was Mr. Hosek, an

employee of NVESD. Mr. Hosek is an engineer and

has been an employee of NVESD since 1979. He

has had extensive experience with the technical

33a

aspects of night vision devices, especially night

vision devices using image intensifier tubes. (GPF

¶¶ 247-48)

63. CANVS was paid $299,250 for its ACT II

work. A substantial portion, $222,250, was paid

specifically for the technical data and rights

thereto, while $77,000 was paid for the delivery of

the prototype systems. (Ex. G-20 at 625-30)

64. The ACT II contract required CANVS to

"develop" and deliver three night vision camera

systems (ex. G-20 at 626; tr. 1180-81). Direct view

night vision technologies, such as a colorized

binocular device, were not within the scope of the

ACT II contract (id ; GPF ¶ 250).

65. As required by the ACT II contract, CANVS

delivered a monocular rotating optics camera

device. CANVS also delivered a two-tube night

vision camera system and a four-tube night vision

camera system. (GPF ¶¶ 251-52)

66. Because the ACT II contract was not an

SBIR contract, it contained the government's

standard technical data rights clause, DFARS

clause 252.227-7013, RIGHTS IN TECHNICAL

DATA -NONCOMMERCIAL ITEMS (Nov 1995)

(the 7013 clause) (ex. G-20 at 646; tr. 2/107-08).

The K752 contract also included a special clause

34a

H-9 that required the delivery of all technical data

with unlimited rights pursuant to the 7013 clause

except for three specific categories of technical

data (ex. G-20 at 644; tr. 2/108-09). Specifically,

CANVS was only permitted to deliver technical

data bearing limited rights markings which were

already present in (1) Mr. Walkenstein's patent

application; (2) the technical proposal resulting in

this contract; or (3) "technical data pertaining to

items, components or processes developed in

connection with the production of colorized night

vision devices" (id.; GPF ¶ 254).

67. As required by the ACT II contract (ex. G-20

at 626-27, 630), CANVS delivered to the Army at

least 11 monthly reports and a final report (tr.

2/110, 4/83; GPF ¶ 256). The final report, dated

February 2000, was marked with the limited

rights legend (ex. G-21; tr. 2/111; GPF ¶ 257). The

limited rights legend marked on the final report

for the ACT II contract was in substantial

conformity with the marking requirements of the

7013 clause, including the additional identifiers

such as contract number, contractor name, and

contractor's address (ex. G-21 at 658; GPF ¶ 258).

In addition, CANVS delivered an operator's

manual for each of the two night vision camera

35a

systems (ex. G-20 at 629, exs. G-22, -23; tr. 1/8081, 2/112; GPF ¶ 260).

68. Prior to the SBIR Phase I contract, CANVS

had created a goggle, generally referred to as the

"pirate goggle," where colored filters were

positioned in front of and behind green-color

phosphor image intensifier tubes. One of the

objective filters was red in color and the other filter

was green in color. Similarly, one of the back-end

filters was red in color and the other filter was

green in color. (Ex. G-17 at 7; tr. 2/121-23; GPF ¶

265)

69. During the trial, a physical exhibit which

was the "functional equivalent" of the pirate goggle

was received into evidence as exhibit A-93 (GPF ¶¶

265-66). Exhibit A-93 is constructed from two

AN/PVS-14 monocular devices connected together

each having one green-color phosphor image

intensifier tube. Exhibit A-93 does not contain a

red-color phosphor image intensifier tube. (Ex. A93; tr. 1/92-95; GPF ¶ 267) Exhibit A-93 includes a

red-color filter placed over one of the eyepiece

positions to make the view red in color (tr. 1/97-98,

2/130). According to Mr. Walkenstein, the CNVS4949 "is actually identical [to Exhibit A-93], except

that [A-93] got a red phosphorous [tube]. So now

you don't need the filter on the back, and you have

36a

significantly higher brightness on your red output

side." (Tr. 2/132; GPF ¶ 268)

70. The U.S. Anny Aviation Applied Technology

Directorate (AATD) had provided Mr. Walkenstein

with a binocular goggle having two green-color

phosphor image intensifier tubes, and he modified

that goggle into the pirate goggle. The underlying

goggle already included a manual gain control

mechanism in both channels. (Tr. 21123-24; GPF

¶ 270) Mr. Walkenstein stated that he modified

the existing Anny-provided goggle by providing

filters at both the objective lens end of that goggle

and the eyepiece end (tr. 2/123; GPF ¶ 271). The

pirate goggle was not within the scope of work of

the ACT II contract, and accordingly was not

covered by the technical data provisions of that

contract (ex. G-20 at 626; tr. 1/80-81; GPF ¶ 273).

Although the exact date of creation of the pirate

goggle is unknown, it would have been prior to the

SBIR Phase I, as a photograph of the pirate goggle

appeared in briefing slides that were presented

prior to the SBIR Phase I-i.e., mid-2002 (ex. G-17

at 7; tr. 2/120-12; GPF ¶ 274).

71. Mr. Walkenstein presented briefing slides of

exhibit G-17, entitled "White Paper Proposal for

Direct View Color Night Vision Goggle," to

government personnel prior to the SBIR Phase I

37a

contract (tr. 2/121-22).

These briefing slides

contained details regarding the pirate goggle and

included a photograph of Mr. Walkenstein

displaying the pirate goggle with a red optical

channel and a green optical channel (ex. G-17). Mr.

Walkenstein discussed, among other things, the

use of a short-pass channel having P-43 greencolor phosphor screen and a long-pass channel

"utilizing a 'Red' phosphor tube" (id. at 7). The

briefing slides also mentioned that the long-pass

filter would block light below 600 nm and transmit

light above 600 nm while the short-pass filter

would block light above 600 nm and transmit light

below 600 nm (id. at 2). These briefing slides also

discussed the use of manual gain control (id. at 7;

GPF ¶ 275).

72. CANVS also briefed USAARL on its

colorized night vision technology on 6 April 1999

(ex. G-13; tr. 7/30-34). This briefing included a

demonstration of the pirate goggle concept (ex. G13). Specifically, Dr. McLean's memorandum for

record explains:

Another approach demonstrated was using

two different band pass filters in front of the

right and left tubes of an NVG. One filter

transmitted above 650 nanometers and the

other below approximately 650 nanometers.

38a

Different colored filters (red and blue) were

attached to the NVG eyepieces. However,

both previous vision research and this

demonstrator showed that there is very

little color mixing between the right and left

eyes.

Rather the image when viewed

binocularly appears to be a colored form of

luster and alternating suppression between

the two images.

(Id.; GPF ¶ 279)

73. Following the briefing, CANVS loaned Dr.

McLean the front-end and back-end filters, and Dr.

McLean added them to a PVS-5 night vision goggle

and took that filtered goggle on an operational

flight test during the evening of 21 April 1999 (ex.

G-14; tr. 7/35-41; GPF ¶ 280). Dr. McLean the

next morning wrote the following email to Mr.

Walkenstein which stated in part:

Went flying last night with 40% moon

illum. Took the AN/PVS-5s with the red

and near IR blocking filters on the objective

lenses and the orange and "green" (changed

from the original double blue) filters on the

eyepieces. The NVG output was way too

dark for pilotage. However, I saw good color

contrast and some other interesting things. I

39a

sat on the right side and for trees near the

aircraft, the leaves were orange but the

limbs appeared light blue. On a higher moon

illumination I'm going to switch the

objective lens filters which will make the

leaves greenish. That also means that blood

will appear green like a grass hopper, but it

may be distinguishable from other fluids

which is the main benefit of using color.

What if we mixed a standard PVS-14 with

manual gain and green phosphor with a ????

with orange phosphor for the other eye? I

would have the low light performance and a

quazi [sic] color or color separation when the

light levels are higher.

(Ex. G-14)

74. The concept of using a different color

phosphor screen in one optical channel in lieu of

back-end

filters

appears

have

been

communicated by Dr. McLean, as a suggestion to

Mr. Walkenstein in this email.

Notably, the

concept of using a different color phosphor screen

for each channel was absent from Mr.

Walkenstein's 1998 patent applications. (Exs. G165, -166) As detailed in those applications, Mr.

Walkenstein's "preferred embodiment" for the

invention requires, that "at least one back end filter

40a

is placed between at least one image intensification

structure and at least one eye such that the photons

emerging from that image intensification structure

appear to be of a corresponding spectral range to

the eye of the user"(ex. G-166 at 13-14). In other

words, the patent applications only disclosed the

use of back-end filters (id.; GPF ¶ 281).

75. Dr. McLean was an expert in the field and

fully appreciated the technical details of the pirate

goggles (ex. G-182; tr. 7/8-10; GPF ¶¶ 145-62). Dr.

McLean did not consider the use of different filters

over a binocular night vision device to constitute a

trade secret in 1999 (tr. 7/39-40).

76. Mr. Walkenstein filed patent applications

relating to color night vision devices (ex. G-165; tr.

2/92-93, 97). As pertinent here, the invention

discussed in the patent applications was directed

to a night vision device capable of displaying colors

at night (tr. 2/94-95). The patent application

marked as ex. G-165 is one of the patent

applications directed to such night vision devices

(tr. 2/97). That patent application is U.S. Patent

Application Serial No. 09/062,141, filed 17 April

1998 (ex. G-165 at l; tr. 2/98). Another one of the

three patent applications is marked as ex. G-166.

The patent application marked as ex. G-166 is U.S.

Patent Application Serial No. 09/206,992, filed 7

41a

December 1998 (ex. G-166 at 1). None of the three

patent applications resulted in patents (tr. 2/9798). The patent applications marked as exs. G-165

and G-166 were rejected by the U.S. Patent and

Trademark Office for lack of patentability in light

of previous inventions by others (ex. G-165 at 23651, ex. G-166 at 98-114; tr. 9/172-73). Mr.

Walkenstein subsequently abandoned all three

patent applications (tr. 2/100-01). The patent

application marked as ex. G-165 was abandoned.

in March 2001 (ex. G-165 at 263-64, 273), and the

patent application marked as ex. G-166 was

abandoned in November 2001 (ex. G-166 at 115,

133; see also GPF ¶¶ 285-90).

E. Development of the CNVS-4949 and CNVS5050 goggles

77. In an effort to evaluate the technical

feasibility of providing soldiers with night vision

devices capable of producing color images,

USSOCOM promulgated a topic for its SBIR

program (tr. 6/128).

Specifically, USSOCOM

issued Topic No. SOCOM 02-001, entitled "MultiSpectral Low-Light Imaging," for fiscal year 2002

(R4, tab 18 at 124; ex. G-29 at 4121; tr. 6/129).

78. A key objective of this USSOCOM SBIR

topic was to

42a

Investigate the technical feasibility of

fielding reproducible, meaningful, real-time

color Image Intensification (12) devices.

This innovation would remove the existing

constraint of monochrome (green) imagery of

current night vision devices and provide

color imagery in its place. Producing color

imagery would allow multiple users from

different physical locations to identify

targets in the scene by color content.

(Ex. G-29 at 4121; tr. 6/130-31) Once a topic was

issued, USSOCOM would receive on average about

20 proposals per topic (tr. 8/165). After a selection

process, typically three or four SBIR Phase I

contracts would be awarded under that topic (id.).

Due to limited USSOCOM SBIR program funding,

usually only one Phase I contractor would advance

into Phase II (tr. 8/165-66). Phase II contracts are

also funded by dedicated SBIR funding (tr. 6/43,

133-35).

79. Responding to USSOCOM's SBIR Topic No.

SOCOM 02-001, CANVS submitted its proposal in

December 2001 (R4, tab 20; ex. G-27; tr. 1/84,

2/175). CANVS proposed four different system

configurations for color night vision devices (R4, tab

20; ex. G-27 at 1608). One of the systems proposed

was the "Retrofit Goggle" (R4, tab 20 at 143-44).

43a

80. USSOCOM awarded CANVS an SBIR Phase

I contract on 3 July 2002, Contract No. USZA22-02P-0609 (hereinafter the 0609 contract or SBIR

Phase I contract or Phase I contract) (R4, tab 19; tr.

1/82-83). The 0609 contract required CANVS "to

conduct research, development and design of a

Multi-Spectral Low Light Imaging System" (R4, tab

19 at 129). The 0609 contract included the 7018

clause (id. at 136). The period of performance of the

SBIR Phase I contract was three months from the

date of contract award. The ending date for the

0609 contract was 3 October 2002. (Id. at 132)

81. As required by the SBIR Phase I contract,

CANVS delivered two monthly reports and a final

report. Monthly report No. 1 for the SBIR Phase I

contract included a discussion of the capabilities of

CANVS' proposed color night vision goggle, as well

as a photograph showing a red-color optical

channel and a green-color optical channel in a

binocular night vision goggle. The report also

discussed "a Long-pass filter (This filter blocks

light below 600nm and transmits light above

600nm) and a Short-pass filter (This filter blocks

light above 600nm and transmit[s] light below

600nm)." (GPF ¶¶ 313-14)

82. The final report for the SBIR Phase I

contract included a sketch of the CNVS-4949

44a

goggle from Drawing 275076 that Mr. Walkenstein

had received from ITT in September 2002 (GPF ¶

315). The sketch of the CNVS-4949 in the SBIR

Phase I final report included a caption "Note

independent manual gain controls for each

channel" (GPF ¶ 316).

83. The three reports delivered under the SBIR

Phase I contract were all marked with the legend

"This is a CANVS Corporation Confidential

Document. It is not to be retransmitted without

expressed written consent of CANVS Corporation."

(GPF ¶ 319)

84. No hardware was required to be delivered

under the 0609 contract. It only required the

delivery of the three reports. (GPF ¶¶ 321-22)

CANVS was paid $100,000 for its SBIR Phase I

work (GPF ¶ 323).

85. CANVS submitted a proposal for a SBIR

Phase II contract in early October 2002 in which it

stated that "CANVS proposes the delivery of the

following instrumentation:

Three ContrastEnhanced (Retrofit) goggles" (GPF ¶ 343).

USSOCOM awarded CANVS an SBIR Phase II

contract on 20 February 2003-Contract No.

USZA22-03-C-0027 (the 0027 contract or SBIR

Phase II contract) (GPF ¶ 347).

45a

86. Contract line item number (CLIN) 0001 of

the SBIR Phase II contract stated that "[t]he

contractor shall provide all facilities, labor, and

travel

conduct

the

research,

design,

development, testing and delivery of technical data

and prototypes of Multi - Spectral Low - Light

Imaging Systems as described in the contractor's

proposal received 10 October 2002 which is

incorporated herein by reference" (R4, tab 1 at 3).

The 0027 contract included the 7018 clause (id at

17). The COR for the SBIR Phase II contract was

initially

NVESD

employee

Mr.

Soyka.

Modification No. P00002 to that contract indicated

that Mr. Hosek subsequently replaced Mr. Soyka

as the COR. (GPF ¶ 351)

87. The SBIR Phase IIcontract required CANVS

to deliver progress and technical reports, two

CNVS-5050 and one CNVS-4949 contrast

enhanced (retrofit) goggles, and video systems (R4,

tab 1 at 12). The video systems are not pertinent to

this dispute.

88. As required by the SBIR Phase II contract,

CANVS delivered 15 monthly reports. In its

monthly report No. 1, CANVS attached a purchase

order to ITT that requested the manufacture of

three color night vision goggles. (GPF ¶¶ 356-57)

46a

89. In its monthly report No. 2, dated April

2003, CANVS stated that it had asked ITT to

construct a "CNVS-4949 (external to the SBIR

funding) and is testing the system so that when

the SOCOM goggles are delivered, CANVS

modifications will be refined to the extent possible

prior to delivery" (R4, tab 7; ex. G-39). The goggle

constructed by ITT for CANVS is referred to herein

as the ITT/CANVS-4949 goggle (R4, tab 7 at 62-63;

ex. G-39 at 425-26; tr. 2/208; GPF ¶ 335).

90. In its monthly report No. 4, dated June

2003, CANVS informed USSOCOM that it had

received the three goggles from ITT in June 2003

and planned to deliver to Mr. Hosek in early July

2003 (ex. G-40 at 442; tr. 2/207, 4/83; GPF ¶ 359).

In addition, report No. 4 included a photograph of

the three goggles taken from an oblique angle (ex.

G-40 at 442; tr.; 2/205; GPF ¶360).

91. In October 2003, CANVS submitted its

monthly report No. 8 for the SBIR Phase II

contract (R4, tabs 9, 15; tr. 4/105). In particular,

photographs depicting various images taken using

CANVS goggles were included (R4, tab 9 at 83, tab

15 at 115; tr. 4/105-06; GPF ¶¶ 391-92).

92. In monthly report No. 14, CANVS identified

a number of U.S. Government agencies that had

47a

either tested one of its color night visions goggles

or saw a demonstration of such goggles. As for the

federal agencies identified in report No. 14,

CANVS did not ask these agencies to execute

nondisclosure agreements before demonstrating its

equipment. (GPF ¶¶ 411-12)

93. Monthly reports delivered under the SBIR

Phase II contract affixed a marking on every page,

referred to by CANVS as its "Confidential Legend,"

that stated the following: "This is a CANVS

Corporation Confidential Document. It is not to be

retransmitted without expressed written consent

of CANVS Corporation." (R4, tabs 6-10, 15, 34)

94. At the inception of the SBIR Phase II

contract, CANVS had not yet constructed a

binocular night vision goggle employing a

conventional

green-color

phosphor

image

intensifier tube and a red-color phosphor image

intensifier tube (GPF ¶¶ 324-35, 408).

The

photographs of monthly report No. 8 were not in

existence before the advent of the SBIR Phase II

contract. They were generated during the period

of performance of the 0027 contract during the

summer of 2003. (GPF ¶ 409)

95. Sometime around April 2003, CANVS

demonstrated a fully-functioning CNVS-4949

48a

goggle manufactured by ITT to the Coral Gables

Police Department. CANVS did not ask the Coral

Gables Police Department to sign a written

nondisclosure agreement when demonstrating the

goggle. (GPF ¶¶ 336-37, 339)

96. Sometime around April 2003, CANVS also

demonstrated the CNVS-4949 goggle to the

Federal Bureau of Investigations (FBI). CANVS

did not ask the FBI to sign a nondisclosure

agreement. (GPF ¶¶ 340-42)

97. Performance of the SBIR Phase II contract

ended on 31 October 2004. . Final payment was

made in December 2004, and the contract

completion statement, DD Form 1594, was signed

on 28 February 2005. (GPF ¶¶ 367) CANVS was

paid $750,000 for its SBIR Phase IIwork (GPF ¶

368).

98. The CNVS-4949, as well as the similar

CNVS-5050, was a binocular night vision goggle

having two optical channels each of which included

an image intensifier tube. One of the image

intensifier tubes employed a conventional greencolor phosphor screen and the other tube employed

a red-color phosphor screen.

Filters for the

objective lens were delivered with each CNVS-4949

or CNVS-5050 goggle. (GPF ¶ 361)

49a

99. To conduct tests on the goggles to be

delivered under the SBIR Phase II contract,

CANVS executed a Cooperative Research and

Development Agreement (CRADA) with USAARL

in March 2003 (R4, tab 24; tr. 2/133-35; GPF ¶ 369).

100. CANVS' goggle identified as CNVS-4949

Serial No. 1 was forwarded to USAARL and tests

were conducted by Army personnel during the

summer

2003.

Such

tests

included

photographing scenes through the optical channels

of the goggle. (GPF ¶ 371) As part of the CRADA

project, about a dozen government employees used

the CNVS-4949 goggle (GPF ¶ 373).

101.

USAARL

issued

Abbreviated

Assessment of the CNVS-4949 (hereinafter the

CRADA Report) in September 2003. Dr. McLean

authored the CRADA Report. Mr. Hosek was a

designated government recipient of the CRADA

Report. (GPF ¶¶ 374-75)

102. During the CRADA testing, Dr. McLean

conducted three observation flights and one night

of ground observations with the CNVS-4949 goggle

(R4, tab 27 at 214). Regarding color rivalry, the

CRADA Report noted that:

The color difference between green and

red inputs to the separate eyes may be

50a

greater than most individuals can adapt to.

When we used the same color green into both

eyes but different input spectra with the

visible wavelengths passed to one image

intensifier channel and the near IR passed to

the other channel, the objects in the scene

with different amounts of contrast between

the right and left images were noticeable, but

not nearly as apparent as with the separate

red and green phosphors for each eye.

However, the red and green phosphors also

tended to set up a rivalry affect with color

shifts of objects within the field of view.

(Id. at 220) The Report also noted that the "opinion

of 4 out of 5 observers was [that] the visible channel

was too dark and the different colors would probably

give them a headache within a few minutes" (id. at

215). Dr. McLean and his colleagues experienced

headaches as a result of the color rivalry (ex. G-51;

tr. 7/60-61, 74-75, 126; GPF ¶ 453).

103. In January 2003, responding to Mr.

Hosek's inquiry, Mr. Walkenstein forwarded a

quote for supplying a CNVS-4949 goggle having a

red-color phosphor screen image intensifier tube

(ex. G-88). As indicated in monthly report No. 2

for the SBIR Phase II contract, the internallyfunded CNVS-4949 goggle was demonstrated to

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NVESD no later than late April 2003 (GPF ¶¶ 41617). Responding to NVESD's request to purchase

the CNVS-4949 goggle that CANVS had quoted in

January 2003, appellant forwarded its purchase

order to ITT for one CNVS-4949 goggle based on

Drawing 275076. Mr. Walkenstein informed Mr.

Hosek regarding the submission of CANVS'

purchase order to ITT. CANVS forwarded its

invoice to NVESD in October 2003.

NVESD

directly purchased the goggle outside of any SBIR

funding. The CNVS-4949 goggle purchased by

NVESD was delivered to Mr. Hosek in late 2003 or

early 2004. This goggle is hereinafter referred to as

the "NVESD CNVS-4949 goggle." (GPF ¶¶ 418-21)

104. The NVESD CNVS-4949 goggle is similar,

if not identical, to the CNVS-4949 goggle delivered

under the SBIR Phase II contract (tr. 4/24). The

photograph on page 2463 of ex. G-46 is a view of

the external filters of the NVESD CNVS-4949

goggle that are positioned over the objective lenses.

In this view, the goggle is standing on the eyepiece

side. The left external filter (from the perspective

of a user of that goggle) is reddish in tint and the

right external filter is greenish in tint. The

photograph of ex. G-46 on page 2452 is another

view of the external filters of the NVESD CNVS4949 goggle. The photograph of ex. G-46 on page

52a

2446 is a view of the NVESD CNVS-4949 goggle

with the external filters removed. (GPF ¶¶ 424-25)

105. The photograph of ex. G-46 on page 2458 is

a view of the NVESD CNVS-4949 goggle from the

eyepiece direction. The eyepieces are removed.

The external filters are also removed. In this view,

the left image intensifier tube is orange in tint and

the right image intensifier tube is greenish in tint.

The reddish left external filter is associated with

the orange-tint left tube and the greenish right

external filter is associated with the greenish right

tube. (GPF ¶ 426) When demonstrating or selling

the single CNVS-4949 goggle to NVESD, CANVS

did not ask Mr. Hosek to sign a nondisclosure

agreement (GPF ¶ 427).

F. Events Leading to the June 2005 Special

Operations Forces (SOF)IAdvance Planning

Briefmg to Industry CAPBI) Conference

106. By June 2003, government agencies had

purchased a total of nine CNVS-4949s and CNVS5050s-three under the SBIR Phase IIcontract, one

by NVESD, and five by OSI Technologies on

behalf of a government customer (tr. 2/226-27; ex.

G-91; GPF ¶ 709).

107. No later than February 2005, CANVS had

provided on its public website information

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regarding the CNVS-4949 goggle. The CANVS

website included a photograph of the CNVS-4949

goggle with the annotation "independent manual

gain control" pointing at a component in each

optical channel of the goggle. The CANVS website

also disclosed the per-unit cost of each CNVS-4949

goggle-$30,000. (GPF ¶¶ 706-08)

108. DoD sponsored a conference and exhibition

to demonstrate new technologies to staff members

of the United States Congress (2nd supp. R4, tab

64). This event was referred to as either the

"Congressional Staffer Day" or "demo" (GPF ¶ 717).

109. One of the new technologies demonstrated

at the Congressional Staffer Day was the CNVS4949 goggle. Mr. Thomas Piazza, a program

official in USSOCOM's SBIR office, coordinated

the

presentation

various

USSOCOM

technologies for the Congressional Staffer Day

exhibition. (GPF ¶ 719)

110. Attached to an email from Mr.

Walkenstein dated February 15, 2005 was a poster

describing the CNVS-4949 goggle (2nd supp. R4,

tab 62 at 290; tr. 4/226). Mr. Piazza forwarded this

poster to his colleague Mr. Shawn Martin (2nd

supp. R4, tab 63; tr. 4/227, 243).

54a

111. Mr. Hosek in February 2005 prepared a

poster (hereinafter the Hosek Poster) having six

photographs, including captions, and textual

descriptions of the CNVS-4949 goggle. The Hosek

Poster does not contain the CANVS Confidential

Legend or any other proprietary marking. (GPF

¶¶ 722-23) Mr. Hosek does not recall as to why the

Hosek Poster was prepared. It was likely that a

USSOCOM official had asked Mr. Hosek to make a

poster. He does not recall whether the Hosek

Poster was prepared for use at the Congressional

Staffer Day event. He also does not recall whether

the Hosek Poster was prepared for display inside

the government or outside of the government. Mr.

Hosek does not recall when he prepared the Hosek

Poster. He does not recall whether that poster was

prepared in February 2005, or at an even earlier

date. (GPF ¶¶ 724-25)

112. As for the top center, top right, lower

center, and lower right photographs in the Hosek

Poster, they are identical to the four photographs

on page 12 of monthly report No. 8 for the SBIR

Phase II contract (R4, tab 9 at 83, tab 15 at 115;

ex. A-43.2; ex. G-68 at 2283; tr. 3/266, 268; GPF ¶

726). The four photographs of interest from the

Hosek Poster are the top center red-color

photograph having the caption "Through left eye of

55a

CNVS-4949"; the top right pale green-color

photograph having the caption "Through right eye

of CNVS-4949"; the lower center green-color

photograph having the caption "Standard AN/AVS6 View"; and the lower right multi-color

photograph having the caption "Constructed image

illustrates effect of CNVS-4949" (ex. A-43.2; ex. G68 at 2283; GPF ¶ 728). It is apparent that the

photograph with the caption "Through left eye of

CNVS-4949" was an error and should have

contained the photograph with the caption

"Standard AN/AVS-6 View" and vice versa, which

is consistent with the photographs in monthly

report No. 8. Mr. Hosek does not recall the origin

of the top center, top right, lower center, and lower

right photographs in the Hosek Poster (tr. 3/268).

He believes that these four photographs came from

either monthly report No. 8 or the CRADA Report,

but does not recall extracting them from either

report (tr. 3/268, 4/26-27; GPF ¶¶ 728-29). As for

the top left photograph in the Hosek Poster

showing a CNVS-4949 goggle, Mr. Hosek does not

specifically recall the origin of that photograph (ex.

A-43.2; ex. G-68 at 2283; tr. 3/267-68; GPF ¶ 731).

113. Mr. Hosek held the view that the

information disclosed on the Hosek Poster was

general information (tr. 4/11; GPF ¶ 736). When

56a

preparing the Hosek Poster, Mr. Hosek did not

consider that the poster revealed any information

that was confidential or proprietary to CANVS such

as "numbers," "specific identifiers," etc.

characterized this poster as a "vanilla poster." {Tr.

4/13, 15; GPF ¶ 737) Mr. Hosek was knowledgeable

as to the security classification guide for night vision

equipment that controls the dissemination of

information concerning night vision devices. A

picture of the exterior of a device is not classified

under his interpretation of the guide. (Tr. 4111-12;

GPF ¶ 738)

114. Mr. Hosek on 24 February 2005 forwarded

the Hosek Poster to Mr. Piazza for use at the

upcoming Congressional Staffer Day exhibition (R4,

tab 60; exs. A-12, -28; exs. G-68, -132, ¶ 8; tr. 417-9,

213-14). Mr. Piazza does not have any present

recollection whether he forwarded the Hosek Poster

to others for use at the Congressional Staffer Day

event (tr. 4/230-32, 243-44; GPF ¶ 739).

115. On 18 February 2005 Mr. Walkenstein

forwarded to Mr. Piazza a second document that

described CANVS' night vision goggle work (2nd

supp. R4, tabs 65-67; ex. A-17; tr. 4/229). This

second document did not reveal any information that

CANVS considered to be confidential (tr. 1/154-58;

GPF ¶ 740).

57a

116. The Congressional Staffer Day took place in

Arlington, Virginia, on 28 February 2005 (2nd supp.

R4, tab 64).

117. A National SBIR Phase II Conference was

scheduled to take place in July 2005 (R4, tab 29;

ex. A-27). Likely for the purpose of highlighting

successful SBIR projects, officials from the

National SBIR Conference requested success

stories from USSOCOM (ex. A-29; tr. 4/244-45).

Ms. Virginia Hoover was a service support

contractor for the DoD SBIR office, and was

involved in the gathering of materials for the

upcoming National SBIR Conference (app. supp.

R4, tab 60; 2nd supp. R4, tab 69; tr. 4/211-13; GPF

¶ 744). Responding to her request, Mr. Piazza on 5

April 2005 forwarded the Hosek Poster to Ms.

Hoover (2nd supp. R4, tab 69; tr. 4/244-45).

118. Simultaneously, Mr. Piazza on 5 April 2005

also informed Mr. Walkenstein via email that the

USSOCOM SBIR office had selected the multispectral imaging project as a "success story" for the

upcoming National SBIR Conference. Mr. Piazza

also attached the Hosek Poster to his email to Mr.

Walkenstein. (2nd supp. R4, tab 71 at 321; tr. 4/214)

Also attached to the email was a one-page

information sheet describing the SBIR multispectral project (2nd supp. R4, tab 71 at 322; tr.

58a

4/215; GPF ¶ 747). In his 5 April 2005 email to Mr.

Walkenstein, Mr. Piazza stated that "I'm using the

information that you and Mr. Hosek previously sent

me while working the Congressional Staffers Visit to

describe your goggles"(2nd supp. R4, tab 71 at 319).

119. Mr. Piazza again on 6 April 2005 forwarded

the Hosek Poster to Mr. Walkenstein (app. supp. R4,

tab 60; 2nd supp. R4, tab 72; ex. A-20; tr. 11162-64,

4/234-35).

Specifically, Mr. Piazza asked Mr.

Walkenstein to remove all proprietary information

from the Hosek Poster so as to permit USSOCOM to

release the poster to the public (app. supp. R4, tab

60; 2nd supp. R4, tab 72 at 323; GPF ¶ 749). Mr.

Piazza stated that "[p]lease ensure that there is no

proprietary data that you would not want released"

(app. supp. R4, tab 60).

120. In turn, Mr. Walkenstein, in a 6 April 2005

email, provided Mr. Piazza with a poster having four

photographs and revised captions for the

photographs, as well as revised textual materials

(app. supp. R4, tab 59; 2nd supp. R4, tab 73; ex. A-51;

tr. 1/161, 165-66, 4/236-37, 239-40; GPF ¶ 750). This

revised poster is hereinafter referred to as the

"Sanitized Poster." Mr. Walkenstein also provided to

Mr. Piazza a revised informational sheet (2nd supp.

R4, tab 75; GPF ¶ 752). Mr. Piazza forwarded the

59a

revised information sheet to Ms. Hoover (2nd supp.

R4, tab 80; tr. 4/247).

121. In addition to the sanitized poster, Mr.

Walkenstein's email further provided an alternate

poster for the National SBIR Conference (2nd supp.

R4, tab 77; ex. A-42; tr. 1/159-61, 4/238). This poster

is hereinafter referred to as the "Alternate SBIR

Poster." Both the Sanitized Poster and the Alternate

SBIR Poster included the following textual

description: "Spectral selection optimized to present

lifelike color under moderate illumination conditions"

and "Goggle prototypes with independent variable

gain for each channel." Concerning the phosphor

tubes, the Sanitized Poster used the phrase "12 tubes

utilizing COTS components" while the Alternate

SBIR Poster used the phrase "12 tubes utilizing

COTS phosphors." (R4, tabs 59, 77 at 342; GPF ¶

755-56) The Alternate SBIR Poster did not reveal

any information that CANVS considered to be

confidential (tr. 11160-61; GPF ¶ 757).

122. In an email dated 9 May 2005, Mr.

Walkenstein asked Mr. Piazza to change a

photograph on the National SBIR Phase II

Conference webpage (ex. A-37.l; ex. G-71; tr. 4/21314). The webpage also included a textual description

of CANVS' color night vision goggle project.

Specifically, the textual description stated: "The

60a

goggles are optimized to present more lifelike color

under moderate illumination conditions, and better

contrast under all conditions. Goggle prototypes with

independent variable gain for each channel can be

used on an ANVIS compatible helmet." (Ex. A-37.2;

ex. G-71; GPF ¶ 759). The photograph on the

National SBIR Phase II Conference website was

removed and another substituted (tr. 4/219; GPF ¶

760). Mr. Piazza did not create this webpage and did

not upload this page to the National SBIR Phase II

Conference website (tr. 4/247; GPF ¶ 761).

123. The webpage from the National SBIR Phase

II Conference described CANVS' color night vision

goggle project. Specifically, the webpage stated: "The

goggles are optimized to present more lifelike color

under moderate illumination conditions, and better

contrast under all conditions. Goggle prototypes with

independent variable gain for each channel can be

used on an ANVIS compatible helmet." (R4, tab 29;

ex. A-27)

124. The 2005 SOF/APBI (an exhibition of

military wares) took place from 6-10 June 2005 at the

Tampa Convention Center. The exhibition hall was

opened for three days, 7-9 June 2005. (GPF ¶ 769)

The SOF/APBI conference was sponsored by

USSOCOM during which it briefed the industry as to

future acquisition opportunities. It was also an

61a

opportunity for vendors to exhibit their products and

technologies to the SOF community. (Ex. G-74 at

14104, ex. G-80 at 2-3, ex. G-83 at 4212). Primarily

vendors, but also government agencies, had booths

on the exhibition floor (ex. G-74 at 14110, ex. G-83 at

4222; GPF ¶ 766). Administration of the exhibition

hall and exhibitors, as well as the registration of all

attendees, was handled by a USSOCOM contractor

(GPF ¶ 767). NVESD exhibited the results of certain

projects at the 2005 SOF/APBI conference related to

the mission of USSOCOM (tr. 6/58-59; GPF ¶ 790).

125. A government employee, Mr. Soyka

forwarded all posters to be displayed at the 2005

SOFIAPBI conference to the NVESD public affairs

and security officials before the conference, including

the Hosek Poster (tr. 6/60, 73-74). The Hosek Poster,

with minor modifications not relevant to the dispute,

was displayed at the SOFIAPBI conference and is

hereinafter referred to as the "APBI Poster'' (R4, tab

12 at 98; GPF ¶ 795-96). Mr. Soyka did not contact

Mr. Walkenstein to ascertain whether any

information on the Hosek Poster should have been

deleted (GPF ¶ 800). We find that the government

did not receive express consent from appellant to

display the APBI Poster.

126. Among the posters displayed by NVESD was

the APBI Poster (GPF ¶ 802). CANVS alleges that

62a

the display of the APBI Poster resulted in the

disclosure of CANVS' proprietary information or

trade secrets at the SOF/APBI conference relative to

the CNVS-4949 goggle (GPF ¶ 803). CANVS alleges

that a comparison of the APBI Poster with monthly

report No. 8 "clearly shows that proprietary

photographs and information were displayed at a

conference at which competitors and nonGovernment persons were present" (GPF ¶ 817).

Neither the complaint nor the first supplemental

complaint

identifies

with

specificity

what

photographs or what information on the APBI Poster

was proprietary (compl. ¶¶ 5, 19, 20, 21; first supp.

compl. ¶ 11; GPF ¶ 818). CANVS' contract claim

filed on 6 June 2011 also failed to identify with

specificity what photographs or what information on

the APBI Poster was proprietary (R4, tab 11).

G. Alleged

Proprietary

Features

and

Components of CNVS-4949 and CNVS-5050

Goggles Disclosed in the APBI Poster

127. In its post-hearing brief, CANVS identified

the following eight features and components that it

alleged were proprietary and disclosed in the APBI

Poster:

63a

(1) A red-color photograph identified as the

view from one optical channel of a

binocular night vision goggle;

(2) A green-color photograph identified as

the view from the other optical channel

of a binocular night vision goggle;

(3) The phrase "12 tubes utilizing different

color phosphors" confirmed the use of

red-color

phosphor

screen

image

intensifier tube in one optical channel of

the binocular night vision goggle and the

use of a green-color phosphor screen

image intensifier tube in the other

optical channel;

(4) Independent variable gain control for

each image intensifier tube;

(5) The multi-color photograph along with

the words "constructed lifelike view" in

the caption illustrated the combining of

the red-color image from one eye of the

observer and the green-color image "from

the other eye in the brain of that

observer;

(6) The red sliver in the multi-color

photograph illustrated the combining of

64a

the red-color photograph and the greencolor photograph;

(7) The reflections from the objective lenses

of the goggle in the upper left photograph

indicated the presence of red-and greencolor filters; and

(8) The phrase "filtering optimized to present

more lifelike color" in combination with

the phrase "color imaging systems provide

improved contrast and color output using

only the image intensification band"

confirmed the use of separate red- and

green-color filters. (App. br. at 29 (citing

to GPF ¶ 855))

128. In its response to USSOCOM's

Interrogatory No. 8, CANVS identified a litany of

features displayed on the APBI Poster that

included proprietary information (ex. G-2 at 1819). Specifically, CANVS identified the following

proprietary features from the APBI Poster that

would have permitted a person skilled in the art to

build a CNVS-4949: (1) I2 tubes utilizing different

color phosphors; (2) Red-color phosphor screen

image intensifier tube in the left eye of CNVS4949; (3) Green-color phosphor screen image

intensifier tube in the right eye of CNVS-4949; (4)

65a

Goggle prototype with independent variable gain

control for each channel; (5) The phrase "filtering

optimized to present more lifelike color" in

combination with the phrase "color imaging

systems provide improved contrast and color

output using only the image intensification band";

(6) The above two phrases in combination with

three photographs on the APBI Poster that showed

images taken through each eye and the

constructed color image; (7) Color image of the

goggle itself that showed different colorations of

the reflections from the objective lenses indicated

green and red filters; and (8) The color image of

the reflections plus the individual photographs

taken through each image intensifier tube of the

goggle would allow one skilled in the art to select

the filter colors, and the corresponding colors of the

phosphor screens (id., GPF ¶ 821).

129. In its response to USSOCOM's

Interrogatory No. 11, CANVS identified the

"sufficient information" that would have permitted

a person skilled in the art to construct a CNVS4949 goggle from the photographs and the

associated captions (ex. G-2 at 21-22). As for the

top left photograph showing the goggle, along with

the caption "Helmet mounted Goggle, CNVS4949," the skilled observer would have acquired

66a

the following "sufficient information" : ( I) This

photograph disclosed red and green color filters

which were mounted over the objective lenses of

the goggle; (2) An inspection of the physical CNVS4949 goggle would have revealed the use of the red

and green external filters and the different color

phosphor screens for the image intensifier tubes;

(3) The colored reflections from the external filters

would correspond to the red and green phosphor

screens for the image intensifier tubes; and (4) The

skilled observer would have understood that

colored phosphor screens and filters were used on

the goggle (id.; GPF ¶ 822).

130. In its response to USSOCOM's

Interrogatory No. 11, CANVS stated that the

skilled observer would have acquired the following

"sufficient information" from the top center reddish

photograph, along with the caption "Tirrough left

eye of CNVS-4949": ( 1) From the red image, the

skilled observer would have understood that the

filter and phosphor screen in the left optical

channel had created that red image; and (2) The

skilled observer would have noticed the contrast

between the clouds and the sky in this image (ex.

G-2 at 21-22; GPF ¶ 823).

131. In its response to USSOCOM's

Interrogatory No. 11, CANVS stated that the

67a

skilled observer would have acquired the following

"sufficient information" from the top right greenish

photograph, along with the caption "Through right

eye of CNVS-4949": (1) From the green image, the

skilled observer would have understood that the

filter and phosphor screen in the right optical

channel had created that green image; (2) The

skilled observer would have noticed the lack of

contrast between the clouds and the sky; and The

skilled observer would have noticed the high

contrast between the trees and the power pole in

this image (ex. G-2 at 22; GPF ¶ 824).·

132. In its response to USSOCOM's

Interrogatory No. 11, CANVS stated that the

skilled observer would have acquired the following

"sufficient information" from the lower right

photograph, along with the caption "Constructed

life-like image illustrates effect of CNVS- 4949":

(1) The skilled observer would have understood

that this blended-color photograph was an overlay

of the separate red and green photographs because

of the misalignment of the constructed image; (2)

The skilled observer would have understood that

the blended-color photograph was intended to

simulate the biological fusion of the red image and

the green image; and (3) The skilled observer

would have appreciated the benefit of using

68a

different phosphor and filters for the optical

channels would enhance the color contrast of the

image; for example, sharper contrast among the

trees due to the high degree of infrared reflectivity

from the leaves (ex. G-2 at 22-23; GPF ¶ 825).

133. In its response to USSOCOM' s

Interrogatory No. 11, CANVS stated that the

skilled observer would have acquired the following

"sufficient information" from the lower center

greenish photograph, along with the caption

"Standard Image Intensified View": (1) When

compared to the red image from the left optical

channel, the green image from the right optical

channel, and the blended-color constructed view,

the skilled observer would have noticed benefits of

color contrast from those photographs showing

greater detail within and between objects (ex. G-2

at 23-24; GPF ¶ 826).

134. In its response to USSOCOM's

Interrogatory No. 11, CANVS stated that the

skilled observer would have acquired the following

"sufficient information" from the phrase "12 tubes

utilizing different color phosphors": (1) Alerted the

skilled observer to observe the photographs more

closely to differentiate the different phosphors (ex.

G-2 at 24; GPF ¶ 827).

69a

135. As perhaps awkwardly phrased by the

government's proposed finding in its response to

USSOCOM's Interrogatory No. 11, CANVS stated

that the skilled observer would have acquired the

following "sufficient information" from the phrase

"filtering optimized to present more lifelike color"

in combination with the phrase "color imaging

system provide contrast and color output using

only the image intensification band": When

combined with the photographs, would have

permitted the skilled observer to build a binocular

goggle by selecting the red-color phosphor image

intensifier tube, the red-color phosphor tube, along

with corresponding external filters, that would be

capable of providing a blended-color image; and (2)

The blended-color image would provide enhanced

color contrasts (ex. G-2 at 24; GPF ¶ 828).

136. In its response to USSOCOM's

Interrogatory No. 12, CANVS discussed how the

skilled observer would use the "sufficient

information" discussed in Interrogatory No. 11 to

construct a CNVS-4949 goggle (ex. G-2 at 25-26).

Specifically, the skilled observer would have

deduced the following: (1) Based on the reflection

from the external filter, a red-color filter would

need to correspond to the red-color phosphor image

intensifier tube, as confirmed by the red-color

70a

image for the left optical channel; (2) Based on the

reflection from the external filter, a green-color

filter would need to correspond to the green-color

phosphor tube, as confirmed by the green-color

image for the right optical channel; (3) Based on

the caption "combined lifelike image," the blendedcolor image would have been generated in the

brain from the red and green image intensifier

tubes; (4) The phrase "12 tubes utilizing different

color phosphors," would have confirmed critical

components need to construct the goggle; and (5)

The phrase "filtering optimized to present more

lifelike color under moderate illumination

conditions, and better contrast under all

conditions" would have also confirmed the benefits

of the goggle (id.; GPF ¶ 829).

137. Mr. Walkenstein testified that much of the

proprietary information disclosed on the APBI

Poster originated from monthly report No. 8 for the

SBIR Phase II contract (tr. 11128). Specifically, the

four photographs on page 12 of monthly report No.

8 appeared on the APBI Poster (GPF ¶ 833). It is

unclear from our examination of the record

whether the APBI Poster included data or

information from other reports delivered by

appellant under the SBIR Phase II contract.

71a

138. Mr. Walkenstein testified that the APBI

Poster disclosed CANVS' proprietary information

as to having a red-color phosphor image intensifier

tube for one eye and a green-color phosphor image

intensifier tube for the other eye (GPF ¶ 834).

139. If the reddish image of the top center

photograph on the APBI Poster were viewed alone

without the caption and the descriptive text, Mr.

Walkenstein testified, there were many different

color phosphor screens and filters that could have

created the reddish image (R4, tab 12 at 98, tab 16

at 119; ex. A-96; tr. 3/35; GPF ¶ 835). Mr.

Walkenstein testified that a red-color phosphor, or

green-color phosphor, or white-color phosphor,

used in conjunction with an appropriate filter,

would create the reddish image (tr. 3/48).

140. If the reddish image of the top center

photograph on the APBI Poster were viewed in

conjunction with the caption "Through left eye of

the CNVS-4949," Mr. Walkenstein testified, a

person viewing the APBI Poster would not be able

to discern the color of the phosphor screen used to

create the reddish image of a scene through the

left channel of the goggle (R4, tab 12 at 98, tab 16

at 119; ex. A-96; tr. 3/35-39; GPF ¶ 836).

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141. If the greenish images on the APBI Poster

were viewed alone without the captions and the

descriptive text, Mr. Walkenstein testified, there

were many different-color phosphor screens and

filters that could have created the greenish image

(R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 3/35;

GPF ¶ 837). Mr. Walkenstein testified that a redcolor phosphor, or green-color phosphor, or whitecolor phosphor, used in conjunction with an

appropriate filter, would create the reddish image

(tr. 3/48-49).

142. If the greenish images on the APBI Poster

were viewed in conjunction with the caption

"Through right eye of CNVS-4949," Mr.

Walkenstein testified, a person viewing the APBI

Poster would not have been able to discern the

color of the phosphor screen used to create the

greenish image of a scene through the right

channel of the goggle (R4, tab 12 at 98, tab 16 at

119; ex: A-96; tr. 3/39-40; GPF ¶ 838).

143. If the multi-color image in the lower right

photograph on the APBI Poster were viewed

together with reddish image and the greenish

image, along with their captions, Mr. Walkenstein

testified, a person viewing the APBI Poster would

have been able to discern that the multi-color

image was constructed from the red image and the

73a

green image (R4, tab 12 at 98, tab 16 at 119; ex. A96; tr. 3/40-42, 49-50; GPF ¶ 839). Mr. Walkenstein

testified that the person would have concluded

that a red-color phosphor view was presented to

one eye and a green-color phosphor view was

presented to the other eye. However, Mr.

Walkenstein testified that that person would not

know the specific red-color phosphor used. (Tr.

3/42)

144. Because Mr. Walkenstein had used a

computerized video technique to create the multicolor photograph as opposed to overlaying existing

photographic images (tr. 1/132-33, 3/43-45), he

testified, the term "constructed" was more

appropriate to describe the multi-color photograph

(tr. 3/49-50; GPF 840). He stated that he created

the photograph by using images taken by Dr.

McLean at USAARL that "were sent to me in

digital format. They were changed from color

format to black and white format. They were then

mathematically mapped to the red and green

channels and produced in digital image. Then

based on the misalignment, I moved them over,

created the image." (Tr. 3/44-45) The APBI Poster

did not disclose the method and techniques used by

Mr. Walkenstein to create this photograph.

74a

145. As for the top left photograph on the APBI

Poster, Mr. Walkenstein testified that an observer

would perceive a green-color filter and a red-color

filter due to the fact that different colored light

was bouncing off the filters (R4, tab 12 at 98, tab

16 at 119; ex. A-96; tr. 1/145). Based on the

different coloration of the filters, Mr. Walkenstein

testified, one skilled in the art would have

recognized the presence of two different color

filters capable of passing different wavelength

bands (tr. 1/145-46). This was allegedly CANVS'

proprietary information (tr. 1/144-46; GPF ¶ 841).

146. Mr. Walkenstein testified that different

colorations in the filters in the top left photograph

did not disclose the specific spectral band, i.e., the

exact bandpass information for the filters (tr.

1/145-46; GPF ¶ 842).

147. Mr. Walkenstein testified that the phrase

"color imaging systems provide improved contrast

and color output using only the image intensified

band" under the "Payoff ' section of the APBI

Poster disclosed that color was obtained through

the spectral response of the goggle's image

intensifier tubes (R4, tab 12 at 98, tab 16 at 119;

ex. A-96; tr. 1/147; GPF ¶ 844).

75a

148. Mr. Walkenstein testified that the phrase

"Filtering optimized to present more lifelike color

under moderate illumination" revealed the use of

inputs to the image intensifier tubes (R4, tab 12 at

98, tab 16 at 119; ex. A-96; tr. 9/292; GPF ¶ 845).

149. Mr. Walkenstein testified that the phrase

"goggle prototypes with independent variable gain

for each channel" was CANVS' proprietary

information (R4, tab 12 at 98, tab 16 at 119;·ex. A96; tr. 1/144; GPF ¶ 849).

H. Expert Testimony on Issue of Whether APBI

Poster Disclosed Proprietary Features and

Components of CNVS-4949 and CNVS-5050

Goggles

150. Appellant's expert witness, Mr. Gillespie,

in his initial expert report, dated 26 July 2013,

specifically stated that he would not opine as to

whether any of the information displayed on the

APBI Poster was CANVS' proprietary technical

data. Instead, Mr. Gillespie assumed that the

information displayed on the APBI Poster was

CANVS' proprietary technical data for the

purposes of his analysis. (Ex. A-85.10, ¶ 20; GPF ¶

853). At the hearing, Mr. Gillespie acknowledged

that "the intent of my [expert] report here is not to

discuss proprietary information. It was to discuss

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whether technical data is being disclosed or not.

So it's assumed that its proprietary data, but

whether it is or isn't is not a subject of my

testimony, either now or in this paper [expert

report]." (Tr. 5/165; GPF ¶ 854)

151. Mr. Gillespie's expert report defined "a

person of ordinary skill in the art" as someone with

experience and knowledge working with image

intensification and thermal imaging techniques

and their components and properties; experience in

applying these technologies to military tactical

environments; and a thorough understanding of

the principles of physics with respect to light,

thermal radiation, optics, and filters (ex. A-85, ¶¶

17-19). He later concluded that the photographs

and textual narrative in the APBI Poster would

enable a skilled engineer to observe the physical

characteristics of the image intensifier tubes and

color filters to recreate and build the CNVS-4949

goggle (id. ¶¶ 3, 20). Additionally, he stated a

physical examination of the CNVS-4949 goggle at

the conference would allow a person to observe the

physical characteristics of the phosphor tubes and

the colored filters (id ¶ 3). Although Mr. Gillespie

did not identify himself as an engineer and the

government objected to his admission as an expert

(tr. 5/131), we find that his background and

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experience in the night vision technology industry,

particularly his years of experience as a program

manager

and

research

and

development

coordinator at NVESD, qualify him as an expert.

His reports and testimony were previously

admitted into the record.

152. According to Mr. Gillespie, the APBI

Poster identified the major components of the

CNVS-4949-the housing of the goggle; the red and

green phosphor intensifier tubes for each channel,

and matching red and green optical filters affixed

to the objective lenses of each channel (tr. 5/13638). His initial expert report asserted that a skilled

observer would recognize that the red and green

photographs of each channel of the goggle

corresponded to a red and green phosphor tube and

filter; that the multi-colored photograph was the

simulated "biologic fusion" of the red and green

photographs in which "the observer would learn

the benefit that the two phosphor/filter colors

would have on enhancing the color contrast of the

image of the scene displayed to the viewer''; and

that the standard AN/AVS-6 image, in

combination with the other photographs, would

reveal the choice of red and green filters and

phosphor screens to optimize the lifelike color of

that image (ex. A-85, ¶ 24).

78a

153. When a user positions his eyes toward the

eyepiece side of a CNVS-4949 goggle, he would

immediately see a red-color optical channel and a

green-color optical channel (tr. 3/18-19, 223). The

red image of the top center photograph of the APBI

Poster is what a user of a CNVS-4949 would see

from the eyepiece side (R4, tab 12 at 98, tab 16 at

119; ex. A-96; tr. 3/52). When a user looks at the

objective lens side of a CNVS-4949 goggle, he

would discern different coloration on the optical

channel which is an indication that different-color

filters are being used (tr. 3/21-22, 225-28). When a

user is using the CNVS-4949 goggle, he would

need to adjust the independent manual gain

control mechanisms to adjust the brightness in

each image intensifier tube (tr. 8/67, 90).

154. When a user of a CNVS-4949 goggle

positions his eyes toward the eyepiece side of the

goggle, he would immediately see a red-color

optical channel and a green-color optical channel

(tr. 3/18-19, 8/83). Mr. Walkenstein stated that the

red image of the top center photograph of the APBI

Poster is what a user of a CNVS-4949 goggle would

see from the eyepiece side (R4, tab 12 at 98, tab 16

at 119; ex. A-96; tr. 3/52; GPF ¶ 902). When a user

looks at the objective lens side of a CNVS-4949

goggle, he will discern different coloration on the

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optical channel which is an indication that

different-color filters are being used (tr. 3/21-22;

GPF ¶ 904). When a user is using the CNVS-4949

goggle, he will need to operate the independent

manual gain control mechanisms so as to adjust

the brightness in each image intensifier tube (tr.

8/67, 90; GPF ¶ 905). The following findings

address issues regarding the alleged proprietary

issues raised by appellant and Mr. Walkenstein's

testimony.

155. Relative to the top center photograph on

the APBI Poster showing a reddish image (R4, tab

12 at 98, tab 16 at 119; ex. A-96), it was public

knowledge or generally known in the night vision

industry as of 2005 that an image intensifier tube

having any type of phosphor when used with an

appropriate external filter would create a reddish

image (tr. 4/109, 9/88-90). The phosphor used could

be green-color phosphors, red-color phosphors, or

white-color phosphors (id.). The appropriate filter

would be one that permitted the passage of redcolor wavelengths (tr. 4/109, 9/88-90; see ex. G-139

at 6; GPF ¶ 856).

156. Relative to the two photographs on the

APBI Poster showing a greenish image (R4, tab 12

at 98, tab 16 at 119; ex. A-96), it was public

knowledge or generally known in the night vision

80a

industry as of 2005 that an image intensifier tube

having any type of phosphor when used with an

appropriate external filter would create a greenish

image (tr. 9/91, 93). The phosphor used could be

green-color phosphors, red-color phosphors, or

white-color phosphors (tr. 9/91). The appropriate

filter would be one that permitted the passage of

green-color wavelengths (tr. 9/91; see ex. G-139 at

6; GPF ¶ 857).

157. As for the greenish image shown in the top

right photograph on the APBI Poster, even if the

caption was corrected to indicate that it was a

standard night vision view, it was general

knowledge by 2005 that the greenish tint was the

standard coloration of conventional night vision

goggles (GPF ¶ 858).

158. As of 2005, it was public knowledge or

generally known in the night vision industry that a

binocular night vision goggle could create a

reddish image for one optical channel and a

greenish image for the other channel (R4, tab 12 at

98; ex. A-96; tr. 9/94-98, 101-02). The phosphor

used could be green-color phosphors, red-color

phosphors, or white-color phosphors (tr. 9/95, 10102). The appropriate filter would be one that

permitted the passage of red-color or green-color

wavelengths (tr. 9/95, 101-02; see ex. G-139 at 6;

81a

GPF ¶ 859). According to monthly report No. 8

delivered under the SBIR Phase II contract, the

reddish image was acquired through a "RG-665

2mm thick filter material" and the greenish image

was acquired through a "Hotmirror filter" (R4, tab

9 at 83). These characteristics and specifications

of the filters were not disclosed in the APBI Poster.

159. The simultaneous presentation of a

reddish image in one optical channel and a

greenish image in the other channel of a binocular

night vision goggle was already ·disclosed in the

1992 Field Patent (ex. G-139 at 23-24, ex. G-169;

tr. 9/94-95). The reddish image would have been

created by a red-color external filter which is

identified as filters 51a, 51b, 52a, or 52b in Figures

5A and 6A of the patent. The greenish image

would have been created by a green-color external

filter. (Ex. G-169 at 4; tr. 9/95-97; GPF ¶ 860)

160. As for the top left photograph on the APBI

Poster illustrating a binocular goggle having

purported red coloration or hue on one of its

objective lens (R4, tab 12 at 98, tab 16 at 119; ex.

A-96), it was public knowledge or generally known

in the night vison industry as of 2005 that the

coloration of reflections from external filters was

dependent on the angle of the light source (ex. G139 at 15-17; tr. 9/102-07; GPF ¶ 863). This

82a

photograph is a colored image of the CNVS-4949

goggle.

161. As for the phrase "Filtering optimized to

present more lifelike color" shown on the APBI

Poster (R4, tab 12 at 98, tab 16 at 119; ex. A-96), it

was public knowledge or generally known in the

night vision industry as of 2005 that there were a

variety of techniques that were capable of

performing the rather generic term of "filtering"

(tr. 9/123). Filtering techniques included "spectral

filtering," "polarization filtering," "temporal

filtering," or "spatial filtering" (id.; GPF ¶ 865).

162. In his expert report, the government's

expert witness, Dr. Waxman, stated that it was

"impossible by simply looking at one visible

photograph, or even by casual inspection of an

assembled device..., to infer a filter's spectral

characteristics such as cut-on wavelength, cut-off

wavelength, spectral transmission characteristics,

filter thickness, material composition, and

importantly its characteristics in the near-IR part

of the NVG [night vision goggle] spectrum" (ex. G139 at 13-14, ¶ 14.6). Dr. Waxman testified that

filtering could encompass spectral filtering using

band pass filters, filtering with polarizers, and

modulating any part of the tube (tr. 9/218). On

cross-examination,

appellant's

expert,

Mr.

83a

Gillespie, stated that spectral filtering of

intensifier tubes was commonly known prior to

June 2005 (tr. 5/198).

163. Mr. Gillespie asserted that a skilled person

would observe that the red and green colors of the

objective filters in the colored photograph of the

CNVS-4949 goggle match with the intensifier tube

phosphor screens upon examination of the physical

goggle (ex. A-85, if 23). The government's expert,

Dr. Waxman, disputed this assertion. He asserted

that the APBI Poster did not divulge specific

characteristics of the spectral filters, including the

cut-on

and

cut-off

wavelengths,

spectral

transmission characteristics, filter thickness, filter

material, and the characteristics in the near-IR

part of the night vision goggle spectrum (ex. G-139,

¶¶ 14.2, 14.6; tr. 9/90-91). He further explained

that the visible appearance of a filter through

photographs or visual inspection conveyed nothing

about a filter's spectral characteristics and

properties. He asserted that the filter on the red

channel could appear red, blue, or green and the

filter on the green channel could appear blue or

green depending on several factors such as the

viewing angle, the angle of incidence of incoming

light, and the design and composition of the

spectral filters. (Ex. G-139, ¶¶ 14.8-14.11) The

84a

government's witness, Mr. Bender, stated that the

wavelength selection was a critical component in

analyzing and evaluating a goggle (tr. 6/217).

164. On cross-examination, Mr. Gillespie stated

that the characteristics and properties of the filters

would be important in configuring a night vision

goggle. He stated that one would not communicate

to a manufacturer the color of the filter but provide

"a specification, and a wave length that they had

to pass or not pass the cut off filters." (Tr. 5/176)

On recross-examination, he further confirmed that

a skilled person viewing the photographs and

visually examining the CNVS-4949 goggle could

not determine whether a "hotmirror" filter was

used and what wavebands were filtered (tr. 5/26768). We find that Mr. Gillespie's testimony

supports Dr. Waxman's assessment that the

spectral characteristics of a filter could not be

determined by the photographs in the APBI Poster

and visual examination of the physical goggle.

165. As for the phrase "12 tubes utilizing

different color phosphors" shown on the APBI

Poster (R4, tab 12 at 98, tab 16 at 119; ex. A-96), it

was public knowledge or generally known in the

night vision industry as of 2005 that image

intensifier tubes may employ phosphors of

85a

different colors, even red-color phosphors (tr. 9/50,

113-14, 122; GPF ¶ 864).

166. Mr. Gillespie asserted that the phrases "12

tubes utilizing different colored phosphors" and

"Color Imaging systems provide improved contrast

and color output

using only the image

intensification band," in combination with the

photographs, would have further revealed to a

skilled person the use of red and green phosphor

tubes and filters (ex. A-85, ¶¶ 25, 27). At the

hearing though, Mr. Gillespie stated that a skilled

person "would suspect or easily project" that a red

and green phosphor were used because they were

known in the industry. He added that the APBI

Poster did not explicitly state a white phosphor or

a different colored phosphor. (Tr. 5/152)

167. Dr. Waxman testified that the red

photograph would reveal that "the filters pass

band must at least include some of the part of the

spectrum that we tend to call red" but not the

exact color of the phosphor, and that any phosphor

with appropriate filters could generate the images

(tr. 9/90, 92). This is consistent with Mr.

Walkenstein's testimony in which he stated that

the red photograph could be achieved by placing a

white or red phosphor with the appropriate

spectral filter (tr. 3/48-49). Dr. Waxman opined

86a

that the red and green photographs in the APBI

Poster were exact images from a goggle disclosed

in the 1992 Field Patent (tr. 9/97-98).

168. Mr. Hosek testified that, when viewing the

red photograph and caption in the APBI Poster, he

could not determine whether a red, white, or a

colored phosphor with red content and a filter that

strips other colors out of the phosphor was used to

produce the image (tr. 4/109).

169. As for using independent variable gain for

each channel of the night vision goggle, it was

public knowledge or general knowledge in the

night vision industry by 2005 that such

independent variable gain controls were available

in existing night vison goggles in the market place.

For example, the advertising material for the ITT

F4949 and F5050 goggles indicated their use of

such independent gain control mechanisms. (Ex.

G-219 at 3, 4) Even CANVS' own website in 2005

illustrated independent gain control mechanisms

for the CNVS-4949 goggle (ex. G-58; GPF ¶ 866).

170. Mr. Gillespie stated that the photographs

in the APBI Poster supplied a skilled person with

"benchmark data points" to confirm the proper

construction and configuration of the CNVS-4949

goggle (ex. A-85, ¶ 25). At the hearing, he opined

87a

that one could easily test and validate to confirm

the proper configuration (tr. 5/259). However, he

did not further explain the time, effort, and

expense to perform such a validation.

Mr.

Walkenstein testified that thousands of filters

were tested by CANVS over a ten-year period (tr.

3/34). We find Mr. Gillespie's testimony that

testing and validation of the construction and

configuration of the filters would be relatively easy

is unpersuasive.

171. Mr. Walkenstein testified that an extended

cathode was an attribute to the phosphor tube that

was not disclosed in the APBI Poster (tr. 3/33).

Nothing in the APBI Poster disclosed the

particular type or model of the phosphor tube used

to acquire the displayed photographs.

172. Appellant has not presented any evidence

to indicate that any individual other than Mr.

Walkenstein had both actually seen the APBI

Poster at the 2005 SOF/APBI conference and

understood the alleged proprietary information or

trade secrets that were displayed on that poster

(GPF ¶¶ 973, 976).

88a

I. CANVS Disclosed Claimed Proprietary

Features and Components Prior to June

2005

173. Appellant disseminated the allegedly

proprietary information to persons, organizations,

and firms outside the U.S. Government without

obtaining nondisclosure agreements. In particular,

the goggles and accompanying descriptions were

included in marketing literature and available on

the company's website. (GPF ¶¶ 886-91, 893-95,

897) On recross-examination, Mr. Walkenstein

stated that, although CANVS may not have sold

CNVS-4949 or CNVS-5050 goggles prior to

submitting its SBIR Phase II proposal to the

government, it was actively marketing and selling

goggles that were identical in performance and

capability. He stated that one could buy a goggle

directly from CANVS or retrofit a goggle

incorporating the CANVS technology. (Tr. 11/7981)

174. Appellant disseminated the allegedly

proprietary information to individuals employed by

U.S. Government agencies not involved with the

USSOCOM SBIR color night vision program

without obtaining nondisclosure agreements (GPF

¶¶ 873, 879-85, 892, 897).

89a

175. CANVS demonstrated its color night vision

goggles to many potential public and private

customers by 2005, including the demonstrations

that took place at the 2003 and 2005 Force

Protection Equipment Demonstrations (FPEDs)

(R4, tab 7 at 62; ex. G-42 at 1649-653; exs. G-84, 85; tr. 2/38-40, 43, 3/17-18).

CANVS also

permitted potential customers to use the goggles

(exs. G-84, -85; tr. 2/38-40, 43, 3/17-18; GPF ¶ 906).

Organizers of the FPEDs did not require attendees

to sign nondisclosure agreements and attendees

were not obligated to protect any confidentiality

associated

with

displayed

products

and

demonstrations (tr. 7/142).

176. CANVS showed its products to other

vendors at the FPEDs, including the CNVS-4949

goggles (tr. 3/28; GPF ¶ 1910). The CANVS color

night vision goggles demonstrated at the FPEDs

were operable (tr. 3/18; GPF ¶ 907). Users of the

CNVS-4949 goggle could clearly see a red channel

and a green channel (tr. 3/18-19; GPF ¶ 909). The

CNVS-4949 goggles demonstrated at the FPEDs

included external filters. Those who used the

CNVS-4949 goggles at the FPEDs saw the external

filters. (Tr. 3/19, 21-22; GPF ¶ 908)

90a

177. As relevant here, the criteria for

attendance at the 2005 SOFI APBI conference

were substantively the same as the criteria for

attendance at the 2003 and 2005 FPEDs (GPF ¶

968). Mr. Walkenstein held the incorrect belief

that the 2003 and 2005 FPEDs, unlike the APBI

conference, were "closed" conferences such that he

could freely display and demonstrate fully

operative CNVS-4949 goggles (GPF ¶ 970). On

cross-examination, Mr. Walkenstein testified that

attendees participating in the demonstrations did

not sign nondisclosure agreements (tr. 3/19).

178. Photographs and textual materials from

the APBI Poster alleged to be trade secrets or

proprietary information appeared in the Sanitized

Poster or the Alternate SBIR Poster.

Mr.

Walkenstein prepared both of these posters and

provided them to USSOCOM for use at public

events. (App. supp. R4, tab 60; 2nd supp. R4, tab

72 at 323, tabs 73, 77; exs. A-42, -51; tr. 1/159-61,

236-38; GPF ¶ 911) Specifically, a green-color

photograph having the caption "Standard AN/AVS6 View" is present in both the Sanitized Poster and

the Alternate SBIR Poster (2nd supp. R4, tab 73 at

330, tab 77 at 342). This photograph is identical to

the lower center photograph on the APBI Poster

(R4, tab 12 at 98). There is no dispute that a

91a

green-color view, along with the caption indicating

that it is the view of a standard monochromatic

night vision goggle, was not a trade secret or

proprietary information (tr. 1/160-61; GPF ¶ 912).

In addition, a multi-color photograph having the

caption "CNVS Color Goggle View" is present in

both sanitized posters (2nd supp. R4, tab 73 at

330, tab 77 at 342; GPF ¶ 913). This photograph is

essentially identical to the lower right photograph

of the APBI Poster; however, the APBI Poster's

photograph contains a red "sliver'' along the border

of the image (R4, tab 12 at 98).

179. The Sanitized Poster clearly identified the

night vision goggle as a "CNVS-4949 Helmet

Mounted Aviation Color Night Vision Goggle." This

photograph and description also appeared in the

Alternate SBIR poster.

Under the "Payoff '

section, the Sanitized Poster stated that "[t]he

Color Imaging Systems provide improved contrast

and color output using only the image

intensification band."

This exact phrase also

appeared in the Alternate SBIR poster. Under the

"Description" section, the Sanitized Poster stated

that "[s]pectral selection optimized to present more

lifelike color under moderate illumination

conditions, and better contrast under all

conditions." This exact phrase also appeared in the

92a

Alternate SBIR poster. (2nd supp. R4, tab 73 at

330, tab 77 at 342; GPF ¶¶ 915-17)

J. The Appeals

180. In its claim letter, dated 6 June 2011,

CANVS referred to the APBI Poster, but it did not

identify with particularity the alleged trade secrets

or proprietary information revealed by that poster.

The claim letter merely alleged that "[a]

comparison of the display and at least the monthly

report 8 of 15...clearly shows that proprietary

photographs and information were displayed at a

conference....

This display included technical

details sufficient to manufacture the device." (R4,

tab 11) The letter contended that the government

improperly disclosed the alleged proprietary

information to SOF/APBI conference attendees

that included non-government and foreign entities

and competitors of CANVS. CANVS alleged that

data from other technical reports outside of the

APBI Poster were also released based upon the

government's award of contracts to its competitors,

and that it was unable to secure "procurement"

funding from industry and government sources for

its night vision goggle products.

The letter

demanded $100 million in breach damages from

the government and included a Contract Disputes

Act (CDA) certification. (Id.)

93a

181. By correspondence dated 19 September

2011, CANVS filed its notice of appeal to the Board

from the deemed denial on the 6 June 2011 claim

by the contracting officer.

The appeal was

docketed as ASBCA No. 57784.

182. On 11 January 2012, the contracting

officer issued a final decision denying the claim in

its entirety. The contracting officer concluded that

the allegations in the claim were unsubstantiated

and baseless. (Supp. R4, tab 43 at 279, 281) He

asserted, among other things, that the

photographs and descriptions of the device and

components were not proprietary data; that the

government did not violate the 7018 clause under

the SBIR Phase II contract; and that the

government has not awarded any color night vision

technology contracts to date (id. at 281-82).

CANVS timely appealed from this final decision

which was docketed by the Board as ASBCA No.

57987. The identical issues are presented in both

appeals. Accordingly, we dismiss ASBCA No.

57784 as duplicative.

183. In its initial complaint, CANVS expanded

that the alleged improper disclosure deprived it of

an "income-producing asset" and affected its ability

to receive an SBIR Phase III award or production

contract for its night vision goggles (compl. ¶ 44).

94a

K. Additional Findings

184. There is no evidence that between the

2005 SOF/APBI Conference and the completion of

the hearing, that any manufacturer in the U.S.

military market has even begun to manufacture a

device similar to the CNVS-4949 goggle (GPF ¶

977). Both Mr. Hosek and Mr. Soyka testified that

they were not aware of any red/green direct view

night vision goggles currently being manufactured

(GPF ¶¶ 978-79). Mr. Robert Kabala, the

USSOCOM night vision program manager from

1998 to 2010, testified that USSOCOM has not

purchased any direct view color night vision

goggles from any other source (tr. 7/205-06; GPF ¶

980). Additionally, Mr. Kabala's direct successor

and the current USSOCOM night vision program

manager, Mr. Miguel Isasmendi, testified that

since 2007 he is unaware of any color night vision

goggles being fielded (tr. 8/14-16, 31-32; GPF ¶

980). CANVS' expert witness, Mr. Gillespie, could

not identify a single manufacturer of a similar

device (tr. 5/220; GPF ¶ 981).

185. Mr. Walkenstein testified that he is aware

of only one entity that has manufactured color

night vision goggles using different color

phosphors in different optical channels since 2005.

According to Mr. Walkenstein, that entity is the

95a

Russian government or a manufacturer having a

relationship with the Russian government. (Tr.

3/82-83; GPF ¶ 982) CANVS has produced no

technical details or other substantiating evidence

regarding this alleged Russian manufacturer of a

night vision goggle having different color

phosphors in different optical channels. There is no

documentary proof in the record relating to this

alleged Russian night vision goggle. CANVS has

produced no evidence to indicate that this alleged

Russian

manufacturer

had

gleaned

the

information concerning color night vision goggles

from the APBI Poster. (Tr. 3/83-84; GPF, ¶¶ 98384)

186. There is no persuasive evidence that

CANVS contacted the USSOCOM contracting

officer, nor any contracting official about this

incident until it was about to file its contract claim

in early June 2011 (tr. 3/57-58). Mr. Walkenstein

did not contact directly any USSOCOM contracting

official during this period (tr. 3/69). Even though

CANVS was performing tasks under the

USSOCOM Contract No. H92222-05-C-0030

between mid-2005 and late 2006, Mr. Walkenstein

has no recollection of contacting a USSOCOM

contracting officer regarding the display of the

APBI Poster (tr. 3/70-71).

96a

187. Mr. Walkenstein has no recollection of

having contacted any USSOCOM official regarding

the alleged improper disclosure at the 2005

SOF/APBI during 2005 or 2006 (tr. 2/68-69, 3/5859, 66-67). Mr. Walkenstein did not contact

USSOCOM directly by sending any written

communication regarding this alleged breach

between the 2005 SOF/APBI conference and the

filing of the contract claim in mid-2011. Mr.

Walkenstein has no recollection of contacting

anyone at NVESD regarding the alleged improper

disclosure at the 2005 SOF/APBI conference from

the time of the alleged breach in June 2005 to time

of the filing of the contract claim in 2011. He has

no recollection of contacting Mr. Hosek regarding

the display of the APBI Poster. He has no

recollection of contacting Mr. Soyka regarding the

display of the APBI Poster. (Tr. 2/68-69, 3/58-60,

66-67; GPF ¶ 991) He testified that contacting any

USSOCOM official would have been futile, akin to

"being mugged by a police officer and then

thinking if you report the crime to him you're going

to get your wallet back and treated fairly. So I

didn't think it was appropriate for me to talk

directly to the people I was having a problem with

immediately and to go through their chain of

command." (Tr. 2/70, 3/57-58; GPF ¶ 986)

97a

188. CANVS did not contact any USSOCOM

official associated with night vision equipment

such as officials in the USSOCOM program office.

Specifically, he did not mention this event to Mr.

Kabala, who was the program official overseeing

the development of night vision equipment, in

2005 or 2006. (Tr. 7/163, 173; GPF ¶ 987)

189. The day following the SOF/APBI

conference, Mr. Walkenstein met with Navy CAPT

Rowland Huss who headed the overall program

office responsible for the development of night

vision equipment. Mr. Walkenstein had a brief

conversation with both CAPT Huss and Mr.

Kabala; and the alleged breach that had occurred

the previous day was not discussed. (Tr. 2/48,

7/160-63; GPF ¶ 988)

190. On 15 June 2005, Mr. Walkenstein

forwarded an email to many members of Congress

seeking assistance in funding the purchase of

CANVS' color night vision goggles (R4, tab 37). In

its request, CANVS touted the fact that its

technology had been highlighted at the recent

SOF/APBI conference (id at 266; ex. G-106 at 1562;

tr. 7/168-69). Specifically, Mr. Walkenstein stated

that "[t]his technology was also recently

highlighted (by SOCOM and U.S. Army Research,

Development, and Engineering Command) through

98a

a series of briefings and demonstrations at SOF

APBI week (7-9JUN05) in Tampa Florida" (R4, tab

37 at 266, tab 44 at 284; ex. G-106 at 1562; tr.

3/61-62). This communication was intended to

encourage the U.S. Congress to appropriate funds

to purchase CANVS' goggles (tr. 3/65, 7/169-70).

CANVS also forwarded this communication to The

Washington Post (ex. G-106 at 1557; tr. 3/62-63; see

also GPF ¶ 990).

DECISION

I. Government Motion to Strike

The government has moved to strike

substantial portions of appellant's briefs for failure

to comply with the Board's briefing order. We

agree with the government that appellant has

substantively failed to comply with that order.

Appellant's initial brief provided few citations to

the record supporting its proposed factual findings

and, to the extent record citations are included,

those citations are often inaccurate and misstate

the record. In addition, although appellant's reply

brief is 395 pages in length, the vast majority of

that brief merely quotes verbatim each of the 1,002

proposed findings set forth in the government's

initial brief. In general, appellant has simply

responded to the government's proposed findings

99a

with blanket denials or argumentative assertions

such as "not correct" or "untrue," or the

government "mischaracterizes" the record without

elaboration or providing supporting citations

specifically addressing and/or refuting the

accuracy of references to the record set forth in the

government's proposed findings. Appellant's

noncompliance has frustrated the intent and

purpose of identifying and refining factual issues

through precise references to the evidentiary

record, permitting the Board to carefully analyze

and weigh conflicting testimony and proof. It is

not for the Board to parse through the record to

find requisite support for appellant's own proposed

findings and its generic blanket responses to the

government's proposed findings. The government

was also deprived of the intended opportunity to

join issue with appellant on disputed matters.

Without substantive guidance from appellant, the

Board does not intend to sua sponte conduct an

independent examination into the voluminous

record compiled over the course of the 11 days of

hearing

assess

whether

appellant's

unsubstantiated denials, etc., potentially are

supported somewhere in that record. Both parties

were expressly put on notice of their duties

regarding detailed, precise refutation of the

opposing party's proposed findings and legal

100a

analyses. To the extent that CANVS has not

complied with the Board's briefing order and has

declined to offer substantive, specific, detailed

objections and replies to the government's

proposed findings (and included record citations),

the Board, in its discretion, has adopted certain

findings (or portions thereof) that have been

proposed by the government with the notation

GPF (Government Proposed Finding), followed by

its number. In general, the citations to the record

provided by the government and set forth in a GPF

have been omitted (but are incorporated by

reference) where the Board has adopted the

finding in whole or in part, as envisioned by the

briefing order.

To the limited extent that

appellant, in compliance with the briefing order,

expressly and precisely objected to the correctness

of government citations set forth in GPFs, the

Board verified the accuracy of the citations and

any other related portions of the record prior to

adopting the GPF (or portion thereof). In the vast

majority of cases, after study of the record, the

Board concluded that the government had

accurately characterized the testimony and record,

contrary to appellant's blanket assertions that the

government mischaracterized it.

In effect,

appellant has not substantively responded with

detailed counter citations and precise reasons why

101a

the record was "mischaracterized" by the

government or proposed contrary findings revising

the language considered objectionable. It has

failed to join issue in a constructive, precise and

detailed manner that assists the Board in

identifying and resolving key factual differences.

For the above reasons, the government's motion to

strike has merit and the Board has taken the

above remedial actions.

II. Jurisdiction: Statute of Limitations

The government contends that appellant's

breach claim was time-barred under the CDA's sixyear statute of limitations. The CDA requires a

claim to be submitted to the contracting officer

within six years after its accrual. 41 U.S.C. §

7103(a)(4)(A). FAR 33.201 defines claim accrual as

"the date when all events, that fix the alleged

liability of either the Government or the contractor

and permit assertion of the claim, were known or

should have been known. For liability to be fixed,

some injury must have occurred. However,

monetary damages need not have been incurred."

It is undisputed that appellant filed its claim with

the contracting officer on 6 June 2011 (finding

180). Therefore, to be timely for purposes of the

CDA, claim accrual must not have occurred prior

to 6 June 2005.

102a

According to the government, the facts fixing its

alleged liability for improper disclosure of

appellant's technical data were known or should

have been known by 5 April 2005, the date upon

which Mr. Walkenstein became aware that the

information was disclosed as part of the Hosek

Poster presented at a Congressional Staffer Day

event in February 2005. The government argues

that the Hosek Poster was materially similar to

the SOFIAFBI conference poster at issue

presented at the June 2005 National SBIR

Conference underlying appellant's breach cause of

action; that the Hosek Poster lacked any

restrictive markings; that the technical data was

disclosed in contravention of restrictions imposed

by appellant's "Confidential Legend" in the

monthly report; and that Mr. Walkenstein did not

authorize the disclosure.

Therefore, the

government argues that a potential claim for

breach of the 7018 clause under the SBIR Phase II

contract accrued more than six years prior to its

submission to the contracting officer and is

untimely under the CDA's statute of limitations..

(Gov't hr. at 179-83)

Appellant counters that its breach claim did not

accrue on 5 April 2005 because it suffered no

injury when the government presented the Hosek

103a

Poster to Congressional staff at the February 2005

event. Appellant argues that Mr. Walkenstein was

fully aware of the presentation and actively

communicated with individuals associated with

the event Appellant also argues that it approved

and authorized the disclosure based on the belief

that the information would be protected in

accordance with the contract. (App. hr. at 8-9)

As the proponent of its affirmative defense, the

government bears the burden of proving that

appellant's claim was time-barred by the CDA's

statute of limitations. Public Warehousing

Company, K.S.C., ASBCA No. 59020, 16-1 BCA

36,366 at 177,270. To determine the claim

accrual date, we examine the legal basis of the

claim. Id. at 177,271.

Here, the 6 June 2011 claim asserted a monetary

demand for the government's alleged breaches of

release restrictions imposed by appellant's

"Confidential Legend" markings and the 7018

clause in technical data packages provided under

the SBIR Phase II contract. The underlying basis

for appellant's claim is that the government

disclosed, without the consent of appellant,

proprietary information contained in the technical

data packages to competitors to the detriment of

appellant's business. Specifically, the claim cited

104a

to the government's display, in particular, of

photographs and materials taken from monthly

report No. 8, submitted pursuant to the SBIR

Phase II contract, at the June 2005 SOF/APBI

conference to competitors and non-government

personnel, which appellant alleged was an

unauthorized release "that was in violation of the

Limited Rights nature of the delivered technical

data package" and the "Confidential Legend"

marking.

Generally, a cause of action for breach of

contract accrues at the time of the breach.

Parsons-UXB Joint Venture, ASBCA No. 56481,

09-2 BCA ¶ 34,305 at 169,459 (citing Franconia

Associates v. United States, 536 U.S. 129, 141-42

(2002)). Paragraph (a)(14) of the 7018 clause

defines the term "Limited rights," in part, as the

"rights to use, modify, reproduce, release, perform,

display, or disclose technical data, in whole or in

part, within the Government. The Government

may not, without the written permission of the

party asserting limited rights, release or disclose

the technical data outside the Government."

According to appellant, its "Confidential Legend"

marking restricted the retransmission of technical

data without its express written consent. Thus,

the events that fix the government's alleged

105a

liability for breach of contract and start the

running of the statute of limitations are the

government's disclosure of the technical data

"outside the government" without permission.

The 5 April 2005 email from Mr. Piazza

informed Mr. Walkenstein that the government

intended to use information in the "Hosek Poster"

displayed at the congressional event for the

upcoming National SBIR Phase II Conference

(finding 118). The government's contention that

the claim accrued on this date because appellant

learned of an unauthorized disclosure of its

technical data at the congressional event lacks

merit. The email fails to show that appellant

disapproved of the display of the "Hosek Poster'' as

the government suggests. Nothing in the record

demonstrates, and the government points to no

evidence, that the congressional event was open to

audiences other than congressional staff, or in

other words, persons outside of the government.

Under the circumstances here, appellant had a

reasonable expectation of confidentiality that its

technical data would be protected at the

congressional briefing. In contrast, the June 2005

SOF/APBI conference included industry vendors

and foreign representatives, and potential

competitors. Ina 6 April 2005 email, Mr. Piazza

106a

requested Mr. Walkenstein to remove all

proprietary information from the Hosek Poster so

as to permit the government to release the poster

to the public (findings 119-20). We can reasonably

infer that the government did not view the

congressional event as a public event. For the

foregoing reasons, the government has not proven

that appellant's claim accrued on 5 April 2005.

The exhibition hall which displayed the

SOF/APBI poster was open beginning 7 June 2005

(finding 124). Appellant was required to file its

claim with the contracting officer no later than six

years from this date or 7 June 2011. Accordingly,

appellant's 6 June 2011 claim was timely.

III.Breach of Contract

To establish entitlement to recover for breach of

contract, appellant has the burden to prove the

elements of liability, causation, and resultant

injury. Mylene Will Company L.L.C., ASBCA No.

58154, 13 BCA ¶35,415 at 173,749 (citing

Wunderlich Contracting Co. v. United States, 351

F.2d 956, 968-69 (Ct. Cl. 1965)); Action Support

Services Corp., ASBCA Nos. 46524, 46800, 00-1

BCA ¶ 30,701 at 151,682 (appellant, as proponent

of its breach claim, must prove the nature and

extent of government's breach, the damages

107a

suffered, and the causal link between the

government's breach and claimed damages); Ship

Analytics International, Inc., ASBCA No. 50914,

01-1 BCA ¶ 31,253 at 154,353 (citing Cosmo

Construction Co. v. United States, 451 F.2d 602,

605 (Ct. CL 1971)) (in entitlement hearing,

appellant still had to prove that some damage

occurred to support a finding of liability).

Under the SBIR Phase II contract, appellant

was obligated to deliver monthly reports and,

pertinent to this dispute, two CNVS-5050 and one

CNVS-4949 contrast enhanced (retrofit) goggles

(findings 85, 87). Of relevance to this dispute,

monthly report No. 8 delivered by appellant under

the contract affixed a restrictive marking requiring

the express consent of appellant prior to disclosure

or release of its contents (finding 93). The 7018

clause, at the time of contract award, granted the

government

royalty-free,

worldwide,

nonexclusive, irrevocable rights in the delivered

technical data. Paragraph (a)(19) of the 7018

clause defined technical data, in part, as "recorded

information, regardless of the form or method of

the recording, of a scientific or technical nature."

There is no dispute that the APBI Poster contained

technical data, including four photographs which

originated from monthly report No. 8 (findings

108a

112, 137). Appellant did not expressly consent or

approve of the display of the APBI Poster (finding

125).

Appellant argues that, by disclosing its

technical data, the government did not comply

with 7018 clause. The parties have significant

disagreement over the proper interpretation of the

clause, including, but not limited to, what bundle

of rights to the data the government received;

whether the restrictive markings in monthly

report No. 8 were non-conforming; and whether

the data was first "'generated" under the contract

as that term is defined under the clause. For

purposes of this opinion, we determine that

resolution of the parties' conflicting contentions

regarding these issues is unnecessary to decide the

merits of these appeals. Assuming, arguendo, that

the government did not technically comply with

the 7018 clause when it displayed the APBI Poster

at the SOF/APBI conference, appellant has not

demonstrated, by a preponderance of the evidence,

that it suffered some injury or damages and that

any such alleged damages claimed were caused by

the government's disclosure to support its breach

claim.

109a

Appellant claimed $100 million, plus interest,

in damages for the government's disclosure and

release of alleged proprietary or trade secret

information in the APBI Poster to non-government

and foreign entities. The underlying premise is

that this disclosure caused competitive harm to

appellant. To support its contention, appellant

first argues that the APBI Poster disclosed specific

features and components embodying the CNVS4949 and CNVS-5050 goggles that were allegedly

unknown to the public prior to June 2005.

Alternatively, it argues that the disclosed features

and components would allow a person skilled in

the ordinary art to reconstruct and manufacture

an identical replica of the goggles. For the reasons

set forth below, appellant has not proven either

assertion.

A. The alleged proprietary features and

components of the CNVS-4949 goggle

disclosed in the APBI Poster were either

publicly available or common knowledge in

the night vision technology industry.

Appellant specifically identified the following

features and components disclosed in the APBI

Poster as proprietary or trade secrets:

110a

(1)A red-color photograph identified as the

view from one optical channel of a

binocular night vision goggle;

(2) A green-color photograph identified as

the view from the other optical channel

of a binocular night vision goggle;

(3) The phrase "12 tubes utilizing different

color phosphors" confirmed the use of

red-color

phosphor

screen

image

intensifier tube in one optical channel of

the binocular night vision goggle and the

use of a green-color phosphor screen

image intensifier tube in the other

optical channel;

(4) Independent variable gain control for

each image intensifier tube;

(5) The multi-color photograph along with

the words "constructed lifelike view'' in

the caption illustrated the combining of

the red-color image from one eye of the

observer and the green-color image from

the other eye in the brain of that

observer;

(6) The red sliver in the multi-color

photograph illustrated the combining of

111a

the red-color photograph and the greencolor photograph;

(7) The reflections from the objective lenses

of the goggle in the upper left photograph

indicated the presence of red-and greencolor filters; and

(8) The phrase "filtering optimized to

present

lifelike

color''

combination with the phrase "color

imaging systems provide improved

contrast and color output using only the

image intensification band" confirmed

the use of separate red- and green-color

filters.

(Finding 127) Information in the public domain or

that is common knowledge in an industry cannot

be considered proprietary or a trade secret. See

Kewanee Oil Co. v. Bicron Corp., 416 U.S. 470, 475

(1974) (trade secret must be secret); PAW &

Associates, LLC, ASBCA No. 58534, 15-1 BCA if

36,078 at 176,174 (alleged proprietary technique or

process was publicly disclosed); Mobile Medical

International Corp. v. United States, 95 Fed. Cl.

706, 739 (2010) (information no longer proprietary

if publicly disclosed). Additionally, there is no

protectable interest over information that can be

112a

readily discovered through published materials or

by independent invention, accidental disclosure, or

"reverse engineering." Kewanee Oil, 416 U.S. at

476. Moreover, disclosure of a trade secret to

others, who have no obligation to protect the

confidentiality of the information, forfeits any

protectable interest. Ruckelshaus v. Monsanto Co.,

467 U.S. 986, 1002 (1984) (citations omitted).

We begin our analysis by assessing whether the

above-listed eight alleged features and components

disclosed in the APBI Poster were proprietary or

trade secrets. Prior to the June 2005 SOF/APBI

conference, Mr. Walkenstein, at the request of Mr.

Piazza to remove all proprietary information to

permit release to the public, prepared and

submitted two edited versions of the "Hosek

Poster" on 6 April 2005 which perforce did not

contain proprietary information-the Sanitized

Poster and the Alternate SBIR.Poster (findings

120-21). Consequently, element (4) above is not

proprietary. Under the "Description" section, the

"Sanitized Poster'' and "Alternate SBIR Poster"

both disclosed that the goggles were equipped with

independent variable gain for each channel

(finding 121). Further, appellant advertised on its

website in February 2005 the "independent

manual gain control" feature of the CNVS-4949

113a

goggle (findings 107, 169), and therefore, publicly

disclosed it. Consequently, element (7) is also not

proprietary. The APBI Poster included a colored

photograph of the CNVS-4949 goggle (finding 160).

Appellant appears to assert that inclusion of a

colored photograph revealed the color of the

external filters on the end of each channel of the

goggle and was protectable.

However, the

government acquired the CNVS-4949 goggle as a

deliverable under the Phase II contract (finding

87), and appellant sold the goggle to others prior to

June 2005 (finding 106). The color of the external

filters would be readily ascertainable when a

purchaser observes the physical goggle (finding

154). Therefore, there is nothing "secret" about this

feature.

With respect to elements (1) and (2), appellant

concedes that a green phosphor producing a green

image and a red phosphor producing a red image

are not protected technical data (app. br. at 33).

The Sanitized Poster and the Alternate SBIR

Poster used the phrases "I2 tubes utilizing COTS

components" and "I2 tubes utilizing COTS

phosphors," respectively (finding 121), compared to

the APBI Poster's description of "I2 tubes utilizing

different color phosphors" (findings 127, 165).

Appellant argues that element (3) combined with

114a

elements (1) and (2) revealed its use of a green

phosphor tube in one channel and a red phosphor

tube in the other channel to produce these images

which was previously unknown to the public (app.

br. at 33-34). We disagree. The record establishes

numerous instances in which red and green

phosphor tubes were utilized prior to June 2005.

For example, NVSED designed a similar binocular

night vision goggle having a green phosphor tube

in one channel and a red phosphor tube in the

other channel, resulting in the development of the

chromatic PVS-5 goggle in 1987. The PVS-5 goggle

provided a green-colored scene in one channel and

a red-colored scene in the other channel. (Findings

32-39) Appellant's expert witness, Mr. Gillespie,

recalled observing the displayed PVS-5 goggle at

NVSED prior to 2000 and noted the two different

colored phosphor tubes (finding 40). Additionally,

the 1992 Field Patent disclosed the simultaneous

presentation of a reddish image in one optical

channel and a greenish image in the other optical

channel of a binocular night vision goggle (finding

41). Other patents and inventions in the field

taught the use of different colored phosphors in

image intensification tubes (see findings 22-25).

Appellant filed two applications to obtain patent

protection for

its

technology

that

were

subsequently rejected by the U.S. Patent and

115a

Trademark Office for lack of patentability and

obviousness in light of prior art such as the 1992

Field patent (finding 42). Appellant has failed to

rebut any of this evidence to show that elements

(1), (2), and (3), individually or in combination,

were not publicly known or common knowledge in

the industry.

With respect to elements (5) and (6), appellant

claims that the multi-colored photograph with the

caption "Constructed life-like image illustrates the

effect of CNVS-4949" in the poster and the red

"sliver" bordering the image revealed its technique

of combining the red-colored and green-colored

images corresponding to elements ( 1) and (2). The

APBI Poster did not reveal any of the particular

computerized techniques or methods used to

construct the image (finding 144).

Both the

Sanitized Poster and the Alternate SBIR Poster

contained the same multi-color photograph but did

not include the red "sliver" along the border of the

image and does not use the phrase "life-like image"

in the caption. However, the term "life-like" was

included in all three versions in the "Description"

section. (Findings 161, 179) Therefore, the only

conceivable critical difference between the APBI

Poster and the edited versions is the red "sliver"

along the border of the multi-colored photograph.

116a

Appellant argues that this is "the result of the

imprecise overlay of a red image on a green image

and ·exposes the entire secret of the CANVS

goggle, i.e. the overlay of offset red and green

imagery to produce color" (app. br. at 34-35). The

threshold issue is whether combining or "overlay"

of red and green images taken from elements (1)

and (2) was publicly unknown and unique to

appellant. Creation of multi-spectral scenes to

generate color was performed in the night vision

technology field prior to June 2005 (findings 44-48,

50-52).

Even one of

appellant's competitors

submitted a SBIR Phase II proposal that described

a multi-spectral night vision system where an

image from [R E D A C T E D R E D A C T E D R E

D A C T E D R E D A C T E D R E D A C T E D] in

2002 (finding 51). While this proposal was not

publicly available, it demonstrates that appellant

was not the only entity creating multi-spectral

scenes by combining or "overlay" of images.

Appellant's expert admitted that other entities in

the industry were aware of this approach (id.).

Nothing in the record leads us to conclude that the

practice to create a multi-colored image was

something unique to appellant to warrant

proprietary or trade secret protection.

117a

With respect to element (8), appellant asserts

that the phrase "filtering optimized to present

more lifelike color" in combination with the phrase

"color imaging systems provide improved contrast

and color output using only the image

intensification band" confirmed the use of separate

red and green colored filters. The Sanitized Poster

and the Alternate SBIR Poster contained

materially the same language except that these

two versions included the phrase "spectral

selection" rather than the word "filtering" (finding

179). The government's expert, Dr. Waxman, noted

that the term "filtering" could include spectral

filtering, filtering with polarizers, and modulating

any part of the tube (finding 162). Moreover, it was

generally known in the industry that multiple

"filtering" techniques could be used to obtain color

(finding 161). Appellant's expert, Mr. Gillespie,

declined to opine on whether the information in

the APBI Poster was proprietary (finding 150). He

stated that spectral filtering of intensifier tubes

was commonly known prior to June 2005 (finding

162). The APBI Poster did not disclose the specific

characteristics and properties of the filters used by

appellant to obtain the photographs (finding 158).

After weighing the evidence, we determine that

appellant has not sufficiently demonstrated that

118a

the change from "spectral selection" to "filtering"

disclosed proprietary information.

In conclusion, appellant has not carried its

burden of proving that any of the features and

components of the CNVS-4949 goggle, individually

or in combination, were proprietary. Additionally,

unlike the Sanitized Poster and the Alternate

SBIR Poster, the APBI Poster did not explicitly

reference the CNVS-5050 goggle. Therefore,

appellant has failed to demonstrate that the APBI

Poster disclosed proprietary features and

components of the CNVS-5050 goggle.

B. Appellant has not demonstrated that the

APBI Poster enabled a person of ordinary

skill in the art to construct the CNVS-4949

and CNVS-5050 goggles.

Alternatively, appellant argues that the APBI

Poster disclosed a combination of features and

components that enabled a person of ordinary skill

in the art to assemble an exact replica of the

CNVS-4949 goggle (app. br. at 33-35).

protectable interest in the combination of

characteristics and components that is unique and

affords a competitive advantage may arise even

though the characteristics and components

individually are publicly disclosed or common

119a

knowledge in an industry. Mobile Medical, 95 Fed.

Cl. at 734 (citing 3M v. Pribyl, 259 F.3d 587, 59596 (7th Cir. 2001)) (combination of publicly known

characteristics and components that is unique and

affords a competitive advantage is protectable); see

also Tewari De-Ox Systems, Inc. v. Mountain

States/Rosen, L.L.C., 637 F.3d 604, 613 (5th Cir.

2011) (combination of disclosed technologies could

constitute a trade secret).

To support its

contention, appellant primarily relies on its expert,

Mr. Gillespie. Although Mr. Gillespie declined to

express any opinion as to whether the APBI Poster

contained proprietary technical data (finding 150),

he asserted that the photographs and textual

narratives in the poster identified the major

components of the CNVS-4949 goggle-the housing

of the goggle; the red and green phosphor

intensifier tubes for each channel; and matching

red and green optical filters affixed to the objective

lenses of each channel (finding 152). He concluded

that access to the poster and a physical

examination of the goggle would enable a skilled

person with ''benchmark data points" to confirm

the proper construction and configuration (finding

170).

120a

As the finder of fact, the Board is responsible

for evaluating the credibility, persuasiveness, and

weight accorded to conflicting evidence in the

record. Pro-Built Construction Firm, ASBCA No.

59278, 18-1 BCA ¶ 36,975 at 180,116. We

determine

that

certain

assumptions

and

conclusions reached by Mr. Gillespie are either

contradicted by his own testimony, successfully

rebutted by the government, or uncorroborated by

any documentary evidence in the record. With

respect to the phosphor tubes, Mr. Gillespie's

analysis is based upon an assumption that the

APBI Poster did not explicitly state that white

phosphor tubes or other colors were used and that

red and green phosphor tubes were well known

(finding 166). However, the colored photographs

did not reveal the exact color of the phosphor tube,

and both Mr. Hosek and Mr. Walkenstein stated a

red phosphor or a white phosphor with an

appropriate filter could generate the red

photograph in the poster (findings 162, 167-68).

With respect to the external filters of the goggle,

the government persuasively rebutted Mr.

Gillespie's report and testimony (findings 162-64).

The APBI Poster did not describe any of the

spectral characteristics, properties, or materials of

the filters used for the photographs (finding 158).

Mr. Gillespie conceded that a skilled person would

121a

communicate a filter's configuration by its filtering

characteristics and not by its color, and that a

filter's characteristics could not be deduced by

viewing the photographs or visual appearance of

the filters (finding 164). Nor has Mr. Gillespie

demonstrated how one skilled in the art could

readily test and validate to confirm the proper

phosphor tube and filter design and configuration,

or the time, effort, and expense to perform such a

validation (finding 170). Other attributes and

components of the CNVS-4949 goggle were not

disclosed in the APBI Poster (finding 171).

We find Mr. Gillespie's conclusions and

assumptions unpersuasive. Appellant has not

established that the APBI Poster enabled a skilled

person to construct the CNVS-4949 goggle. Since

the APBI Poster did not mention or depict any

features and components of the CNVS-5050 goggle

and appellant has not pointed to any other

evidence in the record, appellant has not

adequately demonstrated that the APBI Poster

would enable a skilled person to construct an exact

replica of the CNVS-5050 goggle. Our conclusion

is further strengthened by the fact that neither

Mr. Gillespie nor any of the witnesses at the

hearing knew of any other company that produced

a similar goggle since 2005 (finding 184).

122a

C. Appellant publicly disclosed the use of red

and green phosphor intensifier tubes to

other entities prior to June 2005.

Appellant disclosed its use of green and red

phosphor intensifier tubes prior to the display of

the APBI Poster, and therefore, lost any

protectable interest.

The evidentiary record

reveals numerous instances in which appellant has

voluntarily disclosed the allegedly proprietary

features and components to the public (findings 9596, 173-76). For example, appellant demonstrated

an operable CNVS-4949 goggle at the 2003 FPED

to potential vendors and customers (finding 176).

By demonstrating the functionality of the goggle, a

user would have observed the red and green

phosphor tubes (id.; see also finding 154).

Attendees at the FPEDs were under no obligation

protect

the

confidentiality

the

demonstrations, and appellant did not require

attendees to execute a nondisclosure agreement or

take other steps to protect its claimed proprietary

features before demonstrating its technology

(findings 175, 177). Mr. Walkenstein also conceded

that his technology incorporating red and green

phosphor tubes was fully developed and available

for sale prior to the SBIR Phase II contract award

(finding 173). Although appellant may not have

123a

marketed or sold the CNVS-4949 or CNVS-5050

goggles prior to the SBIR Phase II contract,

appellant was marketing and selling the

underlying technology. The technology was not

limited or restricted to the CNVS-4949 or CNVS5050 housing and could be retrofitted to any goggle

(id ). Selling the technology in this manner and

publicly demonstrating the operability of its

goggles deprived CANVS of any reasonable

expectation of confidentiality. Cf Mobile Medical,

95 Fed. Cl. at 738 (plaintiff lost secret status of its

product's features when it publicly displayed the

internal elements of its manufactured product at a

trade show).

D. Appellant has failed to prove that it's

claimed damages were caused by the

government’s display of the APBI Poster.

Appellant also has not proved that its alleged

loss of an "income producing asset" resulted from

the display of the APBI Poster. There is no

persuasive evidence of any causative linkage

between the poster's display and the alleged loss.

In its claim, appellant asserted that the

government's disclosure of its alleged proprietary

information at the June 2005 conference harmed

its ability to secure future funding from industry

and the government for its night vision goggle

124a

products. Specifically, appellant cited its inability

to receive a SBIR Phase III award or production

contract from the government. (Findings 180, 183)

However, the government was not obligated to

award appellant a SBIR Phase III contract. See

Night Vision Corp. v. United States, 469 F.3d 1369,

1374 (Fed. Cir. 2006), cert. denied, 550 U.S. 934

(2007) (SBIR statutory provisions did not impose

on the government an obligation to award a Phase

III contract after successful completion of Phase

II.) In fact, government testing demonstrated that

the goggles were unreliable, inadequate, and

subjected users to adverse physiological effects

including headaches (finding 102, see also finding

13).

Additionally, appellant has not pointed to any

evidence that demonstrates that a competitor or

the government has produced a goggle that utilizes

appellant's claimed technology. Mr. Walkenstein's

allegations

that

unidentified

Russian

manufacturer or governmental entity was

producing a similar goggle is wholly speculative

and unsupported by any corroborative, much less

persuasive, evidence (finding 185). Highly credible

witnesses who worked for governmental night

vision programs were not aware of any color night

vision goggles being fielded or operated by the

125a

government. Even appellant's own expert could

not identify a single manufacturer who produced a

similar goggle, much less improperly appropriated

appellant's allegedly confidential data (finding

184).

With regard to appellant's alleged damages, we

further observe that appellant never contacted the

cognizant contracting officer or any contracting

official subsequent to the government's display of

the APBI Poster until the summer of 2011

(findings 186-89). There was no opportunity during

the virtually six-year delay between the display of

the poster and the filing of appellant's claim for the

government to inquire into or mitigate any

possible adverse consequences. After appellant

witnessed the display of the poster at the

conference, it continued to advocate for additional

funding from Congress and promote its technology

to organizations such as The Washington Post,

highlighting the June 2005 conference (finding

190). Not until appellant realized that it would not

receive further funding and support from the

government did appellant notify the government of

its claim for breach, one day prior to expiration of

the CDA's statutory deadline. This lack of urgency

from CANVS underscores and is consistent with

the evidence discussed above that it, in fact,

126a

suffered no damages from the government's use of

the poster.

For the reasons stated above, appellant has

failed to show any causal connection between the

government's display of the APBI Poster and its

claimed inability to secure funding and future

awards from the government or any other

competitive harm.

CONCLUSION

Appellant has failed to prove the requisite

elements of liability, causation, and resultant

injury to sustain its breach of contract allegations.

We have fully considered all arguments raised in

appellant's briefs and found them lacking in merit

and insufficient to warrant recovery. Because we

determine that appellant has not carried its

burden to establish breach for the reasons detailed

above, individually and collectively, we need not

discuss additional, alternative arguments raised

by the government supporting denial of the

appeals.

ASBCA No. 57987 is denied. ASBCA No. 57784 is

dismissed as duplicative.

Dated: September 6, 2018

127a

I certify that the foregoing is a true copy of the

Opinion and Decision of the Armed Services Board

of Contract Appeals in ASBCA Nos. 57784, 57987,

128a

Appeals of CANVS Corporation, rendered in

conformance with the Board's Charter.

129a

[ENTERED SEPTEMBER 30, 2016]

ARMED SERVICES BOARD OF

CONTRACT APPEALS

Appeals of -CANVS Corporation

ASBCA Nos. 57784, 57987

Under Contract No. USZA22-03-C-0027

APPEARANCE FOR THE APPELLANT:

Joseph J. Zito, Esq.

DNLZITO

Washington, DC

APPEARANCES FOR THE GOVERNMENT:

Jeffrey P. Hildebrant, Esq.

Air Force Deputy Chief Trial Attorney

Chun-I Chiang, Esq.

Joel B. Lofgren, Esq.

Trial Attorneys

OPINION BY ADMINISTRATIVE

JUDGE PEACOCK ON APPELLANT'S

MOTION TO RECUSE

Appellant has filed a "request" (hereinafter

motion) for Administrative Judge Robert Peacock, the

presiding judge assigned to these appeals, to recuse

himself from further proceedings regarding these

appeals. Appellant alleges that the Board has

"prematurely judged" quantum as evidenced by

statements made in post-trial ex parte settlement

discussions, conducted with the parties with their

permission to promote and encourage settlement. The

government opposes the motion. We deny the motion.

Appellant's allegations are unsupported and baseless.

The scope of the trial encompassed solely entitlement

130a

and jurisdictional issues. The Board has not received

any quantum evidence and perforce has formed no

opinions on the details of appellant's quantum

methodology. The so-called "quantum" discussions

with appellant were generalized and focused broadly

on the need for appellant to greatly reduce its $100

million claim demand for settlement purposes.

Appellant also alleges that it was appellant's

"understanding" that the Board gave the government

"legal advice" regarding instigation of a fraud

investigation

appellant's

claim

computation during the Board's ex parte discussions

with the government. The basis for this

"understanding" is not indicated and also is

unsupported by affidavit or other sworn statement.

The government opposes the motion and has

categorically denied that fraud was ever mentioned or

discussed at any time between the Board and the four

government representatives who participated in the

settlement discussions with the Board. The charges

lack any rational foundation. An intervening Air

Force Office of Special Investigations investigation is

based on an "in court" statement that has no

relationship to appellant's quantification of its claim.

Background and Procedural Summary

Appellant's accusations that the Board has

prematurely judged the case should be placed in the

context of the posture of the case when the ex parte

discussions with the parties occurred (and with their

permission). Appellant's allegations regarding

recusal were made in June 2016. The principal appeal

(ASBCA No. 57784) was docketed in September 2011.

In February 2012. The second appeal (ASBCA No.

57987) was docketed. Appellant sought $100 million

131a

in damages for alleged improper disclosure of its

allegedly proprietary data.

The judge who initially was assigned the appeals

retired and, on 18 December 2012, the appeals were

reassigned to Judge Peacock. In a pre-trial order

dated 28 January 2013, the appeals were scheduled

for trial on entitlement only, commencing 20

November 2013. Quantum issues were bifurcated for

possible future proceedings in the event that the

Board sustained the appeal with respect to

entitlement and further assuming that decision was

upheld on any appeal.

However, on 20 August 2013, the government filed

a "Motion for Summary Judgment for Lack of

Jurisdiction ... On 20 September 2013, appellant filed

Appellant CANVS Corporation's Memorandum of

Law in Opposition to Respondent's Motion for

Summary Judgment and a Motion to Compel

Discovery or in the Alternative, Motion to Extend the

Discovery Schedule and the Hearing Date (app. opp'

n). On 23 October 2013, the government filed an

opposition to Appellant's Motion to Compel discovery

(resp. opp'n) seeking a protective order.

On 25 October 2013, Judge Peacock convened a

teleconference with parties and issued the following

determinations and orders:

The Board will reserve its rulings on

"Respondent's Motion for Summary Judgment

for Lack of Jurisdiction" and conduct a hearing

on issues related to the Board's jurisdiction, as

well as entitlement to recover.

Appellant will be afforded the

opportunity to review [resp. opp'n], dated 23

132a

October 2013. Appellant shall file its response

to the Resp.'s Opposition no later than 20

November 2013. In addition, no later than 20

November 2013, the government will file its

response to [app. opp'n] dated 23 October 2013.

The scope of discovery was limited to

issues relating solely to jurisdiction and

entitlement. Because quantum issues related

to damages for alleged breaches of appellant's

intellectual property rights will not be

addressed or decided pending the Board’s

decision on jurisdiction and entitlement,

discovery relating to quantum issues will be

deferred for later resolution if jurisdiction and

entitlement are established. Accordingly,

appellant's review of the Resp.'s Opposition

and the government's review of appellant's

Memorandum of Law in Opposition shall

consider the delimited scope of discovery in

their analyses.

4. The hearing scheduled to commence on

20 November 2013 was postponed. The parties

will confer and propose revised date[ s] for the

completion of discovery and accomplishment of

the pre-trial activities set forth in the Board’s

PRETRIAL ORDER of 28 January 2013. In

addition, the parties shall provide the Board

with a separate schedule detailing the dates

for accomplishment of any further discovery.

With respect to discovery generally, the parties

were encouraged to cooperate voluntarily in

assessing and defining the scope of discovery

and the parties' respective responsibilities

related to appellant's electronic databases.

133a

Following completion of discovery, the Board

issued a revised pre-trial order on 16 September 2014,

setting, inter alia, a new hearing date commencing 7

April 2015 addressing solely jurisdictional issues and

entitlement, not quantum. The hearing was

scheduled to be conducted over four days based on the

parties' estimates and preferences. The allotted four

days proved insufficient for completion of the hearing.

The Board and the parties agreed to continue the

hearing and it was scheduled to recommence over a

five-day period beginning 4 May 2015. As a

consequence of various issues that arose during the

second hearing session, it was deemed necessary to

further continue the hearing an additional two days

over the period 17-18 November 2015. The

evidentiary record was eventually closed in the

appeals on 18 November 2015, the final day of trial,

awaiting solely the parties· post-trial briefing of the

appeals.

Following conclusion of the hearing and closing of

the record, Judge Peacock concluded, based on his

initial very tentative reactions to the voluminous

record, that there were litigation risks and

uncertainties for both parties and, consequently,

urged them to consider settlement. To promote and

facilitate possible settlement negotiations, Judge

Peacock requested the parties' permis

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