B-155884, MAY 18, 1965

B-155884: May 18, 1965

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TO AEROPHYSICS COMPANY: REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 4. THE RFP WAS ISSUED BY EDGEWOOD ARSENAL. THE QUADRUPLEX SYSTEM WAS ALSO TO BE MODIFIED AND ADAPTED TO THE MINIMUM POSSIBLE VALUE AND WEIGHT BASIS TO FIT WITHIN THE AUTOROTOR CROSS-SECTIONAL GEOMETRY OF EACH DESIGN. THE QUADRUPLEX RADIO CONTROL SYSTEM IS REPORTED TO BE A PROPRIETARY ITEM MANUFACTURED SOLELY BY THE DEE BEE ENGINEERING COMPANY. THE BASIS OF YOUR PROTEST IS SET FORTH IN THE FOLLOWING PARAGRAPH OF YOUR LETTER OF JANUARY 4: "THE MATERIAL COVERED BY THE SUBJECT RFP FALLS WITHIN THE PROPRIETARY CONCEPTS DISCLOSED TO MR. I HAVE BEEN INVOLVED ON WORK OF VARIOUS AERODYNAMIC PROGRAMS FOR THE GOVERNMENT AS A CIVILIAN EMPLOYEE OF EDGEWOOD ARSENAL FOR APPROXIMATELY 11 YEARS.

B-155884, MAY 18, 1965

TO AEROPHYSICS COMPANY:

REFERENCE IS MADE TO YOUR LETTER DATED JANUARY 4, 1965, PROTESTING AGAINST THE ADVERTISEMENT OF REQUEST FOR PROPOSALS NO. AMC (A/-18-035 65- 396 IN THE COMMERCE BUSINESS DAILY DATED DECEMBER 28, 1964, AND/OR THE AWARD OF A CONTRACT THEREUNDER TO ANYONE OTHER THAN YOUR COMPANY.

THE RFP WAS ISSUED BY EDGEWOOD ARSENAL, MARYLAND, UNDER DATE OF DECEMBER 24, 1964, AND CALLED FOR FABRICATION OF TEN AUTOROTORS, FIVE OF ONE DESIGN AND FIVE OF ANOTHER DESIGN, INTO WHICH WOULD BE FITTED A MODIFIED QUADRUPLEX RADIO CONTROL SYSTEM INCORPORATING SERVO MECHANISMS WHICH WOULD ENABLE STEERING OF THE AUTOROTORS AND CONTROL A FLAP MECHANISM TO OPEN RELEASE DOORS. THE QUADRUPLEX SYSTEM WAS ALSO TO BE MODIFIED AND ADAPTED TO THE MINIMUM POSSIBLE VALUE AND WEIGHT BASIS TO FIT WITHIN THE AUTOROTOR CROSS-SECTIONAL GEOMETRY OF EACH DESIGN. THE QUADRUPLEX RADIO CONTROL SYSTEM IS REPORTED TO BE A PROPRIETARY ITEM MANUFACTURED SOLELY BY THE DEE BEE ENGINEERING COMPANY, PITTMAN, NEW JERSEY.

THE BASIS OF YOUR PROTEST IS SET FORTH IN THE FOLLOWING PARAGRAPH OF YOUR LETTER OF JANUARY 4:

"THE MATERIAL COVERED BY THE SUBJECT RFP FALLS WITHIN THE PROPRIETARY CONCEPTS DISCLOSED TO MR. ABE FLATAU, WEAPONS RESEARCH LABORATORY, CRDL, AT EDGEWOOD ARSENAL IN APRIL OF 1964 AS A PART OF AEROPHYSICS COMPANY PROPOSAL AP-62 DATED MARCH 1964, AND AS FURTHER ADVISED IN AEROPHYSICS COMPANY LETTER, AP-69, DATED JUNE 23, 1964, TO MR. FLATAU.'

IN RESPONSE TO THE ABOVE ALLEGATION MR. FLATAU HAS REPORTED THE PERTINENT FACTS AND CIRCUMSTANCES IN THE MATTER AS FOLLOWS:

"1. I AM RESEARCH AEROSPACE ENGINEER, GS-14, CHIEF, AERODYNAMICS GROUP, WEAPONS RESEARCH DIVISION, CRDL. I HAVE BEEN INVOLVED ON WORK OF VARIOUS AERODYNAMIC PROGRAMS FOR THE GOVERNMENT AS A CIVILIAN EMPLOYEE OF EDGEWOOD ARSENAL FOR APPROXIMATELY 11 YEARS. DURING THIS TIME, A MAJOR PORTION OF MY WORK HAS BEEN DEVOTED TO AEROPHYSICAL INVESTIGATIONS OF AUTOROTATING DEVICES WITH REGARD TO THEIR APPLICATION FOR OW AND BW SYSTEMS. THERE ARE REFERENCES HEREIN AND IN THE ACCOMPANYING FILE TO AUTOROTORS, AUTOROTATING BOMBLETS AND WING ROTORS, ALL OF WHICH MAY BE CLASSED AS SUCH DEVICES. BRIEFLY, AN AUTOROTOR IS AN OBJECT, WHICH BECAUSE OF ITS CONFIGURATIONAL DESIGN, IS INTENDED TO ROTATE AROUND ITS SPAN-WISE AXIS WHEN THROWN OR DROPPED FROM A SUFFICIENT HEIGHT AND, WHILE AT FIRST TUMBLING AIMLESSLY, SHOULD STABILIZE AND GLIDE WHILE AUTOROTATING IN THE LATTER PORTION OF ITS FALL TO EARTH. THE INTEREST OF THIS COMMAND IN SUCH OBJECTS IS WHETHER IT CAN SERVE AS A BOMBLET BY HOLLOWING THE SPAN AND INSERTING AN ORDNANCE, CHEMICAL OR BIOLOGICAL TYPE PAYLOAD IN THE HOLLOW CORE, WITHOUT AFFECTING ITS BASIC AERODYNAMIC AND STABILITY CHARACTERISTICS. SUCH OBJECTS HAVE BEEN COMMONLY KNOWN FOR YEARS AND THIS COMMAND HAS BEEN EXPERIMENTING WITH VARIOUS SHAPES FOR YEARS AND IT IS FLATLY AND CATEGORICALLY DENIED THAT THE PROTESTING FIRM HAS ANY PROPRIETARY RIGHT IN SUCH AN OBJECT, IF CLAIMED.

"2. I HAVE READ THE ALLEGATION IN AEROPHYSICS' LETTER DATED JANUARY 4, 1965 TO THE DIRECTOR OF PROCUREMENT, EDGEWOOD ARSENAL, WHICH STATES:

"THE MATERIAL COVERED BY THE SUBJECT RFP FALLS WITHIN THE PROPRIETARY CONCEPT DISCLOSED TO MR. ABE FLATAU, WEAPONS RESEARCH DIVISION, CRDL AT EDGEWOOD ARSENAL IN APRIL 1964 AS A PART OF AEROPHYSICS COMPANY PROPOSAL AP-62, DATED MARCH 1964, AND AS FURTHER ADVISED IN AEROPHYSICS COMPANY LETTER AP-69, DATED JUNE 23, 1964 TO MR. FLATAU.'

"3. AEROPHYSICS PROPOSAL AP-62, REFERRED TO IN THE ABOVE QUOTATION IS AN UNSOLICITED PROPOSAL SUBMITTED BY THE COMPANY TO THE TRANSPORTATION RESEARCH COMMAND WHICH APPARENTLY WAS NOT INTERESTED. DOCTOR BOEHLER, PRESIDENT OF AEROPHYSICS, HAD LEARNED OF EDGEWOOD ARSENAL'S INTEREST IN AUTOROTATING BOMBLETS AND INFORMALLY PRESENTED A COPY OF SUCH PROPOSAL TO ME IN THE EVIDENT HOPE THAT THIS COMMAND WOULD GIVE THEM A CONTRACT TO ADAPT THEIR IDEA TO AUTOROTATING BOMBLETS.

"4. AP-62 CONSISTED PRIMARILY OF GENERAL STATEMENTS OF THREE CONCEPTS OF AN IDEA FOR THE USE OF RADIO CONTROL TO GUIDE LARGE AUTOROTORS OF A CARGO NATURE TO A LANDING ON THE GROUND; HOWEVER, NO DETAILED DESIGNS DESCRIPTIONS WERE GIVEN, NO SPECIFIC SHAPE DESIGNS WERE GIVEN, NOR SPECIFIED THEREIN, RELATING TO A SPECIFIC AUTOROTATING SHAPE, NOR ANY DETAILED DATA ON HOW TO ACHIEVE THE RESULT. THE USE OF A RADIO CONTROL SYSTEM TO GUIDE DRONES, AIRPLANES, MISSILES, AIRPLANE AND TRAIN MODELS, ETC. IS WELL KNOWN AND THEREFORE THE MERE POSSIBILITY OR IDEA THAT IT MIGHT BE USED TO GUIDE AN AUTOROTATING BOMBLET IS NOT PROPRIETARY. OTHER AUTOROTATING AND WING DEVICES HAVE BEEN CONTROLLED BY RADIO FOR A NUMBER OF YEARS (SEE INCL 1 AND 2) .

"5. DR. BOEHLER LATER VISITED ME AT EDGEWOOD ARSENAL TO DISCUSS MY REACTION TOWARD THE IDEA INDICATED IN AP-62. WHILE THE IDEA WAS INTERESTING, IT WAS ONLY OF VALUE TO EDGEWOOD ARSENAL PROVIDED THAT THE CONCEPTS UNDER CONSIDERATION COULD BE APPLIED TO THE CONFIGURATION OF THE TYPE AND SIZES OF AUTOROTORS WHICH WERE WITHIN THE SCOPE OF MY WORK. THEN SUGGESTED TO DOCTOR BOEHLER THAT SHOULD HE FEEL THAT HIS CONCEPTS COULD BE APPLIED TO MY ENDEAVORS, EDGEWOOD ARSENAL MIGHT BE WILLING TO REVIEW A PROPOSAL CONCERNED WITH THIS WORK. AT THAT TIME, I GAVE HIM BASIC DESIGN DETAILS OF THE EXTERNAL GEOMETRY OF ONE OF OUR SHAPES. THEIR PROPOSAL CAME FORTH IN THE FORM OF AEROPHYSICS UNSOLICITED PROPOSAL AP- 69. ALL OF THE GEOMETRICAL DIMENSIONS LISTED IN INCLOSURE 1 TO THEIR PROPOSAL AP-69 WERE FURNISHED TO DOCTOR BOEHLER BY ME. AT THE TIME OF DOCTOR BOEHLER'S VISIT, I ALSO GAVE HIM A SECTION OF ONE OF THE MODIFIED RECTANGULAR ROTOR BODIES, THEN UNDER TESTING BY ME, AS A GUIDE FOR BOTH GEOMETRY AND FABRICATION.

"6. I ACKNOWLEDGE THAT UNSOLICITED PROPOSALS AP-62 AND AP-69 CALLED MY ATTENTION TO THE POSSIBILITY OF GUILDING OR STEERING AUTOROTATING DEVICES TO A PRE-DETERMINED LANDING SPOT BY A RADIO CONTROL SYSTEM. HOWEVER, AS INDICATED IN PARAGRAPH 4 ABOVE, THIS WAS NOT AN ORIGINAL OR PROPRIETARY IDEA. AP-69 SUGGESTED FURTHER THE POSSIBILITY THAT THIS RESULT MIGHT BE ACHIEVED IN ANY ONE OF THREE WAYS, AND IN THIS LATTER PROPOSAL AEROPHYSICS REQUESTED THE OPPORTUNITY TO EXPLORE TWO OF THESE WAYS; ONE BY CONTROLLING DEFLECTION OF THE END PLATES; THE OTHER BY SHIFTING THE CENTER OF GRAVITY BY MEANS OF WEIGHT OR WEIGHTS IN THE HOLLOW CORE OF THE SPAN OF AN AUTOROTATING BOMBLET.

"7. NEITHER PROPOSAL CONTAINED ANY SPECIFIC DETAILS, TRADE SECRETS, PROPRIETARY KNOW-HOW OR TECHNICAL DATA ON HOW TO ACHIEVE SUCH RESULTS.

"8. I INITIATED THE PROCUREMENT REQUEST WHICH EVENTUALLY WAS APPROVED THROUGH THE CHAIN OF COMMAND, AND RESULTED IN AN AWARD OF A CONTRACT BEARING PURCHASE ORDER NO. 10956A TO AEROPHYSICS COMPANY. THIS CALLED FOR THEM TO FABRICATE AND DEVELOP TWO MODELS, EACH WITH THE SAME GEOMETRY, ONE TO ATTEMPT RADIO CONTROL BY DEFLECTING THE END PLATES, THE OTHER TO ATTEMPT RADIO CONTROL BY CONTROLLING THE SHIFTOF THE CENTER OF GRAVITY. THE MODELS WERE DELIVERED AND ACCEPTED. THE MODELS UTILIZED STANDARD OFF- THE-SHELF RADIO CONTROL COMPONENTS MANUFACTURED BY THE DEE BEE ENGINEERING COMPANY, PITMAN, NEW JERSEY. I KNOW OF NOTHING ORIGINATED BY AEROPHYSICS IN THE MODELS OTHER THAN THE LINKAGES AND ATTACHMENTS FROM THE SERVO- MECHANISM TO THE WEIGHT IN ONE MODEL AND TO THE HINGED END PLATE IN THE OTHER. THIS CONTRACT CONTAINS A PATENT RIGHTS (TITLE) CLAUSE AND THE CONTRACTOR CERTIFIED NOTHING PATENTABLE HAD BEEN GENERATED THEREUNDER. UPON EXAMINATION OF THE MODELS AND FLIGHT-TESTING ONE OF THEM, IT WAS MY CONCLUSION THAT NEITHER METHOD PURSUED BY AEROPHYSICS IS FEASIBLE OR REALISTIC FOR APPLICATION TO THE AUTOROTOR CONFIGURATIONS AND SIZES WHICH THIS COMMAND HAS BEEN DEVELOPING FOR USE AS BOMBLETS. THE COMPANY WAS UNABLE TO MEET THE DIMENSIONAL REQUIREMENT OF THE SPAN WHICH WAS FOUR INCHES LONGER THAN SPECIFIED, AND BESIDES PRESENTING A LOADING PROBLEM, THIS FACTOR COMBINED WITH OTHER FACTORS, IN MY OPINION, PRECLUDED THE POSSIBILITY OF IN-FLIGHT CONTROL. OTHER RELEVANT FACTORS ARE:

"A. THE LINKAGES AND ATTACHMENTS FABRICATED BY AEROPHYSICS DID NOT ALLOW RETENTION OF THE PROPORTIONALITY CONTROL FEATURE OF THE HIGH QUALITY OFF- THE-SHELF RADIO EQUIPMENT USED.

"B. THE NONSYMMETRICAL PLACEMENT OF THE SERVO MECHANISMS PRODUCED AN UNBALANCED MOMENT ABOUT THE ROTATIONAL AXIS WHICH RESULTED IN FLIGHT INSTABILITY.

"C. THE METHOD OF CONTROL USING HINGED END PLATES COULD CREATE INSTABILITY BECAUSE OF EFFECTS ON THE AIR-FLOW AROUND THE AUTOROTOR BODY.

"9. IT WAS AND IS MY BELIEF THAT THE STANDARD RADIO CONTROL COMPONENTS MANUFACTURED BY THE DEE BEE ENGINEERING COMPANY CAN BE UTILIZED IN PURSUING OTHER METHODS OF CONTROL, BUT THAT SUCH RADIO CONTROL SYSTEM NEEDS TO BE REDUCED IN SIZE AND WEIGHT SO THEY CAN BE PACKAGED WITHIN REALISTIC BOMBLET DIMENSIONS. THIS IS THE PURPOSE FOR ISSUING RFP 396 WHICH IS PRESENTLY UNDER PROTEST, AND IT WAS MY RECOMMENDATION THAT THIS AWARD BE MADE TO DEE BEE ENGINEERING COMPANY AS A SOLE SOURCE. I KNOW OF NO TRADE SECRETS, DESIGN DATA, MANUFACTURING PROCESSES OR ANY OTHER PROPRIETARY INFORMATION DISCLOSED IN THIS RFP; NOR IS THERE INCLUDED THEREIN ANY DATA TAKEN FROM THEIR UNSOLICITED PROPOSALS. THIS RFP DOES NOT DISCLOSE THE METHODS FOR ACHIEVING CONTROL UTILIZED BY AEROPHYSICS IN FABRICATING THE TWO MODELS DELIVERED UNDER THEIR CONTRACT 10956A. I HAVE DESIGNED MY OWN METHODS FOR CONTROL AS PART OF MY GOVERNMENT DUTIES AND THESE WILL BE INCORPORATED IN THE PROPOSED CONTRACT AWARD. AEROPHYSICS MAY POSSIBLY BE CONTENDING THAT THE POSSIBILITY OF CONTROLLING AUTOROTORS BY RADIO SIGNAL IS PROPRIETARY, AND SINCE THEY ORIGINATED SUCH SUGGESTION TO ME, THE GOVERNMENT IS NOT PERMITTED TO CONTRACT WITH ANY OTHER COMPANY TO WORK ON IT, EVEN THOUGH WE ARE INTERESTED IN OTHER APPROACHES FOR CONTROL THAN THE METHODS GENERALLY SUGGESTED IN AP-69. FROM A STRICTLY TECHNICAL VIEWPOINT, IT WOULD BE RIDICULOUS TO SAY THAT THEIR PROPOSAL DESCRIBES ANY METHODS, SINCE ALL THAT REALLY IS STATED ARE POSSIBLE APPROACHES, IN A GENERAL WAY, WITHOUT FURNISHING ANY SPECIFICS.'

IT IS ALSO REPORTED THAT MR. GABRIEL D. BOEHLER, PRESIDENT OF AEROPHYSICS, AND MR. JOHN F. SNYDER, COUNSEL FOR YOUR COMPANY, WHEN ASKED DURING A CONFERENCE WITH GOVERNMENT REPRESENTATIVES AT EDGEWOOD ARSENAL, ON JANUARY 11, 1965, TO IDENTIFY THE INFORMATION OR DATA WHICH IS CONTAINED IN THE SUBJECT RFP AND WHICH IS CLAIMED TO BE PROPRIETARY, AND TO RELATE THE SAME TO ANY STATEMENTS OR INFORMATION IN YOUR UNSOLICITED PROPOSALS AP-62 AND AP-69 REFERENCED IN YOUR LETTER OF JANUARY 4, DID NOT IDENTIFY ANY SPECIFIC DETAILS BUT INSTEAD MADE THE GENERAL STATEMENT THAT THE COMBINATION OF INFORMATION EMBODIED IN THE RFP WAS YOUR PROPRIETARY CONCEPT. IT IS FURTHER REPORTED THAT MR. SNYDER STATED DURING THE CONFERENCE THAT AEROPHYSICS HAD FILED A PATENT APPLICATION ON THE IDEA FOR CONTROLLED AUTOROTORS WHICH WAS PENDING IN THE UNITED STATES PATENT OFFICE AND THAT ONE OF THE REASONS FOR FILING THE PROTEST WAS TO PROTECT THE COMPANY'S PROPRIETARY INTEREST IN ITS INVENTION PENDING THE ISSUANCE OF A PATENT.

AN UNSOLICITED PROPOSAL IS DEFINED IN PARAGRAPH 4-201 (C) OF THE ARMED SERVICES PROCUREMENT REGULATION AS A RESEARCH OR DEVELOPMENT PROPOSAL WHICH IS MADE TO THE GOVERNMENT BY A PROSPECTIVE CONTRACTOR WITHOUT PRIOR FORMAL OR INFORMAL SOLICITATION FROM A PURCHASING ACTIVITY. THE CONSIDERATION TO BE GIVEN UNSOLICITED PROPOSALS IN THE SELECTION OF RESEARCH AND DEVELOPMENT CONTRACTORS IS SET FORTH IN ASPR 4-205.1 (O) AS FOLLOWS:

"UNSOLICITED PROPOSALS MAY BE THE PRODUCT OF ORIGINAL THINKING AND GENERALLY ARE THE PROPERTY OF THE ORGANIZATION OR INDIVIDUAL WHO PRESENTS THEM. THEY ARE OFFERED IN THE HOPE THAT THE GOVERNMENT WILL CONTRACT WITH THE OFFEROR FOR FURTHER RESEARCH ON, OR DEVELOPMENT OF, THE IDEAS THEY CONTAIN. SUCH PROPOSALS RECEIVED BY PURCHASING ACTIVITIES SHALL BE HANDLED IN A MANNER WHICH WILL ENCOURAGE PROSPECTIVE CONTRACTORS TO DISCLOSE TO THE GOVERNMENT IDEAS WHICH THEY HAVE ORIGINATED, CONCEIVED, OR DEVELOPED. EXTREME CARE MUST BE EXERCISED BY THE GOVERNMENT NOT TO DISCLOSE TO THIRD PARTIES ANY PROPRIETARY INFORMATION CONTAINED IN UNSOLICITED PROPOSALS. THE OFFEROR IS NOT NECESSARILY ENTITLED TO PREFERENTIAL TREATMENT IN THE AWARD OF ANY CONTRACT BECAUSE OF HIS SUBMISSION OF AN UNSOLICITED PROPOSAL.'

BASED UPON YOUR UNSOLICITED PROPOSAL AP-69, CONTRACT NO. 01-18-035 C5- 10956 (A), MENTIONED IN PARAGRAPH 8 OF MR. FLATAU'S REPORT, WAS AWARDED TO YOUR FIRM BY EDGEWOOD ARSENAL ON SEPTEMBER 17, 1964. THAT CONTRACT PROVIDED THAT YOU SHOULD DESIGN AND FABRICATE TWO RADIO CONTROLLABLE WING- ROTOR MODELS IN ACCORDANCE WITH THE SPECIFICATIONS SET FORTH THEREIN AND INCORPORATED THE ,PATENT RIGHTS" (TITLE) CLAUSE PRESCRIBED IN ASPR 9-107.5 (A) FOR CONTRACTS INVOLVING SUCH EXPERIMENTAL, DEVELOPMENT AND RESEARCH WORK. UNDER THAT CLAUSE THE GOVERNMENT OBTAINED TITLE TO AND THE RIGHT TO DISCLOSE AND USE ANY "SUBJECT INVENTION" WHICH TERM IS DEFINED IN THE CLAUSE AS FOLLOWS: " (1) SUBJECT INVENTION MEANS ANY INVENTION OR DISCOVERY,WHETHER OR NOT PATENTABLE, CONCEIVED OR FIRST ACTUALLY REDUCED TO PRACTICE IN THE COURSE OF OR UNDER THIS CONTRACT. THE TERM "SUBJECT INVENTION" INCLUDES, BUT IS NOT LIMITED TO, ANY ART, MACHINE, MANUFACTURE, DESIGN OR COMPOSITION OF MATTER, OR ANY NEW AND USEFUL IMPROVEMENT THEREOF, OR ANY VARIETY OF PLANT, WHICH IS OR MAY BE PATENTABLE UNDER THE PATENT LAWS OF THE UNITED STATES OF AMERICA OR ANY FOREIGN COUNTRY.'

UNDER THE BROAD PROVISIONS OF THAT CLAUSE THE GOVERNMENT WAS ENTITLED TO USE ALL INFORMATION OBTAINABLE FROM CONCEPTS FIRST REDUCED TO PRACTICE IN THE PROCUREMENT. WHILE THE RECORD INDICATES YOU ALLEGE TO HAVE REDUCED THE CONCEPT OF RADIO CONTROLLED WING-ROTOR MODELS TO PRACTICE PRIOR TO AWARD OF CONTRACT NO. 10956 (A), YOU HAVE SUBMITTED NO EVIDENCE IN SUPPORT OF SUCH ALLEGATION AND WE MUST THEREFORE CONSIDER SUCH ALLEGATION AS UNSUBSTANTIATED. BE THAT AS IT MAY, THERE IS NO INDICATION THAT YOU WERE LED TO BELIEVE BY ASSURANCES OF RESPONSIBLE PROCUREMENT OFFICIALS THAT ANY INFORMATION PERTAINING TO THE ITEMS SUPPLIED WOULD BE CONSIDERED CONFIDENTIAL, OR THAT YOU ASKED THAT ANY RESTRICTIONS ON ITS USE BE MADE A PART OF THE CONTRACT. THE RULE IS WELL ESTABLISHED THAT THE OWNER OF PROPRIETARY INFORMATION MAY, INDEPENDENTLY OF LAWS APPLICABLE TO PATENTS AND COPYRIGHTS, PROTECT HIMSELF BY CONTRACT AGAINST ITS DISCLOSURE BY ONE TO WHOM IT IS COMMUNICATED IN CONFIDENCE AND MAY RESTRICT ITS USE BY SUCH PERSON. IN THE ABSENCE OF SUCH RESTRICTION WE HAVE HELD THAT THE USE IN A PROCUREMENT OF THE SAME OR A SIMILAR ITEM, OF A MODEL OF AN ITEM PROCURED BY THE GOVERNMENT UNDER CONTRACT IS ENTIRELY PROPER. B 148376, JULY 24, 1962; B-148135, APRIL 30, 1962, AND B-152684, FEBRUARY 5, 1965.

THE FACT, AS ALLEGED BY YOU, THAT A PATENT APPLICATION HAS BEEN FILED BY YOUR FIRM ON CONTROLLED AUTOROTORS DOES NOT SUPPORT YOUR CONTENTION THAT PROPRIETARY RIGHTS HAVE BEEN INFRINGED BY ANNOUNCEMENT OF THE SUBJECT RFP. IF THE RIGHTS INVOLVED ARE PATENTABLE YOU MAY NOT PREVENT THEIR USE BY THE GOVERNMENT, BUT HAVE AN ADEQUATE STATUTORY REMEDY FOR SUCH USE; HOWEVER, UNTIL A PATENT IS ISSUED A CLAIM FOR PATENT INFRINGEMENT WOULD BE PREMATURE. IN B-148376, SUPRA, WE HELD:

"* * * THAT UNLESS AND UNTIL YOU ARE GRANTED A PATENT YOUR CLAIM FOR COMPENSATION FOR THE USE OF PATENT RIGHTS IS PREMATURE. THE PROCUREMENT AGENCY HAS ADVISED US, HOWEVER, THAT IF A PATENT IS ISSUED AND YOUR COMPANY FILES A CLAIM FOR PATENT INFRINGEMENT, IT WILL BE CONSIDERED IN ACCORDANCE WITH PARAGRAPH 9-105 OF ASPR AND THE ESTABLISHED PROCEDURE FOR HANDLING SUCH CLAIMS. YOUR ATTENTION IS INVITED ALSO TO THE PROVISIONS OF 28 U.S.C. 1498 WHEREBY YOU MAY BE PRIVILEGED TO FILE A SUIT IN THE COURT OF CLAIMS TO RECOVER REASONABLE COMPENSATION FOR PATENT INFRINGEMENT BY CONTRACTORS WHEN SUPPLYING GOVERNMENT REQUIREMENTS. SEE IN THIS CONNECTION OUR DECISIONS OF AUGUST 25, 1958, B-136916, AND OCTOBER 6, 1958, B-136916, 38 COMP. GEN. 276.'

IN TWO RECENT CASES THE SUPREME COURT HAS HELD THAT A LEGAL RIGHT EXISTS TO COPY AN UNPATENTED ITEM WHICH WAS ORIGINATED BY ANOTHER. SEARS, ROEBUCK AND CO. V. STIFFEL CO., 376 U.S. 225, AND COMPCO CORPORATION V. DAY-BRITE LIGHTING, INC., ID. 234. THOSE AUTHORITIES WOULD SEEM TO DISPOSE OF YOUR CONTENTION THAT THE ANNOUNCEMENT OF THE SUBJECT RFP CONSTITUTED AN UNAUTHORIZED DISCLOSURE OF PROPRIETARY CONCEPTS OR DATA, IN THE ABSENCE OF ANY SPECIFIC RESTRICTION OR RESERVATION OF RIGHTS IN CONNECTION WITH YOUR PRESENTATION TO THE GOVERNMENT.

FOR THE REASONS STATED, AND SINCE WE ARE ADVISED BY THE DEPARTMENT OF JUSTICE THAT THE FACTS YOU FURNISHED THAT DEPARTMENT DO NOT WARRANT INSTITUTION OF CRIMINAL ACTION, WE DO NOT PERCEIVE ANY BASIS IN THE PRESENT RECORD FOR OBJECTING TO THE MANNER IN WHICH THE PROCUREMENT WAS PUBLICIZED, OR TO AWARDING OF AN OTHERWISE PROPER CONTRACT PURSUANT TO THE SUBJECT RFP TO A FIRM OTHER THAN YOUR COMPANY. YOUR PROTEST IS THEREFORE DENIED.