B-156727, OCT. 7, 1965

B-156727, OCT. 7, 1965

TO MR. LEONARD P. FRIEDER, PRESIDENT, GENTEX CORPORATION:

THIS REFERS TO YOUR LETTERS OF SEPTEMBER 20 AND 27, 1965, AND PRIOR CORRESPONDENCE, PROTESTING AGAINST THE PROCUREMENT OF HGU-7/P FLYING HELMETS BY THE DEPARTMENT OF THE AIR FORCE UNDER SPECIFICATIONS WHICH ARE ALLEGED TO INCORPORATE FEATURES PROPRIETARY TO GENTEX CORPORATION.

YOUR PROTEST INVOLVES THE FOLLOWING PROCUREMENTS: (1) INVITATION FOR BIDS NO. 36-600-65-148, ISSUED BY MIDDLETOWN AIR MATERIEL AREA, OLMSTED AIR FORCE BASE, PENNSYLVANIA, ON OCTOBER 16, 1964, FOR CERTAIN QUANTITIES OF THE HGU-7/P FLYING HELMETS ON WHICH AN AWARD WAS MADE ON MARCH 29, 1965, TO SIERRA ENGINEERING COMPANY; (2) REQUEST FOR PROPOSALS NO. 33-657-65- 5070, ISSUED BY THE AERONAUTICAL SYSTEMS DIVISION, AIR FORCE SYSTEMS COMMAND, WRIGHT-PATTERSON AIR FORCE BASE, OHIO, ON MARCH 26, 1965, FOR THE DESIGN, FABRICATION, AND FURNISHING OF 6 PROTOTYPE HELMETS AND 40 ADDITIONAL HELMETS, TOGETHER WITH COMPLETE DATA FOR REPROCUREMENT, FOR THE PURPOSE OF IMPROVING THE TYPE HGU-7/P HELMET (NO AWARD HAS BEEN MADE YET), AND (3) INVITATION FOR BIDS NO. 36-600-65-898, ALSO ISSUED BY THE MIDDLETOWN AIR MATERIEL AREA, ON JUNE 16, 1965, WHERE THE BID OPENING DATE HAS BEEN SUSPENDED INDEFINITELY.

UNDER THE HGU-7/P SPECIFICATION, THE CONTRACTOR PRODUCES THE HELMETS WHILE THE GOVERNMENT FURNISHES THE HEADSETS TO THE CONTRACTOR WHICH ARE TO BE INSTALLED ON THE HELMETS. THE GOVERNMENT ALSO FURNISHES HELMET MOLDS TO THE CONTRACTOR AS SPECIAL TOOLING. THE EARCUP FOR THE HGU-7/P HELMET INCORPORATES A GROOVE AROUND ITS PERIPHERY AS A MEANS FOR ATTACHING THE HEADSET TO THE HELMET. YOU STATE THAT THE "CHANNELED EARCUP" DESIGN WAS FIRST SUGGESTED BY YOUR FIRM FOR A HELMET (YOUR DH-19 HELMET) WHICH YOU FURNISHED TO THE RADIO CORPORATION OF AMERICA (RCA) IN 1957 AS A SOLUTION TO A COMMERCIAL HELMET PROBLEM. YOU HAVE FURNISHED A COPY OF RCA DRAWING NO. 647825, DATED JANUARY 29, 1958, DEPICTING A CLOTH HELMET, WHICH BEARS THE LEGEND "GENERAL TEXTILE MILLS INC. NEW YORK, NEW YORK THEIR TYPE.' (YOU REPORT THAT YOUR FIRM WAS KNOWN AS GENERAL TEXTILE MILLS AT THE TIME.) ALSO, YOU HAVE SUBMITTED COPIES OF LETTERS DATED NOVEMBER 21 AND 26, 1957, FROM RCA AND GENERAL TEXTILE MILLS, RESPECTIVELY, REFERRING TO 2 CLOTH HELMETS FURNISHED BY GENERAL TEXTILE TO RCA FOR ITS ACOUSTICAL EAR PROTECTOR. THE SUBJECT OF THE LETTERS CONCERNS RCA'S REQUEST FOR A PATENT INDEMNITY FROM GENERAL TEXTILE COVERING THE DESIGN OF THE HELMETS. YOU REPORT FURTHER THAT IN APRIL AND MAY OF 1959, YOUR DH-51 AND DH-41-2 HELMETS, WITH COMMUNICATIONS, WHICH INCORPORATED YOUR THEN LATEST CONCEPTS, WERE FORWARDED TO THE COGNIZANT OFFICIAL AT WRIGHT-PATTERSON AIR FORCE BASE FOR THE PURPOSE OF EVALUATION ONLY.

YOU POINT TO THE RCA DRAWING NO. 647825 AS SHOWING THAT YOUR HELMET (DH- 19) HAS THE SAME EARCUP AND STRAP FEATURES AS THE HGU-7/P. IT IS YOUR CONTENTION THAT THE AIR FORCE DERIVED ITS DESIGN FOR THE HGU-7/P EITHER FROM RCA, PURSUANT TO ITS HEADSET DEVELOPMENT CONTRACT, OR DIRECTLY FROM THE HELMETS WHICH YOU FURNISHED TO AIR FORCE IN APRIL AND MAY OF 1959, FOR EVALUATION ONLY; AND THAT, IN EITHER CASE, THE AIR FORCE HAS IMPROPERLY OBTAINED YOUR PRIVATELY-FINANCED DESIGN. YOU PROTEST AGAINST THE ALLEGED INFRINGEMENT OF YOUR PROPRIETARY RIGHTS.

THE AIR FORCE ACKNOWLEDGES THAT THERE ARE TWO AREAS OF SIMILARITY BETWEEN YOUR MODEL HELMET, DH-51, AND THE HGU-7/P HELMET: (1) THE EARCUP DESIGN WHICH INCORPORATES A GROOVE AROUND ITS PERIPHERY AS A MEANS FOR ATTACHING THE HEADSET TO THE HELMET; (2) THE HEADSET SUSPENSION SYSTEM WHICH CONSISTS OF THE HANGER, EARCUP RETAINER RING AND FASTENER TABS FOR THE CHIN STRAP, NAPE STRAP AND OXYGEN MASK.

THE AIR FORCE FILE SHOWS THAT THE EARCUP DESIGN WAS INCLUDED WITH A HEADSET DEVELOPED BY RCA FOR AIR FORCE UNDER CONTRACT NO. AF 33/600/ 33172. A HEADSET WAS RECEIVED FROM RCA UNDER THIS CONTRACT, AND AIR FORCE ALSO RECEIVED RCA DRAWING NO. 647825. HOWEVER, RCA DID NOT COMPETE FOR A SUBSEQUENT CONTRACT TO PRODUCE 50 SERVICE TEST UNITS OF THIS ITEM. SEPTEMBER OF 1960, AIR FORCE CONTRACTED WITH THE ROANWELL CORPORATION (CONTRACT NO. AF 33/600/-41957, DATED SEPTEMBER 21, 1960) FOR ELECTRICAL HEADSETS. AIR FORCE REPORTS THAT IT DID NOT CONSIDER THE OUTLINE DRAWINGS FURNISHED BY RCA UNDER ITS CONTRACT, INCLUDING RCA DRAWING NO. 647825, TO BE ADEQUATE FOR PROCUREMENT PURPOSES. INSTEAD, ROANWELL WAS FURNISHED WITH THE PROTOTYPE HEADSET WHICH RCA HAD DELIVERED TO THE AIR FORCE. ROANWELL COMPLETED ITS CONTRACT FURNISHING THE END ITEMS AND DETAILED DRAWINGS, INCLUDING THE EARCUP DESIGN. AIR FORCE REPORTS THAT THE PRESENT DRAWINGS ARE BASED ON THE ROANWELL DRAWINGS.

THE HELMET DEVELOPMENT PHASE OF THE PROGRAM WAS PERFORMED UNDER A CONTRACT AWARDED TO PROTECTION, INCORPORATED, DIVISION OF MINE SAFETY APPLIANCES COMPANY, ON NOVEMBER 15, 1959. THE AWARD WAS MADE IN RESPONSE TO PURCHASE REQUEST 65645, ISSUED ON JUNE 15, 1959. (IT IS REPORTED THAT YOUR FIRM SUBMITTED A PROPOSAL UNDER THIS PURCHASE REQUEST WHICH WAS NOT ACCEPTED.) THE PURCHASE REQUEST AND CONTRACT WERE BASED ON AN AIR FORCE EXHIBIT DATED JUNE 8, 1959, ENTITLED ,FLYERS PROTECTIVE HELMET" WHICH LISTED THE REQUIREMENTS OF THE HELMET. THE FILE SHOWS THAT THESE REQUIREMENTS WERE PLANNED AND COORDINATED BY AIR FORCE OFFICIALS AT SEVERAL MEETINGS HELD DURING MARCH, APRIL AND MAY OF 1959. VARIOUS ALTERNATE DESIGNS WERE CONSIDERED, INCLUDING SPRING WIRE RETENTION FOR THE HEADSET; HOWEVER, A CHEEK PANEL SUSPENSION WAS SPECIFIED. BUT THE CONTRACTOR (PROTECTION, INC.), FOR REASONS UNKNOWN TO AIR FORCE, DECIDED TO FURNISH THE HEADSET SUSPENSION SYSTEM, AS DESCRIBED ABOVE, WHICH IS SIMILAR TO YOUR DH-51 SYSTEM, IN LIEU OF THE SPECIFIED CHEEK PANEL. AIR FORCE STATES THAT IT ACCEPTED THIS DESIGN AS A SATISFACTORY ALTERNATE WHEN THE PROTOTYPES WERE DELIVERED. THE CONTRACTOR WAS DIRECTED, HOWEVER, TO USE A HEADSET WHICH INCLUDED THE GROOVED EARCUP.

THE AIR FORCE SUMS UP THE MATTER AS FOLLOWS:

"8. IN OUR OPINION, THE ABOVE INFORMATION, (THE AIR FORCE FILE) * * * SHOWS THAT THE HGU-7/P HELMET WAS DEVELOPED AND PRODUCED BY A JOINT IN- HOUSE EFFORT BY AIR FORCE ENGINEERS AND A DEVELOPMENT CONTRACT WITH PROTECTION, INC. IT ALSO SHOWS THAT THE AIR FORCE ACQUIRED THE RIGHT TO USE THE EAR CUP DESIGN AS A RESULT OF DEVELOPMENT CONTRACTS AWARDED TO RCA AND TO ROANWELL AND THAT THE AIR FORCE, IN USING THIS DESIGN, IS NOT VIOLATING ANY PROPRIETARY RIGHTS OF GENTEX. WE RECOMMEND, THEREFORE, THAT THE PROTEST OF GENTEX AGAINST AWARDS UNDER THESE THREE PROCUREMENT ACTIONS BE DENIED.'

(WE NOTE THAT YOUR FIRM WAS AWARDED A CONTRACT IN APRIL 1963 FOR BOTH THE SET-ASIDE AND NON-SET-ASIDE PORTIONS OF IFB NO. 36-600-63 307, ISSUED BY AIR FORCE AT OLMSTED AIR FORCE BASE, MIDDLETOWN, PENNSYLVANIA, ON NOVEMBER 14, 1962, FOR WHAT APPEARS TO HAVE BEEN THE FIRST PRODUCTION RUN OF THE HGU-7/P HELMET; AND THAT YOU HAD PROTESTED TO THE DEPARTMENT OF DEFENSE AT THAT TIME AGAINST THE USE OF THE HGU 7/P SPECIFICATIONS.)

WE RECOGNIZE THAT, IN THE ABSENCE OF A PATENT OR COPYRIGHT, AN INDIVIDUAL MUST RELY ON SECRECY TO PROTECT HIS IDEAS OR THE INFORMATION RESULTING FROM HIS LABORS. UNLIKE THE HOLDER OF A PATENT OR COPYRIGHT, WHO IS GRANTED A MONOPOLY FOR A PERIOD OF TIME BY THE GOVERNMENT IN RETURN FOR A PUBLIC DISCLOSURE, THE OWNER OF A TRADE SECRET MUST PROTECT HIMSELF AGAINST DISCLOSURE OF HIS SECRET. WHILE THE PATENT OR COPYRIGHT HOLDER HAS A STATUTORY RIGHT TO EXCLUDE OTHERS FROM USING HIS IDEA, THE OWNER OF A TRADE SECRET HAS NO RIGHT TO EXCLUDE OTHERS FROM USING HIS IDEA IF THEY ACQUIRED THE IDEA BY HONEST MEANS. PROTECTION IS GRANTED BY THE COURTS ONLY WHERE ONE IS ATTEMPTING TO SUE OR DISCLOSE THE SECRET IN VIOLATION OF SOME GENERAL DUTY OF GOOD FAITH TO THE OWNER SUCH AS A BREACH OF CONTRACT OR ABUSE OF CONFIDENCE. JUNKER V. PLUMMER (MASS.) 67 N.E. 2D 667, 670; ELLIS, TRADE SECRETS, SEC. 14.

AN INDIVIDUAL MAY REVEAL HIS TRADE SECRET TO THE GOVERNMENT IN THE HOPE OF OBTAINING THE GOVERNMENT AS A CUSTOMER FOR HIS PRODUCT. WE HAVE HELD THAT, IN THE INTERESTS OF PRESERVING THE INTEGRITY OF THE GOVERNMENT AS A CONTRACTOR AND OF AVOIDING POSSIBLE LEGAL LIABILITY, THE GOVERNMENT SHOULD RECOGNIZE AN INDIVIDUAL'S PROPRIETARY RIGHTS TO INFORMATION RECEIVED AND SHOULD NOT DISCLOSE OR USE THE INFORMATION FOR PROCUREMENT PURPOSES UNLESS IT ACQUIRES THIS RIGHT FROM THE INDIVIDUAL OWNER. SEE DECISIONS B-143711, DATED DECEMBER 22, 1960, AND MAY 15, 1961; 41 COMP. GEN. 148, 42 COMP. GEN. 346; 43 COMP. GEN. 193. AS INDICATED, THE BASIS FOR PROTECTING PROPRIETARY INFORMATION IS THAT THE RECIPIENT HAS GAINED THE INFORMATION THROUGH A CONFIDENTIAL DISCLOSURE. INFORMATION GAINED BY THE RECIPIENT PRIOR TO OR INDEPENDENTLY OF THE DISCLOSURE IS NOT PROTECTED. SMOLEY V. NEW JERSEY ZINC CO., 24 F.SUPP. 294 (AFF-D. 106 F.2D 314), TABOR V. HOFFMAN, 118 N.Y. 30, 23 N.E. 12.

THE RECORD DOES NOT SHOW THAT AIR FORCE USED INFORMATION YOU SUPPLIED TO IT FOR THE DEVELOPMENT OF THE HGU-7/P HELMET. THE HEADSET SUSPENSION SYSTEM WAS DESIGNED FOR THE AIR FORCE BY ITS HELMET CONTRACTOR, PROTECTION, INCORPORATED. AIR FORCE DID NOT SPECIFY THIS SYSTEM UNDER THE ORIGINAL CONTRACT REQUIREMENTS. THE OTHER FEATURES OF THE HELMET WERE APPARENTLY CHOSEN BY AIR FORCE OFFICIALS SHORTLY BEFORE YOU SUBMITTED YOUR SAMPLE HELMETS FOR EVALUATION.

THE GROOVED EARCUP WAS DEVELOPED INITIALLY FOR THE AIR FORCE BY RCA, AND ROANWELL DEVELOPED THE DRAWINGS AND THE TEST UNITS FOR THE HEADSET (INCLUDING THE EARCUP). YOU HAVE SUBMITTED EVIDENCE INDICATING THAT YOUR FIRM ORIGINALLY SUPPLIED THE EARCUP DESIGN TO RCA, IN 1957, BEFORE THE RCA PROTOTYPE HEADSET WAS DELIVERED TO THE AIR FORCE. YOU CONTEND THAT NOTICE OF YOUR PROPRIETARY RIGHT TO THE GROOVED EARCUP DESIGN WAS FURNISHED TO AIR FORCE BY RCA DRAWING NO. 647825 OF YOUR (GENERAL TEXTILE MILLS) DH-19 HELMET. THE DRAWING CONTAINS A PRELIMINARY SKETCH OF THE HELMET MODEL. THERE IS NO INDICATION ON THE DRAWING THAT THE EARCUP TO BE ATTACHED TO THE HELMET IS PROPRIETARY TO YOUR FIRM. IT SEEMS TO US THAT THE RCA DRAWING WAS INTENDED TO SHOW A POSSIBLE APPLICATION FOR THE EARCUP. AIR FORCE DID NOT FURNISH THIS DRAWING TO ROANWELL TO USE IN ITS DEVELOPMENT WORK. ASSUMING, ONLY FOR PURPOSE OF ARGUMENT, THAT THE EARCUP DESIGN HAD BEEN PROPRIETARY TO YOUR FIRM, THE DISCLOSURE OF YOUR DESIGN WAS NOT MADE TO AIR FORCE BUT RATHER TO RCA. THIS DESIGN WAS EMBODIED IN AN EARCUP WITH A HEADSET WHICH AIR FORCE PURCHASED IN GOOD FAITH FROM RCA UNDER A DEVELOPMENT CONTRACT. AIR FORCE THEN USED THE HEADSET AND EARCUP IT PURCHASED OUTRIGHT FOR FURTHER DEVELOPMENT WORK. CERTAINLY WE ARE NOT IN A POSITION TO ADJUDICATE YOUR RIGHTS AGAINST PRIVATE PARTIES AND, UNTIL SUCH RIGHTS AS YOU MAY HAVE IN THE MATTER HAVE BEEN ESTABLISHED IN A PROPER FORUM, THIS OFFICE WOULD NOT BE JUSTIFIED IN DISTURBING AIR FORCE'S HELMET PROCUREMENT PROGRAM OR IN GRANTING RELIEF TO YOUR FIRM.

YOU WERE NOT SELECTED AS A CONTRACTOR IN THE DEVELOPMENT PHASE OF THE HGU -7/P HELMET. HOWEVER, YOU DID RECEIVE AN AWARD (ACTUALLY TWO AWARDS, INCLUDING THE LABOR SURPLUS SET-ASIDE PORTION) FOR THE PRODUCTION PHASE, AND MAY RECEIVE AN ADDITIONAL AWARD. WE REGRET THAT YOU ARE DISTRUSTFUL OF THE WILLINGNESS OF DEFENSE PROCUREMENT OFFICIALS TO PROTECT PRIVATELY- FUNDED DEVICES, BUT IT IS THE POLICY OF THE DEPARTMENT OF DEFENSE TO ENCOURAGE PRIVATE INGENUITY IN BEHALF OF THE DEFENSE EFFORT. SEE GENERALLY ASPR 9-200, ET SEQ; REGARDING THE ACQUISITION OF RIGHTS IN TECHNICAL DATA. WE FIND NO BASIS UPON WHICH TO CONCLUDE THAT YOUR PROPRIETARY RIGHTS ARE BEING VIOLATED BY THE GOVERNMENT.