B-158964, MARCH 2, 1967, 46 COMP. GEN. 679

B-158964, MARCH 2, 1967, 46 COMP. GEN. 679

CONTRACTS - DATA, RIGHTS, ETC. - DISCLOSURE - PARTIAL CONTRACT TERMINATION THE DRAWINGS, DATA, AND OTHER MATERIALS SUBMITTED DURING THE PERFORMANCE OF 3 PHASES OF A 4-PART THEORETICAL STUDIES EQUIPMENT CONTRACT UNDER WHICH THE GOVERNMENT WAS GRANTED USE OF THE INFORMATION AND A ROYALTY-FREE LICENSE THAT EXEMPTED A PENDING PATENT APPLICATION, WHERE THE LAST PHASE (PART IV) OF THE CONTRACT, THE "FINAL DESIGN," WAS TERMINATED AT THE OPTION OF THE GOVERNMENT, ARE PROPRIETARY AND THE INFORMATION RELATING TO THE PATENT APPLICATION MAY NOT BE DISCLOSED WITHOUT THE CONSENT OF THE CONTRACTOR. THE GOVERNMENT IN FAILING TO EXERCISE THE OPTION TO THE PERFORMANCE OF PART IV OF THE CONTRACT HAVING EVIDENCED AN INTENT NOT TO PURCHASE THE RIGHTS TO THE FINAL EQUIPMENT DESIGN, THE INFORMATION CLOSELY RELATED TO AND PREMISED UPON THE PATENT APPLICATION IS SUBJECT TO THE RESTRICTIONS IMPOSED UPON THE USE OF THE PATENT AND MAY NOT BE REVEALED WITHOUT NEGOTIATING FOR THE RIGHT WITH THE CONTRACTOR.

TO THE SECRETARY OF COMMERCE, MARCH 2, 1967:

REFERENCE IS MADE TO THE LETTER DATED APRIL 19, 1966, FROM SOBEL AND MANDEL, ATTORNEYS AT LAW, AND THE TELEGRAM OF APRIL 15, 1966, FROM THEIR CLIENT, VEHICLE RESEARCH CORPORATION, HEREAFTER REFERRED TO AS VRC, PROTESTING AGAINST THE MISUSE OR UNAUTHORIZED DISCLOSURE OF ALLEGED PROPRIETARY INFORMATION SUBMITTED TO THE DEPARTMENT OF COMMERCE, MARITIME ADMINISTRATION, IN CONNECTION WITH CONTRACT NO. MA 2849.

THE PROTEST WAS THE SUBJECT OF A REPORT FROM THE ASSISTANT DEPUTY MARITIME ADMINISTRATOR, DATED JULY 21, 1966.

THE ABOVE-MENTIONED CONTRACT WAS ENTERED INTO ON DECEMBER 7, 1961, FOR THE DESIGN AND DEVELOPMENT OF A GROUND EFFECT MACHINE FOR THE FOLLOWING STATED PURPOSES: * * * (1) TESTING ALL PHASES OF TECHNICAL DESIGN, (2) DEMONSTRATE OPERATION IN OPEN SEAS, AND (3) DEMONSTRATE THE POTENTIALS FOR COMMERCIAL APPLICATIONS AND GROWTH. VRC WAS AWARDED THE CONTRACT UPON THE RECOMMENDATION OF THE OFFICE OF NAVAL RESEARCH WHICH HAD REVIEWED 14 PROPOSALS AND DETERMINED THAT VRC, SUBCONTRACTING WITH THE DOUGLAS AIRCRAFT COMPANY, COULD DO THE BEST JOB. NOTWITHSTANDING THE FACT THAT DOUGLAS AIRCRAFT WITHDREW FROM IS CONTRACT WITH VRC 1 MONTH AFTER ITS EXECUTION, VRC WAS PERMITTED TO CONTINUE THE THEORETICAL STUDIES WHICH IT COMPLETED IN THE FALL OF 1962; THE ENCOURAGING RESULTS OF THESE STUDIES LED THE MARITIME ADMINISTRATION TO EXTEND VRC'S CONTRACT SO AS TO PERMIT CONSTRUCTION OF A MAN-CARRYING MODEL. THIS EXTENSION WAS ACCOMPLISHED BY CHANGE ORDER NO. 1 WHICH ALSO INCREASED THE COST AND THE FEE. FOUR ADDITIONAL INCREASES WERE SUBSEQUENTLY MADE AND THE CONTRACT WAS FINALLY ALLOWED TO EXPIRE ON AUGUST 15, 1964, AT A TOTAL OF $999,138 AND A TOTAL FEE OF $42,551. AT THIS POINT THE MAN-CARRYING MODEL HAD BEEN BUILT AND PARTIALLY TESTED, BUT FINAL TESTING AND EVALUATION HAD NOT BEEN COMPLETED. DURING THE COURSE OF THE CONTRACT AND PURSUANT TO IT, VRC HAD SUBMITTED TO THE MARITIME ADMINISTRATION AT VARIOUS TIMES ITS DRAWINGS, DATA, REPORTS, MODELS AND THE TEST CRAFT. THE ADMINISTRATION NOW PROPOSES TO CONTINUE THE TESTING OF THE GROUND EFFECT MACHINE WITH ANOTHER CONTRACTOR; SUCH TESTING WILL NECESSARILY REQUIRE THE REVELATION TO THE NEW CONTRACTOR OF THE VRC INFORMATION CONTAINED IN ITS SUBMISSIONS TO THE ADMINISTRATION. VRC CONTENDS THAT THIS INFORMATION IS PROPRIETARY TO IT AND WAS SUBMITTED WITH LIMITED RIGHTS AND THE MARITIME ADMINISTRATION THEREFORE HAS NO RIGHT TO DISSEMINATE IT AS CONTEMPLATED AND THAT SUCH A DISCLOSURE WOULD CONSTITUTE A VIOLATION OF VRC'S PROPRIETARY RIGHTS AND A BREACH OF THE CONTRACT. SPECIFICALLY, VRC REQUESTS THE GENERAL ACCOUNTING OFFICE TO RULE THAT THE MARITIME ADMINISTRATION MAY NOT DISCLOSE THE INFORMATION CONTAINED IN THE SUBMISSIONS TO A FUTURE CONTRACTOR OR OTHERWISE UTILIZE SUCH INFORMATION FOR OTHER THAN ITS OWN EVALUATION AND IN-HOUSE PURPOSES. THE ADMINISTRATION ON THE OTHER HAND, CONTENDS THAT THE DATA WAS SUBMITTED WITH UNLIMITED RIGHTS AND, UNDER THE TERMS OF THE CONTRACT, THE ADMINISTRATION HAS THE RIGHT TO USE THE DATA FOR WHATEVER PURPOSES IT DEEMS PROPER. WE MUST DECIDE THEN, WHETHER IT WAS THE INTENTION AND AGREEMENT OF THE PARTIES THAT THE DATA BE SUBMITTED WITH LIMITED OR UNLIMITED RIGHTS.

IN THE CONTRACT UNDER CONSIDERATION, ARTICLE 9 OF THE SPECIAL PROVISIONS, ENTITLED ,ADMINISTRATIONS RIGHT IN RESPECT TO STUDIES AND DATA FURNISHED BY THE CONTRACTOR," PROVIDES THAT:

ALL STUDIES, CALCULATIONS, PHOTOGRAPHS, AND ALL OTHER DATA OF WHATSOEVER NATURE DEVELOPED AND FURNISHED BY THE CONTRACTOR TO THE ADMINISTRATION PURSUANT TO THE TERMS OF THIS CONTRACT, SHALL BE THE SOLE PROPERTY OF THE ADMINISTRATION AND THE ADMINISTRATION SHALL HAVE FULL RIGHTS TO USE THE SAME AND ALL OTHER DATA REQUIRED TO BE FURNISHED HEREUNDER IN SUCH MANNER AS IT MAY DEEM PROPER, INCLUDING WITHOUT LIMITATION OF THE GENERALITY OF THE FOREGOING, THE RIGHT TO MAKE REPRODUCTIONS AND COPIES, AND THE RIGHT TO MAKE ALTERATIONS THEREIN, ADDITIONS THERETO, OR OTHER CHANGES. * * *.

THE CLAUSE FURTHER PROVIDES THAT WITH CERTAIN EXCEPTIONS VRC SHALL HAVE NO RIGHTS WITH RESPECT TO SUCH STUDIES, ETC., FURNISHED TO THE ADMINISTRATION. IN ARTICLE 20, SUBSECTION (B) (1) OF THE GENERAL PROVISIONS, ENTITLED "PATENT RIGHTS" THE CONTRACTOR AGREES TO GRANT TO THE GOVERNMENT AN IRREVOCABLE, NONEXCLUSIVE, NONTRANSFERABLE, AND ROYALTY-FREE LICENSE TO PRACTICE AND CAUSE TO BE PRACTICED EACH SUBJECT INVENTION IN THE MANUFACTURE, USE, AND DISPOSITION ACCORDING TO LAW, OF ANY ARTICLE OR MATERIAL, AND IN THE USE OF ANY METHOD. SUBSECTION (A) (1) DEFINES THE TERM ,SUBJECT INVENTION" AS: * * * ANY INVENTION IMPROVEMENT, OR DISCOVERY (WHETHER OR NOT PATENTABLE) CONCEIVED OR FIRST ACTUALLY REDUCED TO PRACTICE EITHER---

(A) IN THE PERFORMANCE OF THE EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK CALLED FOR OR REQUIRED UNDER THIS CONTRACT; OR

(B) IN THE PERFORMANCE OF ANY EXPERIMENTAL, DEVELOPMENTAL, OR RESEARCH WORK RELATING TO THE SUBJECT MATTER OF THIS CONTRACT WHICH WAS DONE UPON AN UNDERSTANDING IN WRITING THAT A CONTRACT WOULD BE AWARDED;

* * * PROVIDED THAT THE TERM "SUBJECT INVENTION" SHALL NOT INCLUDE ANY INVENTION WHICH IS SPECIFICALLY IDENTIFIED AND LISTED IN THE GENERAL PROVISIONS FOR THE PURPOSE OF EXCLUDING IT FROM THE LICENSE GRANTED BY THIS ARTICLE. ARTICLE 10 SPECIFICALLY EXCLUDES VRC'S PATENT APPLICATION SERIAL NUMBER 839,870 DATED SEPTEMBER 14, 1959, FROM THE LICENSE GRANTED BY ARTICLE 20. THUS, THE DATA EMBODIED IN VRC'S PATENT APPLICATION IS CLEARLY EXEMPTED FROM ARTICLE 20, AND THE QUESTION NOW IS, WHAT DATA IS NOT SO EXEMPTED.

IT APPEARS THAT THE INFORMATION SOUGHT TO BE PROTECTED BY SPECIAL PROVISION 10, WHICH EXCLUDED THE PATENT APPLICATION FROM THE SCOPE OF GENERAL PROVISION 20, WHICH GAVE THE GOVERNMENT THE SOLE RIGHT TO ALL NEW PATENTS, INVENTIONS, AND PROCESSES DEVELOPED BY VRC IN THE COURSE OF PERFORMING THE CONTRACT, IS INEXTRICABLY BOUND UP IN THE"STUDIES, CALCULATIONS, PHOTOGRAPHS, AND ALL OTHER DATA OF WHATSOEVER NATURE DEVELOPED" WHICH UNDER SPECIAL PROVISION 9 BECAME THE SOLE PROPERTY OF THE GOVERNMENT FOR SUCH USES AS IT DEEMS PROPER.

INSOFAR AS THE DATA TURNED OVER TO THE GOVERNMENT FOR ITS UNRESTRICTED USE UNDER SPECIAL PROVISION 9 INCORPORATES THE SAME INFORMATION CONTAINED IN THE PATENT APPLICATION PROTECTED BY SPECIAL PROVISION 10, THE TWO PROVISIONS WOULD SEEM TO DIRECTLY CONFLICT. FURTHER, BECAUSE THE PATENT APPLICATION INVOLVES SUCH BROAD ASPECTS OF DESIGN AS A SPECIAL HULL CONFIGURATION AND A UNIQUE PROPULSION SYSTEM FOR A GROUND EFFECTS MACHINE, A SIGNIFICANT PORTION OF THE DATA DEVELOPED UNDER THE CONTRACT FOR THE MARITIME ADMINISTRATION IS PREMISED UPON AND DIRECTLY RELATED TO THE MATERIAL CONTAINED IN THE PATENT APPLICATION.

HOWEVER, THE MARITIME ADMINISTRATION, IN ITS LETTER OF JULY 21, 1966, DOES NOT APPEAR TO APPRECIATE THE CLOSE INTERRELATIONSHIP BETWEEN THE PATENT APPLICATION AND THE DATA ACQUIRED UNDER THE CONTRACT, FOR ON PAGE 8 IT SAYS:

THEREFORE, IT IS THE POSITION OF THE MARITIME ADMINISTRATION THAT THE ONLY RESTRICTION PLACED UPON IT IS APPLICABLE TO THE PATENT APPLICATION OF VRC WHICH SPECIFICALLY EXCLUDED FROM THE LICENSING PROVISION OF ARTICLE 20 OF THE GENERAL PROVISIONS. THIS IS TO BE DISTINGUISHED FROM THE DATA GENERATED UNDER THE CONTRACT AND DEVELOPED AS A DIRECT COST UNDER THE CONTRACT, AND SPECIFIED FOR DELIVERY TO, AND VESTING TITLE IN, THE MARITIME ADMINISTRATION. THIS DATA IS THE SOLE PROPERTY OF THE MARITIME ADMINISTRATION AND IT CAN BE RELEASED AND PUBLISHED. THE ADMINISTRATION'S RIGHT TO RELEASE AND PUBLISH THIS DATA WAS NOT ACQUIRED BY ARTICLE 20 OF THE GENERAL PROVISIONS, FOR A LICENSE WAS SPECIFICALLY EXCLUDED AS SUCH LICENSE RELATED TO AN INVENTION FOR WHICH A PATENT WAS PENDING, BUT BY THE PROVISIONS OF ARTICLE 9 OF THE SPECIAL PROVISIONS.

VRC, ON THE OTHER HAND, IS UNABLE TO VISUALIZE THIS COMPLETE LOGICAL DICHOTOMY BETWEEN THE PATENT APPLICATION AND THE CONTRACT DATA. IN AN AFFIVIDAVIT DATED NOVEMBER 15, 1966, DR. A. S. ACOSTA WHO EXAMINED EACH OF THE WORKING PAPERS AND DRAWINGS SUBMITTED PURSUANT TO THE CONTRACT, GAVE HIS OPINION OF THE RELATIONSHIP OF EACH ITEM TO THE PATENT DESIGN. WHILE HE DESCRIBED SOME OF THE PAPERS AS CONTAINING NO MATERIAL RELATIVE TO THE PATENT APPLICATION, HE FOUND THAT A GREAT NUMBER OF THE ITEMS DISCLOSED BASIC ELEMENTS OF THE VEHICLE DESCRIBED IN THE PATENT DESIGN. FOR THIS REASON, HE CONCLUDED:

* * * IT IS MY OPINION THAT THE DATA LISTED ABOVE CONSTITUTE A FULL AND COMPLETE DISCLOSURE OF THE INVENTION SET FORTH IN THE PATENT APPLICATION, AND WOULD PERMIT ANY PERSON SKILLED IN THE FIELDS OF HYDRODYNAMICS AND AERODYNAMICS TO UNDERSTAND AND CARRY OUT THE DEVELOPMENT OF THE PARTICULAR GROUND EFFECT MACHINE DESCRIBED IN THE PATENT APPLICATION. THE DRAWINGS SUBMITTED, COMPRISING MECHANICAL DETAILS OF THE CONSTRUCTION OF TEST CRAFT, WOULD ENABLE ANY COMPETENT PERSON OR CONCERN TO FABRICATE A GROUND EFFECT MACHINE OF THE DESIGN CONTAINED IN THE PATENT APPLICATION. MOREOVER, ANY SUCH SKILLED PERSON INSPECTING THE TEST CRAFT WOULD LIKEWISE BE ABLE TO UNDERSTAND THE NATURE OF THE INVENTION, AND BE ABLE TO DUPLICATE IT WITHOUT DIFFICULTY.

IN A FURTHER REPORT TO THIS OFFICE DATED NOVEMBER 16, 1966, THE MARITIME ADMINISTRATION GRANTED THAT SPECIAL PROVISION 10 WAS EFFECTIVE BUT ONLY TO THE EXTENT:

IF AND WHEN A PATENT SHOULD ISSUE, THE MARITIME ADMINISTRATION WOULD NOT, BY THE TERMS OF THE CONTRACT, RECEIVE A NONEXCLUSIVE ROYALTY-FREE LICENSE TO PRACTICE THE INVENTION.

WITH THIS EXCEPTION, IT WAS STILL CONTENDED THE GOVERNMENT HAD FULL RIGHTS TO ALL OF THE DATA GENERATED UNDER THE CONTRACT.

IF VRC'S CONTENTIONS ARE CORRECT, THE GOVERNMENT HAS PAID FOR A MASS OF ENGINEERING AND TECHNICAL DATA WHICH, FOR THE MOST PART, MAY NOT BE DISCLOSED. ON THE OTHER HAND, BY THE MARITIME ADMINISTRATION'S VIEW, THE PROVISION PURPORTING TO PROTECT THE PATENT APPLICATION IS ALMOST MEANINGLESS, FOR NO PERCEPTIBLE BENEFIT ACCRUES TO VRC BY SECRETING THE PATENT APPLICATION WHEN THE DATA WHICH FULLY DETAILS AND AMPLIFIES THE DESIGN OF THE VEHICLE DESCRIBED IN THE SAME PATENT APPLICATION IS BROADCAST TO THE WORLD.

THE ASSERTION BY THE MARITIME ADMINISTRATION THAT THE GOVERNMENT WILL RESPECT A PATENT "IF AND WHEN" ISSUED CAN HARDLY BE AN ADEQUATE BENEFIT, FOR WHEN THAT "IF AND WHEN" ARRIVES VRC MIGHT BE LEFT IN THE HIGHLY UNFAVORABLE POSITION OF ATTEMPTING TO ENFORCE ITS PATENT RIGHTS AGAINST FIRMS PRESENTLY PRODUCING THE CONTESTED ITEM PURSUANT TO THE GOVERNMENT'S SPECIFICATIONS THROUGH THE LENGTHY PROCEDURES OF THE COURTS. SUCH AN INTERPRETATION CLEARLY WOULD GRANT VRC MINIMAL BENEFITS.

NEITHER EXPLANATION OF HOW THE CONTRADICTORY PROVISIONS SHOULD BE INTERPRETED APPEARS ENTIRELY SATISFACTORY IN ITSELF. HOWEVER, WHEN ANOTHER FACTOR IS CONSIDERED, THE INTENTION OF THE PARTIES AT THE TIME OF CONTRACTING CAN BE EXPLAINED. THE STATEMENT OF THE SCOPE OF THE WORK, PAGE 1 OF THE SPECIAL PROVISIONS, SAYS:

THE DESIGN WORK WILL BE DIVIDED INTO FOUR PARTS: I. FORMULATION OF CHARACTERISTICS, II. PRELIMINARY DESIGN, III. DEVELOPMENTAL TESTING, AND IV. FINAL DESIGN. THE CONTRACTOR WILL PROCEED WITH PARTS I, II, AND III, AND THE ADMINISTRATION SHALL HAVE THE OPTION OF PROCEEDING WITH PART IV AS SET FORTH IN THE SPECIAL PROVISIONS.

PART IV OF THE SPECIAL PROVISIONS STATES: IV. FINAL DESIGN

THE FINAL DESIGN WILL INCLUDE DRAWINGS, SPECIFICATIONS, REPORTS, COST AND SCHEDULING DATA, SUFFICIENT TO ENTER DIRECTLY INTO CONSTRUCTION OF THE GROUND EFFECT SHIP. THIS PHASE DOES NOT INCLUDE DETAILED WORKING DRAWINGS, BUT DOES INCLUDE ANY OTHER REPORTS OR DRAWINGS NECESSARY TO DRAWINGS, BUT DOES INCLUDE ANY OTHER REPORTS OR DRAWINGS NECESSARY TO DRAWINGS, BUT DOES INCLUDE ANY OTHER REPORTS OR DRAWINGS NECESSARY TO FULFILL THE INTENT OF THE WORK STATEMENT WHICH IS TO PROVIDE A DESIGN SUFFICIENTLY COMPLETE SO THAT A COMPETENT ENGINEERING ORGANIZATION CAN PREPARE WORKING DRAWINGS AND ESTIMATE BUILDING COSTS.

HOWEVER, THE MARITIME ADMINISTRATION BECAME DISSATISFIED WITH THE PERFORMANCE OF VRC, THE CONTRACT WAS TERMINATED DURING THE COURSE OF PART III, AND PART IV WAS NEVER PERFORMED.

IT APPEARS THAT IF THE CONTRACT HAD PROGRESSED AS ORIGINALLY CONTEMPLATED, WHEN THE OPTION TO PERFORM PART IV WAS TO HAVE BEEN EXERCISED, VRC AND THE MARITIME ADMINISTRATION COULD HAVE NEGOTIATED ON THE BASIS OF THE THEN ASSESSABLE WORTH OF THE DESIGN FOR THIS PARTICULAR GROUND EFFECTS MACHINE, AND THE GOVERNMENT WOULD HAVE BEEN IN A POSITION TO PURCHASE RIGHTS TO SAID DESIGN IF IT SO DESIRED. BY THIS PROCEDURE, THE GOVERNMENT WAS ABLE TO AVOID THE PURCHASE OF AN UNPROVEN DESIGN, AND, INSTEAD, POSTPONE ITS DECISION UNTIL THE RESULTS OF THE TESTING AND ENGINEERING WORK PERFORMED UNDER THE CONTRACT WERE KNOWN.

WHEN THIS INCOMPLETED LAST STEP IS CONSIDERED, IT CAN BE SEEN THE MARITIME ADMINISTRATION DID NOT INTEND TO PURCHASE DATA IT COULD NOT ULTIMATELY USE AS IT SAW FIT NOR DID VRC INTEND TO RETAIN RIGHTS IN ONLY THOSE FEW SHEETS OF PAPER IN THE ACTUAL PATENT APPLICATION IN DISREGARD OF THE COMPLETE DISCLOSURES CONTAINED IN THE CONTRACT DATA. RATHER, THE CONTRACTING PARTIES AGREED TO GIVE THE GOVERNMENT THE OPTION TO PURCHASE, AT A PRICE TO BE NEGOTIATED AT THE TIME, A DESIGN SO DETAILED THAT IT WOULD BE "SUFFICIENT TO ENTER INTO CONSTRUCTION OF THE GROUND EFFECT SHIP.' THUS, PART IV ENVISIONED THE PRODUCTION OF DATA SUITABLE FOR DRAFTING SPECIFICATIONS FOR THE PROCUREMENT OF OPERATIONAL GROUND EFFECT VEHICLES. EFFECT VEHICLES. GIVEN THIS LATER OPPORTUNITY FOR THE GOVERNMENT TO ACQUIRE A RIGHT TO THE PROTECTED DESIGN, THE FACT THAT THE GOVERNMENT HAD ONLY LIMITED RIGHT TO USE THE DATA GENERATED UNDER THE EARLY PORTION OF THE CONTRACT DOES NOT OPERATE TO THE GOVERNMENT'S DETRIMENT.

BASED UPON THE ABOVE, IT IS THE OPINION OF THIS OFFICE THAT MUCH OF THE DATA, DRAWINGS AND OTHER MATERIALS SUBMITTED BY VRC TO THE MARITIME ADMINISTRATION PURSUANT TO PARTS I, II, AND III OF THE CONTRACT, IS SO CLOSELY RELATED TO AND PREMISED UPON THE PATENT APPLICATION DESIGN THAT THE PROVISION RESTRICTING THE GOVERNMENT'S USE OF THE PATENT APPLICATION OPERATES TO SIMILARLY RESTRICT THE GOVERNMENT'S USE OF THE DATA PURCHASED UNDER THE CONTRACT. IT THEREFORE FOLLOWS THAT IF THE MARITIME ADMINISTRATION INTENDS TO DISSEMINATE ANY OF THE DATA WHICH REVEALS THE SCHEME DESCRIBED IN THE PATENT APPLICATION, THE RIGHT TO DO SO MUST BE NEGOTIATED WITH VRC.

WE NOTE THAT CERTAIN OF THE DRAWINGS AND PAPERS SUBMITTED BY VRC, WHICH DO NOT INCORPORATE ANY OF THE DESIGN FEATURES PECULIAR TO THE MACHINE DESCRIBED IN THE PATENT APPLICATION, MAY BE USED IN ANY MANNER.

WE FURTHER NOTE DISCUSSION IN THE FILE ON THE PART OF BOTH PARTIES CONCERNING THE EFFECT OF THE PRESENCE OR ABSENCE OF RESTRICTIONS PRINTED UPON THE DATA DECLARING IT TO BE PROPRIETARY TO VRC. SINCE WE HAVE DECIDED THE UNDERLYING QUESTION REGARDING WHETHER THE MATERIAL WAS IN FACT INTENDED FOR LIMITED USES, AND SINCE THE DATA HAS NOT BEEN DISCLOSED TO THIRD PARTIES, THERE IS NO REASON TO EXAMINE THIS PROBLEM HERE.

FINALLY, WHILE WE RECOGNIZE THE FACTS OF THE INSTANT CASE DIFFER IN SOME PARTICULARS FROM THOSE IN 42 COMP. GEN. 346, THE "BARISH" DECISION, WE ARE OF THE OPINION THIS PRESENT DECISION IS IN ACCORD WITH THE PRINCIPLES ENUNCIATED IN SAID PRIOR CASE.