Alan P. Klein is the Intellectual Property Counsel of the Army (JALS-IP). Hey Alan, I have a question for you: What would your mother say?

Dr. Edward H. Currie, Vice President, and Jonathan A. Walkenstein (that's me), President of CANVS Corporation, were present at the January 5, 2005 Enhanced Night Vision Goggle (ENVG) Pre-Bidders Conference that took place at 13:28 in building 399 at Fort Belvoir's Night Vision and Electronic Sensors Directorate.

Dr. Currie asked Mr. Jeff Pierce, The Contracting Officer for the ENVG Program representing The Research, Development and Engineering Command Acquisition Center (RDECOM) Aberdeen Proving Ground Maryland, the following question:

"What happens if this contract is let and given that it involves proprietary technology, that if the technology is not appropriately licensed, what happens to the award at that point?

Mr. Pierce answered:

"whoever owns the license would file a claim against the contractor awarded"

"Before we completely answer that we have to have some discussions with you know with our legal counsel … I am not a patent attorney … for something like that I would want to make sure that we were clear … proceeding in the proper format … So that to give you an answer we will do that in the question and answer and amendment once we run it by our attorney It would be wrong for us to try to answer it at this time."

It should be noted that Mr. Pierce never did deliver on his promise to CANVS to provide the answer to the CANVS question posed at this meeting to CANVS in writing. At the pre-bidders conference Mr. Pierce told CANVS that it would have to sue the winner of the contract if CANVS Intellectual Property was utilized without proper licensing. CANVS, through the Freedom of Information Act, obtained copies of the ENVG Contract as it stood on the day that CANVS asked the IP licensing question (January 5, 2005), and the contract as it was entered into between The Army and IT&T Night Vision. Mr. Pierce sent CANVS after IT&T Night Vision with full knowledge that he, himself, had added the Authorization and Consent clause, namely FAR 52.227-1 (see page 1391 of 1985 of the FAR) to the contract after CANVS asked its question.

This Email JALSIP-Premature-email-09-12-05-1121.htm was received by Walkenstein from Alan P. Klein, Intellectual Property Counsel of the Army (JALS-IP) on September 12, 2005 at 11:21 in response to Walkenstein's Letter sent to Secretary of the Army on August 30, 2005 (included in the CANVS Administrative claim) informing the Army that the ENVG Contract infringes on CANVS US Patent 6,911,652. In the letter the JALS-IP quotes chapter and verse of various regulations including:

USC Title 28 section 1498
USC Title 10 Section 2386
Part 227 of the DOD FAR Supplement
The requirements of 227.7004(a)
The requirements of 227.7004(b)

Mr. Klein goes on to state the following:

"It is our opinion that any such claim would be premature. Under Title 28, Section 1498, a claim accrues upon the first unauthorized use or manufacture of a patented invention. Unless there is direct evidence as to a first manufacture, the date an item is delivered to the Government is traditionally seen as the accrual date. Deliveries of the Enhanced Night Vision Goggle by ITT Industries, Inc. to the Army are not scheduled to occur until December 2005."

Hey Alan, REALLY? Either the JALS-IP and the referenced "our" (invoking all of the resources available to the US Army JAG Corps) are totally incompetent, or were caught in a bald face lie (evidence suggests that the latter is significantly more likely).

CANVS, at the time of the submission of its Administrative Claim on October 10, 2005, points out that CANVS (a three man operation) was able to obtain incontrovertible evidence documenting the following facts (in direct contravention to the JALS-IP's Opinion that any submission by CANVS as of September 12, 2005 at 11:21 would be "premature".

FACTS:

The US Army had procured at least 83 IT&T ENVG Systems under Contract number is W91CRB-05-D-0012 prior to the Award of the ENVG Production Contract (US Army Contract W91-CRB-05-D-0012 issued under Solicitation No. W91 CRB 050006 of the U.S. Army RD ECOM ACQ CTR-WB1CRB).

CANVS inspected an IT&T ENVG at The Force Protection Equipment Demonstration at Quantico Marine Corps Base Virginia (at which both CANVS and IT&T Night Vision were participating) in April of 2005 (Serial Number 0006). CANVS was able to use the device, take pictures of the device, and take pictures through the device.

The device inspected (in the expert opinions of both Dr. Edward H Currie Vice President and Jonathan A.
Walkenstein President of CANVS Corporation) infringed on all the claims in the CANVS Patent.

CANVS was able to obtain copies of two Army Research Laboratory Scientific Investigations associated with field testing of the 83 IT&T ENVG Systems prior to the January 5, 2005 ENVG Pre-Bidders Conference (ARL-Enhanced Night Vision Goggle Customer Test, and ARL-ENVG-Limited-User-Evaluation.pdf.

CANVS attended the 2004 IDGA Sensor Fusion Conference in Virginia where Ltc. Cynthia Bedell from PEO Soldier (Fort Belvoir Virginia) presented a talk (Cynthia Bedell.pdf), in an unclassified form, released into the public domain a comprehensive overview of the ENVG Program and details of the field testing of infringing devices prior to the January 5, 2005 ENVG Pre-Bidders Conference.

Here is a copy of the Administrative claim submitted by CANVS against the ENVG Program to the JALS-IP on October 10, 2005:

AdminClaim.pdf

The erroneous commentary made by the JALS-IP is addressed with incontrovertible evidence provided by CANVS in its Administrative Claim against the ENVG Program. It is inconceivable to think that the JALS-IP with all of the resources associated with his office and position, that he was not aware of the facts as they were presented to him by CANVS on October 10, 2005 prior to CANVS' submission.

On October 18, 2005 the U.S. Army had no choice but to accept the CANVS Administrative Claim against the ENVG Program after CANVS met and exceeded all of the requirements as stipulated by the various Laws, Rules, Regulations, Policies, Procedures, and opinions of the Army JAG Corps. This letter from JALS-IP names Michael J. Zelinka, Assistant Chief Counsel for Intellectual Property Law, HQ US Army Communications Electronics Command (AMSEL-LG-L) as the designated "assigned patent counsel" and confirms the Army's acceptance of the claim and the assignment of Army Administrative Claim Number 991591 (Chilling to think that there may have been 991,590 cases like this prior to the CANVS Submission).

18OCT05 Army-Zelenka.pdf

It is worthy to note that this entire process was executed by CANVS WITHOUT envoking CANVS
lawyers. This effort was conducted by Walkenstein in order to extend every opportunity to the US Army to sit down and discuss the matter in a civilized manner without the contentious atmosphere associated with lawyers on both sides of a dispute.

United States Army Legal Services Intellectual Property Regulation 27-60 sets forth the rules, regulations,
policies and procedures associated with Intellectual Property matters for the US Army (with the JALS-IP
being the last link in the Army IP Law Chain of Command):

AR 27-60

After numerous failed attempts by Walkenstein (through direct communication sent by Walkenstein to JALS-IP on October 19, 2006, and again on November 27, 2006, with the JALS-IP and his agents) to obtain copies of the 90 Day Reports required by AR 27-60 Section 6-4 (on page 13 of 42):

6–4. Investigation (Exempt report, AR 335–15, para 5–2e.)
The assigned patent counsel shall promptly investigate the claim.
the investigation will examine every area required to be addressed in
the final report(para 6–5). A status report addressing the progress of
the investigation will be submitted to JALS–IP every 3 months.
On August 16, 2006 Walkenstein asks Mr. Robert Dickerson Chief, U.S. Army Freedom of Information And Privacy Office, through a properly formatted Freedom Of Information Act (FOIA) Request to provide CANVS with copies of the mandated 90 Day reports associated with the JALS-IP CANVS Administrative Claim investigation:

90DAY-Reports-FOIA.doc

To ensure that the facts surrounding this exchange over the CANVS requests for copies of the 90 day reports are crystal clear please note that:

Alan P. Klein was the Intellectual Property Counsel of the Army (JALS-IP) at the time of this request, and that Michael J. Zelinka, Assistant Chief Counsel for Intellectual Property Law, HQ US Army Communications-Electronics Command (AMSEL-LG-L) at the time of this request, was the "assigned patent counsel" as documented in the October 18, 2005 Letter from JALS-IP to Walkenstein.

U.S. Army Freedom of Information Act Request (FOIAR) Log (Page 83 of 86, Request #FA-06-1561) documents CANVS request for copies of the 90 Day reports required under AR 27-60 (Section 6-4):

FOIA_Logs_USArmy-FOIAOfc_05-07.pdf

On October 17, 2006 Walkenstein receives an email from JALS-IP that can only be characterized as arrogant:

No 90 Day Reports: AlanKlein-17OCT06-1024.pdf

Mr. Klein's response is astounding (Hey Zelinka, how's the view from under the bus?). As the JALS-IP he is the ultimate authority for the Army responsible for ensuring adherence to and enforcement of AR 27-60 compliance (and compliance with any other laws, rules, regulations, policies, and procedures set forth by law). His flippant comment at the end of the email, "include a statement as to the reason you believe that we have such records" points to his either his total incompetence (which I highly doubt), or his absolute disregard for the Rule Of Law (a more likely explanation based on the CANVS documented behavior of the JALS-IP and other representatives of the U.S. Government in response to CANVS' myriad requests for substantive help in addressing CANVS' grievances and concerns).