Even at this late date after over a decade of abuse, let me try once more to see if I can find anyone in our representative form of Government who has integrity and is capable of DOING SOMETHING! The letter below was confirmed received on the day it was sent (via FAX):
Chairman Sam Graves
House Committee on Small Business
2361 Rayburn House Office Building
Washington, D.C. 20515
Phone (202) 225-5821
FAX (202) 226-5276 09AUG11
Dear Chairman Graves:
Hi from South Florida. I am writing this letter to you in my capacities as a concerned citizen, a U.S. Army Aviation Warrant Officer Veteran, and as a Veteran Owned Small Business owner (and winner of the SBIR Success Story Award, http://www.canvs.com/support.htm).
I have been fighting tirelessly for the rights of Small Business for the last thirteen plus years. Delaying tactics, obfuscation, disregard for the rule of law, a culture of impunity to accountability, and a self perpetuating “Bureaucratic culture” has resulted in a complete breakdown rendering any legislation designed to protect and foster Small Business ineffective.
After being on the receiving end of what can only be described as arrogant blatant disregard for rules, regulations, policies, procedures and The Law by representatives of my Government, I was reluctantly forced to (after over a decade of exhausting every administrative option available to me and my small business to avoid going to court) file suite in the Court of Federal Claims for theft of Intellectual Property (http://www.canvs.com/CANVS-V-USA/CANVS-V-USA.htm). CANVS Corporation V. THE UNITED STATES OF AMERICA, Case 1:10-cv-00540-ECH was filed on August 11, 2010 in The Court of Federal Claims. The case only addresses a small subsection of the abuses that my company (and I) have suffered. Parts of this story have been covered in the media and pursued by law enforcement, but the larger issues have gone unanswered. (http://www.msnbc.msn.com/id/17814559/ns/business-world_business/t/itt-fined-million-illegal-exports/), (http://www.judicialwatch.org/blog/2005/nov/army-colonel-indicted).
I am not writing this letter to complain, I am writing this letter to inform you that I have identified and comprehensively documented a number of very troubling recurring themes that are costing my country dearly. To date my concerns have fallen on many deaf ears (ears that are supposed to respond to these kinds of sounds). If you are interested in understanding the problems I have identified, hearing my ideas on how to fix the problems, and substantively act on behalf of Small Business, I am willing to testify to your Committee, a Grand Jury (as some of the information could result in criminal proceedings if the Department of Justice is so inclined), or whatever body you deem appropriate for me to disclose the decade of evidence I have amassed in the documentation of what I consider to be crimes against my country and an affront to Small Business. With my extensive background in Experimental Physics I should not have been surprised that whistle blowing can not be heard in a vacuum.
I look forward to hearing from you and for an opportunity to meet you and your committee the next time I am in DC.
Sincerely,
Jonathan A. Walkenstein
President,
CANVS Corporation
1172 South Dixie Highway Suite 364
Coral Gables, FL 33146-2918
Cell = (305) 582-3301
E-Mail = jon@canvs.com
No response as of yet (if you listen carefully you can hear I am not holding my breath...)
Tuesday, August 16, 2011
Saturday, May 14, 2011
"Geronimo EKIA"
I am sure Geronimo, The Apache Indian chief, A Mighty Warrior, turned over in his grave when he heard that the Codename for Osama was Geronimo!
Mad Props to the folks who pulled off the mission, BUT, I have a question for my viewing public.
Which is worse:
a) The most wanted man on the planet with a $25 Million price on his head was able to go undetected by the entire intelligence community of the United States and our allies for over a decade.
b) We knew where he was all along but only decided to take him out now.
Glad it provided some closure to the families that were effected on 9-11, and I am sure it could not have happened to a nicer person.
Let us not forget there are plenty more where he came from and we had better continue the mission. Rational people can disagree and have a civilized conversation, but don't think for a moment that everyone is capable of rational behavior.
I can only hope that our guys choose a more fitting code name for Ayman al-Zawahiri.
Mad Props to the folks who pulled off the mission, BUT, I have a question for my viewing public.
Which is worse:
a) The most wanted man on the planet with a $25 Million price on his head was able to go undetected by the entire intelligence community of the United States and our allies for over a decade.
b) We knew where he was all along but only decided to take him out now.
Glad it provided some closure to the families that were effected on 9-11, and I am sure it could not have happened to a nicer person.
Let us not forget there are plenty more where he came from and we had better continue the mission. Rational people can disagree and have a civilized conversation, but don't think for a moment that everyone is capable of rational behavior.
I can only hope that our guys choose a more fitting code name for Ayman al-Zawahiri.
Friday, April 29, 2011
National Media in need of a Spine Donor...
Parts of stories related to the CANVS story have seen the light of day in the press:
How to commit high treason and buy your way out:
http://www.msnbc.msn.com/id/17814559/ns/business-world_business/
Build your own Golden Parachute:
http://www.judicialwatch.org/blog/2005/nov/army-colonel-indicted
Win friends and influence people:
http://abcnews.go.com/Politics/story?id=1667009&page=1
Will the dead Congressman please take a bow (oh my bad he's DEAD):
http://www.bnet.com/blog/government/kuchera-group-goes-softly-into-the-night/4965
But, after over a decade of CANVS trying to find someone in the media with the moral courage to run our story, NO CIGAR!
One night in DC there were no hotel or motel rooms to be had (typical when they are wrangling over the budget, they can't pack enough lobbyists into the place...), in a last ditch effort to secure a location to stage my demonstrations and briefings to the various agencies that I had scheduled, I drove up to the Watergate hotel, walked in, and magically procured two rooms (it did cost me an arm and a leg). In a moment of weakness (thinking I could find someone who might run the CANVS story) I called the Washington post and left the following message:
Mr. Woodward, this is Mr. Walkenstein I am at the Watergate Hotel, I have a story you may be interested in running.
A few minutes later Bob Woodward called me back. I briefly outlined some of the high-points of a story worthy of National Media exposure. He dispatched Pulitzer Prize winning Journalist Mary Pat Flaherty to come to my room at the Watergate Hotel.
In a gesture of good faith (and to put her at ease as well as to provide bonofidies) I had a number of different night vision instruments set up for her to look at. After demonstrating the equipment in question to her I provided her with enough soft copy data to not only write a story, but did the leg work associated with independent sources that could confirm all of the factual information I provided. After many months of going back and forth answering her every question, and providing contextual information, there was a deafening radio silence.
When I called Woodward he asked me to never call him again. I asked for the return of my data many times but to no avail. No explanation was ever given by Mary or Bob as to why the cold shoulder.
I will quote my Mom, she used to say: "I am seldom surprised, but I am often disappointed". This was usually in the context of folks promising to do things and not keeping their word.
I grew up with many fundamental principals seared into my being (awesome parents and personal experience), one of the key ones for me is:
YOUR WORD IS YOUR BOND
In the case of Bob Woodward and the Washington Post to date they have clearly defaulted on their Bond!
Message to the Post: PLEASE RETURN MY DATA OR RUN THE STORY!
How to commit high treason and buy your way out:
http://www.msnbc.msn.com/id/17814559/ns/business-world_business/
Build your own Golden Parachute:
http://www.judicialwatch.org/blog/2005/nov/army-colonel-indicted
Win friends and influence people:
http://abcnews.go.com/Politics/story?id=1667009&page=1
Will the dead Congressman please take a bow (oh my bad he's DEAD):
http://www.bnet.com/blog/government/kuchera-group-goes-softly-into-the-night/4965
But, after over a decade of CANVS trying to find someone in the media with the moral courage to run our story, NO CIGAR!
One night in DC there were no hotel or motel rooms to be had (typical when they are wrangling over the budget, they can't pack enough lobbyists into the place...), in a last ditch effort to secure a location to stage my demonstrations and briefings to the various agencies that I had scheduled, I drove up to the Watergate hotel, walked in, and magically procured two rooms (it did cost me an arm and a leg). In a moment of weakness (thinking I could find someone who might run the CANVS story) I called the Washington post and left the following message:
Mr. Woodward, this is Mr. Walkenstein I am at the Watergate Hotel, I have a story you may be interested in running.
A few minutes later Bob Woodward called me back. I briefly outlined some of the high-points of a story worthy of National Media exposure. He dispatched Pulitzer Prize winning Journalist Mary Pat Flaherty to come to my room at the Watergate Hotel.
In a gesture of good faith (and to put her at ease as well as to provide bonofidies) I had a number of different night vision instruments set up for her to look at. After demonstrating the equipment in question to her I provided her with enough soft copy data to not only write a story, but did the leg work associated with independent sources that could confirm all of the factual information I provided. After many months of going back and forth answering her every question, and providing contextual information, there was a deafening radio silence.
When I called Woodward he asked me to never call him again. I asked for the return of my data many times but to no avail. No explanation was ever given by Mary or Bob as to why the cold shoulder.
I will quote my Mom, she used to say: "I am seldom surprised, but I am often disappointed". This was usually in the context of folks promising to do things and not keeping their word.
I grew up with many fundamental principals seared into my being (awesome parents and personal experience), one of the key ones for me is:
YOUR WORD IS YOUR BOND
In the case of Bob Woodward and the Washington Post to date they have clearly defaulted on their Bond!
Message to the Post: PLEASE RETURN MY DATA OR RUN THE STORY!
"A child of five would understand this. Send someone to fetch a child of five." —Groucho Marx
Anyone can have a sense of humor when everything is going well, a true sense of humor is when you can laugh in the face of overwhelming odds. While I am on the subject of humor I would like to share with you another one of my favorite Groucho Marx quotes that sums up behavior in our Nation's Capitol:
"Those are my principles, and if you don't like them... well, I have others."
Thursday, March 31, 2011
Rule of Law or Mad Max?
The most important reason to follow this blog has to do with a concept at the heart of a civilized democratic society: THE RULE OF LAW. If there is one set of laws for one group of society, and another for the "elite", it creates a flaw in the cornerstone that can result in a catastrophic failure of anything built upon this kind of foundation.
The concept of "Equal Justice Under The Law" implies that everyone who works hard and plays by the rules will at least have an opportunity to have the Justice system protect them from attack UNDER THE LAW. A sad commentary on the system is that without active enforcement of the laws, prior to the act, individuals and companies have to strike back with legal action AFTER being wronged.
At least in the case of CANVS V USA, prior to and during the wrong doings in question, I did everything in my power to inform the various agencies, offices, and enforcement arms of the US Government, to ask them to stop the theft and inappropriate activities. There is no plausible deniability, and as we all know, ignorance is no excuse for the law.
Please click on the "follow this blog" link, and ask your friends to follow this blog, because if I do not suceed in my quest to hold these folks responsible for their actions, everyone can expect to be subject to the same kind of treatment (or worse) in the future. This kind of behavior replicated throughout our society has to potential to destroy this country if it is not identified and terminated with extreme predujice.
The concept of "Equal Justice Under The Law" implies that everyone who works hard and plays by the rules will at least have an opportunity to have the Justice system protect them from attack UNDER THE LAW. A sad commentary on the system is that without active enforcement of the laws, prior to the act, individuals and companies have to strike back with legal action AFTER being wronged.
At least in the case of CANVS V USA, prior to and during the wrong doings in question, I did everything in my power to inform the various agencies, offices, and enforcement arms of the US Government, to ask them to stop the theft and inappropriate activities. There is no plausible deniability, and as we all know, ignorance is no excuse for the law.
Please click on the "follow this blog" link, and ask your friends to follow this blog, because if I do not suceed in my quest to hold these folks responsible for their actions, everyone can expect to be subject to the same kind of treatment (or worse) in the future. This kind of behavior replicated throughout our society has to potential to destroy this country if it is not identified and terminated with extreme predujice.
Shame on you SOCOM and ARL...
In 2006 I went to the IDGA Night Vision Systems 2006 Conference in Arlington Virginia
where I watched as an Army Research Laboratory representative (Peter Paicopolis, Army Research Laboratory Technical Representative US Special Operations Command ) give a talk entitled: Modular Multi-Spectral Goggle in Night Vision Applications. I should point out that the title of my SOCOM SBIR Phase-II was: Multi-Spectral Low-Light Imaging. The author of the talk was the former SOCOM Program Manager for the CANVS SBIR one Kurt A. Badertscher, his title, at least for this paper, had changed to Research Engineer, Army Research Laboratory. This talk was the only reason I went to the conference as I suspected that some of the CANVS material might find its way into the presentation. I sat in disgust as the Patent Pending CANVS Color Night Vision Goggle configuration was briefed. It was abundantly clear that SOCOM and ARL were purchasing the CANVS solution from another vendor. I received a CD with copies of all of the talks presented at the conference, that is all but this talk. I was not a happy camper, I told the organizers of the conference that the only reason I paid to come to the conference was to get a copy of the talk, they said they couldn't help, ARL did not provide a copy of the talk for inclusion on the CD.
Purchasing the CANVS technology delivered under the SBIR Phase-II inside the 5 year cooling off period from the end of the project is a no-no. A lesser known fact is that CANVS was under a a contract that meet the requirements of being called a Phase-III effort. It turns out that the clock on the 5 year period starts ticking only after the end of the Phase-III effort. Reminds me of the old Timex commercials, “takes a licking and keeps on ticking”. Any way you slice it, it is against the law for ANY US Government Agency to purchase the CANVS technology from anyone but CANVS until 5 years after the end of the CANVS Phase-III.
So far no one seems to care about this but me. Numerous attempts to talk to various folks in Government whose job it is to enforce this kind of thing have resulted in the standard form letter that goes something like this:
Thank you for your concern the material will be forwarded to the proper authorities for further investigation.
Sincerely,
Joseph A Blow
Undersecretary of Buck Passing
Not to worry, I am slowly policing up all of the loose ends and expect to have their undivided attention in short order, or shall we say Court Order...
where I watched as an Army Research Laboratory representative (Peter Paicopolis, Army Research Laboratory Technical Representative US Special Operations Command ) give a talk entitled: Modular Multi-Spectral Goggle in Night Vision Applications. I should point out that the title of my SOCOM SBIR Phase-II was: Multi-Spectral Low-Light Imaging. The author of the talk was the former SOCOM Program Manager for the CANVS SBIR one Kurt A. Badertscher, his title, at least for this paper, had changed to Research Engineer, Army Research Laboratory. This talk was the only reason I went to the conference as I suspected that some of the CANVS material might find its way into the presentation. I sat in disgust as the Patent Pending CANVS Color Night Vision Goggle configuration was briefed. It was abundantly clear that SOCOM and ARL were purchasing the CANVS solution from another vendor. I received a CD with copies of all of the talks presented at the conference, that is all but this talk. I was not a happy camper, I told the organizers of the conference that the only reason I paid to come to the conference was to get a copy of the talk, they said they couldn't help, ARL did not provide a copy of the talk for inclusion on the CD.
Purchasing the CANVS technology delivered under the SBIR Phase-II inside the 5 year cooling off period from the end of the project is a no-no. A lesser known fact is that CANVS was under a a contract that meet the requirements of being called a Phase-III effort. It turns out that the clock on the 5 year period starts ticking only after the end of the Phase-III effort. Reminds me of the old Timex commercials, “takes a licking and keeps on ticking”. Any way you slice it, it is against the law for ANY US Government Agency to purchase the CANVS technology from anyone but CANVS until 5 years after the end of the CANVS Phase-III.
So far no one seems to care about this but me. Numerous attempts to talk to various folks in Government whose job it is to enforce this kind of thing have resulted in the standard form letter that goes something like this:
Thank you for your concern the material will be forwarded to the proper authorities for further investigation.
Sincerely,
Joseph A Blow
Undersecretary of Buck Passing
Not to worry, I am slowly policing up all of the loose ends and expect to have their undivided attention in short order, or shall we say Court Order...
Wednesday, March 30, 2011
No top cover for small business, or The Congressional "self licking ice cream cone"
The government talks the talk, but very little walking (at least in the area of National Defense). Back in July of 2005 I was invited by the Small Business Administration to attend a conference in San Diego. CANVS was designated an “SBIR success story company” by the SBA for our Color Night Vision Goggles and Color Night Vision Video Systems delivered under a US SOCOM SBIR Phase-II Award. I guess it was sort of a big deal, only 9 companies out of thousands were selected. I would like to point out it was not important enough for them to pay for my trip to San Diego.
There I sat in the front row (rare occurrence of me in a suit and tie) listening to the SBA Administrator talk about how great the SBIR program is, how the companies selected were examples of how well everything works. I just couldn't sit there and take it. When he was finished and said “any questions”, this is more of a courtesy and no one is expected to ask anything, after all this is the top guy for SBA, I raised my hand, the few folks in the room who knew me were petrified, and rightfully so. I pointed out that because the product that I developed was for US Government use only, without Congressionally Mandated Funding, and follow up from the procurement folks, as far as I was concerned this was an abject failure. In addition, the Government representatives stood by and watched intellectual property developed by a veteran owned small business be handed to our competitors and did nothing to stop it. I asked if there was ever a push by the SBA to get POM Cycle Funding for procurement of SBIR Phase-II developed technologies that were wanted for large scale deployment and what steps would be taken to protect the Small Businesses Intellectual Property.
Time to take a brief break to tell you what POM Cycle Funding is.
The final product of the programming process within the Department of Defense, a Component's Program Objectives Memorandum (POM) displays the resource allocation decisions of the Military Department in response to, and in accordance with, the Guidance for Development of the Force (GDF) and Joint Programming Guidance (JPG). The POM shows programmed needs 6 years hence (i.e., in FY 2008, POM 2010-2015 was submitted). (DoD 7000.14-R) (Source: DAU Glossary of Defense Acquisition Acronyms & Terms).
Let me break this down for you in English. As a commander, I have to guess what I will need for my guys six years from now and ask for the money today from Congress or six years down the road I won't have a budget to buy anything!
So my question was this, given that the SBIR Phase-II program might produce military technology that could be of some use, why not have congressionally mandated funding so that IF there was technology that the folks in uniform wanted that came out of the SBIR Program there would be funding and protection in place for the Small Business.
The response was astounding, he claimed that SBA had asked for POM SBIR-II Transition funding many times and never got it approved.
Let me use my decoder ring to translate the meaning of this for you. Congress funds a program to allow Small Business to develop new technology but no help in protecting (through follow on funding) the Small Business after the development is complete. In theory there are laws in place that state that the Government can not purchase SBIR developed technologies from anyone but the company that developed it for at least 5 years from the end of the Phase-II SBIR Contract. It takes about 5 years for large scale procurement of equipment for the military. It looks like is once the technology is developed they simply wait the 5 years out, put funding lines for the large defense contractors to build the technologies in question. These are the same defense contractors who are large political contributors to the very folks who vote for the funding, and presto. This is one of the “self licking ice cream cone” scenarios.
There was an Under Secretary of Defense at the conference who was incensed by my accusation that SOCOM had mishandled CANVS IP, the fall out from this exchange will be the subject of another post (once my blood pressure goes down enough to objectively report the facts for you).
There I sat in the front row (rare occurrence of me in a suit and tie) listening to the SBA Administrator talk about how great the SBIR program is, how the companies selected were examples of how well everything works. I just couldn't sit there and take it. When he was finished and said “any questions”, this is more of a courtesy and no one is expected to ask anything, after all this is the top guy for SBA, I raised my hand, the few folks in the room who knew me were petrified, and rightfully so. I pointed out that because the product that I developed was for US Government use only, without Congressionally Mandated Funding, and follow up from the procurement folks, as far as I was concerned this was an abject failure. In addition, the Government representatives stood by and watched intellectual property developed by a veteran owned small business be handed to our competitors and did nothing to stop it. I asked if there was ever a push by the SBA to get POM Cycle Funding for procurement of SBIR Phase-II developed technologies that were wanted for large scale deployment and what steps would be taken to protect the Small Businesses Intellectual Property.
Time to take a brief break to tell you what POM Cycle Funding is.
The final product of the programming process within the Department of Defense, a Component's Program Objectives Memorandum (POM) displays the resource allocation decisions of the Military Department in response to, and in accordance with, the Guidance for Development of the Force (GDF) and Joint Programming Guidance (JPG). The POM shows programmed needs 6 years hence (i.e., in FY 2008, POM 2010-2015 was submitted). (DoD 7000.14-R) (Source: DAU Glossary of Defense Acquisition Acronyms & Terms).
Let me break this down for you in English. As a commander, I have to guess what I will need for my guys six years from now and ask for the money today from Congress or six years down the road I won't have a budget to buy anything!
So my question was this, given that the SBIR Phase-II program might produce military technology that could be of some use, why not have congressionally mandated funding so that IF there was technology that the folks in uniform wanted that came out of the SBIR Program there would be funding and protection in place for the Small Business.
The response was astounding, he claimed that SBA had asked for POM SBIR-II Transition funding many times and never got it approved.
Let me use my decoder ring to translate the meaning of this for you. Congress funds a program to allow Small Business to develop new technology but no help in protecting (through follow on funding) the Small Business after the development is complete. In theory there are laws in place that state that the Government can not purchase SBIR developed technologies from anyone but the company that developed it for at least 5 years from the end of the Phase-II SBIR Contract. It takes about 5 years for large scale procurement of equipment for the military. It looks like is once the technology is developed they simply wait the 5 years out, put funding lines for the large defense contractors to build the technologies in question. These are the same defense contractors who are large political contributors to the very folks who vote for the funding, and presto. This is one of the “self licking ice cream cone” scenarios.
There was an Under Secretary of Defense at the conference who was incensed by my accusation that SOCOM had mishandled CANVS IP, the fall out from this exchange will be the subject of another post (once my blood pressure goes down enough to objectively report the facts for you).
Monday, March 28, 2011
Condor Quote...
"Boy, what is it with you people? "
"You think not getting caught in a lie is the same thing as telling the truth."
"You think not getting caught in a lie is the same thing as telling the truth."
Sunday, March 27, 2011
CANVS V USA in plain English
Let me make it abundantly clear what this blog is about. It is about theft and inappropriate activities (in many cases the referenced behaviors are against the law) of individuals in Industry and Government and my attempts to address my concerns related to these activities.
Although some of the financial aspects of these inappropriate activities are being addressed in the CANVS case currently in the Court Of Federal Claims, this blog is aimed at gaining traction in my efforts to address the larger issues uncovered during my (over a decade's worth) trying to provide advanced capabilities to the men and women in our uniformed services.
I will be documenting a total breakdown of the systems and offices designed to protect small business, defense related technologies, and accountability for inappropriate activities.
Stay tuned!
Although some of the financial aspects of these inappropriate activities are being addressed in the CANVS case currently in the Court Of Federal Claims, this blog is aimed at gaining traction in my efforts to address the larger issues uncovered during my (over a decade's worth) trying to provide advanced capabilities to the men and women in our uniformed services.
I will be documenting a total breakdown of the systems and offices designed to protect small business, defense related technologies, and accountability for inappropriate activities.
Stay tuned!
Friday, March 25, 2011
The 3 most dangerous things you can hear in the US Army...
3) When a Lieutenant says: "It has been my experience..."
2) When a Captain says: "I have an idea..."
And the #1 most dangerous thing you can hear in the US Army:
WHEN A WARRANT OFFICER SAYS:
"WATCH THIS..."
Signed,
Jonathan Alexander Walkenstein
Former US Army Aviation Warrant Officer
p.s.:
Watch this Blog...
2) When a Captain says: "I have an idea..."
And the #1 most dangerous thing you can hear in the US Army:
WHEN A WARRANT OFFICER SAYS:
"WATCH THIS..."
Signed,
Jonathan Alexander Walkenstein
Former US Army Aviation Warrant Officer
p.s.:
Watch this Blog...
Good thing the speed of Government isn't relativistic...
"Actioni contrariam semper et æqualem esse reactionem: sive corporum duorum actiones in se mutuo semper esse æquales et in partes contrarias dirigi."
Thank you Issac!
http://en.wikipedia.org/wiki/Newton's_laws_of_motion
As I prepare to respond with an equal and opposite force to the forces applied to me and my company over the last decade how could anyone be suprised ?
Clearly if anyone is suprised they never had any basic Physics Classes...
Thank you Issac!
http://en.wikipedia.org/wiki/Newton's_laws_of_motion
As I prepare to respond with an equal and opposite force to the forces applied to me and my company over the last decade how could anyone be suprised ?
Clearly if anyone is suprised they never had any basic Physics Classes...
Old Dog's don't need new tricks (if the Dog is big enough...)
I guess my idea of "Duty, Honor, Country" is shared only in words and not in deeds by most companies (feel free to provide me with evidence to the contrary to post on this blog).
So we are absolutly clear who we are talking about:
Nothing new, the following is an extract from this history lesson:
===============
The Telephone Plot
During the early days of 1942, Karl Lindemann, the Rockefeller-Standard Oil representative in Berlin, held a series of urgent meetings with two directors of the American International Telephone and Telegraph Corporation: Walter Schellenberg, head of the Gestapo's counterintelligence service (SD), and Baron Kurt von Schroder of the BIS and the Stein Bank. The result of these meetings was that Gerhardt Westrick, the crippled boss of ITT in Nazi Germany, got aboard an ITT Focke-Wulf bomber and flew to Madrid for a meeting in March with Sosthenes Behn, American ITT chief.
In the sumptuous Royal Suite of Madrid's Ritz Hotel, the tall, sharp-faced Behn and the heavily limping Westrick sat down for lunch to discuss how best they could improve ITT's links with the Gestapo, and its improvement of the whole Nazi system of telephones, teleprinters, aircraft intercoms, submarine and ship phones, electric buoys, alarm systems, radio and radar parts, and fuses for artillery shells, as well as the Focke-Wulf bombers that were taking thousands of American lives.
Sosthenes Behn, whose first name was Greek for "life strength," was born in St. Thomas, the Virgin Islands, on January 30, 1882. His father was Danish and his mother French-Italian. He and his brother Hernand, later his partner, were schooled in Corsica and Paris.
In 1906, Behn and his brother took over a sugar business in Puerto Rico and snapped up a small and primitive local telephone company by closing in on a mortgage. Realizing the potential of the newfangled telephone, Behn began to buy up more companies in the Caribbean. He became a U.S. citizen in 1913. In World War I, Behn served in the Signal Corps as chief of staff for General George Russell. He learned a great deal about military communications systems, and his services to France earned him the Legion d'Honneur. Back in the United States, Behn became associated with AT&T, of which Winthrop Aldrich was later a director. In 1920, Behn's work in the field of cables enabled him to set up the ITT with $6 million paid in capital. Gradually, he spun out a web of communications that ran worldwide. He soon became the telephone king of the world, making deals with AT&T and J. P. Morgan that resulted in his running the entire telephone system of Spain by 1923. His Spanish chairman was the Duke of Alba, later a major supporter of Franco and Hitler. In 1930 Behn obtained the Rumanian telephone industry, to which he later added the Hungarian, German, and Swedish corporations. By 1931 his empire was worth over $64 million despite the Wall Street crash. He became a director of-inevitably-the National City Bank, which financed him along with the Morgans.
Behn was aided by fascist governments, into which he rapidly interlocked his system by assuring politicians promising places on his boards. He ran his empire from 67 Broad Street, New York.
When Hitler invaded Poland, Behn and Schroder conferred with t: German alien property custodian, H-J Caesar. The result was that the ITT Polish companies were protected from seizure for the duration.
Another protector of Behn's in Germany was ITT's colorful corporation chairman, Gerhardt Westrick. Westrick was a skilled company lawyer, the German counterpart and associate of John Foster Dulles. Westrick's partner until 1938, the equally brilliant Dr. Heinrich Albert, was head of Ford in Germany until 1945. Both were crucially important to The Fraternity.
At the beginning of 1940, Behn decided to have Westrick go to the United States to link up the corporate strands that would remain secure throughout World War II. German Foreign Minister von Ribbentrop was equally concerned that Westrick undertake the mission. Westrick represented in Germany not only Ford but General Motors, Standard Oil, the Texas Company, Sterling Products, and the Davis Oil Company.
On June 26, 1940, his Fraternity associates gave a party for Westrick at the Waldorf-Astoria Hotel to celebrate the Nazi victory in France. This was, of course, only appropriate. Fraternity guests at this scorpions' feast included Dietrich, brother of Hermann Schmitz of General Aniline and Film; James D. Mooney of General Motors; Edsel Ford of the Ford Motor Company; William Weiss of Sterling Products; and Torkild Rieber of the Texas Company. These leaders of The Fraternity agreed to help in the free-trade agreements that would follow a negotiated peace with Germany.
Westrick leased a large house in Scarsdale, New York, from one of Rieber's Texas Company lawyers. He was seen entering and leaving the house in the company of prominent figures of the Nazi government and American industry. The New York Daily News sent reporter George Dickson to investigate the meaning of a big white placard with a large G on it in a window of a front second-floor bedroom. The press generally was suggesting this formed some kind of code for use by Nazi agents. Dickson wrote in his column: ''Phantom-like men in white have been responding by day and night to mysterious signaling from a secluded Westchester mansion-now disclosed as the secret quarters of Dr. Gerhardt A. Westrick-invariably they carry carefully wrapped packages . . . they salute with all the precision of Storm Troopers, deliver the packages, salute again- and silently depart . . . super-sleuthing finally solved the mystery just before last midnight.'' Then Dickson delivered his death blow to the story: The G sign was an invitation to the Good Humor man to deliver his famous ice cream on a stick!
J. Edgar Hoover of the FBI determined that Westrick had illegally obtained his driver's license by lying that he had no infirmities. The purpose was achieved: Walter Winchell, Drew Pearson, and other patriotic columnists blew up Westrick's Nazi connections out of all proportion, and Westrick was asked by German Charge d'Affaires Hans Thomsen to return to Germany at once.
But before he was ordered home, Westrick had been extremely busy. He had gone to see Edsel and Henry Ford at Dearborn on July 11 at the Fords' urgent invitation, conferring with the Grand Old Man and his son on the matter of restricting shipment of important Rolls-Royce motors to a beleaguered Britain that urgently needed them. He also visited with Will Clayton, Jesse Jones's associate in the Department of Commerce, who went with Westrick to see Cordell Hull to plead for the protection of German-American trade agreements on behalf of his friends in the Texas cotton industry.
Clayton was the chairman of the U.S. Commercial Company, and he helped protect Fraternity interests during World War II. Others of Westrick's circle included, interestingly enough, William Donovan, who became head of the OSS (precursor of the CIA) on its formation in 1942. Westrick also made significant contacts with good and true friends at Eastman Kodak and Underwood before returning home via Japan and Russia.
After Pearl Harbor, at meetings with Kurt von Schroder and Behn in Switzerland, Westrick nervously admitted he had run into a problem. Wilhelm Ohnesorge, the elderly minister in charge of post offices, who was one of the first fifty Nazi party members, was strongly opposed to ITT's German companies continuing to function under New York management in time of war. Behn told Westrick to use Schroder and the protection of the Gestapo against Ohnesorge. In return, Behn guaranteed that ITT would substantially increase its payments to the Gestapo through the Circle of Friends.
A special board of trustees was set up by the German government to cooperate with Behn and his thirty thousand staff in Occupied Europe. Ohnesorge savagely fought these arrangements and tried to obtain the support of Himmler. However, Schroder had Himmler's ear, and so, of course, did his close friend and associate Walter Schellenberg. Ohnesorge appealed directly to Hitler and condemned Westrick as an American sympathizer. However, Hitler realized the importance of ITT to the German economy and proved supportive of Behn.
The final arrangement was that the Nazi government would not acquire the shares of ITT but would confine itself to the administration of the shares. Westrick would be chairman of the managing directors.
Thus, an American corporation literally entered into partnership with the Nazi government in time of war.
Shortly after Pearl Harbor, Roosevelt had asked Nelson Rockefeller to prepare a study of the communications systems of South America. On May 4, 1942, the President had sent a memorandum to Henry Wallace in his role as chairman of the Board of Economic Warfare, ordering him to insure disconnection of all enemy nationals in the radio, telephone, and telegraph fields. He had urged Wallace to eliminate all Axis control and influence in telecommunications in Latin America, acquire hemisphere interests of all Axis companies, insure loyalty in employees, and disrupt direct lines to the enemy. He had asked for a corporation to be set up to handle the financial aspects of the program with the assistance and advice of an advisory committee.
Wallace approached Secretary of Commerce Jesse H. Jones to make the necessary arrangements. Jones set up the U.S. Commercial Company to take charge of the matter. It was a characteristic choice. The company's second-in-command was none other than Robert A. Gantt, vice-president of ITT itself. Gantt continued to receive salary from ITT while holding his position with the U.S. Commercial Company. The rest of the board was largely composed of directors of ITT or RCA (also a wartime partner in Nazi-American communications companies).
The Hemisphere Communications Committee sat with a mixed Treasury, State, Army, Navy, and U.S. Commercial Company board throughout World War II, doing little more than discussing possible actions against Axis-connected companies.
A pressing issue from Pearl Harbor on was the matter of ITT amalgamating the telephone companies of Mexico. One of these, Mexican Telephone and Telegraph, was owned by Behn outright. The other was owned by the Ericsson Company, of which Behn had a 35 percent share in Sweden. The Ericsson Company was partly owned by Nazi collaborator Axel Wenner-Gren and by Jacob Wallenberg, Swedish millionaire head of the ball bearings firm, which played both sides of the war.
In South America, Sosthenes Behn was in partnership (as well as rivalry) with an even more powerful organism: the giant Radio Corporation of America, which owned the NBC radio network. RCA was in partnership before and after Pearl Harbor with British Cable and Wireless; with Telefunken, the Nazi company; with Italcable, wholly owned by the Mussolini government; and with Vichy's Compagnie Generale, in an organization known as the Transradio Consortium, with General Robert C. Davis, head of the New York Chapter of the American Red Cross, as its chairman. In turn, RCA, British Cable and Wireless, and the German and Italian companies had a share with ITT in TTP (Telegrafica y Telefonica del Plata), an Axis-controlled company providing telegraph and telephone service between Buenos Aires and Montevideo. Nazis in Montevideo could telephone Buenos Aires through TTP without coming under the control of either the state-owned system in Uruguay or the ITT system in Argentina.
Messages, often dangerous to American security, were transmitted directly to Berlin and Rome by Transradio. Another shareholder was ITT's German "rival," Siemens, which linked cables and networks with Behn south of Panama.
The head of RCA during World War II was Colonel David Sarnoff, a stocky, square-set, determined man with a slow, subdued voice, who came from Russia as an immigrant at the turn of the century and began as a newspaper seller, messenger boy, and Marconi Wireless operator. He became world famous in 1912, at the age of twenty-one, as the young telegraph operator who first picked up word of the sinking of the Titanic: for seventy-two hours he conducted ships to the stricken vessel. He rose rapidly in the Marconi company, from inspector to commercial manager in 1917. He became general manager of RCA in 1922 at the age of thirty-one and president just before he was 40. Under his inspired organization NBC inaugurated network broadcasting and RCA and NBC became one of the most colossal of the American multinational corporations, pioneers in television and telecommunications.
After Pearl Harbor, Sarnoff cabled Roosevelt, "All of our facilities and personnel are ready and at your instant service. We await your command." Sarnoff played a crucial role, as crucial as Behn's, in the U.S. war effort, and, like Behn, he was given a colonelcy in the U.S. Signal Corps. He solved complex problems, dealt with a maze of difficult requirements by the twelve million members of the U.S. armed forces, and coordinated details related to the Normandy landings. He prepared the whole printed and electronic press-coverage of V-J day; in London in 1944, with headquarters at Claridge's Hotel, he was Eisenhower's inspired consultant and earned the Medal of Merit for his help in the occupation of Europe.
Opening in 1943 with a chorus of praise from various generals, the new RCA laboratories had proved to be indispensable in time of war.
But the public, which thought of Sarnoff as a pillar of patriotism, would have been astonished to learn of his partnership with the enemy through Transradio and TTP. The British public, beleaguered and bombed, would have been equally shocked to learn that British Cable and Wireless, 10 percent owned by the British government, and under virtual government control in wartime, was in fact also in partnership with the Germans and Italians through the same companies and proxies.
Simultaneously, the Transradio stations, according to State Department reports with the full knowledge of David Sarnoff, kept up a direct line to Berlin. The amount of intelligence passed along the lines can scarcely be calculated. The London office was in constant touch with New York throughout the war, sifting through reports from Argentina, Brazil, and Chile and sending company reports to the Italian and German interests.
In a remarkable example of the pot calling the kettle black, Nando Behn, the nephew of Sosthenes Behn, cabled his uncle from Buenos Aires to New York on June 29, 1942: "It is about time something is done down here to cut out the sole communication center in the Americas with Berlin. Our competitors, Transradio, have a direct radio circuit with Berlin and you can be pretty sure that every sailing from Buenos Aires is in Berlin before the ship is out of sight."
General Robert C. Davis never seemed to question the fact that his Swedish fellow board members were proxies of an enemy government. Nor that secret documents, charts, and patents were being transferred with speed, accuracy, and secrecy, with the authorization of the Japanese Minister of Communications, to South America direct.
On the day Paris was liberated, August 25, 1944, Behn drove in a jeep down the Champs-Elysees in a new role: He was "special communications expert for the Army of Occupation." His right-hand man, Kenneth Stockton, who had remained joint chairman with Westrick of the Nazi company throughout the war, was with him in the uniform of a three-star brigadier general. Behn made sure in Paris that his collaborating staff were not punished by Charles de Gaulle and the Free French. He was helped at high army levels to protect his friends.
When Germany fell, Stockton, with Behn, commandeered urgently needed trucks to travel into the Russian zone, remove machinery from ITT-owned works and aircraft plants-and move them into the American zone.
In 1945 a special Senate committee was set up on the subject of international communications. Completely unnoticed in the press, Burton K. Wheeler, "reformed" now that Germany had lost the war, became chairman. An immense dossier showing the extraordinary co-ownership with German and Japanese companies of RCA and ITT was actually published as an appendix to the hearings, but almost nobody took note of this formidable and fascinating half-million-word transcript. Least of all were its contents noted by the committee itself, which wasted the public's money by simply discussing for days (with Fraternity figures like James V. Forrestal) the possibility, quickly ruled out, of centralizing American communications systems. There was not a mention from beginning to end of the discussions of the questionable activities of RCA and ITT chiefs. Yet, in a curious series of exchanges between Wheeler and Rear Admiral Joseph R. Redman, who had been in charge of Naval Communications during the early part of the war, the cat leaped out of the bag in no uncertain manner. Apparently under the impression that the hearings would never be published, Wheeler seriously sat and talked of some of the reasons that such events had taken place. He asked Redman the question, already knowing the answer, "To what extent has American ownership of communications manufacturing companies in foreign countries, such as Germany, Sweden, and Spain, been of advantage, if any, to this country?" Redman replied, "Of course, from an economic point of view, I am not qualified to say, but I would say this from possibly a technical or research point of view, you get a cross-exchange of information in the research laboratories."
This amazing revelation by a high personage won the response from Wheeler, "And what about the disadvantages to us?'' Redman replied blandly, "While you are working on things here that are developed for military reasons, there may be a certain amount of leakage back to foreign fields."
Wheeler asked, "How could you keep a manufacturing plant in Germany or in Spain or in Sweden, even though controlled by Western Electric from exchanging information as to what they were doing?''
Redman replied, "Well, we have had to rely a great deal upon the integrity of our commercial activities. Of course, if a man is a crook, he is going to be a crook regardless of whether you set up restrictions or not.''
Wheeler said, "Let us suppose that you have a manufacturing company in Germany and also one here, and they are owned by the same company, aren't they exchanging information with reference to patents and everything else? . . . Admiral Redman, you are not naive enough to believe, if a company has an establishment in Germany and another in America, they are not both working to improve their patents, are they?''Redman admitted, ''No, sir."
Warming to his theme, Wheeler said, "Consequently, if there are private companies that have factories over there and also here, they're bound to exchange information. It seems to me this has been going on in all kinds of industry. And that would be true of the electronics industry, or any other manufacturing industry, and whether they have a medium for such exchange in the nature of cartels or something else, they exchange information. What check has the Navy made to find out whether or not information is exchanged in that manner?" Redman said, ''We get a certain amount of information from captured equipment, captured documents, and things like that, and can find out if there is a leakage.... Of course we have depended somewhat on our foreign attaches to get us some information on these things.... I do not like here to get into a discussion of intelligence because I fear we might get ourselves into trouble." Wheeler said, "You might, but some of us don't feel that way about it." "Perhaps not," Redman replied. Wheeler continued, "We might get into trouble in the Senate, but they cannot do anything about it. They cannot chop our heads off at the moment."Senator Homer Capehart added, "For at least six years."
On February 16, 1946, Major General Harry C. Ingles, Chief Signal Officer of the U.S. Army, acting on behalf of President Truman, presented the Medal of Merit, the nation's highest award to a civilian, to Behn at 67 Broad Street, New York. As he pinned the medal on Colonel Behn, Ingles said, "You are honored for exceptionally meritorious conduct in the performance of outstanding service to the United States.'' A few years later Behn received millions of dollars in compensation for war damage to his German plants in 1944. Westrick had obtained an equivalent amount from the Nazi government.
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
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).
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).
Thursday, March 24, 2011
Let's Make A Deal!
Two count felony and $100,000,000 fine and no one goes to jail? In a time of war, IT&T Night Vision released highly sensitive and classified materials (including detials related to the Enhanced Night Vision Goggle, one of the systems included in the CANVS V USA Patent Infringement Case before the Court of Federal Claims) to China and others. I think the laws are still on the books from WW-II (if not they should be...), I believe this is a hanging offence know as TREASON.
Below is the NBC news coverage:
http://www.msnbc.msn.com/id/17814559/ns/business-world_business
The US Army included Federal Acquisition Regulation (FAR) Subparts 52.227-1, Authorization and Consent, and 27.201-2(b),NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT (complete text of the referenced FAR Subparts is below for your reading pleasure).
What this means is that the U.S. Department of Justice will be shoulder to shoulder with the very same folks from IT&T Night Vision they recently charged with a two count felony, trying to defend against the indefensible actions related to the unlicensed use of the CANVS Patent in question.
FAR Subparts:
52.227-1 Authorization and Consent.
As prescribed in 27.201-2(a)(1), insert the following
clause:
AUTHORIZATION AND CONSENT (DEC 2007)
(a) The Government authorizes and consents to all use and
manufacture, in performing this contract or any subcontract at
any tier, of any invention described in and covered by a United
States patent—
(1) Embodied in the structure or composition of any
article the delivery of which is accepted by the Government
under this contract; or
(2) Used in machinery, tools, or methods whose use necessarily
results from compliance by the Contractor or a subcontractor
with (i) specifications or written provisions
forming a part of this contract or (ii) specific written instructions
given by the Contracting Officer directing the manner of
performance. the entire liability to the Government for
infringement of a United States patent shall be determined
solely by the provisions of the indemnity clause, if any,
included in this contract or any subcontract hereunder (including
any lower-tier subcontract), and the Government assumes
liability for all other infringement to the extent of the authorization
and consent hereinabove granted.
(b) The Contractor shall include the substance of this
clause, including this paragraph (b), in all subcontracts that
are expected to exceed the simplified acquisition threshold.
However, omission of this clause from any subcontract,
including those at or below the simplified acquisition threshold,
does not affect this authorization and consent.
(End of clause)
Alternate I (Apr 1984). As prescribed in 27.201-2(a)(2),
substitute the following paragraph (a) for paragraph (a) of the
basic clause:
(a) The Government authorizes and consents to all use and
manufacture of any invention described in and covered by a
United States patent in the performance of this contract or any
subcontract at any tier.
Alternate II (Apr 1984). As prescribed in 27.201-2(a)(3),
substitute the following paragraph (a) for paragraph (a) of the
basic clause:
(a) The Government authorizes and consents to all use and
manufacture in the performance of any order at any tier or subcontract
at any tier placed under this contract for communication
services and facilities for which rates, charges, and tariffs
are not established by a government regulatory body, of any
invention described in and covered by a United States patent—
(1) Embodied in the structure or composition of any article
the delivery of which is accepted by the Government under
this contract; or
(2) Used in machinery, tools, or methods whose use necessarily
results from compliance by the Contractor or a subcontractor
with specifications or written provisions forming a part
of this contract or with specific written instructions given by the
Contracting Officer directing the manner of performance.
52.227-2 Notice and Assistance Regarding Patent and
Copyright Infringement.
As prescribed in 27.201-2(b), insert the following clause:
NOTICE AND ASSISTANCE REGARDING PATENT AND
COPYRIGHT INFRINGEMENT (DEC 2007)
(a) The Contractor shall report to the Contracting Officer,
promptly and in reasonable written detail, each notice or claim
of patent or copyright infringement based on the performance
of this contract of which the Contractor has knowledge.
(b) In the event of any claim or suit against the Government
on account of any alleged patent or copyright infringement
arising out of the performance of this contract or out of the use
of any supplies furnished or work or services performed under
this contract, the Contractor shall furnish to the Government,
when requested by the Contracting Officer, all evidence and
information in the Contractor’s possession pertaining to such
claim or suit. Such evidence and information shall be furnished
at the expense of the Government except where the
Contractor has agreed to indemnify the Government.
(c) The Contractor shall include the substance of this
clause, including this paragraph (c), in all subcontracts that are
expected to exceed the simplified acquisition threshold.
(End of clause)
Below is the NBC news coverage:
http://www.msnbc.msn.com/id/17814559/ns/business-world_business
The US Army included Federal Acquisition Regulation (FAR) Subparts 52.227-1, Authorization and Consent, and 27.201-2(b),NOTICE AND ASSISTANCE REGARDING PATENT AND COPYRIGHT INFRINGEMENT (complete text of the referenced FAR Subparts is below for your reading pleasure).
What this means is that the U.S. Department of Justice will be shoulder to shoulder with the very same folks from IT&T Night Vision they recently charged with a two count felony, trying to defend against the indefensible actions related to the unlicensed use of the CANVS Patent in question.
FAR Subparts:
52.227-1 Authorization and Consent.
As prescribed in 27.201-2(a)(1), insert the following
clause:
AUTHORIZATION AND CONSENT (DEC 2007)
(a) The Government authorizes and consents to all use and
manufacture, in performing this contract or any subcontract at
any tier, of any invention described in and covered by a United
States patent—
(1) Embodied in the structure or composition of any
article the delivery of which is accepted by the Government
under this contract; or
(2) Used in machinery, tools, or methods whose use necessarily
results from compliance by the Contractor or a subcontractor
with (i) specifications or written provisions
forming a part of this contract or (ii) specific written instructions
given by the Contracting Officer directing the manner of
performance. the entire liability to the Government for
infringement of a United States patent shall be determined
solely by the provisions of the indemnity clause, if any,
included in this contract or any subcontract hereunder (including
any lower-tier subcontract), and the Government assumes
liability for all other infringement to the extent of the authorization
and consent hereinabove granted.
(b) The Contractor shall include the substance of this
clause, including this paragraph (b), in all subcontracts that
are expected to exceed the simplified acquisition threshold.
However, omission of this clause from any subcontract,
including those at or below the simplified acquisition threshold,
does not affect this authorization and consent.
(End of clause)
Alternate I (Apr 1984). As prescribed in 27.201-2(a)(2),
substitute the following paragraph (a) for paragraph (a) of the
basic clause:
(a) The Government authorizes and consents to all use and
manufacture of any invention described in and covered by a
United States patent in the performance of this contract or any
subcontract at any tier.
Alternate II (Apr 1984). As prescribed in 27.201-2(a)(3),
substitute the following paragraph (a) for paragraph (a) of the
basic clause:
(a) The Government authorizes and consents to all use and
manufacture in the performance of any order at any tier or subcontract
at any tier placed under this contract for communication
services and facilities for which rates, charges, and tariffs
are not established by a government regulatory body, of any
invention described in and covered by a United States patent—
(1) Embodied in the structure or composition of any article
the delivery of which is accepted by the Government under
this contract; or
(2) Used in machinery, tools, or methods whose use necessarily
results from compliance by the Contractor or a subcontractor
with specifications or written provisions forming a part
of this contract or with specific written instructions given by the
Contracting Officer directing the manner of performance.
52.227-2 Notice and Assistance Regarding Patent and
Copyright Infringement.
As prescribed in 27.201-2(b), insert the following clause:
NOTICE AND ASSISTANCE REGARDING PATENT AND
COPYRIGHT INFRINGEMENT (DEC 2007)
(a) The Contractor shall report to the Contracting Officer,
promptly and in reasonable written detail, each notice or claim
of patent or copyright infringement based on the performance
of this contract of which the Contractor has knowledge.
(b) In the event of any claim or suit against the Government
on account of any alleged patent or copyright infringement
arising out of the performance of this contract or out of the use
of any supplies furnished or work or services performed under
this contract, the Contractor shall furnish to the Government,
when requested by the Contracting Officer, all evidence and
information in the Contractor’s possession pertaining to such
claim or suit. Such evidence and information shall be furnished
at the expense of the Government except where the
Contractor has agreed to indemnify the Government.
(c) The Contractor shall include the substance of this
clause, including this paragraph (c), in all subcontracts that are
expected to exceed the simplified acquisition threshold.
(End of clause)
Dirty Deeds, Done Dirt Cheap: Industrial espionage
Q - Do you know the difference between a vacuum cleaner and the Board of Directors of a Major Defense Contractor?
A - The position of the dirt bag...
Industrial espionage
In June 2003, Lockheed Martin sued Boeing, alleging that the company had resorted to industrial espionage in 1998 to win the Evolved Expendable Launch Vehicle (EELV) competition. Lockheed claimed that the former employee Kenneth Branch, who went to work for McDonnell Douglas and Boeing, passed 25,000 proprietary documents to his new employers. Lockheed argued that these documents allowed Boeing to win 21 of the 28 tendered military satellite launches.
In July 2003, Boeing was penalized, with the Pentagon stripping $1 billion worth of contracts away from the company and awarding them to Lockheed Martin. Furthermore, the company was forbidden to bid for rocket contracts for a twenty-month period, which expired in March 2005.
In early September 2005, it was reported that Boeing was negotiating a settlement with the U.S. Department of Justice in which it would pay up to $500 million to cover this and the Darleen Druyun scandal.[33]
Extracted from:
http://en.wikipedia.org/wiki/Boeing#Industrial espionage
A - The position of the dirt bag...
Industrial espionage
In June 2003, Lockheed Martin sued Boeing, alleging that the company had resorted to industrial espionage in 1998 to win the Evolved Expendable Launch Vehicle (EELV) competition. Lockheed claimed that the former employee Kenneth Branch, who went to work for McDonnell Douglas and Boeing, passed 25,000 proprietary documents to his new employers. Lockheed argued that these documents allowed Boeing to win 21 of the 28 tendered military satellite launches.
In July 2003, Boeing was penalized, with the Pentagon stripping $1 billion worth of contracts away from the company and awarding them to Lockheed Martin. Furthermore, the company was forbidden to bid for rocket contracts for a twenty-month period, which expired in March 2005.
In early September 2005, it was reported that Boeing was negotiating a settlement with the U.S. Department of Justice in which it would pay up to $500 million to cover this and the Darleen Druyun scandal.[33]
Extracted from:
http://en.wikipedia.org/wiki/Boeing#Industrial espionage
Unethical conduct
It is not like the folks I am talking about don't have a very bad track record and public history, for example:
Unethical Conduct
In May 2003, the US Air Force announced it would lease 100 KC-767 tankers to replace the oldest 136 of its KC-135s. In November 2003, responding to critics who argued that the lease was more expensive than an outright purchase, the DoD announced a revised lease of 20 aircraft and purchase of 80. In December 2003, the Pentagon announced the project was to be frozen while an investigation of allegations of corruption by one of its former procurement staffers, Darleen Druyun (who began employment at Boeing in January) was begun. The fallout of this resulted in the resignation of Boeing CEO Philip M. Condit and the termination of CFO Michael M. Sears.[31] Harry Stonecipher, former McDonnell Douglas CEO and Boeing COO, replaced Condit on an interim basis. Druyun pleaded guilty to inflating the price of the contract to favor her future employer and to passing information on the competing Airbus A330 MRTT bid. In October 2004, she was sentenced to nine months in jail for corruption, fined, given three years of supervised release and 150 hours of community service.
In March 2005, the Boeing board forced President and CEO Harry Stonecipher to resign. Boeing said an internal investigation revealed a "consensual" relationship between Stonecipher and a female executive that was "inconsistent with Boeing's Code of Conduct" and "would impair his ability to lead the company".[32] James A. Bell served as interim CEO (in addition to his normal duties as Boeing’s CFO) until the appointment of Jim McNerney as the new Chairman, President, and CEO on June 30, 2005.
This is an extract from:
http://en.wikipedia.org/wiki/Boeing#Unethical_conduct
Unethical Conduct
In May 2003, the US Air Force announced it would lease 100 KC-767 tankers to replace the oldest 136 of its KC-135s. In November 2003, responding to critics who argued that the lease was more expensive than an outright purchase, the DoD announced a revised lease of 20 aircraft and purchase of 80. In December 2003, the Pentagon announced the project was to be frozen while an investigation of allegations of corruption by one of its former procurement staffers, Darleen Druyun (who began employment at Boeing in January) was begun. The fallout of this resulted in the resignation of Boeing CEO Philip M. Condit and the termination of CFO Michael M. Sears.[31] Harry Stonecipher, former McDonnell Douglas CEO and Boeing COO, replaced Condit on an interim basis. Druyun pleaded guilty to inflating the price of the contract to favor her future employer and to passing information on the competing Airbus A330 MRTT bid. In October 2004, she was sentenced to nine months in jail for corruption, fined, given three years of supervised release and 150 hours of community service.
In March 2005, the Boeing board forced President and CEO Harry Stonecipher to resign. Boeing said an internal investigation revealed a "consensual" relationship between Stonecipher and a female executive that was "inconsistent with Boeing's Code of Conduct" and "would impair his ability to lead the company".[32] James A. Bell served as interim CEO (in addition to his normal duties as Boeing’s CFO) until the appointment of Jim McNerney as the new Chairman, President, and CEO on June 30, 2005.
This is an extract from:
http://en.wikipedia.org/wiki/Boeing#Unethical_conduct
Monday, March 21, 2011
The Little Red Hen!
The Little Red Hen
CANVS: "Who will help me wright the wrong?"
CANVS: "Who will help me wright the wrong?"
- "Not I" Said The House,
- "Not I" Said The Senate,
- "Not I", Said The Government Accountability Office,
- "Not I", Said The Army Material Command,
- "Not I", Said The Intellectual Property Counsel of the Army,
- "Not I", Said The Armed Services Board of Contract Appeals.
Are you on the level?
Gee yet another FAR Subpart that no one in Government seems to care about enforcing (YET)! Do you guys know the story of the Little Red Hen?
Technical Leveling is regulated by FAR 15.610(d).
FAR 15.610(d)
The contracting officer and other Government personnel involved shall not engage in technical leveling (i.e., helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussion, such as by pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal).
This note on Technical Leveling was posted by The U.S. Department of Commerce on August 30, 1989.
Technical Leveling is regulated by FAR 15.610(d).
FAR 15.610(d)
The contracting officer and other Government personnel involved shall not engage in technical leveling (i.e., helping an offeror to bring its proposal up to the level of other proposals through successive rounds of discussion, such as by pointing out weaknesses resulting from the offeror's lack of diligence, competence, or inventiveness in preparing the proposal).
This note on Technical Leveling was posted by The U.S. Department of Commerce on August 30, 1989.
Your Company looks a little pale, nothing a transfusion can't fix!
I am begining to wonder if the FAR is a comprehensively documented well established rule of law or a how to manual for White Collar Criminals!
Technical Transfusion is regulated by FAR 15.610(e).
FAR 15.610(e)
(e) The following conduct may constitute prohibited conduct under section 27 of the Office of Federal Procurement Policy Act [3.104–4 Statutory and related prohibitions, restrictions, and requirements.(a) Prohibition on disclosing procurement information (subsection 27(a) of the Act).], as amended (41 U.S.C. 423, The Procurement Integrity Act), and FAR Subpart 3.104 to which civil and criminal penalties and administrative remedies apply.
(1) Technical transfusion (i.e., Government disclosure of technical information pertaining to a proposal that results in improvement of a competing proposal); or
(2) Auction techniques, such as--
(i) Indicating to an offeror a cost or price that it must meet to obtain further consideration;
(ii) Advising an offeror of its price standing relative to another offeror (however, it is permissible to inform an offeror that its cost or price is considered by the Government to be too high or unrealistic); and
(iii) Otherwise furnishing information about other offerors' prices.
Technical Transfusion is regulated by FAR 15.610(e).
FAR 15.610(e)
(e) The following conduct may constitute prohibited conduct under section 27 of the Office of Federal Procurement Policy Act [3.104–4 Statutory and related prohibitions, restrictions, and requirements.(a) Prohibition on disclosing procurement information (subsection 27(a) of the Act).], as amended (41 U.S.C. 423, The Procurement Integrity Act), and FAR Subpart 3.104 to which civil and criminal penalties and administrative remedies apply.
(1) Technical transfusion (i.e., Government disclosure of technical information pertaining to a proposal that results in improvement of a competing proposal); or
(2) Auction techniques, such as--
(i) Indicating to an offeror a cost or price that it must meet to obtain further consideration;
(ii) Advising an offeror of its price standing relative to another offeror (however, it is permissible to inform an offeror that its cost or price is considered by the Government to be too high or unrealistic); and
(iii) Otherwise furnishing information about other offerors' prices.
Fun with the FAR: Q-What part of "A high level of business security must be maintained in order to preserve the integrity of the acquisition process" don't you understand? A-"The integrity part".
I have read more FAR and DFAR text than any other human in the history of the planet. Not even the folks who wrote it have read it as much as I have. It's not great literature so let me share some of the high point with you!
FAR Subpart 5.4 Release of Information
5.401 General.
(a) A high level of business security must be maintained in order to preserve the integrity of the acquisition process. When it is necessary to obtain information from potential contractors and others outside the Government for use in preparing Government estimates, contracting officers shall ensure that the information is not publicized or discussed with potential contractors.
(b) Contracting officers may make available maximum information to the public, except information—
(1) On plans that would provide undue or discriminatory advantage to private or personal interests;
(2) Received in confidence from an offeror;
(3) Otherwise requiring protection under Freedom of Information Act (see Subpart 24.2) or Privacy Act (see Subpart 24.1); or
(4) Pertaining to internal agency communications (e.g., technical reviews, contracting authority or other reasons, or recommendations referring thereto).
(c) This policy applies to all Government personnel who participate directly or indirectly in any stage of the acquisition cycle.
5.402 General public.
Contracting officers shall process requests for specific information from the general public, including suppliers, in accordance with Subpart 24.1 or 24.2, as appropriate.
5.403 Requests from Members of Congress.
Contracting officers shall give Members of Congress, upon their request, detailed information regarding any particular contract. When responsiveness would result in disclosure of classified matter, business confidential information, or information prejudicial to competitive acquisition, the contracting officer shall refer the proposed reply, with full documentation, to the agency head and inform the legislative liaison office of the action.
5.404 Release of long-range acquisition estimates.
To assist industry planning and to locate additional sources of supply, it may be desirable to publicize estimates of unclassified long-range acquisition requirements. Estimates may be publicized as far in advance as possible.
5.404-1 Release procedures.
(a) Application. The agency head, or a designee, may release long-range acquisition estimates if the information will—
(1) Assist industry in its planning and facilitate meeting the acquisition requirements;
(2) Not encourage undesirable practices (e.g., attempts to corner the market or hoard industrial materials); and
(3) Not indicate the existing or potential mobilization of the industry as a whole.
(b) Conditions. The agency head shall ensure that—
(1) Classified information is released through existing security channels in accordance with agency security regulations;
(2) The information is publicized as widely as practicable to all parties simultaneously by any of the means described in this part;
(3) Each release states that—
(i) The estimate is based on the best information available,
(ii) The information is subject to modification and is in no way binding on the Government, and
(iii) More specific information relating to any individual item or class of items will not be furnished until the proposed action is synopsized through the GPE or the solicitation is issued;
(4) Each release contains the name and address of the contracting officer that will process the acquisition;
(5) Modifications to the original release are publicized as soon as possible, in the same manner as the original; and
(6) Each release—
(i) Is coordinated in advance with small business, public information, and public relations personnel, as appropriate;
(ii) Contains, if applicable, a statement that small business set-asides may be involved, but that a determination can be made only when acquisition action is initiated; and
(iii) Contains the name or description of the item, and the estimated quantity to be acquired by calendar quarter, fiscal year, or other period. It may also contain such additional information as the number of units last acquired, the unit price, and the name of the last supplier.
5.404-2 Announcements of long-range acquisition estimates.
Further publicizing, consistent with the needs of the individual case, may be accomplished by announcing through the GPE that long-range acquisition estimates have been published and are obtainable, upon request, from the contracting officer.
5.405 Exchange of acquisition information.
(a) When the same item or class of items is being acquired by more than one agency, or by more than one contracting activity within an agency, the exchange and coordination of pertinent information, particularly cost and pricing data, between these agencies or contracting activities is necessary to promote uniformity of treatment of major issues and the resolution of particularly difficult or controversial issues. The exchange and coordination of information is particularly beneficial during the period of acquisition planning, presolicitation, evaluation, and pre-award survey.
(b) When substantial acquisitions of major items are involved or when the contracting activity deems it desirable, the contracting activity shall request appropriate information (on both the end item and on major subcontracted components) from other agencies or contracting activities responsible for acquiring similar items. Each agency or contracting activity receiving such a request shall furnish the information requested. The contracting officer, early in a negotiation of a contract, or in connection with the review of a subcontract, shall request the contractor to furnish information as to the contractor’s or subcontractor’s previous Government contracts and subcontracts for the same or similar end items and major subcontractor components.
5.406 Public disclosure of justification and approval documents for noncompetitive contracts.
Justifications for other than full and open competition must be posted in accordance with 6.305.
--------------------------------------------------------------------------------
FAR Subpart 5.4 Release of Information
5.401 General.
(a) A high level of business security must be maintained in order to preserve the integrity of the acquisition process. When it is necessary to obtain information from potential contractors and others outside the Government for use in preparing Government estimates, contracting officers shall ensure that the information is not publicized or discussed with potential contractors.
(b) Contracting officers may make available maximum information to the public, except information—
(1) On plans that would provide undue or discriminatory advantage to private or personal interests;
(2) Received in confidence from an offeror;
(3) Otherwise requiring protection under Freedom of Information Act (see Subpart 24.2) or Privacy Act (see Subpart 24.1); or
(4) Pertaining to internal agency communications (e.g., technical reviews, contracting authority or other reasons, or recommendations referring thereto).
(c) This policy applies to all Government personnel who participate directly or indirectly in any stage of the acquisition cycle.
5.402 General public.
Contracting officers shall process requests for specific information from the general public, including suppliers, in accordance with Subpart 24.1 or 24.2, as appropriate.
5.403 Requests from Members of Congress.
Contracting officers shall give Members of Congress, upon their request, detailed information regarding any particular contract. When responsiveness would result in disclosure of classified matter, business confidential information, or information prejudicial to competitive acquisition, the contracting officer shall refer the proposed reply, with full documentation, to the agency head and inform the legislative liaison office of the action.
5.404 Release of long-range acquisition estimates.
To assist industry planning and to locate additional sources of supply, it may be desirable to publicize estimates of unclassified long-range acquisition requirements. Estimates may be publicized as far in advance as possible.
5.404-1 Release procedures.
(a) Application. The agency head, or a designee, may release long-range acquisition estimates if the information will—
(1) Assist industry in its planning and facilitate meeting the acquisition requirements;
(2) Not encourage undesirable practices (e.g., attempts to corner the market or hoard industrial materials); and
(3) Not indicate the existing or potential mobilization of the industry as a whole.
(b) Conditions. The agency head shall ensure that—
(1) Classified information is released through existing security channels in accordance with agency security regulations;
(2) The information is publicized as widely as practicable to all parties simultaneously by any of the means described in this part;
(3) Each release states that—
(i) The estimate is based on the best information available,
(ii) The information is subject to modification and is in no way binding on the Government, and
(iii) More specific information relating to any individual item or class of items will not be furnished until the proposed action is synopsized through the GPE or the solicitation is issued;
(4) Each release contains the name and address of the contracting officer that will process the acquisition;
(5) Modifications to the original release are publicized as soon as possible, in the same manner as the original; and
(6) Each release—
(i) Is coordinated in advance with small business, public information, and public relations personnel, as appropriate;
(ii) Contains, if applicable, a statement that small business set-asides may be involved, but that a determination can be made only when acquisition action is initiated; and
(iii) Contains the name or description of the item, and the estimated quantity to be acquired by calendar quarter, fiscal year, or other period. It may also contain such additional information as the number of units last acquired, the unit price, and the name of the last supplier.
5.404-2 Announcements of long-range acquisition estimates.
Further publicizing, consistent with the needs of the individual case, may be accomplished by announcing through the GPE that long-range acquisition estimates have been published and are obtainable, upon request, from the contracting officer.
5.405 Exchange of acquisition information.
(a) When the same item or class of items is being acquired by more than one agency, or by more than one contracting activity within an agency, the exchange and coordination of pertinent information, particularly cost and pricing data, between these agencies or contracting activities is necessary to promote uniformity of treatment of major issues and the resolution of particularly difficult or controversial issues. The exchange and coordination of information is particularly beneficial during the period of acquisition planning, presolicitation, evaluation, and pre-award survey.
(b) When substantial acquisitions of major items are involved or when the contracting activity deems it desirable, the contracting activity shall request appropriate information (on both the end item and on major subcontracted components) from other agencies or contracting activities responsible for acquiring similar items. Each agency or contracting activity receiving such a request shall furnish the information requested. The contracting officer, early in a negotiation of a contract, or in connection with the review of a subcontract, shall request the contractor to furnish information as to the contractor’s or subcontractor’s previous Government contracts and subcontracts for the same or similar end items and major subcontractor components.
5.406 Public disclosure of justification and approval documents for noncompetitive contracts.
Justifications for other than full and open competition must be posted in accordance with 6.305.
--------------------------------------------------------------------------------
What part of 18 USC 1905 don't you understand?
If there is any doubt as to the laws governing the proper behavior with regards to retransmission of materials briefed to folks in Government by Small Business (or anyone else for that matter) fear not I will show you the way.
John: 8-32
"Ye shall know the truth, and the truth shall make you free."
Title 18 of the U.S. Code Section 1905 (18 USC 1905) is written with such clairty that if you have command of the english language and respect for the rule of law it leaves no room for any excuses.
TITLE 18—CRIMES AND CRIMINAL PROCEDURE
§ 1905. Disclosure of confidential information
generally
Whoever, being an officer or employee of the
United States or of any department or agency
thereof, any person acting on behalf of the Federal
Housing Finance Agency, or agent of the
Department of Justice as defined in the Antitrust
Civil Process Act (15 U.S.C. 1311–1314), or
being an employee of a private sector organization
who is or was assigned to an agency under
chapter 37 of title 5, publishes, divulges, discloses,
or makes known in any manner or to any
extent not authorized by law any information
coming to him in the course of his employment
or official duties or by reason of any examination
or investigation made by, or return, report
or record made to or filed with, such department
or agency or officer or employee thereof, which
information concerns or relates to the trade secrets,
processes, operations, style of work, or apparatus,
or to the identity, confidential statistical
data, amount or source of any income,
profits, losses, or expenditures of any person,
firm, partnership, corporation, or association; or
permits any income return or copy thereof or
any book containing any abstract or particulars
thereof to be seen or examined by any person except
as provided by law; shall be fined under this
title, or imprisoned not more than one year, or
both; and shall be removed from office or employment.
John: 8-32
"Ye shall know the truth, and the truth shall make you free."
Title 18 of the U.S. Code Section 1905 (18 USC 1905) is written with such clairty that if you have command of the english language and respect for the rule of law it leaves no room for any excuses.
TITLE 18—CRIMES AND CRIMINAL PROCEDURE
§ 1905. Disclosure of confidential information
generally
Whoever, being an officer or employee of the
United States or of any department or agency
thereof, any person acting on behalf of the Federal
Housing Finance Agency, or agent of the
Department of Justice as defined in the Antitrust
Civil Process Act (15 U.S.C. 1311–1314), or
being an employee of a private sector organization
who is or was assigned to an agency under
chapter 37 of title 5, publishes, divulges, discloses,
or makes known in any manner or to any
extent not authorized by law any information
coming to him in the course of his employment
or official duties or by reason of any examination
or investigation made by, or return, report
or record made to or filed with, such department
or agency or officer or employee thereof, which
information concerns or relates to the trade secrets,
processes, operations, style of work, or apparatus,
or to the identity, confidential statistical
data, amount or source of any income,
profits, losses, or expenditures of any person,
firm, partnership, corporation, or association; or
permits any income return or copy thereof or
any book containing any abstract or particulars
thereof to be seen or examined by any person except
as provided by law; shall be fined under this
title, or imprisoned not more than one year, or
both; and shall be removed from office or employment.
Monday, March 14, 2011
For the Record: Asking for Help (One more time...)
Today I sent a letter to Mr. Pedro M. Villa (Regional Director for Senator Bill Nelson of Florida) as a follow-up to the 3+ hour briefing I presented to Mr. Villa on TU 08MAR11 at Senator Bill Nelson's office in Coral Gables.
I hope the good Senator has the moral courage to respond with deeds not just words. I must say that I am slightly disappointed that the other Florida Senator and the Speaker of The House have not yet responded to my request for help.
Dear Senator Nelson:
CANVS Corporation, a three person, veteran-owned, small business, based in Coral Gables, Florida, was founded in 1998 to develop, and deliver, advanced capabilities to US military and intelligence communities. CANVS Corporation, a veteran-owned, small business founded by a former U.S. Army Aviation Warrant officer, has been developing advanced night vision capabilities for US Special Operations and the Intelligence Community since its inception in 1998. CANVS is most well known in the Night Vision Community for its work on Color Night Vision and Sensor Fusion Programs. On 11AUG10, CANVS Corporation vs. the United States of America was filed in the Court of Federal Claims for patent infringement related to CANVS’ Sensor Fusion Patent. In building its case against the U.S. Army, DARPA, SOCOM, and others, CANVS has comprehensively documented not only the specific inappropriate behavior associated with the case but also the processes employed by these agencies and associated individuals that have been operating in this fashion with impunity.
The narrative that follows illustrates several key points:
The Process by which new military technologies are developed, predominately by small, entrepreneurially-driven businesses and introduced to various Government Agencies.
How the government extracts information from industry primarily by small businesses and passes this information to large defense contractors in direct violation of federal technology leveling and transfusion laws.
The process by which government contracts for military programs are awarded. Although, on the face of it these contracting activities (supposedly regulated by the Defense Federal Acquisition Regulations, DFARs, and Federal Acquisition Regulations, FARs) look like fair and open opportunities, the reality is that lobbying and back door dealing have totally subverted the process into a pay to play game. In addition to allowing theft of Intellectual Property, this process rarely results in the best equipment for the operators, and often results in significantly higher costs both monetarily and in the length of time it takes to get the equipment in question into the hands of the operational units that desperately need it.
The methods used by key Individuals in industry and government to subvert the process for individual and organizational gain to the detriment of the end users and creators of the technology. Golden parachutes, kickbacks, jobs-upon-retirement, re-tasking of congressionally-mandated budgets (against Federal Law), and other nefarious quid-pro-quo arrangements and how they undermine every aspect of the process.
How to address these issues so that our nation has an opportunity to recover and survive the ever increasing challenges that must be met in order to of protect our national security.
There are institutions (and individuals) in the United States Government whose sacred duty is to ensure that the guardians of our National Security have the tactical over-match capabilities they desperately need in order to successfully execute their missions and return home safely to their families. In addition, there are also rules, regulations, policies, and laws that clearly define appropriate behavior associated with these positions and duties.
In spite of these facts, there exists a persistent and troubling pattern of behavior exhibited by some government agencies, and certain individuals, that is not only wholly inappropriate, unethical, and in some instances illegal, but also threatens to destroy our nation’s ability to maintain our current status of global military preeminence and therefore our national security and interests.
A standard operating procedure has been put into practice by these institutions that allows key individuals to utilize layers of bureaucracy both, classified and unclassified, to expertly manipulate and exploit their respective positions/power for personal and bureaucratic gain at the cost of our National Security, the lives of our nations troops and at the expense of small businesses and one our nation’s most critical resources, its entrepreneurs.
CANVS serves as an excellent, though unfortunate example of the types of procedures, policies and practices that an entrepreneurial-driven, small corporation can expect to encounter when focusing on development of new technologies for US military and law enforcement markets. After ten years of classified “delaying tactics” that were employed by the U.S. Department of Defense, and more than five years spent by CANVS in a futile attempt to exhaust its administrative remedies, CANVS has reluctantly been left with no other alternative than to seek relief in the US Court of Claims (CANVS CORPORATION vs. THE UNITED STATES OF AMERICA). This suit was filed in the Court of Federal Claims on August 11, 2010 (see attached filing) alleging patent infringement by the United States Army, et al, associated with the Enhanced Night Vision Goggle (ENVG) program and various other currently fielded sensor fusion programs.
The following are links to link to:
The CANVS web page: http://www.canvs.com
The green night vision vs. CANVS Color Night Vision, cigar-smoking, split screen video: http://www.canvs.com/CANVS-cigar.wmv
Additionally, http://www.canvs.com/Walkenstein-4PTO.wmv is a link to the video sequence (of a digital clock in an otherwise dark room) that resulted in CANVS finally being issued the Sensor Fusion patent (the patent is attached with the filing). This video demonstrates the utility of independent manual gain control of the sensors (in this example gain control of the green image intensified night vision channel) which is one of the key claims in CANVS’ patent, as well as, the case before the US Court of claims.
Program Executive Office Soldier Enhanced Night Vision Goggle, ENVG (one of the infringing systems also involved in the illegal export charges http://www.msnbc.msn.com/id/17814559/ns/business-world_business/) Video: http://vimeo.com/4532787
Over $880,000,000 awarded on ENVG so far: http://www.defence-update.net/wordpress/tag/envg
Additional infringing devices include a number of sensor-fused weapon site programs:
The Dual-band Universal Night Sight http://www.omnitechpartners.com/osti/products/duns.htm
The Fused Multispectral Weapon sight http://www.irconnect.com/noc/press/pages/news_releases.html?d=65353
The FIST sight http://www.knightarmco.com/nightvision/index.html
The sensor fusion module on the Air Force Special Forces AC-130 Gunship http://www.lockheedmartin.com/products/q-39/
The sensor fusion payload on the Marine Corps AH-1Z Super Cobra Helicopters http://www.lockheedmartin.com/products/TSS/index.html
At least $6.4 Billion worth of sensor fusion payloads on the entire U.S. Army Apache Helicopter fleet (part of the Arrowhead upgrade program http://www.lockheedmartin.com/products/Arrowhead/).
CANVS can provide substantive and comprehensive documentation of specific malfeasance of the types discussed in this document at the highest levels of Industry and government and if required testify before Congress, a grand Jury, and/or a special investigator. These specific instances described herein also serve to uncover and expose various “standard” operating procedures that are employed by federal agencies and third parties to take unfair advantage of small business.
I look forward to helping you both right these specific wrongs and addressing the broader issues in such a way as to help innovative small companies and our nation make the myriad contributions needed to secure our nation and its future.
Sincerely,
Jonathan Alexander Walkenstein
Chief Executive Officer
CANVS Corporation
I hope the good Senator has the moral courage to respond with deeds not just words. I must say that I am slightly disappointed that the other Florida Senator and the Speaker of The House have not yet responded to my request for help.
Dear Senator Nelson:
CANVS Corporation, a three person, veteran-owned, small business, based in Coral Gables, Florida, was founded in 1998 to develop, and deliver, advanced capabilities to US military and intelligence communities. CANVS Corporation, a veteran-owned, small business founded by a former U.S. Army Aviation Warrant officer, has been developing advanced night vision capabilities for US Special Operations and the Intelligence Community since its inception in 1998. CANVS is most well known in the Night Vision Community for its work on Color Night Vision and Sensor Fusion Programs. On 11AUG10, CANVS Corporation vs. the United States of America was filed in the Court of Federal Claims for patent infringement related to CANVS’ Sensor Fusion Patent. In building its case against the U.S. Army, DARPA, SOCOM, and others, CANVS has comprehensively documented not only the specific inappropriate behavior associated with the case but also the processes employed by these agencies and associated individuals that have been operating in this fashion with impunity.
The narrative that follows illustrates several key points:
The Process by which new military technologies are developed, predominately by small, entrepreneurially-driven businesses and introduced to various Government Agencies.
How the government extracts information from industry primarily by small businesses and passes this information to large defense contractors in direct violation of federal technology leveling and transfusion laws.
The process by which government contracts for military programs are awarded. Although, on the face of it these contracting activities (supposedly regulated by the Defense Federal Acquisition Regulations, DFARs, and Federal Acquisition Regulations, FARs) look like fair and open opportunities, the reality is that lobbying and back door dealing have totally subverted the process into a pay to play game. In addition to allowing theft of Intellectual Property, this process rarely results in the best equipment for the operators, and often results in significantly higher costs both monetarily and in the length of time it takes to get the equipment in question into the hands of the operational units that desperately need it.
The methods used by key Individuals in industry and government to subvert the process for individual and organizational gain to the detriment of the end users and creators of the technology. Golden parachutes, kickbacks, jobs-upon-retirement, re-tasking of congressionally-mandated budgets (against Federal Law), and other nefarious quid-pro-quo arrangements and how they undermine every aspect of the process.
How to address these issues so that our nation has an opportunity to recover and survive the ever increasing challenges that must be met in order to of protect our national security.
There are institutions (and individuals) in the United States Government whose sacred duty is to ensure that the guardians of our National Security have the tactical over-match capabilities they desperately need in order to successfully execute their missions and return home safely to their families. In addition, there are also rules, regulations, policies, and laws that clearly define appropriate behavior associated with these positions and duties.
In spite of these facts, there exists a persistent and troubling pattern of behavior exhibited by some government agencies, and certain individuals, that is not only wholly inappropriate, unethical, and in some instances illegal, but also threatens to destroy our nation’s ability to maintain our current status of global military preeminence and therefore our national security and interests.
A standard operating procedure has been put into practice by these institutions that allows key individuals to utilize layers of bureaucracy both, classified and unclassified, to expertly manipulate and exploit their respective positions/power for personal and bureaucratic gain at the cost of our National Security, the lives of our nations troops and at the expense of small businesses and one our nation’s most critical resources, its entrepreneurs.
CANVS serves as an excellent, though unfortunate example of the types of procedures, policies and practices that an entrepreneurial-driven, small corporation can expect to encounter when focusing on development of new technologies for US military and law enforcement markets. After ten years of classified “delaying tactics” that were employed by the U.S. Department of Defense, and more than five years spent by CANVS in a futile attempt to exhaust its administrative remedies, CANVS has reluctantly been left with no other alternative than to seek relief in the US Court of Claims (CANVS CORPORATION vs. THE UNITED STATES OF AMERICA). This suit was filed in the Court of Federal Claims on August 11, 2010 (see attached filing) alleging patent infringement by the United States Army, et al, associated with the Enhanced Night Vision Goggle (ENVG) program and various other currently fielded sensor fusion programs.
The following are links to link to:
The CANVS web page: http://www.canvs.com
The green night vision vs. CANVS Color Night Vision, cigar-smoking, split screen video: http://www.canvs.com/CANVS-cigar.wmv
Additionally, http://www.canvs.com/Walkenstein-4PTO.wmv is a link to the video sequence (of a digital clock in an otherwise dark room) that resulted in CANVS finally being issued the Sensor Fusion patent (the patent is attached with the filing). This video demonstrates the utility of independent manual gain control of the sensors (in this example gain control of the green image intensified night vision channel) which is one of the key claims in CANVS’ patent, as well as, the case before the US Court of claims.
Program Executive Office Soldier Enhanced Night Vision Goggle, ENVG (one of the infringing systems also involved in the illegal export charges http://www.msnbc.msn.com/id/17814559/ns/business-world_business/) Video: http://vimeo.com/4532787
Over $880,000,000 awarded on ENVG so far: http://www.defence-update.net/wordpress/tag/envg
Additional infringing devices include a number of sensor-fused weapon site programs:
The Dual-band Universal Night Sight http://www.omnitechpartners.com/osti/products/duns.htm
The Fused Multispectral Weapon sight http://www.irconnect.com/noc/press/pages/news_releases.html?d=65353
The FIST sight http://www.knightarmco.com/nightvision/index.html
The sensor fusion module on the Air Force Special Forces AC-130 Gunship http://www.lockheedmartin.com/products/q-39/
The sensor fusion payload on the Marine Corps AH-1Z Super Cobra Helicopters http://www.lockheedmartin.com/products/TSS/index.html
At least $6.4 Billion worth of sensor fusion payloads on the entire U.S. Army Apache Helicopter fleet (part of the Arrowhead upgrade program http://www.lockheedmartin.com/products/Arrowhead/).
CANVS can provide substantive and comprehensive documentation of specific malfeasance of the types discussed in this document at the highest levels of Industry and government and if required testify before Congress, a grand Jury, and/or a special investigator. These specific instances described herein also serve to uncover and expose various “standard” operating procedures that are employed by federal agencies and third parties to take unfair advantage of small business.
I look forward to helping you both right these specific wrongs and addressing the broader issues in such a way as to help innovative small companies and our nation make the myriad contributions needed to secure our nation and its future.
Sincerely,
Jonathan Alexander Walkenstein
Chief Executive Officer
CANVS Corporation
14MAR11 CANVS V. USA
