CANVS Corporation
Docket: ASBCA 57784, ASBCA 57987
Decision date: 2018-09-06

ARMED SERVICES BOARD OF CONTRACT APPEALS 
 
Appeals of -- ) 
 ) 
CANVS Corporation ) ASBCA Nos. 57784, 57987 
 ) 
Under Contract No. USZA22-03-C-0027 ) 
 
APPEARANCE FOR THE APPELLANT: Joseph J. Zito, Esq. 
  DNL ZITO  
   Washington, DC 
 
APPEARANCES FOR THE GOVERNMENT: Jeffrey P. Hildebrant, Esq. 
  Air Force Deputy Chief Trial Attorney 
Chun-I Chiang, Esq. 
Joel B. Lofgren, Esq. 
  Trial Attorneys 
 
OPINION BY ADMINISTRATIVE JUDGE PEACOCK 
 
 These appeals arise from a contracting officer’s deemed denial and final decision 
involving a claim for $100 million asserting breach of contract for the unauthorized 
disclosure of allegedly proprietary information delivered under the contract.  Only 
entitlement is before us for decision.  We dismiss ASBCA No. 57784 as duplicative.  
We deny ASBCA No. 57987 for the reasons indicated below. 
 
FINDINGS OF FACT 
 
 A.  The Small Business Innovation Research (SBIR) Program 
 
 1.  The SBIR program assists small business concerns in obtaining and performing 
innovative research and development (R&D) work.  See Small Business Innovation 
Development Act of 1982, Pub. L. No. 97-219, sec. 4, § 9, 96 Stat. 217 (codified as 
amended at 15 U.S.C. § 638).  The SBIR program has three phases.  Phase I 
“determining…the scientific and technical merit and feasibility of ideas that appear to 
have commercial potential.”  15 U.S.C. § 638(e)(4)(A).  Phase II “further develop[s] 
proposals which meet particular program needs.”  15 U.S.C. § 638(e)(4)(B).  Phase III 
involves “commercial applications of SBIR-funded research or research and 
development” or “products or services intended for use by the Federal Government, by 
follow-on non-SBIR Federal funding awards” or “the continuation of research or research 

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and development that has been competitively selected using peer review or merit based 
selection procedures.”  15 U.S.C. § 683(e)(4)(C).  (GPF ¶ 1)1 
 
 2.  The federal agency in charge of overseeing the SBIR program is the Small 
Business Administration (SBA) (GPF ¶ 2).  To implement the SBIR legislation, the SBA 
issued policy directives and regulations (GPF ¶ 3). 
 
 3.  SBA Regulations require the small business receiving an SBIR contract to 
conduct research and development during SBIR Phase I and Phase II.  The primary 
objective of a Phase I SBIR contract is to prepare a paper study.  A prototype is permitted 
to be developed and delivered under a SBIR Phase II contract.  (GPF ¶ 4)  A SBIR Phase 
III contract is not funded by SBIR appropriations (tr. 6/64, 68, 135-36, 8/166-67, 180).  
The 2002 SBIR Policy Directive stated that “SBIR Phase III…is funded by sources other 
than the SBIR Program” (GPF ¶ 6). 
 
 4.  Department of Defense (DoD) Federal Acquisition Regulation Supplement 
(DFARS) clause 252.227-7018, RIGHTS IN NONCOMMERCIAL TECHNICAL DATA AND 
COMPUTER SOFTWARE—S MALL BUSINESS INNOVATION RESEARCH (SBIR) PROGRAM 
(JUN 1995) (the 7018 clause), is the technical data rights clause used in the DoD SBIR 
program contracts.  See DFARS 227.7104(a) (prescribing the use of the 7018 clause).   
 
 B.  Background of Night and Color Vision Science as of June 2005 
 
 5.  In general, visible light, e.g., light visible to the human eye, spans a narrow range 
of the electromagnetic spectrum, ranging between 400 and 700 nanometers (nm) in 
wavelengths.  Wavelengths below 400 nm begin to transition into the ultraviolet (UV) range 
and those greater than 700 nm begin to transition into the infrared (IR) range.  The 
wavelength range between 700 and 900 nm is referred to as “near infrared.”  (GPF ¶¶ 54-56) 
 
 6.  Under low light conditions, such as night, the sensitivity of the human eye 
drifts towards the lower frequencies or the infrared range.  Typically, the human eye is 
                                              
1 The Board issued a Briefing Order requiring the parties to propose, in their initial 
post-hearing briefs, numbered and detailed findings of fact with supporting 
citations to the record.  The parties were directed to note detailed, specific 
objections to the opposing party’s proposed findings (GPFs or APFs) and citations 
to the record in the initial brief, if any.  Accordingly, the Board has adopted 
undisputed (or undisputed portions) of the parties’ proposed findings as our own 
factual findings, without the accompanying supporting citations to the record.  
However, for reasons discussed in the Decision portion of this Opinion, appellant 
failed substantively to comply with the Briefing Order.  Consequently, we have 
relied to a considerable extent on the government’s proposed findings in our 
Findings of Fact herein. 

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sensitive to visible and infrared light in the range between 400 and 600 nm.  This 
wavelength range is typically referred to as the “photopic band.”  (GPF ¶ 57) 
 
 7.  In the context of human perception, the term “color” has a scientific definition 
and the term “color” denotes a perception, not wavelengths.  The term “true color” has a 
scientific definition and it means that the perceived color is the same irrespective of the 
different levels of illumination—i.e., all viewers would agree that a green wire is green, a 
red is red, a purple wire is purple, regardless if there are clouds out, if it is daytime, or if 
there is artificial lighting.  (GPF ¶¶ 58-59)  The term “life-like color” has a scientific 
definition and it means those colors associated with a scene that are within our experience.  
The term “pseudo color” has a scientific definition and it means the assignment of a color 
to a brightness level.  The term “false color” has a scientific definition and it means the 
assignment of a color to an image taken in a specific spectral band.  (GPF ¶¶ 60-62)  
 
 8.  The term “contrast” has a scientific definition and it means the brightness 
of a particular spot in the scene.  The term “contrast” has no relationship to color.  
(GPF ¶¶ 63-64) 
 
 9.  The term “color contrast” has a scientific definition and it means a comparison 
or differentiation of the level of brightness.  Human perception of color is created out of 
color contrast.  It is a surreal notion that colors are a perception and do not actually exist.  
Oranges are not actually orange, but generally humans perceive them as orange.  The sky 
is not actually blue, but generally humans perceive it as blue.  (GPF ¶¶ 65-66) 
 
 10.  A monocular percept is a percept generated in the human or biological brain 
as a result of an input to just one eye.  The term “monocular color” has a scientific 
definition and it means a percept generated in the brain as a result of color contrast 
signals input into just one eye.  (GPF ¶¶ 67-68) 
 
 11.  If a red image and green image are presented one on top of another to a 
monocular visual process, a yellow percept is created.  Color perception is a monocular 
visual process that creates a stable and lasting percept.  Because color perception is a 
monocular visual process, if a red image is presented to one eye, and a green image is 
presented to another eye, color mixing is not possible, and as a result, there will not be a 
yellow percept.  When both eyes perceive the same colored scene, each colored scene is 
still generated by the monocular visual process for one eye independent of a separate 
monocular visual process that generates an identical color scene for the other eye.  The 
color percept for each eye is still monocular color.  (GPF ¶¶ 69-72) 
 
 12.  The term “binocular vision” has a scientific definition and it means a percept 
generated in the brain that is a result of inputs to both eyes.  Binocular vison allows 
humans to perceive depth.  (GPF ¶ 73)  The term “binocular rivalry” has a scientific 
definition and it means a percept generated in the brain that is a result of disparate inputs to 

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two eyes, prompting the brain to shutoff the input from one eye.  The brain could also 
alternate the inputs from the two eyes.  The binocular rivalry phenomenon is well 
established and was first documented in the 1830s.  (GPF ¶ 74)  The term “binocular color 
rivalry” has a scientific definition and it occurs when the color perceived by one eye is 
different from the color perceived by the other eye causing the brain to shut down the color 
pathway from one eye.  When one eye is viewing a single color, there is no contrast that 
would permit a stable color percept, causing that color to fade to gray.  When one eye is 
viewing a scene consisting of a single color and the other eye is viewing a scene consisting 
of an entirely different color, there is no color contrast in either eye.  This results in color 
rivalry where the brain will alternate between the inputs.  (GPF ¶ 75) 
 
 13.  One deleterious physiological side effect of binocular color rivalry is nausea.  
Another deleterious side effect of binocular color rivalry is headache.  (GPF ¶ 76) 
 
 14.  In the 1950s, Dr. Edwin H. Land, the founder of Polaroid Corporation, 
conducted a series of experiments that led to the Land’s Retinex Theory of Color Vision 
(Land Theory).  Dr. Land proved definitively that color percept does not directly 
correspond to wavelengths.  Rather, he proved that one can achieve nearly full true color 
with only two narrow bands of visible light wavelength.  In his experiments, Dr. Land 
separated the photopic band into thirds:  a short wavelength band (generally understood 
to be blue), a medium wavelength band (generally understood to be yellow), and a long 
wavelength band (generally understood to be orange/red).  He then eliminated completely 
the short wavelength band, but was still able to achieve full color perception, including 
blue percepts, from the remaining two wavelength bands.  (GPF ¶ 77)  Importantly, 
Dr. Land’s work involved the superimposition of the two wavelength bands prior to a 
monocular presentation to each eye—i.e., each eye saw the same thing (tr. 6/195 -96; 
ex. G-149).  His work did not involve the presentation of one waveband band to one eye 
and another waveband to another eye (GPF ¶ 78). 
 
 15.  At night, the amount of visible light is low while other parts of the spectrum, 
such as near-infrared, are more abundant.  As a result, various night vision technologies 
have been created to help both amplify what little visible light that may exist at night and 
to convert non-visible light into visible light.  (GPF ¶ 79) 
 
 16.  Night vision goggles are devices which permit users to perceive images under 
low light or night conditions.  Each night vision goggle includes at least one image 
intensifier tube that receives, amplifies, and displays an image under low light or night 
conditions.  When using a night vision goggle, the low light and infrared radiation 
entering that goggle first encounters a transparent objective lens that focuses the radiation 
onto an input window of an image intensifier tube.  (GPF ¶¶ 80-82) 
 
 17.  Image intensifier tubes are one of the primary light amplification mechanisms 
used in night vision technologies.  The current generations of image intensifier tubes are 

5 
capable of amplifying visible light and infrared under low light conditions.  The current 
generation of tubes also convert the amplified infrared into visible light for the user.  An 
image intensifier tube is frequently referred to as an “I2 tube.”  The components of an 
image intensifier include a photocathode, a microchannel plate, a phosphor screen, a fiber 
optic twist, and an eyepiece.  (GPF ¶¶ 83-84)  The focused radiation, consisting of photons, 
impacts on a photocathode of the image intensifier tube that transforms photons to 
electrons (GPF ¶ 85).  Each electron then passes through a microchannel plate that 
generates tens of thousands of additional electrons.  This process is also referred to as 
intensification.  (GPF ¶ 86)  The electrons then strike a phosphor screen that converts 
electrons to photons (GPF ¶ 87). 
 
 18.  A “green-color phosphor” stimulates responsive cells, primarily medium 
wavelength cones, in the retina which eventually would lead to a percept of “green 
color.”  A “red-color phosphor” stimulates responsive cells in the retina, primarily 
long wavelength cones, which eventually would lead to a percept of “red color.”  A 
“white-color phosphor” stimulates responsive cells in the retina which eventually would 
lead to a percept of “white color.”  (GPF ¶¶ 89-91) 
 
 19.  A tint of one color is generally referred to as monochromatic.  In turn, the 
photons constitute an amplified or intensified image of a previously low light or infrared 
image.  (GPF ¶¶ 92-93) 
 
 20.  In conventional image intensifier tubes, the selected phosphor is of the P-43 
type or an equivalent, which creates a green percept to users (GPF ¶ 94). 
 
 21.  In general, multicolored phosphors have been used in color television tubes since 
the 1960s.  A full color cathode ray tube (CRT) television typically has three phosphors that 
correspond to the primary colors of the display— red, green and blue (referred to as RGB).  
(GPF ¶ 95) 
 
 22.  By 2002, it was general knowledge that a phosphor screen for an image 
intensifier tube may employ phosphors of different colors, including red-color phosphors.  
For example, the German company Proxitronic in 1997 offered to sell image intensifier 
tubes that employed phosphor screens of different colors.  (GPF ¶ 96) 
 
 23.  U.S. Patent No. 5,233,183 (1993 Field Patent), reflecting an invention by 
Mr. Robert J. Field, Jr., of ITT Corporation (ITT), disclosed the use of different colored 
phosphors in a single image intensifier tube.  On 3 August 1993, the date that the 1993 Field 
Patent issued, the use of different colored phosphors in an image intensifier tube was 
publicly available information.  (GPF ¶ 97) 
 
 24.  U.S. Patent No. 3,987,299 (Mulder Patent), reflecting an invention by 
Mr. Hendrik Mulder of a Dutch corporation, also disclosed the use of two different 

6 
colored phosphors in an image intensifier tube.  On 19 October 1976, the date that the 
Mulder Patent issued, the use of two different colored phosphors in a single image 
intensifier tube was publicly available information.  (GPF ¶ 98) 
 
 25.  By 1988, Litton Industries was already manufacturing image intensifier tubes 
having red color phosphor screens (GPF ¶ 99).  By 2002, ITT was willing to manufacture 
image intensifier tubes having phosphor screens of different colors beside the green 
color.  It was capable of manufacturing image intensifier tubes with red color phosphor 
screens.  (GPF ¶ 100) 
 
 26.  By 2002, there were only two manufacturers of image intensifier tubes in the 
United States—ITT and Litton (GPF ¶  101). 
 
 27.  By 2002, image intensifier tubes having white color phosphor screens were 
also available.  In its 1998 proposal for the ACT II contract (the Act II contract is 
discussed in finding 61), CANVS asked the Army to provide white-color phosphor image 
intensifier tubes manufactured by Litton Industries as government-furnished equipment 
(GFE) items.  Litton did provide white-color phosphor image intensifier tubes for 
incorporation into the color night vision camera systems delivered under the ACT II 
contract.  (GPF ¶ 102) 
 
 28.  When a human eye views an image projected from an I2 tube’s phosphor 
screen, such viewing is often referred to as “direct viewing.”  Direct view devices are 
distinguished from indirect view devices which use a video screen.  (GPF ¶ 103)  A night 
vision device permitting use by two eyes is referred to as a binocular device.  A binocular 
night vision device employs two image intensifier tubes such that each tube presents an 
image to one eye.  This presentation to two separate eyes creates some perception of 
depth or stereopsis.  By 2002, there were several monochromatic binocular night vision 
goggles such as the AN/AVS-6 or ANVIS (Aviator’s Night Vision Imaging System), the 
AN/AVS-9, the AN/PVS-5, the F4949, and the F5050 goggles.  (GPF ¶¶ 108-10) 
 
 29.  The term “multi-spectral” relative to imaging technology means the formation 
of a scene taken from different segments of the electromagnetic energy spectrum, for 
example, visible and infrared.  Multiple segments or bands of different wavelengths may 
be used—for example, for three, or up to ten segments.  These multiple bands of different 
wavelengths may be created by a combination of image intensifier tubes and filters—e.g., 
red-color phosphor tube in combination with green-color phosphor tube, or white-color 
tubes with red and green filters.  (GPF ¶¶ 111-12) 
 
 30.  Night Vision and Electronic Sensors Directorate (NVESD), Ft. Belvoir, 
Virginia, is a subordinate organization of the U.S. Army Research, Development and 
Engineering Command (RDECOM).  NVESD is also sometimes referred to by its earlier 
name—the Night Vision Laboratory (NVL).  (GPF ¶ 113)  NVESD for the past 50 years 

7 
has been the primary federal government agency identifying and developing promising 
night vision technology to the point of production for implementation into actual 
equipment (GPF ¶ 114). 
 
 31.  Until his retirement in early 2015, Mr. Edward Bender had been an engineer 
with NVESD since 1974.  Mr. Bender had extensive experience with the technical 
aspects of night vision devices, especially night vision devices using image intensifier 
tubes.  He authored or co-authored about 25 publications.  For the 15 years prior to his 
retirement, Mr. Bender held the position of Subject Matter Expert for image intensifier 
tubes.  (GPF ¶¶ 115-16) 
 
 32.  In 1987, inspired by the Land Theory, Mr. Bender designed a binocular night 
vision goggle having a green-phosphor image intensifier tube in one channel and a 
red-phosphor image intensifier tube in the other channel, along with external objective 
lens filters that permitted the transmission of appropriate ranges of wavelengths.  This 
night vision goggle was called the Chromatic PVS-5.  (GPF ¶ 117) 
 
 33.  Mr. Bender’s 1987 design was prompted by the Army’s requirement for night 
vision goggles that would be capable of distinguishing colors at night so as to permit 
nighttime repair and maintenance of aircraft, including distinguishing color-coded 
electrical wires (GPF ¶ 118). 
 
 34.  The design of the Chromatic PVS-5 goggle is nearly identical to appellant’s 
CNVS-4949 goggle (GPF ¶ 119).  Below is a sketch of the functional design of the 
Chromatic PVS-5: 
 
(Id.; ex. G-9 at 2100) 
 
 35.  In creating the Chromatic PVS-5 goggle, Mr. Bender realized that Dr. Land’s 
work did not involve the presentation of one waveband band to one eye and another 


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waveband to another eye, and Mr. Bender identified this design as an engineering risk 
(GPF ¶ 120).  The design of the Chromatic PVS-5 night vision goggle varied from the 
standard production model by substituting one of the identical green phosphor tubes with 
a red phosphor tube (tr. 6/199).  It provided a green-colored scene in one optical channel 
and a red-colored scene in the other channel (GPF ¶ 121).  Mr. Bender used appropriate 
external objective lens filters with this goggle (GPF ¶ 122; exs. G-10, -180.2, -180.3). 
 
 36.  Mr. Bender, his colleague Mr. Daniel Hosek, and other colleagues at NVESD 
operated the Chromatic PVS-5 goggle during the 1988 time period.  None were able to 
obtain any consistent, reproducible true-color views.  (GPF ¶¶ 126-29; tr. 6/206-09, 211)  
 
 37.  NVESD generated a purchase order, dated 2 February 1987, for the purchase 
of a standard AN/PVS-5A binocular night vison goggle having one image intensifier tube 
capable of operating in the wavelength range of 610-650 nm.  This wavelength range is 
best accomplished by a red-color phosphor screen image intensifier tube.  NVESD 
forwarded this purchase order to the corporations which were at that time manufacturing 
not only image intensifier tubes but also entire PVS-5 goggles—ITT, Litton Systems, and 
Varo.  The purchase orders contained no restrictions on the manufacturers’ ability to use 
the information therein.  (GPF ¶¶ 130-31; ex. G-9 at G2094-95; tr. 6/199-201, 214) 
 
 38.  NVESD issued Contract No. DAAK70-87-P-1009, dated 19 May 1987, to 
Litton for the purchase of a modified AN/PVS-5 goggle having a standard green-color 
phosphor image intensifier tube and a red-color phosphor image intensifier tube 
(GPF ¶ 132).  Via this purchase order, Mr. Bender’s design was made known to the night 
vision technology industry.  Mr. Bender discussed his design in some detail with Litton 
representatives.  (GPF ¶ 133)  Litton was not required to sign any nondisclosure 
agreement (NDA) to protect Mr. Bender’s design (GPF ¶ 134).   
 
 39.  NVESD received the Chromatic PVS-5 goggle in mid-December 1987.  This 
goggle was released into Mr. Bender’s custody in January 1988.  (GPF ¶ 136)  
Mr. Bender did not consider his design to be a trade secret (GPF ¶ 135).  NVESD did not 
treat the Chromatic PVS-5 night vision goggle as a trade secret.  Mr. Bender discussed 
the Chromatic PVS-5 goggle with Litton representatives, even after delivery.  Mr. Bender 
distributed his design schematics to other government personnel.  (GPF ¶ 137; tr. 6/212, 
240-41)   
 
 40.  The Chromatic PVS-5 night vision goggle was displayed in a glass exhibit 
display case located in the hallway of the NVESD building, accessible to both 
government and private sector personnel, for several years (GPF ¶ 139).  CANVS’ expert 
witness, Mr. Brian Gillespie, recalls observing the Chromatic PVS-5 goggle in the glass 
display case prior to 2000, and he recalls it “using these two different color phosphor 
tubes in the systems, and filtering the imagery that came—I mean light that came into the 

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tubes” (GPF ¶ 140).  Mr. Bender’s design of the Chromatic PVS-5 night vision goggle 
was generally known in the night vision technology industry (GPF ¶ 141). 
 
 41.  U.S. Patent No. 5,162,647 (1992 Field Patent), invented by Mr. Robert J. Field, Jr., 
of ITT Corporation, disclosed the simultaneous presentation of a reddish image and a greenish 
image by a binocular night vision goggle, utilizing color input and output filters (ex. G-169; 
tr. 9/94-99).  On 10 November 1992, the date that the 1992 Field Patent issued, the 
simultaneous presentation of a reddish image in one optical channel and a greenish image in 
the other optical channel of a binocular night vision goggle was publicly available information 
(GPF ¶ 142). 
 
 42.  In 1998, Mr. John Walkenstein, appellant’s president, filed two patent 
applications, U.S. Patent Application Serial Nos. 09/062,141 and 09/206,992, directed 
towards a night vision goggle with one channel that appears green and one channel that 
appears red (GPF ¶ 143).  Both patent applications were rejected by the U.S. Patent and 
Trademark Office examiner for lack of patentability in light of previous inventions by 
others.  For both applications, the primary references cited for these rejections was the 
1992 Field Patent.  Other references cited as part of the rejection included the 1993 
Field Patent (ex. G-170), the 1976 Mulder Patent (ex. G-168), and the 1993 Chiu Patent 
(ex. G-171).  All the claims in both applications were rejected based on either 35 U.S.C. 
§ 102 for lack of novelty, or 35 U.S.C. § 103 for obviousness in light of prior patents 
(ex. G-165 at 144-54, 236-51, ex. G-166 at 98-114).  Mr. Walkenstein failed to overcome 
these rejections, and later, he abandoned both patent applications (GPF ¶ 144). 
 
 43.  In October 1994, Dr. William McLean of the U.S. Army Aeromedical Research 
Laboratory (USAARL), Ft. Rucker, Alabama, presented his work regarding merging or 
fusing images viewed through different spectral bands at a technical conference (GPF ¶ 146).  
The mission of USAARL is to support operational research, and develop and evaluate 
equipment used on aircraft.  One area of focus is directed to biomedical issues that might 
have an impact on aviators, including night vision.  (GPF ¶ 147)  Dr. McLean is a research 
optometrist who has extensive experience in analyzing, evaluating, and testing night vision 
devices, including night vision goggles (exs. G-182, -183; tr. 1/130, 7/8-10, 128).  He 
authored or co-authored over 50 publications and received three U.S. patents (GPF ¶ 148).   
 
 44.  One benefit of multi-spectral imaging is that different objects are perceived under 
different ranges of wavelengths.  Specifically, multi-spectral imaging provides better contrast 
between objects such that different details might be discerned.  (GPF ¶ 152)  According to 
Dr. McLean, multi-spectral images generated by night vision goggles where optical channels 
have different spectral ranges are not true color or life-like color images (GPF ¶ 153). 
 
 45.  The October 1994 conference was an open conference and Dr. McLean’s 
presentation was an unclassified presentation without any distribution restrictions (tr. 7/20).  
Thus, information presented by Dr. McLean as to his work on multi-spectral imaging of 

10 
image intensified scenes became knowledge that was publicly available as of 1994 
(GPF ¶ 154).  Representatives of all the key participants and developers in the night vision 
technology industry were present at the 1994 conference.  For example, Dr. Allen Waxman, 
the government’s principal expert, attended the 1994 conference.  Thus, the information 
presented by Dr. McLean as to his work on multi-spectral imaging of image intensified 
scenes became general knowledge in the night vision industry.  (GPF ¶ 155)  Participants at 
the 1994 conference did not sign any nondisclosure agreements (GPF ¶ 156). 
 
 46.  In his September 1996 technical report, Dr. McLean described the use of a 
binocular night vision goggle where one image intensifier tube employed a yellowish, 
green-color phosphor screen and the other tube employed a deeper green-color phosphor 
screen.  The spectral content of the image provided by one image intensifier tube is 
different from the spectral content of the other image.  (GPF ¶ 157)  Dr. McLean’s 
September 1996 technical report was released to the general public (GPF ¶ 158). 
 
 47.  Dr. McLean continued to develop, analyze, and test multi-spectral night 
vision goggles.  He generated multi-spectral scenes by placing different spectral filters over 
the image intensifier tubes.  In April 1999, he placed a filter that blocked red-color 
wavelengths over one optical channel of a monochromatic binocular night vision goggle, 
the AN/PVS-5, and a separate filter that blocked near-infrared wavelengths over the other 
optical channel, creating multi-spectral scenes.  The multi-spectral scenes provided better 
color contrast.  (GPF ¶ 159) 
 
 48.  Dr. McLean also suggested the use of image intensifier tubes having different 
colored phosphor screens to generate multi-spectral scenes.  For example, a binocular 
would have a green-color phosphor screen image intensifier tube and an orange-color 
phosphor screen image intensifier tube.  (GPF ¶ 160) 
 
 49.  By 1999, Dr. McLean did not consider the use of external filters with binocular 
night vision goggles to be a trade secret (tr. 7/39-40).  By 1999, he did not consider providing 
different color images to different eyes by night vision goggles equipped with different 
spectral filters to be a trade secret (GPF ¶ 162). 
 
 50.  An April 1997 Armada International article, described a Delft Sensor Systems’ 
camera system where two image intensifier tubes were used to observe the same scene 
(ex. G-159 at 4).  Because the same scene was observed in two different wavelength bands, 
the spectral response of one tube is different from the spectral band of the other tube such 
that the difference between the two responses was used to generate color images by means of 
spectral filtering (GPF ¶ 163).  By 2003, the Delft Sensor System was described and shown 
in greater detail at technical conferences and in publications (GPF ¶ 164). 
 
 51.  Along with CANVS’ multi-spectral imaging project there were three other 
SBIR Phase I awardees—Equinox, I Technology Applications, and LSA (R4, tab 28 

11 
at 227-282).  During the competition for a Phase II award in 2002, Equinox submitted a 
Phase II Proposal entitled Multi-spectral Intensified Night Vision (GPF ¶ 165).  In this 
proposal, Equinox discussed [R E D A C T E D R E D A C T E] multi-spectral night vision 
system where the image from [R E D A C T E D R E D A C T E D R E D A C T E D R E 
D A C T E D R E D A C T E D R E D A C T E D] (ex. G-4 at 916; tr. 9/99).  Specifically, 
the proposal explained that [R E D A C T E D R E D A C T E D R E D A C T E D R E D 
A C T E D R E D A C T E D R E D A C T E D R E D A C T E D R E D A C T E D R E D 
A C T E D R E D A C T E D R E D A C T E D R E D A C T E D R E D A C T E D R E D 
A C T E D R E D A C T E D ] (GPF ¶ 166).  The [REDACTED] design discussed in the 
Equinox Proposal also suggested using [R E D A C T E D R E D A C T E D R E D A C T 
E D R E D A C T E D R E D] (GPF ¶ 167).  The [REDACTED] design discussed in the 
Equinox Proposal differed from the CANVS design in that it would [R E D A C T E D R E 
D A C T E D R E D A C T E D], creating monocular color (GPF ¶ 168).  While the 
Equinox SBIR Phase II Proposal was not a public document, the [REDACTED] design 
discussed in that Proposal illustrates what was generally known in the industry prior to 
CANVS’ SBIR Phase II contract in 2002.  After reviewing the Equinox Proposal, CANVS’ 
expert witness, Mr. Gillespie, admitted that as of 2001 “others in the industry knew of this 
approach.”  (GPF ¶ 169) 
 
 52.  By 2002, it was general knowledge that a binocular night vision goggle 
may employ viewing components capable of providing different spectral responses, 
i.e., different wavelengths or frequencies.  By 2002, it was general knowledge 
that a binocular night vision goggle may be capable of presenting multi-spectral, 
non-monochromatic images.  By 2002, it was general knowledge that the images 
generated by multi-spectral, non-monochromatic images provide high contrasts.  Relative 
to certain objects, multi-spectral imaging creates better contrast between objects.  By 
2002, it was general knowledge that there are several different types of filters that are 
capable of transmitting or blocking certain wavelengths, for example, glass filters or 
dielectric filters.  By 2002, it was general knowledge that the vernacular term “red filter” 
means a filter that passes a range of wavelengths that would be perceived by an observer 
to be red.  By 2002, it was general knowledge that the vernacular term “green filter” 
means a filter that passes a range of wavelengths that would be perceived by an observer 
to be green.  By 2002, it was general knowledge that the perceived coloration of the 
reflected light from a filter may be dependent on the direction of the light source and the 
viewing angle.  By 2002, it was general knowledge that a reddish image may be created 
by using an image intensifier tube having either green, white or red-color phosphor in 
conjunction with appropriate external filters.  By 2002, it was general knowledge that a 
greenish image may be created by using an image intensifier tube having either green, 
white or red-color phosphor in conjunction with appropriate external filters.  By 2002, it 
was generally known as to how to create simultaneously a reddish image in one channel 
                                              
2 Citations to the government’s Rule 4 files are to consecutively-numbered pages unless 
indicated otherwise. 

12 
of a night vision goggle and a greenish image in the other channel by using appropriate 
phosphors for the image intensifier tubes and appropriate filters.  (GPF ¶¶ 170-79) 
 
 C.  CANVS’ Corporate Practices Regarding Nondisclosure Agreements  
 
 53.  Mr. Walkenstein is and has been the president of CANVS Corporation since 
its establishment in 1998 (GPF ¶ 181).  He has a background in applied physics.  He also 
has experience in several different experimental fields.  He gained this experience during 
his tenure with the Nonlinear Dynamics Laboratory (NDL) of the University of Miami, 
Coral Gables, Florida, spanning between 1983 and 2009.  (GPF ¶ 182)  Mr. Walkenstein 
does not hold a bachelors or a graduate degree (GPF ¶ 183). 
 
 54.  Mr. Walkenstein was knowledgeable as to the design and operation of 
conventional night vision goggles and image intensifier tubes since the mid-1990s.  By the 
early 2000s, he was aware that image intensifier tubes employed either green or white-color 
phosphors.  Mr. Walkenstein served in the U.S. Army as a warrant officer between 1994 and 
1996, during which he was assigned for a period in 1996 to USAARL.  (GPF ¶¶ 185-87) 
 
 55.  When assigned to assist Dr. McLean at USAARL in 1996, Mr. Walkenstein 
completed a project where he transformed black-and-white photographs of night vision 
scenes into color scenes.  For this work, Dr. McLean issued a letter of recommendation in 
which he stated that the assigned task merged: 
 
[V]ideo images to simulate characteristics of a theoretical 
color night vision goggle (NVG).  WO1 [Warrant Officer] 
Walkenstein was shown black and white video tapes of 
scenes imaged through colored and near infrared filters that 
replicated spectral responses of  candidate photocathodes of 
night imaging devices.  Using a computer and auxiliary 
hardware, he digitized the images adding false colors and 
combined the images into all possible combinations. 
 
(GPF ¶¶ 188-89) 
 
 56.  As early as the mid-1990s, Mr. Walkenstein was knowledgeable as to computer 
video recording equipment.  To carry out the project assigned by Dr. McLean in 1996, 
Mr. Walkenstein used a generally well-known computer software technique.  After leaving 
the Army in 1996, Mr. Walkenstein embarked on developing night vision devices.  
(GPF ¶¶ 190-92) 
 
 57.  Mr. Walkenstein understood that one mechanism for protecting confidential 
information is by using nondisclosure agreements.  It was standard business practice for 
CANVS to use nondisclosure agreements when disclosing confidential information.  

13 
Mr. Walkenstein held the view that nondisclosure agreements would be needed if 
CANVS were to disclose proprietary information to commercial entities.  He understood 
that a nondisclosure agreement would permit parties to discuss proprietary information 
without fear of that information being retransmitted to others.  (GPF ¶¶ 212-14) 
 
 58.  Mr. Walkenstein held the view that a nondisclosure agreement would even 
preclude a recipient from disclosing public information if that recipient had received it 
under that nondisclosure agreement (GPF ¶ 215). 
 
 59.  Mr. Walkenstein held the view that nondisclosure agreements are not needed 
to protect proprietary information when it is disclosed to federal, state or local 
government officials (GPF ¶¶ 223-24).  Mr. Walkenstein held the view that nondisclosure 
agreements are not needed when disclosing proprietary information to government 
officials if that meeting took place in a classified setting because additional safeguards 
would have been in place.  He stated that laws and regulations for protecting national 
security information added another layer of protection for a contractor’s proprietary 
information.  (GPF ¶ 226) 
 
 D.  CANVS’ Early Night Vision Technology 
 
 60.  In 1998, CANVS submitted a proposal, entitled “Dismounted Color Night Vision 
Systems,” to the U.S. Army regarding color night vision equipment.  In its proposal, CANVS 
stated that actual component’s specifications were not yet finalized and components not yet 
purchased.  It proposed to purchase critical hardware such as tubes, objective lenses, 
eyepieces, filters, etc.  (Ex. G-19 at 857)  CANVS specifically asked the government to 
provide white-color phosphor image intensifier tubes as GFE items (GPF ¶¶ 242-43). 
 
 61.  In response to CANVS’ proposal, the U.S. Army Communications-Electronics 
Command (CECOM), Ft. Monmouth, New Jersey, awarded Contract No. DAAB07-99-C-K752 
to CANVS in December 1998.  The contract is referred to by the parties and herein as the K752 
or “ACT II contract.”  (GPF ¶¶ 245-46) 
 
 62.  The contracting officer’s representative (COR) for the ACT II contract was 
Mr. Hosek, an employee of NVESD.  Mr. Hosek is an engineer and has been an employee of 
NVESD since 1979.  He has had extensive experience with the technical aspects of night 
vision devices, especially night vision devices using image intensifier tubes.  (GPF ¶¶ 247-48) 
 
 63.  CANVS was paid $299,250 for its ACT II work.  A substantial portion, $222,250, 
was paid specifically for the technical data and rights thereto, while $77,000 was paid for the 
delivery of the prototype systems.  (Ex. G-20 at 625-30) 
 
 64.  The ACT II contract required CANVS to “develop” and deliver three night 
vision camera systems (ex. G-20 at 626; tr. 1/80-81).  Direct view night vision 

14 
technologies, such as a colorized binocular device, were not within the scope of the ACT 
II contract (id.; GPF ¶ 250). 
 
 65.  As required by the ACT II contract, CANVS delivered a monocular rotating 
optics camera device.  CANVS also delivered a two-tube night vision camera system and 
a four-tube night vision camera system.  (GPF ¶¶ 251-52) 
 
 66.  Because the ACT II contract was not an SBIR contract, it contained the 
government’s standard technical data rights clause, DFARS clause 252.227-7013, RIGHTS 
IN TECHNICAL DATA – NONCOMMERCIAL ITEMS (Nov 1995) (the 7013 clause) (ex. G-20 
at 646; tr. 2/107-08).  The K752 contract also included a special clause H-9 that required 
the delivery of all technical data with unlimited rights pursuant to the 7013 clause except 
for three specific categories of technical data (ex. G-20 at 644; tr. 2/108-09).  Specifically, 
CANVS was only permitted to deliver technical data bearing limited rights markings 
which were already present in (1) Mr. Walkenstein’s patent application; (2) the technical 
proposal resulting in this contract; or (3) “technical data pertaining to items, components 
or processes developed in connection with the production of colorized night vision devices” 
(id.; GPF ¶ 254). 
 
 67.  As required by the ACT II contract (ex. G-20 at 626-27, 630), CANVS 
delivered to the Army at least 11 monthly reports and a final report (tr. 2/110, 4/83; 
GPF ¶ 256).  The final report, dated February 2000, was marked with the limited rights 
legend (ex. G-21; tr. 2/111; GPF ¶ 257).  The limited rights legend marked on the final 
report for the ACT II contract was in substantial conformity with the marking requirements 
of the 7013 clause, including the additional identifiers such as contract number, contractor 
name, and contractor’s address (ex. G-21 at 658; GPF ¶ 258).  In addition, CANVS 
delivered an operator’s manual for each of the two night vision camera systems (ex. G-20 
at 629, exs. G-22, -23; tr. 1/80-81, 2/112; GPF ¶ 260). 
 
 68.  Prior to the SBIR Phase I contract, CANVS had created a goggle, generally 
referred to as the “pirate goggle,” where colored filters were positioned in front of and 
behind green-color phosphor image intensifier tubes.  One of the objective filters was red in 
color and the other filter was green in color.  Similarly, one of the back-end filters was red 
in color and the other filter was green in color.  (Ex. G-17 at 7; tr. 2/121-23; GPF ¶ 265)   
 
 69.  During the trial, a physical exhibit which was the “functional equivalent” 
of the pirate goggle was received into evidence as exhibit A-93 (GPF ¶¶ 265-66).  
Exhibit A-93 is constructed from two AN/PVS-14 monocular devices connected together 
each having one green-color phosphor image intensifier tube.  Exhibit A-93 does not 
contain a red-color phosphor image intensifier tube.  (Ex. A-93; tr. 1/92-95; GPF ¶ 267)  
Exhibit A-93 includes a red-color filter placed over one of the eyepiece positions to 
make the view red in color (tr. 1/97-98, 2/130).  According to Mr. Walkenstein, the 
CNVS-4949 “is actually identical [to Exhibit A-93], except that [A-93] got a red 

15 
phosphorous [tube].  So now you don’t need the filter on the back, and you have 
significantly higher brightness on your red output side.”  (Tr. 2/132; GPF ¶ 268) 
 
 70.  The U.S. Army Aviation Applied Technology Directorate (AATD) had provided 
Mr. Walkenstein with a binocular goggle having two green-color phosphor image intensifier 
tubes, and he modified that goggle into the pirate goggle.  The underlying goggle already 
included a manual gain control mechanism in both channels.  (Tr. 2/123-24; GPF ¶ 270)  
Mr. Walkenstein stated that he modified the existing Army-provided goggle by providing 
filters at both the objective lens end of that goggle and the eyepiece end (tr. 2/123; GPF 
¶ 271).  The pirate goggle was not within the scope of work of the ACT II contract, and 
accordingly was not covered by the technical data provisions of that contract (ex. G-20 at 
626; tr. 1/80-81; GPF ¶ 273).  Although the exact date of creation of the pirate goggle is 
unknown, it would have been prior to the SBIR Phase I, as a photograph of the pirate goggle 
appeared in briefing slides that were presented prior to the SBIR Phase I—i.e., mid-2002 
(ex. G-17 at 7; tr. 2/120-12; GPF ¶ 274). 
 
 71.  Mr. Walkenstein presented briefing slides of exhibit G-17, entitled “White 
Paper Proposal for Direct View Color Night Vision Goggle,” to government personnel 
prior to the SBIR Phase I contract (tr. 2/121-22).  These briefing slides contained details 
regarding the pirate goggle and included a photograph of Mr. Walkenstein displaying 
the pirate goggle with a red optical channel and a green optical channel (ex. G-17).  
Mr. Walkenstein discussed, among other things, the use of a short-pass channel having 
P-43 green-color phosphor screen and a long-pass channel “utilizing a ‘Red’ phosphor 
tube” (id. at 7).  The briefing slides also mentioned that the long-pass filter would block 
light below 600 nm and transmit light above 600 nm while the short-pass filter would 
block light above 600 nm and transmit light below 600 nm (id. at 2).  These briefing 
slides also discussed the use of manual gain control (id. at 7; GPF ¶ 275). 
 
 72.  CANVS also briefed USAARL on its colorized night vision technology on 
6 April 1999 (ex. G-13; tr. 7/30-34).  This briefing included a demonstration of the pirate 
goggle concept (ex. G-13).  Specifically, Dr. McLean’s memorandum for record explains: 
 
Another approach demonstrated was using two different band 
pass filters in front of the right and left tubes of an NVG.  One 
filter transmitted above 650 nanometers and the other below 
approximately 650 nanometers. Different colored filters (red and 
blue) were attached to the NVG eyepieces.  However, both 
previous vision research and this demonstrator showed that there 
is very little color mixing between the right and left eyes.  Rather 
the image when viewed binocularly appears to be a colored form 
of luster and alternating suppression between the two images. 
 
(Id.; GPF ¶ 279) 

16 
 73.  Following the briefing, CANVS loaned Dr. McLean the front-end and 
back-end filters, and Dr. McLean added them to a PVS-5 night vision goggle and took 
that filtered goggle on an operational flight test during the evening of 21 April 1999 
(ex. G-14; tr. 7/35-41; GPF ¶ 280).  Dr. McLean the next morning wrote the following 
email to Mr. Walkenstein which stated in part: 
 
 Went flying last night with 40% moon illum.  Took the 
AN/PVS-5s with the red and near IR blocking filters on the 
objective lenses and the orange and “green” (changed from 
the original double blue) filters on the eyepieces.  The NVG 
output was way too dark for pilotage.  However, I saw good 
color contrast and some other interesting things.  I sat on the 
right side and for trees near the aircraft, the leaves were 
orange but the limbs appeared light blue.  On a higher moon 
illumination I'm going to switch the objective lens filters 
which will make the leaves greenish.  That also means that 
blood will appear green like a grass hopper, but it may be 
distinguishable from other fluids which is the main benefit of 
using color.  What if we mixed a standard PVS-14 with 
manual gain and green phosphor with a ???? with orange 
phosphor for the other eye?  I would have the low light 
performance and a quazi [sic] color or color separation when 
the light levels are higher. 
 
(Ex. G-14) 
 
 74.  The concept of using a different color phosphor screen in one optical channel 
in lieu of back-end filters appears to have been communicated by Dr. McLean, as a 
suggestion to Mr. Walkenstein in this email.  Notably, the concept of using a different 
color phosphor screen for each channel was absent from Mr. Walkenstein’s 1998 patent 
applications.  (Exs. G-165, -166)  As detailed in those applications, Mr. Walkenstein’s 
“preferred embodiment” for the invention requires, that “at least one back end filter is 
placed between at least one image intensification structure and at least one eye such that 
the photons emerging from that image intensification structure appear to be of a 
corresponding spectral range to the eye of the user”(ex. G-166 at 13-14).  In other words, 
the patent applications only disclosed the use of back-end filters (id.; GPF ¶ 281).   
 
 75.  Dr. McLean was an expert in the field and fully appreciated the technical 
details of the pirate goggles (ex. G-182; tr. 7/8-10; GPF ¶¶ 145-62).  Dr. McLean did not 
consider the use of different filters over a binocular night vision device to constitute a 
trade secret in 1999 (tr. 7/39-40). 
 

17 
 76.  Mr. Walkenstein filed patent applications relating to color night vision devices 
(ex. G-165; tr. 2/92-93, 97).  As pertinent here, the invention discussed in the patent 
applications was directed to a night vision device capable of displaying colors at night 
(tr. 2/94-95).  The patent application marked as ex. G-165 is one of the patent 
applications directed to such night vision devices (tr. 2/97).  That patent application is 
U.S. Patent Application Serial No. 09/062,141, filed 17 April 1998 (ex. G-165 at 1; 
tr. 2/98).  Another one of the three patent applications is marked as ex. G-166.  The 
patent application marked as ex. G-166 is U.S. Patent Application Serial No. 09/206,992, 
filed 7 December 1998 (ex. G-166 at 1).  None of the three patent applications resulted in 
patents (tr. 2/97-98).  The patent applications marked as exs. G-165 and G-166 were 
rejected by the U.S. Patent and Trademark Office for lack of patentability in light of 
previous inventions by others (ex. G-165 at 236-51, ex. G-166 at 98-114; tr. 9/172-73).  
Mr. Walkenstein subsequently abandoned all three patent applications (tr. 2/100-01).  
The patent application marked as ex. G-165 was abandoned in March 2001 (ex. G-165 
at 263-64, 273), and the patent application marked as ex. G-166 was abandoned in 
November 2001 (ex. G-166 at 115, 133; see also GPF ¶¶ 285-90). 
 
 E.  Development of the CNVS-4949 and CNVS-5050 goggles 
 
 77.  In an effort to evaluate the technical feasibility of providing soldiers with 
night vision devices capable of producing color images, USSOCOM promulgated a topic 
for its SBIR program (tr. 6/128).  Specifically, USSOCOM issued Topic No. SOCOM 
02-001, entitled “Multi-Spectral Low-Light Imaging,” for fiscal year 2002 (R4, tab 18 
at 124; ex. G-29 at 4121; tr. 6/129). 
 
78.  A key objective of this USSOCOM SBIR topic was to  
 
Investigate the technical feasibility of fielding reproducible, 
meaningful, real-time color Image Intensification (I2) 
devices.  This innovation would remove the existing 
constraint of monochrome (green) imagery of current night 
vision devices and provide color imagery in its place.  
Producing color imagery would allow multiple users from 
different physical locations to identify targets in the scene by 
color content. 
 
(Ex. G-29 at 4121; tr. 6/130-31)  Once a topic was issued, USSOCOM would receive on 
average about 20 proposals per topic (tr. 8/165).  After a selection process, typically three 
or four SBIR Phase I contracts would be awarded under that topic (id.).  Due to limited 
USSOCOM SBIR program funding, usually only one Phase I contractor would advance 
into Phase II (tr. 8/165-66).  Phase II contracts are also funded by dedicated SBIR 
funding (tr. 6/43, 133-35). 
 

18 
 79.  Responding to USSOCOM’s SBIR Topic No. SOCOM 02-001, CANVS 
submitted its proposal in December 2001 (R4, tab 20; ex. G-27; tr. 1/84, 2/175).  CANVS 
proposed four different system configurations for color night vision devices (R4, tab 20; 
ex. G-27 at 1608).  One of the systems proposed was the “Retrofit Goggle” (R4, tab 20 
at 143-44). 
 
 80.  USSOCOM awarded CANVS an SBIR Phase I contract on 3 July 2002, 
Contract No. USZA22-02-P-0609 (hereinafter the 0609 contract or SBIR Phase I contract 
or Phase I contract) (R4, tab 19; tr. 1/82-83).  The 0609 contract required CANVS “to 
conduct research, development and design of a Multi-Spectral Low Light Imaging 
System” (R4, tab 19 at 129).  The 0609 contract included the 7018 clause (id. at 136).  The 
period of performance of the SBIR Phase I contract was three months from the date of 
contract award.  The ending date for the 0609 contract was 3 October 2002.  (Id. at 132) 
 
 81.  As required by the SBIR Phase I contract, CANVS delivered two monthly 
reports and a final report.  Monthly report No. 1 for the SBIR Phase I contract included a 
discussion of the capabilities of CANVS’ proposed color night vision goggle, as well as a 
photograph showing a red-color optical channel and a green-color optical channel in a 
binocular night vision goggle.  The report also discussed “a Long-pass filter (This filter 
blocks light below 600nm and transmits light above 600nm) and a Short-pass filter (This 
filter blocks light above 600nm and transmit[s] light below 600nm).”  (GPF ¶¶ 313-14) 
 
 82.  The final report for the SBIR Phase I contract included a sketch of the CNVS-4949 
goggle from Drawing 275076 that Mr. Walkenstein had received from ITT in September 2002 
(GPF ¶ 315).  The sketch of the CNVS-4949 in the SBIR Phase I final report included a 
caption “Note independent manual gain controls for each channel” (GPF ¶ 316). 
 
 83.  The three reports delivered under the SBIR Phase I contract were all marked 
with the legend “This is a CANVS Corporation Confidential Document.  It is not to be 
retransmitted without expressed written consent of CANVS Corporation.”  (GPF ¶ 319)    
 
 84.  No hardware was required to be delivered under the 0609 contract.  It only 
required the delivery of the three reports.  (GPF ¶¶ 321-22)  CANVS was paid $100,000 
for its SBIR Phase I work (GPF ¶ 323). 
 
 85.  CANVS submitted a proposal for a SBIR Phase II contract in early 
October 2002 in which it stated that “CANVS proposes the delivery of the following 
instrumentation:  Three Contrast-Enhanced (Retrofit) goggles” (GPF ¶ 343).  USSOCOM 
awarded CANVS an SBIR Phase II contract on 20 February 2003— Contract 
No. USZA22-03-C-0027 (the 0027 contract or SBIR Phase II contract) (GPF ¶ 347). 
 
 86.  Contract line item number (CLIN) 0001 of the SBIR Phase II contract 
stated that “[t]he contractor shall provide all facilities, labor, and travel to conduct the 

19 
research, design, development, testing and delivery of technical data and prototypes of 
Multi - Spectral Low - Light Imaging Systems as described in the contractor’s proposal 
received 10 October 2002 which is incorporated herein by reference” (R4, tab 1 at 3).  The 
0027 contract included the 7018 clause (id. at 17).  The COR for the SBIR Phase II contract 
was initially NVESD employee Mr. Soyka.  Modification No. P00002 to that contract 
indicated that Mr. Hosek subsequently replaced Mr. Soyka as the COR.  (GPF ¶ 351) 
 
 87.  The SBIR Phase II contract required CANVS to deliver progress and technical 
reports, two CNVS-5050 and one CNVS-4949 contrast enhanced (retrofit) goggles, and 
video systems (R4, tab 1 at 12).  The video systems are not pertinent to this dispute.   
 
 88.  As required by the SBIR Phase II contract, CANVS delivered 15 monthly 
reports.  In its monthly report No. 1, CANVS attached a purchase order to ITT that 
requested the manufacture of three color night vision goggles.  (GPF ¶¶ 356-57) 
 
 89.  In its monthly report No. 2, dated April 2003, CANVS stated that it had asked 
ITT to construct a “CNVS-4949 (external to the SBIR funding) and is testing the system 
so that when the SOCOM goggles are delivered, CANVS modifications will be refined to 
the extent possible prior to delivery” (R4, tab 7; ex. G-39).  The goggle constructed by 
ITT for CANVS is referred to herein as the ITT/CANVS-4949 goggle (R4, tab 7 
at 62-63; ex. G-39 at 425-26; tr. 2/208; GPF ¶ 335).  
 
 90.  In its monthly report No. 4, dated June 2003, CANVS informed USSOCOM 
that it had received the three goggles from ITT in June 2003 and planned to deliver to 
Mr. Hosek in early July 2003 (ex. G-40 at 442; tr. 2/207, 4/83; GPF ¶ 359).  In addition, 
report No. 4 included a photograph of the three goggles taken from an oblique angle 
(ex. G-40 at 442; tr. 2/205; GPF ¶ 360). 
 
 91.  In October 2003, CANVS submitted its monthly report No. 8 for the 
SBIR Phase II contract (R4, tabs 9, 15; tr. 4/105).  In particular, photographs depicting 
various images taken using CANVS goggles were included (R4, tab 9 at 83, tab 15 at 
115; tr. 4/105-06; GPF ¶¶ 391-92).   
 
 92.  In monthly report No. 14, CANVS identified a number of U.S. Government 
agencies that had either tested one of its color night visions goggles or saw a demonstration 
of such goggles.  As for the federal agencies identified in report No. 14, CANVS did not ask 
these agencies to execute nondisclosure agreements before demonstrating its equipment.  
(GPF ¶¶ 411-12)   
 
 93.  Monthly reports delivered under the SBIR Phase II contract affixed a marking on 
every page, referred to by CANVS as its “Confidential Legend,” that stated the following:  
“This is a CANVS Corporation Confidential Document.  It is not to be retransmitted 
without expressed written consent of CANVS Corporation.”  (R4, tabs 6-10, 15, 34)  

20 
 94.  At the inception of the SBIR Phase II contract, CANVS had not yet constructed 
a binocular night vision goggle employing a conventional green-color phosphor image 
intensifier tube and a red-color phosphor image intensifier tube (GPF ¶¶ 324-35, 408).  The 
photographs of monthly report No. 8 were not in existence before the advent of the SBIR 
Phase II contract.  They were generated during the period of performance of the 0027 
contract during the summer of 2003.  (GPF ¶ 409) 
 
 95.  Sometime around April 2003, CANVS demonstrated a fully-functioning 
CNVS-4949 goggle manufactured by ITT to the Coral Gables Police Department.  
CANVS did not ask the Coral Gables Police Department to sign a written nondisclosure 
agreement when demonstrating the goggle.  (GPF ¶¶ 336-37, 339) 
 
 96.  Sometime around April 2003, CANVS also demonstrated the CNVS-4949 
goggle to the Federal Bureau of Investigations (FBI).  CANVS did not ask the FBI to 
sign a nondisclosure agreement.  (GPF ¶¶ 340-42) 
 
 97.  Performance of the SBIR Phase II contract ended on 31 October 2004.  
Final payment was made in December 2004, and the contract completion statement, 
DD Form 1594, was signed on 28 February 2005.  (GPF ¶ 367)  CANVS was paid 
$750,000 for its SBIR Phase II work (GPF ¶ 368). 
 
 98.  The CNVS-4949, as well as the similar CNVS-5050, was a binocular night 
vision goggle having two optical channels each of which included an image intensifier 
tube.  One of the image intensifier tubes employed a conventional green-color phosphor 
screen and the other tube employed a red-color phosphor screen.  Filters for the objective 
lens were delivered with each CNVS-4949 or CNVS-5050 goggle.  (GPF ¶ 361) 
 
 99.  To conduct tests on the goggles to be delivered under the SBIR Phase II 
contract, CANVS executed a Cooperative Research and Development Agreement 
(CRADA) with USAARL in March 2003 (R4, tab 24; tr. 2/133-35; GPF ¶ 369). 
 
 100.  CANVS’ goggle identified as CNVS-4949 Serial No. 1 was forwarded to 
USAARL and tests were conducted by Army personnel during the summer of 2003.  
Such tests included photographing scenes through the optical channels of the goggle.  
(GPF ¶ 371)  As part of the CRADA project, about a dozen government employees used 
the CNVS-4949 goggle (GPF ¶ 373). 
 
 101.  USAARL issued an Abbreviated Assessment of the CNVS-4949 (hereinafter the 
CRADA Report) in September 2003.  Dr. McLean authored the CRADA Report.  Mr. Hosek 
was a designated government recipient of the CRADA Report.  (GPF ¶¶ 374-75) 
 

21 
 102.  During the CRADA testing, Dr. McLean conducted three observation flights 
and one night of ground observations with the CNVS-4949 goggle (R4, tab 27 at 214).  
Regarding color rivalry, the CRADA Report noted that:  
 
 The color difference between green and red inputs to 
the separate eyes may be greater than most individuals can 
adapt to.  When we used the same color green into both eyes 
but different input spectra with the visible wavelengths 
passed to one image intensifier channel and the near IR 
passed to the other channel, the objects in the scene with 
different amounts of contrast between the right and left 
images were noticeable, but not nearly as apparent as with the 
separate red and green phosphors for each eye.  However, the 
red and green phosphors also tended to set up a rivalry affect 
with color shifts of objects within the field of view.  
 
(Id. at 220)  The Report also noted that the “opinion of 4 out of 5 observers was [that] 
the visible channel was too dark and the different colors would probably give them a 
headache within a few minutes” (id. at 215).  Dr. McLean and his colleagues experienced 
headaches as a result of the color rivalry (ex. G-51; tr. 7/60-61, 74-75, 126; GPF ¶ 453).   
 
 103.  In January 2003, responding to Mr. Hosek’s inquiry, Mr. Walkenstein 
forwarded a quote for supplying a CNVS-4949 goggle having a red-color phosphor screen 
image intensifier tube (ex. G-88).  As indicated in monthly report No. 2 for the SBIR Phase 
II contract, the internally-funded CNVS-4949 goggle was demonstrated to NVESD no later 
than late April 2003 (GPF ¶¶ 416-17).  Responding to NVESD’s request to purchase the 
CNVS-4949 goggle that CANVS had quoted in January 2003, appellant forwarded its 
purchase order to ITT for one CNVS-4949 goggle based on Drawing 275076.  
Mr. Walkenstein informed Mr. Hosek regarding the submission of CANVS’ purchase order 
to ITT.  CANVS forwarded its invoice to NVESD in October 2003.  NVESD directly 
purchased the goggle outside of any SBIR funding.  The CNVS-4949 goggle purchased by 
NVESD was delivered to Mr. Hosek in late 2003 or early 2004.  This goggle is hereinafter 
referred to as the “NVESD CNVS-4949 goggle.”  (GPF ¶¶ 418-21) 
 
 104.  The NVESD CNVS-4949 goggle is similar, if not identical, to the 
CNVS-4949 goggle delivered under the SBIR Phase II contract (tr. 4/24).  The photograph 
on page 2463 of ex. G-46 is a view of the external filters of the NVESD CNVS-4949 
goggle that are positioned over the objective lenses.  In this view, the goggle is standing 
on the eyepiece side.  The left external filter (from the perspective of a user of that goggle) 
is reddish in tint and the right external filter is greenish in tint.  The photograph of 
ex. G-46 on page 2452 is another view of the external filters of the NVESD CNVS-4949 
goggle.  The photograph of ex. G-46 on page 2446 is a view of the NVESD CNVS-4949 
goggle with the external filters removed.  (GPF ¶¶ 424-25) 

22 
 105.  The photograph of ex. G-46 on page 2458 is a view of the NVESD 
CNVS-4949 goggle from the eyepiece direction.  The eyepieces are removed.  The external 
filters are also removed.  In this view, the left image intensifier tube is orange in tint and 
the right image intensifier tube is greenish in tint.  The reddish left external filter is 
associated with the orange-tint left tube and the greenish right external filter is associated 
with the greenish right tube.  (GPF ¶ 426)  When demonstrating or selling the single 
CNVS-4949 goggle to NVESD, CANVS did not ask Mr. Hosek to sign a nondisclosure 
agreement (GPF ¶ 427). 
 
 F. Events Leading to the June 2005 Special Operations Forces 
  (SOF)/Advance Planning Briefing to Industry (APBI) Conference 
 
 106.  By June 2003, government agencies had purchased a total of nine CNVS-4949s 
and CNVS-5050s—three under the SBIR Phase II contract, one by NVESD, and five by 
OSI Technologies on behalf of a government customer (tr. 2/226-27; ex. G-91; GPF ¶ 709). 
 
 107.  No later than February 2005, CANVS had provided on its public website 
information regarding the CNVS-4949 goggle.  The CANVS website included a photograph 
of the CNVS-4949 goggle with the annotation “independent manual gain control” pointing 
at a component in each optical channel of the goggle.  The CANVS website also disclosed 
the per-unit cost of each CNVS-4949 goggle—$30,000.  (GPF ¶¶ 706-08)  
 
 108.  DoD sponsored a conference and exhibition to demonstrate new technologies 
to staff members of the United States Congress (2nd supp. R4, tab 64).  This event was 
referred to as either the “Congressional Staffer Day” or “demo” (GPF ¶ 717). 
 
 109.  One of the new technologies demonstrated at the Congressional Staffer Day 
was the CNVS-4949 goggle.  Mr. Thomas Piazza, a program official in USSOCOM’s 
SBIR office, coordinated the presentation of various USSOCOM technologies for the 
Congressional Staffer Day exhibition.  (GPF ¶ 719) 
 
 110.  Attached to an email from Mr. Walkenstein dated February 15, 2005 was 
a poster describing the CNVS-4949 goggle (2nd supp. R4, tab 62 at 290; tr. 4/226).  
Mr. Piazza forwarded this poster to his colleague Mr. Shawn Martin (2nd supp. R4, tab 63; 
tr. 4/227, 243). 
 
 111.  Mr. Hosek in February 2005 prepared a poster (hereinafter the Hosek Poster) 
having six photographs, including captions, and textual descriptions of the CNVS-4949 
goggle.  The Hosek Poster does not contain the CANVS Confidential Legend or any 
other proprietary marking.  (GPF ¶¶ 722-23)  Mr. Hosek does not recall as to why the 
Hosek Poster was prepared.  It was likely that a USSOCOM official had asked Mr. Hosek 
to make a poster.  He does not recall whether the Hosek Poster was prepared for use at 
the Congressional Staffer Day event.  He also does not recall whether the Hosek Poster 

23 
was prepared for display inside the government or outside of the government.  Mr. Hosek 
does not recall when he prepared the Hosek Poster.  He does not recall whether that 
poster was prepared in February 2005, or at an even earlier date.  (GPF ¶¶ 724-25) 
 
 112.  As for the top center, top right, lower center, and lower right photographs 
in the Hosek Poster, they are identical to the four photographs on page 12 of monthly 
report No. 8 for the SBIR Phase II contract (R4, tab 9 at 83, tab 15 at 115; ex. A-43.2; 
ex. G-68 at 2283; tr. 3/266, 268; GPF ¶ 726).  The four photographs of interest from the 
Hosek Poster are the top center red-color photograph having the caption “Through left eye 
of CNVS-4949”; the top right pale green-color photograph having the caption “Through 
right eye of CNVS-4949”; the lower center green-color photograph having the caption 
“Standard AN/AVS-6 View”; and the lower right multi-color photograph having the 
caption “Constructed image illustrates effect of CNVS-4949” (ex. A-43.2; ex. G-68 at 
2283; GPF ¶ 728).  It is apparent that the photograph with the caption “Through left eye of 
CNVS-4949” was an error and should have contained the photograph with the caption 
“Standard AN/AVS-6 View” and vice versa, which is consistent with the photographs in 
monthly report No. 8.  Mr. Hosek does not recall the origin of the top center, top right, 
lower center, and lower right photographs in the Hosek Poster (tr. 3/268).  He believes that 
these four photographs came from either monthly report No. 8 or the CRADA Report, but 
does not recall extracting them from either report (tr. 3/268, 4/26-27; GPF ¶¶ 728-29).  As 
for the top left photograph in the Hosek Poster showing a CNVS-4949 goggle, Mr. Hosek 
does not specifically recall the origin of that photograph (ex. A-43.2; ex. G-68 at 2283; 
tr. 3/267-68; GPF ¶ 731). 
 
 113.  Mr. Hosek held the view that the information disclosed on the Hosek Poster 
was general information (tr. 4/11; GPF ¶ 736).  When preparing the Hosek Poster, 
Mr. Hosek did not consider that the poster revealed any information that was confidential 
or proprietary to CANVS such as “numbers,” “specific identifiers,” etc.  He characterized 
this poster as a “vanilla poster.”  (Tr. 4/13, 15; GPF ¶ 737)  Mr. Hosek was knowledgeable 
as to the security classification guide for night vision equipment that controls the 
dissemination of information concerning night vision devices.  A picture of the exterior of 
a device is not classified under his interpretation of the guide.  (Tr. 4/11-12; GPF ¶ 738) 
 
 114.  Mr. Hosek on 24 February 2005 forwarded the Hosek Poster to Mr. Piazza 
for use at the upcoming Congressional Staffer Day exhibition (R4, tab 60; exs. A-12, -28; 
exs. G-68, -132, ¶ 8; tr. 4/7-9, 213-14).  Mr. Piazza does not have any present recollection 
whether he forwarded the Hosek Poster to others for use at the Congressional Staffer Day 
event (tr. 4/230-32, 243-44; GPF ¶ 739). 
 
 115.  On 18 February 2005 Mr. Walkenstein forwarded to Mr. Piazza a second 
document that described CANVS’ night vision goggle work (2nd supp. R4, tabs 65-67; 
ex. A-17; tr. 4/229).  This second document did not reveal any information that CANVS 
considered to be confidential (tr. 1/154-58; GPF ¶ 740). 

24 
 116.  The Congressional Staffer Day took place in Arlington, Virginia, on 
28 February 2005 (2nd supp. R4, tab 64). 
 
 117.  A National SBIR Phase II Conference was scheduled to take place in 
July 2005 (R4, tab 29; ex. A-27).  Likely for the purpose of highlighting successful SBIR 
projects, officials from the National SBIR Conference requested success stories from 
USSOCOM (ex. A-29; tr. 4/244-45).  Ms. Virginia Hoover was a service support 
contractor for the DoD SBIR office, and was involved in the gathering of materials for 
the upcoming National SBIR Conference (app. supp. R4, tab 60; 2nd supp. R4, tab 69; 
tr. 4/211-13; GPF ¶ 744).  Responding to her request, Mr. Piazza on 5 April 2005 
forwarded the Hosek Poster to Ms. Hoover (2nd supp. R4, tab 69; tr. 4/244-45). 
 
 118.  Simultaneously, Mr. Piazza on 5 April 2005 also informed Mr. Walkenstein 
via email that the USSOCOM SBIR office had selected the multi-spectral imaging 
project as a “success story” for the upcoming National SBIR Conference.  Mr. Piazza 
also attached the Hosek Poster to his email to Mr. Walkenstein.  (2nd supp. R4, tab 71 
at 321; tr. 4/214)  Also attached to the email was a one-page information sheet describing 
the SBIR multi-spectral project (2nd supp. R4, tab 71 at 322; tr. 4/215; GPF ¶ 747).  In 
his 5 April 2005 email to Mr. Walkenstein, Mr. Piazza stated that “I’m using the 
information that you and Mr. Hosek previously sent me while working the Congressional 
Staffers Visit to describe your goggles” (2nd supp. R4, tab 71 at 319). 
 
 119.  Mr. Piazza again on 6 April 2005 forwarded the Hosek Poster to 
Mr. Walkenstein (app. supp. R4, tab 60; 2nd supp. R4, tab 72; ex. A-20; tr. 1/162-64, 
4/234-35).  Specifically, Mr. Piazza asked Mr. Walkenstein to remove all proprietary 
information from the Hosek Poster so as to permit USSOCOM to release the poster to the 
public (app. supp. R4, tab 60; 2nd supp. R4, tab 72 at 323; GPF ¶ 749).  Mr. Piazza stated 
that “[p]lease ensure that there is no proprietary data that you would not want released” 
(app. supp. R4, tab 60). 
 
 120.  In turn, Mr. Walkenstein, in a 6 April 2005 email, provided Mr. Piazza with 
a poster having four photographs and revised captions for the photographs, as well as 
revised textual materials (app. supp. R4, tab 59; 2nd supp. R4, tab 73; ex. A-51; tr. 1/161, 
165-66, 4/236-37, 239-40; GPF ¶ 750).  This revised poster is hereinafter referred to as 
the “Sanitized Poster.”  Mr. Walkenstein also provided to Mr. Piazza a revised 
informational sheet (2nd supp. R4, tab 75; GPF ¶ 752).  Mr. Piazza forwarded the revised 
information sheet to Ms. Hoover (2nd supp. R4, tab 80; tr. 4/247). 
 
 121.  In addition to the sanitized poster, Mr. Walkenstein’s email further provided 
an alternate poster for the National SBIR Conference (2nd supp. R4, tab 77; ex. A-42; 
tr. 1/159-61, 4/238).  This poster is hereinafter referred to as the “Alternate SBIR Poster.”  
Both the Sanitized Poster and the Alternate SBIR Poster included the following textual 
description:  “Spectral selection optimized to present lifelike color under moderate 

25 
illumination conditions” and “Goggle prototypes with independent variable gain for each 
channel.”  Concerning the phosphor tubes, the Sanitized Poster used the phrase “I2 tubes 
utilizing COTS components” while the Alternate SBIR Poster used the phrase “I2 tubes 
utilizing COTS phosphors.”  (R4, tabs 59, 77 at 342; GPF ¶¶ 755-56)  The Alternate 
SBIR Poster did not reveal any information that CANVS considered to be confidential 
(tr. 1/160-61; GPF ¶ 757). 
 
 122.  In an email dated 9 May 2005, Mr. Walkenstein asked Mr. Piazza to change a 
photograph on the National SBIR Phase II Conference webpage (ex. A-37.1; ex. G-71; 
tr. 4/213-14).  The webpage also included a textual description of CANVS’ color night vision 
goggle project.  Specifically, the textual description stated:  “The goggles are optimized to 
present more lifelike color under moderate illumination conditions, and better contrast under 
all conditions. Goggle prototypes with independent variable gain for each channel can be used 
on an ANVIS compatible helmet.”  (Ex. A-37.2; ex. G-71; GPF ¶ 759).  The photograph on 
the National SBIR Phase II Conference website was removed and another substituted 
(tr. 4/219; GPF ¶ 760).  Mr. Piazza did not create this webpage and did not upload this page to 
the National SBIR Phase II Conference website (tr. 4/247; GPF ¶ 761). 
 
 123.  The webpage from the National SBIR Phase II Conference described CANVS’ 
color night vision goggle project.  Specifically, the webpage stated:  “The goggles are 
optimized to present more lifelike color under moderate illumination conditions, and better 
contrast under all conditions.  Goggle prototypes with independent variable gain for each 
channel can be used on an ANVIS compatible helmet.”  (R4, tab 29; ex. A-27) 
 
 124.  The 2005 SOF/APBI (an exhibition of military wares) took place from 
6-10 June 2005 at the Tampa Convention Center.  The exhibition hall was opened for 
three days, 7-9 June 2005.  (GPF ¶ 769)  The SOF/APBI conference was sponsored by 
USSOCOM during which it briefed the industry as to future acquisition opportunities.  It 
was also an opportunity for vendors to exhibit their products and technologies to the SOF 
community.  (Ex. G-74 at 14104, ex. G-80 at 2-3, ex. G-83 at 4212).  Primarily vendors, 
but also government agencies, had booths on the exhibition floor (ex. G-74 at 14110, 
ex. G-83 at 4222; GPF ¶ 766).  Administration of the exhibition hall and exhibitors, 
as well as the registration of all attendees, was handled by a USSOCOM contractor 
(GPF ¶ 767).  NVESD exhibited the results of certain projects at the 2005 SOF/APBI 
conference related to the mission of USSOCOM (tr. 6/58-59; GPF ¶ 790). 
 
 125.  A government employee, Mr. Soyka forwarded all posters to be displayed 
at the 2005 SOF/APBI conference to the NVESD public affairs and security officials 
before the conference, including the Hosek Poster (tr. 6/60, 73-74).  The Hosek Poster, 
with minor modifications not relevant to the dispute, was displayed at the SOF/APBI 
conference and is hereinafter referred to as the “APBI Poster” (R4, tab 12 at 98; 
GPF ¶¶ 795-96).  Mr. Soyka did not contact Mr. Walkenstein to ascertain whether any 

26 
information on the Hosek Poster should have been deleted (GPF ¶ 800).  We find that the 
government did not receive express consent from appellant to display the APBI Poster.   
 
 126.  Among the posters displayed by NVESD was the APBI Poster (GPF ¶ 802).  
CANVS alleges that the display of the APBI Poster resulted in the disclosure of CANVS’ 
proprietary information or trade secrets at the SOF/APBI conference relative to the 
CNVS-4949 goggle (GPF ¶ 803).  CANVS alleges that a comparison of the APBI Poster 
with monthly report No. 8 “clearly shows that proprietary photographs and information 
were displayed at a conference at which competitors and non-Government persons were 
present” (GPF ¶ 817).  Neither the complaint nor the first supplemental complaint 
identifies with specificity what photographs or what information on the APBI Poster was 
proprietary (compl. ¶¶ 5, 19, 20, 21; first supp. compl. ¶ 11; GPF ¶ 818).  CANVS’ 
contract claim filed on 6 June 2011 also failed to identify with specificity what 
photographs or what information on the APBI Poster was proprietary (R4, tab 11).  
 
 G. Alleged Proprietary Features and Components of CNVS-4949 and CNVS-5050 
   Goggles Disclosed in the APBI Poster 
 
 127.  In its post-hearing brief, CANVS identified the following eight features and 
components that it alleged were proprietary and disclosed in the APBI Poster: 
 
(1) A red-color photograph identified as the view from one 
optical channel of a binocular night vision goggle;  
 
(2) A green-color photograph identified as the view from the 
other optical channel of a binocular night vision goggle; 
 
(3) The phrase “I2 tubes utilizing different color phosphors” 
confirmed the use of red-color phosphor screen image 
intensifier tube in one optical channel of the binocular 
night vision goggle and the use of a green-color phosphor 
screen image intensifier tube in the other optical channel; 
 
(4) Independent variable gain control for each image 
intensifier tube; 
 
(5) The multi-color photograph along with the words 
“constructed lifelike view” in the caption illustrated the 
combining of the red-color image from one eye of the 
observer and the green-color image from the other eye in 
the brain of that observer; 
 

27 
(6)  The red sliver in the multi-color photograph illustrated the 
combining of the red-color photograph and the green-color 
photograph;  
 
(7)  The reflections from the objective lenses of the goggle 
in the upper left photograph indicated the presence of red-and 
green-color filters; and 
 
(8)  The phrase “filtering optimized to present more lifelike 
color” in combination with the phrase “color imaging systems 
provide improved contrast and color output using only the 
image intensification band” confirmed the use of separate 
red- and green-color filters. 
 
(App. br. at 29 (citing to GPF ¶ 855)) 
 
 128.  In its response to USSOCOM’s Interrogatory No. 8, CANVS identified a 
litany of features displayed on the APBI Poster that included proprietary information 
(ex. G-2 at 18-19).  Specifically, CANVS identified the following proprietary features 
from the APBI Poster that would have permitted a person skilled in the art to build a 
CNVS-4949:  (1) I2 tubes utilizing different color phosphors; (2) Red-color phosphor 
screen image intensifier tube in the left eye of CNVS-4949; (3) Green-color phosphor 
screen image intensifier tube in the right eye of CNVS-4949; (4) Goggle prototype with 
independent variable gain control for each channel; (5) The phrase “filtering optimized to 
present more lifelike color” in combination with the phrase “color imaging systems 
provide improved contrast and color output using only the image intensification band”; 
(6) The above two phrases in combination with three photographs on the APBI Poster that 
showed images taken through each eye and the constructed color image; (7) Color image 
of the goggle itself that showed different colorations of the reflections from the objective 
lenses indicated green and red filters; and (8) The color image of the reflections plus the 
individual photographs taken through each image intensifier tube of the goggle would 
allow one skilled in the art to select the filter colors, and the corresponding colors of the 
phosphor screens (id., GPF ¶ 821). 
 
 129.  In its response to USSOCOM’s Interrogatory No. 11, CANVS identified 
the “sufficient information” that would have permitted a person skilled in the art to 
construct a CNVS-4949 goggle from the photographs and the associated captions (ex. G-2 
at 21-22).  As for the top left photograph showing the goggle, along with the caption 
“Helmet mounted Goggle, CNVS-4949,” the skilled observer would have acquired the 
following “sufficient information”:  (1) This photograph disclosed red and green color 
filters which were mounted over the objective lenses of the goggle; (2) An inspection of the 
physical CNVS-4949 goggle would have revealed the use of the red and green external 
filters and the different color phosphor screens for the image intensifier tubes; (3) The 

28 
colored reflections from the external filters would correspond to the red and green phosphor 
screens for the image intensifier tubes; and (4) The skilled observer would have understood 
that colored phosphor screens and filters were used on the goggle (id.; GPF ¶ 822). 
 
 130.  In its response to USSOCOM’s Interrogatory No. 11, CANVS stated that the 
skilled observer would have acquired the following “sufficient information” from the top 
center reddish photograph, along with the caption “Through left eye of CNVS-4949”:  
(1) From the red image, the skilled observer would have understood that the filter and 
phosphor screen in the left optical channel had created that red image; and (2) The skilled 
observer would have noticed the contrast between the clouds and the sky in this image 
(ex. G-2 at 21-22; GPF ¶ 823). 
 
 131.  In its response to USSOCOM’s Interrogatory No. 11, CANVS stated that the 
skilled observer would have acquired the following “sufficient information” from the top 
right greenish photograph, along with the caption “Through right eye of CNVS-4949”: 
(1) From the green image, the skilled observer would have understood that the filter and 
phosphor screen in the right optical channel had created that green image; (2) The skilled 
observer would have noticed the lack of contrast between the clouds and the sky; and 
(3) The skilled observer would have noticed the high contrast between the trees and the 
power pole in this image (ex. G-2 at 22; GPF ¶ 824). 
 
 132.  In its response to USSOCOM’s Interrogatory No. 11, CANVS stated that the 
skilled observer would have acquired the following “sufficient information” from the lower 
right photograph, along with the caption “Constructed life-like image illustrates effect of 
CNVS- 4949”:  (1) The skilled observer would have understood that this blended-color 
photograph was an overlay of the separate red and green photographs because of the 
misalignment of the constructed image; (2) The skilled observer would have understood 
that the blended-color photograph was intended to simulate the biological fusion of the red 
image and the green image; and (3) The skilled observer would have appreciated the 
benefit of using different phosphor and filters for the optical channels would enhance the 
color contrast of the image; for example, sharper contrast among the trees due to the high 
degree of infrared reflectivity from the leaves (ex. G-2 at 22-23; GPF ¶ 825). 
 
 133.  In its response to USSOCOM’s Interrogatory No. 11, CANVS stated that the 
skilled observer would have acquired the following “sufficient information” from the 
lower center greenish photograph, along with the caption “Standard Image Intensified 
View”:  (1) When compared to the red image from the left optical channel, the green 
image from the right optical channel, and the blended-color constructed view, the skilled 
observer would have noticed benefits of color contrast from those photographs showing 
greater detail within and between objects (ex. G-2 at 23-24; GPF ¶ 826). 
 
 134.  In its response to USSOCOM’s Interrogatory No. 11, CANVS stated that the 
skilled observer would have acquired the following “sufficient information” from the 

29 
phrase “I2 tubes utilizing different color phosphors”:  (1) Alerted the skilled observer to 
observe the photographs more closely to differentiate the different phosphors (ex. G-2 
at 24; GPF ¶ 827). 
 
 135.  As perhaps awkwardly phrased by the government’s proposed finding in its 
response to USSOCOM’s Interrogatory No. 11, CANVS stated that the skilled observer 
would have acquired the following “sufficient information” from the phrase “filtering 
optimized to present more lifelike color” in combination with the phrase “color imaging 
system provide contrast and color output using only the image intensification band”:  
(1) When combined with the photographs, would have permitted the skilled observer to 
build a binocular goggle by selecting the red-color phosphor image intensifier tube, the 
red-color phosphor tube, along with corresponding external filters, that would be capable 
of providing a blended-color image; and (2) The blended-color image would provide 
enhanced color contrasts (ex. G-2 at 24; GPF ¶ 828). 
 
 136.  In its response to USSOCOM’s Interrogatory No. 12, CANVS discussed 
how the skilled observer would use the “sufficient information” discussed in 
Interrogatory No. 11 to construct a CNVS-4949 goggle (ex. G-2 at 25-26).  Specifically, 
the skilled observer would have deduced the following:  (1) Based on the reflection from 
the external filter, a red-color filter would need to correspond to the red-color phosphor 
image intensifier tube, as confirmed by the red-color image for the left optical channel; 
(2) Based on the reflection from the external filter, a green-color filter would need to 
correspond to the green-color phosphor tube, as confirmed by the green-color image for 
the right optical channel; (3) Based on the caption “combined lifelike image,” the 
blended-color image would have been generated in the brain from the red and green 
image intensifier tubes; (4) The phrase “I2 tubes utilizing different color phosphors,” 
would have confirmed critical components need to construct the goggle; and (5) The 
phrase “filtering optimized to present more lifelike color under moderate illumination 
conditions, and better contrast under all conditions” would have also confirmed the 
benefits of the goggle (id.; GPF ¶ 829). 
 
 137.  Mr. Walkenstein testified that much of the proprietary information disclosed 
on the APBI Poster originated from monthly report No. 8 for the SBIR Phase II contract 
(tr. 1/128).  Specifically, the four photographs on page 12 of monthly report No. 8 
appeared on the APBI Poster (GPF ¶ 833).  It is unclear from our examination of the 
record whether the APBI Poster included data or information from other reports delivered 
by appellant under the SBIR Phase II contract. 
 
 138.  Mr. Walkenstein testified that the APBI Poster disclosed CANVS’ 
proprietary information as to having a red-color phosphor image intensifier tube for one 
eye and a green-color phosphor image intensifier tube for the other eye (GPF ¶ 834). 
 

30 
 139.  If the reddish image of the top center photograph on the APBI Poster were 
viewed alone without the caption and the descriptive text, Mr. Walkenstein testified, 
there were many different color phosphor screens and filters that could have created 
the reddish image (R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 3/35; GPF ¶ 835).  
Mr. Walkenstein testified that a red-color phosphor, or green-color phosphor, or 
white-color phosphor, used in conjunction with an appropriate filter, would create the 
reddish image (tr. 3/48). 
 
 140.  If the reddish image of the top center photograph on the APBI Poster 
were viewed in conjunction with the caption “Through left eye of the CNVS-4949,” 
Mr. Walkenstein testified, a person viewing the APBI Poster would not be able to discern 
the color of the phosphor screen used to create the reddish image of a scene through the left 
channel of the goggle (R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 3/35-39; GPF ¶ 836). 
 
 141.  If the greenish images on the APBI Poster were viewed alone without 
the captions and the descriptive text, Mr. Walkenstein testified, there were many 
different-color phosphor screens and filters that could have created the greenish image 
(R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 3/35; GPF ¶ 837).  Mr. Walkenstein testified 
that a red-color phosphor, or green-color phosphor, or white-color phosphor, used in 
conjunction with an appropriate filter, would create the reddish image (tr. 3/48-49).  
 
 142.  If the greenish images on the APBI Poster were viewed in conjunction with 
the caption “Through right eye of CNVS-4949,” Mr. Walkenstein testified, a person 
viewing the APBI Poster would not have been able to discern the color of the phosphor 
screen used to create the greenish image of a scene through the right channel of the 
goggle (R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 3/39-40; GPF ¶ 838).  
 
 143.  If the multi-color image in the lower right photograph on the APBI Poster 
were viewed together with reddish image and the greenish image, along with their 
captions, Mr. Walkenstein testified, a person viewing the APBI Poster would have been 
able to discern that the multi-color image was constructed from the red image and the 
green image (R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 3/40-42, 49-50; GPF ¶ 839).  
Mr. Walkenstein testified that the person would have concluded that a red-color phosphor 
view was presented to one eye and a green-color phosphor view was presented to the 
other eye.  However, Mr. Walkenstein testified that that person would not know the 
specific red-color phosphor used.  (Tr. 3/42) 
 
 144.  Because Mr. Walkenstein had used a computerized video technique to create 
the multi-color photograph as opposed to overlaying existing photographic images 
(tr. 1/132-33, 3/43-45), he testified, the term “constructed” was more appropriate to 
describe the multi-color photograph (tr. 3/49-50; GPF ¶ 840).  He stated that he created 
the photograph by using images taken by Dr. McLean at USAARL that “were sent to me 
in digital format.  They were changed from color format to black and white format.  

31 
They were then mathematically mapped to the red and green channels and produced in 
digital image.  Then based on the misalignment, I moved them over, created the image.”  
(Tr. 3/44-45)  The APBI Poster did not disclose the method and techniques used by 
Mr. Walkenstein to create this photograph. 
 
 145.  As for the top left photograph on the APBI Poster, Mr. Walkenstein testified 
that an observer would perceive a green-color filter and a red-color filter due to the fact 
that different colored light was bouncing off the filters (R4, tab 12 at 98, tab 16 at 119; 
ex. A-96; tr. 1/145).  Based on the different coloration of the filters, Mr. Walkenstein 
testified, one skilled in the art would have recognized the presence of two different color 
filters capable of passing different wavelength bands (tr. 1/145-46).  This was allegedly 
CANVS’ proprietary information (tr. 1/144-46; GPF ¶ 841). 
 
 146.  Mr. Walkenstein testified that different colorations in the filters in the top 
left photograph did not disclose the specific spectral band, i.e., the exact bandpass 
information for the filters (tr. 1/145-46; GPF ¶ 842). 
 
 147.  Mr. Walkenstein testified that the phrase “color imaging systems provide 
improved contrast and color output using only the image intensified band” under the “Payoff” 
section of the APBI Poster disclosed that color was obtained through the spectral response of 
the goggle’s image intensifier tubes (R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 1/147; 
GPF ¶ 844). 
 
 148.  Mr. Walkenstein testified that the phrase “Filtering optimized to present 
more lifelike color under moderate illumination” revealed the use of inputs to the image 
intensifier tubes (R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 9/292; GPF ¶ 845). 
 
 149.  Mr. Walkenstein testified that the phrase “goggle prototypes with independent 
variable gain for each channel” was CANVS’ proprietary information (R4, tab 12 at 98, 
tab 16 at 119; ex. A-96; tr. 1/144; GPF ¶ 849). 
 
 H. Expert Testimony on Issue of Whether APBI Poster Disclosed Proprietary 
  Features and Components of CNVS-4949 and CNVS-5050 Goggles   
 
 150.  Appellant’s expert witness, Mr. Gillespie, in his initial expert report, dated 
26 July 2013, specifically stated that he would not opine as to whether any of the 
information displayed on the APBI Poster was CANVS’ proprietary technical data.  
Instead, Mr. Gillespie assumed that the information displayed on the APBI Poster was 
CANVS’ proprietary technical data for the purposes of his analysis.  (Ex. A-85.10, ¶ 20; 
GPF ¶ 853).  At the hearing, Mr. Gillespie acknowledged that “the intent of my [expert] 
report here is not to discuss proprietary information.  It was to discuss whether technical 
data is being disclosed or not.  So it’s assumed that its proprietary data, but whether it is or 

32 
isn’t is not a subject of my testimony, either now or in this paper [expert report].”  
(Tr. 5/165; GPF ¶ 854) 
 
 151.  Mr. Gillespie’s expert report defined “a person of ordinary skill in the art” as 
someone with experience and knowledge working with image intensification and thermal 
imaging techniques and their components and properties; experience in applying these 
technologies to military tactical environments; and a thorough understanding of the 
principles of physics with respect to light, thermal radiation, optics, and filters (ex. A-85, 
¶¶ 17-19).  He later concluded that the photographs and textual narrative in the APBI 
Poster would enable a skilled engineer to observe the physical characteristics of the 
image intensifier tubes and color filters to recreate and build the CNVS-4949 goggle 
(id. ¶¶ 3, 20).  Additionally, he stated a physical examination of the CNVS-4949 goggle 
at the conference would allow a person to observe the physical characteristics of the 
phosphor tubes and the colored filters (id. ¶ 3).  Although Mr. Gillespie did not identify 
himself as an engineer and the government objected to his admission as an expert 
(tr. 5/131), we find that his background and experience in the night vision technology 
industry, particularly his years of experience as a program manager and research and 
development coordinator at NVESD, qualify him as an expert.  His reports and testimony 
were previously admitted into the record. 
 
 152.  According to Mr. Gillespie, the APBI Poster identified the major 
components of the CNVS-4949—the housing of the goggle; the red and green phosphor 
intensifier tubes for each channel, and matching red and green optical filters affixed to 
the objective lenses of each channel (tr. 5/136-38).  His initial expert report asserted 
that a skilled observer would recognize that the red and green photographs of each 
channel of the goggle corresponded to a red and green phosphor tube and filter; that the 
multi-colored photograph was the simulated “biologic fusion” of the red and green 
photographs in which “the observer would learn the benefit that the two phosphor/filter 
colors would have on enhancing the color contrast of the image of the scene displayed to 
the viewer”; and that the standard AN/AVS-6 image, in combination with the other 
photographs, would reveal the choice of red and green filters and phosphor screens to 
optimize the lifelike color of that image (ex. A-85, ¶ 24).   
 
 153.  When a user positions his eyes toward the eyepiece side of a CNVS-4949 
goggle, he would immediately see a red-color optical channel and a green-color optical 
channel (tr. 3/18-19, 223).  The red image of the top center photograph of the APBI 
Poster is what a user of a CNVS-4949 would see from the eyepiece side (R4, tab 12 at 98, 
tab 16 at 119; ex. A-96; tr. 3/52).  When a user looks at the objective lens side of a 
CNVS-4949 goggle, he would discern different coloration on the optical channel which is 
an indication that different-color filters are being used (tr. 3/21-22, 225-28).  When a user 
is using the CNVS-4949 goggle, he would need to adjust the independent manual gain 
control mechanisms to adjust the brightness in each image intensifier tube (tr. 8/67, 90). 
 

33 
 154.  When a user of a CNVS-4949 goggle positions his eyes toward the eyepiece 
side of the goggle, he would immediately see a red-color optical channel and a green-color 
optical channel (tr. 3/18-19, 8/83).  Mr. Walkenstein stated that the red image of the top 
center photograph of the APBI Poster is what a user of a CNVS-4949 goggle would see 
from the eyepiece side (R4, tab 12 at 98, tab 16 at 119; ex. A-96; tr. 3/52; GPF ¶ 902).  
When a user looks at the objective lens side of a CNVS-4949 goggle, he will discern 
different coloration on the optical channel which is an indication that different-color filters 
are being used (tr. 3/21-22; GPF ¶ 904).  When a user is using the CNVS-4949 goggle, 
he will need to operate the independent manual gain control mechanisms so as to adjust 
the brightness in each image intensifier tube (tr. 8/67, 90; GPF ¶ 905).  The following 
findings address issues regarding the alleged proprietary issues raised by appellant and 
Mr. Walkenstein’s testimony. 
 
 155.  Relative to the top center photograph on the APBI Poster showing a reddish 
image (R4, tab 12 at 98, tab 16 at 119; ex. A-96), it was public knowledge or generally known 
in the night vision industry as of 2005 that an image intensifier tube having any type of 
phosphor when used with an appropriate external filter would create a reddish image 
(tr. 4/109, 9/88-90).  The phosphor used could be green-color phosphors, red-color phosphors, 
or white-color phosphors (id.).  The appropriate filter would be one that permitted the passage 
of red-color wavelengths (tr. 4/109, 9/88-90; see ex. G-139 at 6; GPF ¶ 856). 
 
 156.  Relative to the two photographs on the APBI Poster showing a greenish image 
(R4, tab 12 at 98, tab 16 at 119; ex. A-96), it was public knowledge or generally known in 
the night vision industry as of 2005 that an image intensifier tube having any type of 
phosphor when used with an appropriate external filter would create a greenish image 
(tr. 9/91, 93).  The phosphor used could be green-color phosphors, red-color phosphors, or 
white-color phosphors (tr. 9/91).  The appropriate filter would be one that permitted the 
passage of green-color wavelengths (tr. 9/91; see ex. G-139 at 6; GPF ¶ 857). 
 
 157.  As for the greenish image shown in the top right photograph on the APBI 
Poster, even if the caption was corrected to indicate that it was a standard night vision 
view, it was general knowledge by 2005 that the greenish tint was the standard coloration 
of conventional night vision goggles (GPF ¶ 858). 
 
 158.  As of 2005, it was public knowledge or generally known in the night vision 
industry that a binocular night vision goggle could create a reddish image for one optical 
channel and a greenish image for the other channel (R4, tab 12 at 98; ex. A-96; tr. 9/94-98, 
101-02).  The phosphor used could be green-color phosphors, red-color phosphors, or 
white-color phosphors (tr. 9/95, 101-02).  The appropriate filter would be one that permitted 
the passage of red-color or green-color wavelengths (tr. 9/95, 101-02; see ex. G-139 at 6; 
GPF ¶ 859).  According to monthly report No. 8 delivered under the SBIR Phase II contract, 
the reddish image was acquired through a “RG-665 2mm thick filter material” and the 

34 
greenish image was acquired through a “Hotmirror filter” (R4, tab 9 at 83).  These 
characteristics and specifications of the filters were not disclosed in the APBI Poster. 
 
 159.  The simultaneous presentation of a reddish image in one optical channel and 
a greenish image in the other channel of a binocular night vision goggle was already 
disclosed in the 1992 Field Patent (ex. G-139 at 23-24, ex. G-169; tr. 9/94-95).  The reddish 
image would have been created by a red-color external filter which is identified as filters 
51a, 51b, 52a, or 52b in Figures 5A and 6A of the patent.  The greenish image would have 
been created by a green-color external filter.  (Ex. G-169 at 4; tr. 9/95-97; GPF ¶ 860) 
 
 160.  As for the top left photograph on the APBI Poster illustrating a binocular 
goggle having purported red coloration or hue on one of its objective lens (R4, tab 12 
at 98, tab 16 at 119; ex. A-96), it was public knowledge or generally known in the night 
vison industry as of 2005 that the coloration of reflections from external filters was 
dependent on the angle of the light source (ex. G-139 at 15-17; tr. 9/102-07; GPF ¶ 863).  
This photograph is a colored image of the CNVS-4949 goggle. 
 
 161.  As for the phrase “Filtering optimized to present more lifelike color” shown 
on the APBI Poster (R4, tab 12 at 98, tab 16 at 119; ex. A-96), it was public knowledge 
or generally known in the night vision industry as of 2005 that there were a variety 
of techniques that were capable of performing the rather generic term of “filtering” 
(tr. 9/123).  Filtering techniques included “spectral filtering,” “polarization filtering,” 
“temporal filtering,” or “spatial filtering” (id.; GPF ¶ 865). 
 
 162.  In his expert report, the government’s expert witness, Dr. Waxman, stated 
that it was “impossible by simply looking at one visible photograph, or even by casual 
inspection of an assembled device…, to infer a filter’s spectral characteristics such as 
cut-on wavelength, cut-off wavelength, spectral transmission characteristics, filter 
thickness, material composition, and importantly its characteristics in the near-IR part of 
the NVG [night vision goggle] spectrum” (ex. G-139 at 13-14, ¶ 14.6).  Dr. Waxman 
testified that filtering could encompass spectral filtering using band pass filters, filtering 
with polarizers, and modulating any part of the tube (tr. 9/218).  On cross-examination, 
appellant’s expert, Mr. Gillespie, stated that spectral filtering of intensifier tubes was 
commonly known prior to June 2005 (tr. 5/198). 
 
 163.  Mr. Gillespie asserted that a skilled person would observe that the red and 
green colors of the objective filters in the colored photograph of the CNVS-4949 goggle 
match with the intensifier tube phosphor screens upon examination of the physical goggle 
(ex. A-85, ¶ 23).  The government’s expert, Dr. Waxman, disputed this assertion.  He 
asserted that the APBI Poster did not divulge specific characteristics of the spectral filters, 
including the cut-on and cut-off wavelengths, spectral transmission characteristics, filter 
thickness, filter material, and the characteristics in the near-IR part of the night vision 
goggle spectrum (ex. G-139, ¶¶ 14.2, 14.6; tr. 9/90-91).  He further explained that the 

35 
visible appearance of a filter through photographs or visual inspection conveyed nothing 
about a filter’s spectral characteristics and properties.  He asserted that the filter on the red 
channel could appear red, blue, or green and the filter on the green channel could appear 
blue or green depending on several factors such as the viewing angle, the angle of incidence 
of incoming light, and the design and composition of the spectral filters.  (Ex. G-139, 
¶¶ 14.8-14.11)  The government’s witness, Mr. Bender, stated that the wavelength selection 
was a critical component in analyzing and evaluating a goggle (tr. 6/217).   
 
 164.  On cross-examination, Mr. Gillespie stated that the characteristics and 
properties of the filters would be important in configuring a night vision goggle.  He 
stated that one would not communicate to a manufacturer the color of the filter but 
provide “a specification, and a wave length that they had to pass or not pass the cut off 
filters.”  (Tr. 5/176)  On recross-examination, he further confirmed that a skilled person 
viewing the photographs and visually examining the CNVS-4949 goggle could not 
determine whether a “hotmirror” filter was used and what wavebands were filtered 
(tr. 5/267-68).  We find that Mr. Gillespie’s testimony supports Dr. Waxman’s 
assessment that the spectral characteristics of a filter could not be determined by the 
photographs in the APBI Poster and visual examination of the physical goggle.   
 
 165.  As for the phrase “I2 tubes utilizing different color phosphors” shown on the 
APBI Poster (R4, tab 12 at 98, tab 16 at 119; ex. A-96), it was public knowledge or generally 
known in the night vision industry as of 2005 that image intensifier tubes may employ 
phosphors of different colors, even red-color phosphors (tr. 9/50, 113-14, 122; GPF ¶ 864). 
 
 166.  Mr. Gillespie asserted that the phrases “I2 tubes utilizing different colored 
phosphors” and “Color Imaging systems provide improved contrast and color output 
using only the image intensification band,” in combination with the photographs, would 
have further revealed to a skilled person the use of red and green phosphor tubes and 
filters (ex. A-85, ¶¶ 25, 27).  At the hearing though, Mr. Gillespie stated that a skilled 
person “would suspect or easily project” that a red and green phosphor were used because 
they were known in the industry.  He added that the APBI Poster did not explicitly state a 
white phosphor or a different colored phosphor.  (Tr. 5/152) 
 
 167.  Dr. Waxman testified that the red photograph would reveal that “the filters 
pass band must at least include some of the part of the spectrum that we tend to call red” 
but not the exact color of the phosphor, and that any phosphor with appropriate filters 
could generate the images (tr. 9/90, 92).  This is consistent with Mr. Walkenstein’s 
testimony in which he stated that the red photograph could be achieved by placing a 
white or red phosphor with the appropriate spectral filter (tr. 3/48-49).  Dr. Waxman 
opined that the red and green photographs in the APBI Poster were exact images from a 
goggle disclosed in the 1992 Field Patent (tr. 9/97-98). 
 

36 
 168.  Mr. Hosek testified that, when viewing the red photograph and caption in the 
APBI Poster, he could not determine whether a red, white, or a colored phosphor with red 
content and a filter that strips other colors out of the phosphor was used to produce the 
image (tr. 4/109). 
 
 169.  As for using independent variable gain for each channel of the night vision 
goggle, it was public knowledge or general knowledge in the night vision industry by 
2005 that such independent variable gain controls were available in existing night vison 
goggles in the market place.  For example, the advertising material for the ITT F4949 
and F5050 goggles indicated their use of such independent gain control mechanisms.  
(Ex. G-219 at 3, 4)  Even CANVS’ own website in 2005 illustrated independent gain 
control mechanisms for the CNVS-4949 goggle (ex. G-58; GPF ¶ 866). 
 
 170.  Mr. Gillespie stated that the photographs in the APBI Poster supplied a skilled 
person with “benchmark data points” to confirm the proper construction and configuration 
of the CNVS-4949 goggle (ex. A-85, ¶ 25).  At the hearing, he opined that one could easily 
test and validate to confirm the proper configuration (tr. 5/259).  However, he did not 
further explain the time, effort, and expense to perform such a validation.  Mr. Walkenstein 
testified that thousands of filters were tested by CANVS over a ten-year period (tr. 3/34).  
We find Mr. Gillespie’s testimony that testing and validation of the construction and 
configuration of the filters would be relatively easy is unpersuasive. 
 
 171.  Mr. Walkenstein testified that an extended cathode was an attribute to the 
phosphor tube that was not disclosed in the APBI Poster (tr. 3/33).  Nothing in the APBI 
Poster disclosed the particular type or model of the phosphor tube used to acquire the 
displayed photographs.   
 
 172.  Appellant has not presented any evidence to indicate that any individual 
other than Mr. Walkenstein had both actually seen the APBI Poster at the 2005 
SOF/APBI conference and understood the alleged proprietary information or trade 
secrets that were displayed on that poster (GPF ¶¶ 973, 976). 
 
 I. CANVS Disclosed Claimed Proprietary Features and Components  
 Prior to June 2005 
 
 173.  Appellant disseminated the allegedly proprietary information to persons, 
organizations, and firms outside the U.S. Government without obtaining nondisclosure 
agreements.  In particular, the goggles and accompanying descriptions were included in 
marketing literature and available on the company’s website.  (GPF ¶¶ 886-91, 893-95, 
897)  On recross-examination, Mr. Walkenstein stated that, although CANVS may not 
have sold CNVS-4949 or CNVS-5050 goggles prior to submitting its SBIR Phase II 
proposal to the government, it was actively marketing and selling goggles that were 

37 
identical in performance and capability.  He stated that one could buy a goggle directly 
from CANVS or retrofit a goggle incorporating the CANVS technology.  (Tr. 11/79-81)    
 
 174.  Appellant disseminated the allegedly proprietary information to individuals 
employed by U.S. Government agencies not involved with the USSOCOM SBIR color 
night vision program without obtaining nondisclosure agreements (GPF ¶¶ 873, 879-85, 
892, 897). 
 
 175.  CANVS demonstrated its color night vision goggles to many potential 
public and private customers by 2005, including the demonstrations that took place at 
the 2003 and 2005 Force Protection Equipment Demonstrations (FPEDs) (R4, tab 7 at 62; 
ex. G-42 at 1649-653; exs. G-84, -85; tr. 2/38-40, 43, 3/17-18).  CANVS also permitted 
potential customers to use the goggles (exs. G-84, -85; tr. 2/38-40, 43, 3/17-18; 
GPF ¶ 906).  Organizers of the FPEDs did not require attendees to sign nondisclosure 
agreements and attendees were not obligated to protect any confidentiality associated 
with displayed products and demonstrations (tr. 7/142).   
 
 176.  CANVS showed its products to other vendors at the FPEDs, including the 
CNVS-4949 goggles (tr. 3/28; GPF ¶ 910).  The CANVS color night vision goggles 
demonstrated at the FPEDs were operable (tr. 3/18; GPF ¶ 907).  Users of the CNVS-4949 
goggle could clearly see a red channel and a green channel (tr. 3/18-19; GPF ¶ 909).  The 
CNVS-4949 goggles demonstrated at the FPEDs included external filters.  Those who used 
the CNVS-4949 goggles at the FPEDs saw the external filters.  (Tr. 3/19, 21-22; GPF ¶ 908) 
 
 177.  As relevant here, the criteria for attendance at the 2005 SOF/APBI conference 
were substantively the same as the criteria for attendance at the 2003 and 2005 FPEDs 
(GPF ¶ 968).  Mr. Walkenstein held the incorrect belief that the 2003 and 2005 FPEDs, 
unlike the APBI conference, were “closed“ conferences such that he could freely display 
and demonstrate fully operative CNVS-4949 goggles (GPF ¶ 970).  On cross-examination, 
Mr. Walkenstein testified that attendees participating in the demonstrations did not sign 
nondisclosure agreements (tr. 3/19).   
 
 178.  Photographs and textual materials from the APBI Poster alleged to be trade 
secrets or proprietary information appeared in the Sanitized Poster or the Alternate SBIR 
Poster.  Mr. Walkenstein prepared both of these posters and provided them to USSOCOM 
for use at public events.  (App. supp. R4, tab 60; 2nd supp. R4, tab 72 at 323, tabs 73, 77; 
exs. A-42, -51; tr. 1/159-61, 236-38; GPF ¶ 911)  Specifically, a green-color photograph 
having the caption “Standard AN/AVS-6 View” is present in both the Sanitized Poster and 
the Alternate SBIR Poster (2nd supp. R4, tab 73 at 330, tab 77 at 342).  This photograph is 
identical to the lower center photograph on the APBI Poster (R4, tab 12 at 98).  There is 
no dispute that a green-color view, along with the caption indicating that it is the view of a 
standard monochromatic night vision goggle, was not a trade secret or proprietary 
information (tr. 1/160-61; GPF ¶ 912).  In addition, a multi-color photograph having the 

38 
caption “CNVS Color Goggle View” is present in both sanitized posters (2nd supp. R4, 
tab 73 at 330, tab 77 at 342; GPF ¶ 913).  This photograph is essentially identical to the 
lower right photograph of the APBI Poster; however, the APBI Poster’s photograph 
contains a red “sliver” along the border of the image (R4, tab 12 at 98).   
 
 179.  The Sanitized Poster clearly identified the night vision goggle as a “CNVS-4949 
Helmet Mounted Aviation Color Night Vision Goggle.”  This photograph and description 
also appeared in the Alternate SBIR poster.  Under the “Payoff” section, the Sanitized Poster 
stated that “[t]he Color Imaging Systems provide improved contrast and color output using 
only the image intensification band.”  This exact phrase also appeared in the Alternate SBIR 
poster.  Under the “Description” section, the Sanitized Poster stated that “[s]pectral selection 
optimized to present more lifelike color under moderate illumination conditions, and better 
contrast under all conditions.”  This exact phrase also appeared in the Alternate SBIR poster.  
(2nd supp. R4, tab 73 at 330, tab 77 at 342; GPF ¶¶ 915-17)  
 
 J.  The Appeals 
 
 180.  In its claim letter, dated 6 June 2011, CANVS referred to the APBI Poster, 
but it did not identify with particularity the alleged trade secrets or proprietary information 
revealed by that poster.  The claim letter merely alleged that “[a] comparison of the display 
and at least the monthly report 8 of 15…clearly shows that proprietary photographs and 
information were displayed at a conference….   This display included technical details 
sufficient to manufacture the device.”  (R4, tab 11)  The letter contended that the 
government improperly disclosed the alleged proprietary information to SOF/APBI 
conference attendees that included non-government and foreign entities and competitors of 
CANVS.  CANVS alleged that data from other technical reports outside of the APBI Poster 
were also released based upon the government’s award of contracts to its competitors, and 
that it was unable to secure “procurement” funding from industry and government sources 
for its night vision goggle products.  The letter demanded $100 million in breach damages 
from the government and included a Contract Disputes Act (CDA) certification.  (Id.)  
 
 181.  By correspondence dated 19 September 2011, CANVS filed its notice of 
appeal to the Board from the deemed denial on the 6 June 2011 claim by the contracting 
officer.  The appeal was docketed as ASBCA No. 57784. 
 
 182.  On 11 January 2012, the contracting officer issued a final decision denying the 
claim in its entirety.  The contracting officer concluded that the allegations in the claim 
were unsubstantiated and baseless.  (Supp. R4, tab 43 at 279, 281)  He asserted, among 
other things, that the photographs and descriptions of the device and components were not 
proprietary data; that the government did not violate the 7018 clause under the SBIR 
Phase II contract; and that the government has not awarded any color night vision 
technology contracts to date (id. at 281-82).  CANVS timely appealed from this final 

39 
decision which was docketed by the Board as ASBCA No. 57987.  The identical issues are 
presented in both appeals.  Accordingly, we dismiss ASBCA No. 57784 as duplicative. 
 
 183.  In its initial complaint, CANVS expanded that the alleged improper 
disclosure deprived it of an “income-producing asset” and affected its ability to receive 
an SBIR Phase III award or production contract for its night vision goggles (compl. ¶ 44).   
 
 K.  Additional Findings 
 
 184.  There is no evidence that between the 2005 SOF/APBI Conference and the 
completion of the hearing, that any manufacturer in the U.S. military market has even 
begun to manufacture a device similar to the CNVS-4949 goggle (GPF ¶ 977).  Both 
Mr. Hosek and Mr. Soyka testified that they were not aware of any red/green direct view 
night vision goggles currently being manufactured (GPF ¶¶ 978-79).  Mr. Robert Kabala, 
the USSOCOM night vision program manager from 1998 to 2010, testified that 
USSOCOM has not purchased any direct view color night vision goggles from any other 
source (tr. 7/205-06; GPF ¶ 980).  Additionally, Mr. Kabala’s direct successor and the 
current USSOCOM night vision program manager, Mr. Miguel Isasmendi, testified that 
since 2007 he is unaware of any color night vision goggles being fielded (tr. 8/14-16, 
31-32; GPF ¶ 980).  CANVS’ expert witness, Mr. Gillespie, could not identify a single 
manufacturer of a similar device (tr. 5/220; GPF ¶ 981). 
 
 185.  Mr. Walkenstein testified that he is aware of only one entity that has 
manufactured color night vision goggles using different color phosphors in different optical 
channels since 2005.  According to Mr. Walkenstein, that entity is the Russian government 
or a manufacturer having a relationship with the Russian government.  (Tr. 3/82-83; 
GPF ¶ 982)  CANVS has produced no technical details or other substantiating evidence 
regarding this alleged Russian manufacturer of a night vision goggle having different color 
phosphors in different optical channels.  There is no documentary proof in the record relating 
to this alleged Russian night vision goggle.  CANVS has produced no evidence to indicate 
that this alleged Russian manufacturer had gleaned the information concerning color night 
vision goggles from the APBI Poster.  (Tr. 3/83-84; GPF ¶¶ 983-84) 
 
 186.  There is no persuasive evidence that CANVS contacted the USSOCOM 
contracting officer, nor any contracting official about this incident until it was about to 
file its contract claim in early June 2011 (tr. 3/57-58).  Mr. Walkenstein did not contact 
directly any USSOCOM contracting official during this period (tr. 3/69).  Even though 
CANVS was performing tasks under the USSOCOM Contract No. H92222-05-C-0030 
between mid-2005 and late 2006, Mr. Walkenstein has no recollection of contacting a 
USSOCOM contracting officer regarding the display of the APBI Poster (tr. 3/70-71). 
 
 187.  Mr. Walkenstein has no recollection of having contacted any USSOCOM 
official regarding the alleged improper disclosure at the 2005 SOF/APBI during 2005 or 

40 
2006 (tr. 2/68-69, 3/58-59, 66-67).  Mr. Walkenstein did not contact USSOCOM directly 
by sending any written communication regarding this alleged breach between the 2005 
SOF/APBI conference and the filing of the contract claim in mid-2011.  Mr. Walkenstein 
has no recollection of contacting anyone at NVESD regarding the alleged improper 
disclosure at the 2005 SOF/APBI conference from the time of the alleged breach in 
June 2005 to time of the filing of the contract claim in 2011.  He has no recollection of 
contacting Mr. Hosek regarding the display of the APBI Poster.  He has no recollection 
of contacting Mr. Soyka regarding the display of the APBI Poster.  (Tr. 2/68-69, 3/58-60, 
66-67; GPF ¶ 991)  He testified that contacting any USSOCOM official would have been 
futile, akin to “being mugged by a police officer and then thinking if you report the crime 
to him you’re going to get your wallet back and treated fairly.  So I didn’t think it was 
appropriate for me to talk directly to the people I was having a problem with immediately 
and to go through their chain of command.”  (Tr. 2/70, 3/57-58; GPF ¶ 986)  
 
 188.  CANVS did not contact any USSOCOM official associated with night 
vision equipment such as officials in the USSOCOM program office.  Specifically, he did 
not mention this event to Mr. Kabala, who was the program official overseeing the 
development of night vision equipment, in 2005 or 2006.  (Tr. 7/163, 173; GPF ¶ 987) 
 
 189.  The day following the SOF/APBI conference, Mr. Walkenstein met with 
Navy CAPT Rowland Huss who headed the overall program office responsible for the 
development of night vision equipment.  Mr. Walkenstein had a brief conversation with 
both CAPT Huss and Mr. Kabala; and the alleged breach that had occurred the previous 
day was not discussed.  (Tr. 2/48, 7/160-63; GPF ¶ 988) 
 
 190.  On 15 June 2005, Mr. Walkenstein forwarded an email to many members 
of Congress seeking assistance in funding the purchase of CANVS’ color night vision 
goggles (R4, tab 37).  In its request, CANVS touted the fact that its technology had been 
highlighted at the recent SOF/APBI conference (id. at 266; ex. G-106 at 1562; tr. 7/168-69).  
Specifically, Mr. Walkenstein stated that “[t]his technology was also recently highlighted (by 
U.S. SOCOM and U.S. Army Research, Development, and Engineering Command) through 
a series of briefings and demonstrations at SOF APBI week (7-9JUN05) in Tampa Florida” 
(R4, tab 37 at 266, tab 44 at 284; ex. G-106 at 1562; tr. 3/61-62).  This communication was 
intended to encourage the U.S. Congress to appropriate funds to purchase CANVS’ goggles 
(tr. 3/65, 7/169-70).  CANVS also forwarded this communication to The Washington Post 
(ex. G-106 at 1557; tr. 3/62-63; see also GPF ¶ 990). 
 
  

41 
DECISION 
 
I. Government Motion to Strike 
 
 The government has moved to strike substantial portions of appellant’s briefs for 
failure to comply with the Board’s briefing order.  We agree with the government that 
appellant has substantively failed to comply with that order.  Appellant’s initial brief 
provided few citations to the record supporting its proposed factual findings and, to the 
extent record citations are included, those citations are often inaccurate and misstate the 
record.  In addition, although appellant’s reply brief is 395 pages in length, the vast 
majority of that brief merely quotes verbatim each of the 1,002 proposed findings set 
forth in the government’s initial brief.  In general, appellant has simply responded to the 
government’s proposed findings with blanket denials or argumentative assertions such as 
“not correct” or “untrue,” or the government “mischaracterizes” the record without 
elaboration or providing supporting citations specifically addressing and/or refuting the 
accuracy of references to the record set forth in the government’s proposed findings.  
Appellant’s noncompliance has frustrated the intent and purpose of identifying and 
refining factual issues through precise references to the evidentiary record, permitting the 
Board to carefully analyze and weigh conflicting testimony and proof.  It is not for the 
Board to parse through the record to find requisite support for appellant’s own proposed 
findings and its generic blanket responses to the government’s proposed findings.  The 
government was also deprived of the intended opportunity to join issue with appellant on 
disputed matters.  Without substantive guidance from appellant, the Board does not 
intend to sua sponte conduct an independent examination into the voluminous record 
compiled over the course of the 11 days of hearing to assess whether appellant’s 
unsubstantiated denials, etc., potentially are supported somewhere in that record.  Both 
parties were expressly put on notice of their duties regarding detailed, precise refutation 
of the opposing party’s proposed findings and legal analyses.  To the extent that CANVS 
has not complied with the Board’s briefing order and has declined to offer substantive, 
specific, detailed objections and replies to the government’s proposed findings (and 
included record citations), the Board, in its discretion, has adopted certain findings (or 
portions thereof) that have been proposed by the government with the notation GPF 
(Government Proposed Finding), followed by its number.  In general, the citations to the 
record provided by the government and set forth in a GPF have been omitted (but are 
incorporated by reference) where the Board has adopted the finding in whole or in part, 
as envisioned by the briefing order.  To the limited extent that appellant, in compliance 
with the briefing order, expressly and precisely objected to the correctness of government 
citations set forth in GPFs, the Board verified the accuracy of the citations and any other 
related portions of the record prior to adopting the GPF (or portion thereof).  In the vast 
majority of cases, after study of the record, the Board concluded that the government had 
accurately characterized the testimony and record, contrary to appellant’s blanket 
assertions that the government mischaracterized it.  In effect, appellant has not 
substantively responded with detailed counter citations and precise reasons why the 

42 
record was “mischaracterized” by the government or proposed contrary findings revising 
the language considered objectionable.  It has failed to join issue in a constructive, 
precise and detailed manner that assists the Board in identifying and resolving key factual 
differences.  For the above reasons, the government’s motion to strike has merit and the 
Board has taken the above remedial actions. 
 
II. Jurisdiction:  Statute of Limitations 
 
 The government contends that appellant’s breach claim was time-barred under 
the CDA’s six-year statute of limitations.  The CDA requires a claim to be submitted to 
the contracting officer within six years after its accrual.  41 U.S.C. § 7103(a)(4)(A).  
FAR 33.201 defines claim accrual as “the date when all events, that fix the alleged liability 
of either the Government or the contractor and permit assertion of the claim, were known or 
should have been known.  For liability to be fixed, some injury must have occurred.  
However, monetary damages need not have been incurred.”  It is undisputed that appellant 
filed its claim with the contracting officer on 6 June 2011 (finding 180).  Therefore, to be 
timely for purposes of the CDA, claim accrual must not have occurred prior to 6 June 2005.   
 
 According to the government, the facts fixing its alleged liability for improper 
disclosure of appellant’s technical data were known or should have been known by 
5 April 2005, the date upon which Mr. Walkenstein became aware that the information 
was disclosed as part of the Hosek Poster presented at a Congressional Staffer Day event 
in February 2005.  The government argues that the Hosek Poster was materially similar 
to the SOF/AFBI conference poster at issue presented at the June 2005 National SBIR 
Conference underlying appellant’s breach cause of action; that the Hosek Poster lacked 
any restrictive markings; that the technical data was disclosed in contravention of 
restrictions imposed by appellant’s “Confidential Legend” in the monthly report; and that 
Mr. Walkenstein did not authorize the disclosure.  Therefore, the government argues that 
a potential claim for breach of the 7018 clause under the SBIR Phase II contract accrued 
more than six years prior to its submission to the contracting officer and is untimely 
under the CDA’s statute of limitations.  (Gov’t br. at 179-83) 
 
Appellant counters that its breach claim did not accrue on 5 April 2005 because it 
suffered no injury when the government presented the Hosek Poster to Congressional 
staff at the February 2005 event.  Appellant argues that Mr. Walkenstein was fully aware 
of the presentation and actively communicated with individuals associated with the event.  
Appellant also argues that it approved and authorized the disclosure based on the belief 
that the information would be protected in accordance with the contract.  (App. br. at 8-9)   
 
As the proponent of its affirmative defense, the government bears the burden of 
proving that appellant’s claim was time-barred by the CDA’s statute of limitations.  Public 
Warehousing Company, K.S.C., ASBCA No. 59020, 16-1 BCA ¶ 36,366 at 177,270.  To 
determine the claim accrual date, we examine the legal basis of the claim.  Id. at 177,271.  

43 
Here, the 6 June 2011 claim asserted a monetary demand for the government’s alleged 
breaches of release restrictions imposed by appellant’s “Confidential Legend” markings 
and the 7018 clause in technical data packages provided under the SBIR Phase II contract.  
The underlying basis for appellant’s claim is that the government disclosed, without the 
consent of appellant, proprietary information contained in the technical data packages to 
competitors to the detriment of appellant’s business.  Specifically, the claim cited to the 
government’s display, in particular, of photographs and materials taken from monthly 
report No. 8, submitted pursuant to the SBIR Phase II contract, at the June 2005 SOF/APBI 
conference to competitors and non-government personnel, which appellant alleged was an 
unauthorized release “that was in violation of the Limited Rights nature of the delivered 
technical data package” and the “Confidential Legend” marking. 
 
Generally, a cause of action for breach of contract accrues at the time of the breach.  
Parsons-UXB Joint Venture, ASBCA No. 56481, 09-2 BCA ¶ 34,305 at 169,459 (citing 
Franconia Associates v. United States, 536 U.S. 129, 141-42 (2002)).  Paragraph (a)(14) of 
the 7018 clause defines the term “Limited rights,” in part, as the “rights to use, modify, 
reproduce, release, perform, display, or disclose technical data, in whole or in part, within the 
Government.  The Government may not, without the written permission of the party asserting 
limited rights, release or disclose the technical data outside the Government.”  According to 
appellant, its “Confidential Legend” marking restricted the retransmission of technical data 
without its express written consent.  Thus, the events that fix the government’s alleged 
liability for breach of contract and start the running of the statute of limitations are the 
government’s disclosure of the technical data “outside the government” without permission. 
 
The 5 April 2005 email from Mr. Piazza informed Mr. Walkenstein that the 
government intended to use information in the “Hosek Poster” displayed at the 
congressional event for the upcoming National SBIR Phase II Conference (finding 118).  
The government’s contention that the claim accrued on this date because appellant learned 
of an unauthorized disclosure of its technical data at the congressional event lacks merit.  
The email fails to show that appellant disapproved of the display of the “Hosek Poster” as 
the government suggests.  Nothing in the record demonstrates, and the government points 
to no evidence, that the congressional event was open to audiences other than 
congressional staff, or in other words, persons outside of the government.  Under the 
circumstances here, appellant had a reasonable expectation of confidentiality that its 
technical data would be protected at the congressional briefing.  In contrast, the June 2005 
SOF/APBI conference included industry vendors and foreign representatives, and potential 
competitors.  In a 6 April 2005 email, Mr. Piazza requested Mr. Walkenstein to remove all 
proprietary information from the Hosek Poster so as to permit the government to release 
the poster to the public (findings 119-20).  We can reasonably infer that the government 
did not view the congressional event as a public event.  For the foregoing reasons, the 
government has not proven that appellant’s claim accrued on 5 April 2005.   
 

44 
The exhibition hall which displayed the SOF/APBI poster was open beginning 
7 June 2005 (finding 124).  Appellant was required to file its claim with the contracting 
officer no later than six years from this date or 7 June 2011.  Accordingly, appellant’s 
6 June 2011 claim was timely. 
 
III. Breach of Contract 
  
To establish entitlement to recover for breach of contract, appellant has the burden 
to prove the elements of liability, causation, and resultant injury.  Mylene Will Company 
L.L.C., ASBCA No. 58154, 13 BCA ¶ 35,415 at 173,749 (citing Wunderlich Contracting 
Co. v. United States, 351 F.2d 956, 968-69 (Ct. Cl. 1965)); Action Support Services Corp., 
ASBCA Nos. 46524, 46800,  00-1 BCA ¶ 30,701 at 151,682 (appellant, as proponent of 
its breach claim, must prove the nature and extent of government’s breach, the damages 
suffered, and the causal link between the government’s breach and claimed damages); 
Ship Analytics International, Inc., ASBCA No. 50914, 01-1 BCA ¶ 31,253 at 154,353 
(citing Cosmo Construction Co. v. United States, 451 F.2d 602, 605 (Ct. Cl. 1971)) (in 
entitlement hearing, appellant still had to prove that some damage occurred to support a 
finding of liability). 
 
 Under the SBIR Phase II contract, appellant was obligated to deliver monthly 
reports and, pertinent to this dispute, two CNVS-5050 and one CNVS-4949 contrast 
enhanced (retrofit) goggles (findings 85, 87).  Of relevance to this dispute, monthly 
report No. 8 delivered by appellant under the contract affixed a restrictive marking 
requiring the express consent of appellant prior to disclosure or release of its contents 
(finding 93).  The 7018 clause, at the time of contract award, granted the government 
a royalty-free, worldwide, nonexclusive, irrevocable rights in the delivered technical 
data.  Paragraph (a)(19) of the 7018 clause defined technical data, in part, as “recorded 
information, regardless of the form or method of the recording, of a scientific or technical 
nature.”  There is no dispute that the APBI Poster contained technical data, including four 
photographs which originated from monthly report No. 8 (findings 112, 137).  Appellant 
did not expressly consent or approve of the display of the APBI Poster (finding 125).   
 
Appellant argues that, by disclosing its technical data, the government did not 
comply with 7018 clause.  The parties have significant disagreement over the proper 
interpretation of the clause, including, but not limited to, what bundle of rights to the data 
the government received; whether the restrictive markings in monthly report No. 8 were 
non-conforming; and whether the data was first “generated” under the contract as that 
term is defined under the clause.  For purposes of this opinion, we determine that 
resolution of the parties’ conflicting contentions regarding these issues is unnecessary to 
decide the merits of these appeals.  Assuming, arguendo, that the government did not 
technically comply with the 7018 clause when it displayed the APBI Poster at the 
SOF/APBI conference, appellant has not demonstrated, by a preponderance of the 

45 
evidence, that it suffered some injury or damages and that any such alleged damages 
claimed were caused by the government’s disclosure to support its breach claim. 
 
Appellant claimed $100 million, plus interest, in damages for the government’s 
disclosure and release of alleged proprietary or trade secret information in the APBI Poster 
to non-government and foreign entities.  The underlying premise is that this disclosure 
caused competitive harm to appellant.  To support its contention, appellant first argues that 
the APBI Poster disclosed specific features and components embodying the CNVS-4949 
and CNVS-5050 goggles that were allegedly unknown to the public prior to June 2005.  
Alternatively, it argues that the disclosed features and components would allow a person 
skilled in the ordinary art to reconstruct and manufacture an identical replica of the 
goggles.  For the reasons set forth below, appellant has not proven either assertion.   
 
A. The alleged proprietary features and components of the CNVS-4949 goggle 
disclosed in the APBI Poster were either publicly available or common 
knowledge in the night vision technology industry. 
 
Appellant specifically identified the following features and components disclosed 
in the APBI Poster as proprietary or trade secrets: 
 
(1) A red-color photograph identified as the view from one 
optical channel of a binocular night vision goggle; 
 
(2) A green-color photograph identified as the view from the 
other optical channel of a binocular night vision goggle; 
 
(3) The phrase “I2 tubes utilizing different color phosphors” 
confirmed the use of red-color phosphor screen image 
intensifier tube in one optical channel of the binocular 
night vision goggle and the use of a green-color phosphor 
screen image intensifier tube in the other optical channel; 
 
(4) Independent variable gain control for each image 
intensifier tube; 
 
(5) The multi-color photograph along with the words 
“constructed lifelike view” in the caption illustrated the 
combining of the red-color image from one eye of the 
observer and the green-color image from the other eye in 
the brain of that observer; 
 

46 
(6) The red sliver in the multi-color photograph illustrated the 
combining of the red-color photograph and the 
green-color photograph;  
(7) The reflections from the objective lenses of the goggle 
in the upper left photograph indicated the presence of 
red-and green-color filters; and 
 
(8) The phrase “filtering optimized to present more lifelike 
color” in combination with the phrase “color imaging 
systems provide improved contrast and color output using 
only the image intensification band” confirmed the use of 
separate red- and green-color filters. 
 
(Finding 127)  Information in the public domain or that is common knowledge in an 
industry cannot be considered proprietary or a trade secret.  See Kewanee Oil Co. v. 
Bicron Corp., 416 U.S. 470, 475 (1974) (trade secret must be secret); PAW & Associates, 
LLC, ASBCA No. 58534, 15-1 BCA ¶ 36,078 at 176,174 (alleged proprietary technique 
or process was publicly disclosed); Mobile Medical International Corp. v. United States, 
95 Fed. Cl. 706, 739 (2010) (information no longer proprietary if publicly disclosed).  
Additionally, there is no protectable interest over information that can be readily 
discovered through published materials or by independent invention, accidental 
disclosure, or “reverse engineering.”  Kewanee Oil, 416 U.S. at 476.  Moreover, 
disclosure of a trade secret to others, who have no obligation to protect the confidentiality 
of the information, forfeits any protectable interest.  Ruckelshaus v. Monsanto Co., 
467 U.S. 986, 1002 (1984) (citations omitted).  
 
 We begin our analysis by assessing whether the above-listed eight alleged features 
and components disclosed in the APBI Poster were proprietary or trade secrets.  Prior to the 
June 2005 SOF/APBI conference, Mr. Walkenstein, at the request of Mr. Piazza to remove 
all proprietary information to permit release to the public, prepared and submitted two edited 
versions of the “Hosek Poster” on 6 April 2005 which perforce did not contain proprietary 
information—the Sanitized Poster and the Alternate SBIR Poster (findings 120- 21).  
Consequently, element (4) above is not proprietary.  Under the “Description” section, the 
“Sanitized Poster” and “Alternate SBIR Poster” both disclosed that the goggles were 
equipped with independent variable gain for each channel (finding 121).  Further, appellant 
advertised on its website in February 2005 the “independent manual gain control” feature of 
the CNVS-4949 goggle (findings 107, 169), and therefore, publicly disclosed it.  
Consequently, element (7) is also not proprietary.  The APBI Poster included a colored 
photograph of the CNVS-4949 goggle (finding 160).  Appellant appears to assert that 
inclusion of a colored photograph revealed the color of the external filters on the end of 
each channel of the goggle and was protectable.  However, the government acquired the 
CNVS-4949 goggle as a deliverable under the Phase II contract (finding 87), and appellant 
sold the goggle to others prior to June 2005 (finding 106).  The color of the external filters 

47 
would be readily ascertainable when a purchaser observes the physical goggle (finding 154).  
Therefore, there is nothing “secret” about this feature. 
 
With respect to elements (1) and (2), appellant concedes that a green phosphor 
producing a green image and a red phosphor producing a red image are not protected 
technical data (app. br. at 33).  The Sanitized Poster and the Alternate SBIR Poster used 
the phrases “I2 tubes utilizing COTS components” and “I2 tubes utilizing COTS 
phosphors,” respectively (finding 121), compared to the APBI Poster’s description of “I2 
tubes utilizing different color phosphors” (findings 127, 165).  Appellant argues that 
element (3) combined with elements (1) and (2) revealed its use of a green phosphor tube 
in one channel and a red phosphor tube in the other channel to produce these images 
which was previously unknown to the public (app. br. at 33-34).  We disagree.  The 
record establishes numerous instances in which red and green phosphor tubes were 
utilized prior to June 2005.  For example, NVSED designed a similar binocular night 
vision goggle having a green phosphor tube in one channel and a red phosphor tube in the 
other channel, resulting in the development of the chromatic PVS-5 goggle in 1987.  The 
PVS-5 goggle provided a green-colored scene in one channel and a red-colored scene in 
the other channel.  (Findings 32-39)  Appellant’s expert witness, Mr. Gillespie, recalled 
observing the displayed PVS-5 goggle at NVSED prior to 2000 and noted the two 
different colored phosphor tubes (finding 40).  Additionally, the 1992 Field Patent 
disclosed the simultaneous presentation of a reddish image in one optical channel and 
a greenish image in the other optical channel of a binocular night vision goggle 
(finding 41).  Other patents and inventions in the field taught the use of different colored 
phosphors in image intensification tubes (see findings 22-25).  Appellant filed two 
applications to obtain patent protection for its technology that were subsequently rejected 
by the U.S. Patent and Trademark Office for lack of patentability and obviousness in light 
of prior art such as the 1992 Field patent (finding 42).  Appellant has failed to rebut any 
of this evidence to show that elements (1), (2), and (3), individually or in combination, 
were not publicly known or common knowledge in the industry.   
 
With respect to elements (5) and (6), appellant claims that the multi-colored 
photograph with the caption “Constructed life-like image illustrates the effect of 
CNVS-4949” in the poster and the red “sliver” bordering the image revealed its technique 
of combining the red-colored and green-colored images corresponding to elements (1) and 
(2).  The APBI Poster did not reveal any of the particular computerized techniques or 
methods used to construct the image (finding 144).  Both the Sanitized Poster and the 
Alternate SBIR Poster contained the same multi-color photograph but did not include the 
red “sliver” along the border of the image and does not use the phrase “life-like image” in 
the caption.  However, the term “life-like” was included in all three versions in the 
“Description” section.  (Findings 161, 179)  Therefore, the only conceivable critical 
difference between the APBI Poster and the edited versions is the red “sliver” along the 
border of the multi-colored photograph.  Appellant argues that this is “the result of the 
imprecise overlay of a red image on a green image and exposes the entire secret of the 

48 
CANVS goggle, i.e. the overlay of offset red and green imagery to produce color” 
(app. br. at 34-35).  The threshold issue is whether combining or “overlay” of red and 
green images taken from elements (1) and (2) was publicly unknown and unique to 
appellant.  Creation of multi-spectral scenes to generate color was performed in the night 
vision technology field prior to June 2005 (findings 44-48, 50-52).  Even one of 
appellant’s competitors submitted a SBIR Phase II proposal that described a multi-spectral 
night vision system where an image from [R E D A C T E D R E D A C T E D R E D A C 
T E D R E D A C T E D R E D A C T E D] in 2002 (finding 51).  While this proposal was 
not publicly available, it demonstrates that appellant was not the only entity creating 
multi-spectral scenes by combining or “overlay” of images.  Appellant’s expert admitted 
that other entities in the industry were aware of this approach (id.).  Nothing in the record 
leads us to conclude that the practice to create a multi-colored image was something 
unique to appellant to warrant proprietary or trade secret protection.   
 
With respect to element (8), appellant asserts that the phrase “filtering optimized to 
present more lifelike color” in combination with the phrase “color imaging systems provide 
improved contrast and color output using only the image intensification band” confirmed 
the use of separate red and green colored filters.  The Sanitized Poster and the Alternate 
SBIR Poster contained materially the same language except that these two versions 
included the phrase “spectral selection” rather than the word “filtering” (finding 179).  The 
government’s expert, Dr. Waxman, noted that the term “filtering” could include spectral 
filtering, filtering with polarizers, and modulating any part of the tube (finding 162).  
Moreover, it was generally known in the industry that multiple “filtering” techniques could 
be used to obtain color (finding 161).  Appellant’s expert, Mr. Gillespie, declined to opine 
on whether the information in the APBI Poster was proprietary (finding 150).  He stated 
that spectral filtering of intensifier tubes was commonly known prior to June 2005 
(finding 162).  The APBI Poster did not disclose the specific characteristics and properties 
of the filters used by appellant to obtain the photographs (finding 158).  After weighing the 
evidence, we determine that appellant has not sufficiently demonstrated that the change 
from “spectral selection” to “filtering” disclosed proprietary information. 
 
In conclusion, appellant has not carried its burden of proving that any of the 
features and components of the CNVS-4949 goggle, individually or in combination, were 
proprietary.  Additionally, unlike the Sanitized Poster and the Alternate SBIR Poster, the 
APBI Poster did not explicitly reference the CNVS-5050 goggle.  Therefore, appellant 
has failed to demonstrate that the APBI Poster disclosed proprietary features and 
components of the CNVS-5050 goggle. 
 
B. Appellant has not demonstrated that the APBI Poster enabled a person of 
ordinary skill in the art to construct the CNVS-4949 and CNVS-5050 goggles. 
 
Alternatively, appellant argues that the APBI Poster disclosed a combination of 
features and components that enabled a person of ordinary skill in the art to assemble an 

49 
exact replica of the CNVS-4949 goggle (app. br. at 33-35).  A protectable interest in the 
combination of characteristics and components that is unique and affords a competitive 
advantage may arise even though the characteristics and components individually are 
publicly disclosed or common knowledge in an industry.  Mobile Medical, 95 Fed. Cl. at 
734 (citing 3M v. Pribyl, 259 F.3d 587, 595-96 (7th Cir. 2001)) (combination of publicly 
known characteristics and components that is unique and affords a competitive advantage 
is protectable); see also Tewari De-Ox Systems, Inc. v. Mountain States/Rosen, L.L.C., 
637 F.3d 604, 613 (5th Cir. 2011) (combination of disclosed technologies could 
constitute a trade secret).  To support its contention, appellant primarily relies on its 
expert, Mr. Gillespie.  Although Mr. Gillespie declined to express any opinion as to 
whether the APBI Poster contained proprietary technical data (finding 150), he asserted 
that the photographs and textual narratives in the poster identified the major components 
of the CNVS-4949 goggle—the housing of the goggle; the red and green phosphor 
intensifier tubes for each channel; and matching red and green optical filters affixed to 
the objective lenses of each channel (finding 152).  He concluded that access to the poster 
and a physical examination of the goggle would enable a skilled person with “benchmark 
data points” to confirm the proper construction and configuration (finding 170).   
 
 As the finder of fact, the Board is responsible for evaluating the credibility, 
persuasiveness, and weight accorded to conflicting evidence in the record.  Pro-Built 
Construction Firm, ASBCA No. 59278, 18-1 BCA ¶ 36,975 at 180,116.  We determine 
that certain assumptions and conclusions reached by Mr. Gillespie are either contradicted 
by his own testimony, successfully rebutted by the government, or uncorroborated by any 
documentary evidence in the record.  With respect to the phosphor tubes, Mr. Gillespie’s 
analysis is based upon an assumption that the APBI Poster did not explicitly state that 
white phosphor tubes or other colors were used and that red and green phosphor tubes were 
well known (finding 166).  However, the colored photographs did not reveal the exact 
color of the phosphor tube, and both Mr. Hosek and Mr. Walkenstein stated a red phosphor 
or a white phosphor with an appropriate filter could generate the red photograph in the 
poster (findings 162, 167-68).  With respect to the external filters of the goggle, the 
government persuasively rebutted Mr. Gillespie’s report and testimony (findings 162-64).  
The APBI Poster did not describe any of the spectral characteristics, properties, or 
materials of the filters used for the photographs (finding 158).  Mr. Gillespie conceded that 
a skilled person would communicate a filter’s configuration by its filtering characteristics 
and not by its color, and that a filter’s characteristics could not be deduced by viewing the 
photographs or visual appearance of the filters (finding 164).  Nor has Mr. Gillespie 
demonstrated how one skilled in the art could readily test and validate to confirm the 
proper phosphor tube and filter design and configuration, or the time, effort, and expense to 
perform such a validation (finding 170).  Other attributes and components of the 
CNVS-4949 goggle were not disclosed in the APBI Poster (finding 171).   
 
 We find Mr. Gillespie’s conclusions and assumptions unpersuasive.  Appellant has 
not established that the APBI Poster enabled a skilled person to construct the CNVS-4949 

50 
goggle.  Since the APBI Poster did not mention or depict any features and components of 
the CNVS-5050 goggle and appellant has not pointed to any other evidence in the record, 
appellant has not adequately demonstrated that the APBI Poster would enable a skilled 
person to construct an exact replica of the CNVS-5050 goggle.  Our conclusion is further 
strengthened by the fact that neither Mr. Gillespie nor any of the witnesses at the hearing 
knew of any other company that produced a similar goggle since 2005 (finding 184).   
 
C. Appellant publicly disclosed the use of red and green phosphor intensifier 
tubes to other entities prior to June 2005. 
 
 Appellant disclosed its use of green and red phosphor intensifier tubes prior to the 
display of the APBI Poster, and therefore, lost any protectable interest.  The evidentiary 
record reveals numerous instances in which appellant has voluntarily disclosed the 
allegedly proprietary features and components to the public (findings 95-96, 173-76).  For 
example, appellant demonstrated an operable CNVS-4949 goggle at the 2003 FPED to 
potential vendors and customers (finding 176).  By demonstrating the functionality of the 
goggle, a user would have observed the red and green phosphor tubes (id.; see also 
finding 154).  Attendees at the FPEDs were under no obligation to protect the 
confidentiality of the demonstrations, and appellant did not require attendees to execute a 
nondisclosure agreement or take other steps to protect its claimed proprietary features 
before demonstrating its technology (findings 175, 177).  Mr. Walkenstein also conceded 
that his technology incorporating red and green phosphor tubes was fully developed and 
available for sale prior to the SBIR Phase II contract award (finding 173). Although 
appellant may not have marketed or sold the CNVS-4949 or CNVS-5050 goggles prior to 
the SBIR Phase II contract, appellant was marketing and selling the underlying technology.  
The technology was not limited or restricted to the CNVS-4949 or CNVS-5050 housing 
and could be retrofitted to any goggle (id.).  Selling the technology in this manner and 
publicly demonstrating the operability of its goggles deprived CANVS of any reasonable 
expectation of confidentiality.  Cf. Mobile Medical, 95 Fed. Cl. at 738 (plaintiff lost secret 
status of its product’s features when it publicly displayed the internal elements of its 
manufactured product at a trade show).     
 
D. Appellant has failed to prove that it’s claimed damages were caused by the 
government’s display of the APBI Poster. 
 
 Appellant also has not proved that its alleged loss of an “income producing asset” 
resulted from the display of the APBI Poster.  There is no persuasive evidence of any 
causative linkage between the poster’s display and the alleged loss.  In its claim, 
appellant asserted that the government’s disclosure of its alleged proprietary information 
at the June 2005 conference harmed its ability to secure future funding from industry and 
the government for its night vision goggle products.  Specifically, appellant cited its 
inability to receive a SBIR Phase III award or production contract from the government.  
(Findings 180, 183)  However, the government was not obligated to award appellant a 

51 
SBIR Phase III contract.  See Night Vision Corp. v. United States, 469 F.3d 1369, 1374 
(Fed. Cir. 2006), cert. denied, 550 U.S. 934 (2007) (SBIR statutory provisions did not 
impose on the government an obligation to award a Phase III contract after successful 
completion of Phase II.)  In fact, government testing demonstrated that the goggles were 
unreliable, inadequate, and subjected users to adverse physiological effects including 
headaches (finding 102, see also finding 13).   
 
 Additionally, appellant has not pointed to any evidence that demonstrates that a 
competitor or the government has produced a goggle that utilizes appellant’s claimed 
technology.  Mr. Walkenstein’s allegations that an unidentified Russian manufacturer or 
governmental entity was producing a similar goggle is wholly speculative and unsupported 
by any corroborative, much less persuasive, evidence (finding 185).  Highly credible 
witnesses who worked for governmental night vision programs were not aware of any color 
night vision goggles being fielded or operated by the government.  Even appellant’s own 
expert could not identify a single manufacturer who produced a similar goggle, much less 
improperly appropriated appellant’s allegedly confidential data (finding 184). 
 
 With regard to appellant’s alleged damages, we further observe that appellant 
never contacted the cognizant contracting officer or any contracting official subsequent to 
the government’s display of the APBI Poster until the summer of 2011 (findings 186-89).  
There was no opportunity during the virtually six-year delay between the display of the 
poster and the filing of appellant’s claim for the government to inquire into or mitigate 
any possible adverse consequences.  After appellant witnessed the display of the poster at 
the conference, it continued to advocate for additional funding from Congress and 
promote its technology to organizations such as The Washington Post, highlighting the 
June 2005 conference (finding 190).  Not until appellant realized that it would not receive 
further funding and support from the government did appellant notify the government of 
its claim for breach, one day prior to expiration of the CDA’s statutory deadline.  This 
lack of urgency from CANVS underscores and is consistent with the evidence discussed 
above that it, in fact, suffered no damages from the government’s use of the poster.  
 
 For the reasons stated above, appellant has failed to show any causal connection 
between the government’s display of the APBI Poster and its claimed inability to secure 
funding and future awards from the government or any other competitive harm.   
 
CONCLUSION 
 
 Appellant has failed to prove the requisite elements of liability, causation, and resultant 
injury to sustain its breach of contract allegations.  We have fully considered all arguments 
raised in appellant’s briefs and found them lacking in merit and insufficient to warrant 
recovery.  Because we determine that appellant has not carried its burden to establish breach 
for the reasons detailed above, individually and collectively, we need not discuss additional, 
alternative arguments raised by the government supporting denial of the appeals.  

52 
 ASBCA No. 57987 is denied.  ASBCA No. 57784 is dismissed as duplicative.  
  
 Dated:  September 6, 2018 
 
 
 
ROBERT T. PEACOCK 
Administrative Judge 
Armed Services Board 
of Contract Appeals 
 
 
 
I concur  I concur 
 
 
 
 
RICHARD SHACKLEFORD 
Administrative Judge 
Acting Chairman 
Armed Services Board 
of Contract Appeals 
 J. REID PROUTY 
Administrative Judge 
Vice Chairman 
Armed Services Board 
of Contract Appeals 
 
 
 
I certify that the foregoing is a true copy of the Opinion and Decision of the 
Armed Services Board of Contract Appeals in ASBCA Nos. 57784, 57987, Appeals of 
CANVS Corporation, rendered in conformance with the Board’s Charter. 
 
 Dated: 
 
 
 
JEFFREY D. GARDIN 
Recorder, Armed Services 
Board of Contract Appeals