this mr morehouse in the courtroom better do it he better dosu do so very quickly with any agency of the department of defense or any military service not before they submitted the unsolicited proposal that is correct in one nine hundred eighty three that is correct wesleyan was a small independent inventor and they're entitle to be treated under a different legal standard in terms of prudent conduct or do you think that they are covered by the same standard that would be typical of the industry as a whole as a large contractor i think they're governed by the same standard legal standard but i think there has to be a degree of deference reasonable deference and flexibility regarding their particular situation versus a very large industrial contractor it's the same but it's different well i don't want to be i don't want to create a tautology here is the same a legal standard yes but at the same time if there is any doubt and there is any shading of gray it can be resolved he here's what turn me when the army insisted after receiving the initial submission from the wesley and company that there be certain formalities about the protection and ownership of the data contained in the submissions wesley and comply and there were memos of understanding there were policy statements there were other documents there were legends incorporating defense acquisition regulations that is correct so with with or without prior experience the leaders that wesley in were given to understand that if they wanted their data protected they had to observe certain formalities and they did that's correct then at the later stage where it shifted from submitting documents to submitting the actual system drinking system suddenly the formalities disappear and no where can i find in the record a correspondence or any new document whereby for example wesley in could have said to the army well you've asked us to turn over twelve of these devices and we're happy to do that and you're even going to pay for him and that's appreciated and by the way we assume that the same confidence yani provisions that covered our earlier relationship when we just submitted data will will continue and if you agree we'll send you the devices but if you don't agree you representatives we can't send you these devices because they incorporate trade secrets in my right that there was no such documentation of any expectation of secrecy in the stage where the devices were procured the testimony i'm not following you what do you mean a particular tack particular tag to certain prototypes marking that wesley had reserved its rights to which proprietary information was printing on the tag on each devi because we did not want to attempt to introduce new evidence but we did and lou to it in our library that the board had not conducted an evidentiary hearing to see in fact if there was any other information we had conducted  extensive for your discovery before we went to litigation we had conducted extensive discovery during the ordeal that he let me just get back on the track i was trying to pursue other than what may have been written on the tag which is not in the record was there any correspondence or new memo of understanding or formal document dealing with secrecy in the stage where the devices were being sent to the natick lab other than the purchase order  which relates which can relate back to the memorandum of understanding which i was going to argue that point no there is not a particular piece of correspondence that we are aware of no nor a renewed memorandum of understanding no but the mem of understanding does say it would be superseded by any resulting contract and there was nothing in the purchase orders that is inconsistent with our contradicts the understanding that is in the memorandum of understanding to protect the confidentiality in fact when the government argues that the memorandum of understanding is limited by its terms to data words drawings things like that in the original document submission as opposed to copies of the device itself as were later sent on request to the natick lab what is your response to that distinction that the government seeks to draw i think that's an artificial distinction or a manufactured distinction because i think a reasonable test would have to assume that if wesley and i had gone to all of these lengths to protect the information in the unsolicited proposal that his understanding was  understanding was that it would extend to the prototypes the board reached in on reasonable conclusions by saying because we don't see a piece of paper therefore we must conclude that there is a grand canyon between that concept on paper and the concept embodied in the product that is not the most reasonable reading of the record and if they had doubts on that your honor they should have resolved it through testimony and additional evidence before the case was resolved by the board on s jurisdictions up to one hundred years after the case was filed what did you did you ask for a hearing to present factual evidence in conjunction with the then pending invited motion to dismiss for you lodge an objection that before that motion could be decided there would have to be an evidentiary hearing because there were some fact issues imbedded in the jurisdictional issue no because we did not know the basis of that where the board was going because nothing answers no but now you want us to turn this case on tags that were not in evidence below and are not even in the appendix before us we don't know what it said i understand you're out there if you if the point is there were over  did your discovery requests the test we requested all information that there was a bearing on everything related to the unsolicited posable to the purchase orders and to the prototypes and in fact wesleyan even to some extent was you know the because we have a passage of almost twenty years and in fact there is only been one ted at wesleyan itself has been able to find in its files because all if the tags exist there with the government they're no longer with wes act only all right that's if that's a fair question or rather two reasons for it first of all we believe this certainly was a contract dispute that case because we pled in our complaint that that was the existence of express contracts for the purchase of us prototypes and we listed those contract numbers in the complaint there was always an express contract before the board our point is they had jurisdiction from day one now whether or not how they decided on the merits is one thing but they had jurisdiction from day one because they they certainly had jurisdiction over those sale contracts so for example if the lab had declined to pay the stipulated price that would have been a breach of the contract that the government's position is that the preexisting secrecy contracts were separate and ended as the time that the devices were being purchased well that's not what the memorandums of understanding said on their face they do not say that they say they will be superseded by a follow on contract and the purchase orders with the follow on contract but there's nothing in the purchase what does that say that the memorandum of understanding is i extinguished modified change and why why is that the other way around why wouldn't the purchase orders to continue and force the terms of the memorandum of understanding have had to say affirmatively the prior memorandum of understanding continues in force and effect in connection with this purchase first of all there's no law to hold up and number two one of the essential issues has to be the mutual intent of the parties in fact one of the for at least two of those purchase orders i directed to a mr snow it may in his deposition testified that he was aware of a confidentiality agreement protecting wesleyans property did the board rely on the deposition testimony of any of these  you there were not the writer of this brief that correct that is correct when did you enter this appeal about a month ago here what happened to miss hogan who wrote the brief ms hogan is is unavailable at this point she's out of the office for this week and next week and so was not available to conduct your argument here today so you inherit her brief yes you're on the final page page twenty two there's a sentence it's the first full sentence on disclaimed any promise to purchase any of the units i believe there's a typo censor what what is the correction that would make sense and what is the sense intended essentially you're out of the sentence is intended to point out that the memorandum of understanding didn't provide for or contemplate any future purchase of the device that was being submitted pursuant to the unsolicited what does that mean then that the words full new briefs were all right please proceed your honor the armed services board of contract appeals correctly dismissed this action for lack of jurisdiction  contract appeals does not possess jurisdiction to hear claims concerning all government conduct and we know that this is a b c s let's not waste time talking about things that are not an issue mr morehouse essentially says there was an early contract for secrecy there was a later contract to buy devices that's a procurement contract the earlier contract merges into and becomes part of the later contract therefore the board has jurisdiction over the merged two countries and you say only on the final page of this hogans brief that no the two things are totally separate so the issue is well are they totally separate or not and why would one think they're totally separate  situation that the parties both contemplated that the earlier secret c agreement would continue and would protect the supply of the device and let me address there are two components that i need to address  first let's talk about the purchase orders and the plain language of the purchase orders the purchase orders could have said something to that effect they do know they are silent when we understand the argument and what you say is quite factually accurate we know what the document is we haven't read we have to refer to it later if we have any memory problems but it doesn't answer what the common sense of the situation between an a defense contractor and an army lab would be we honored there is not another aspect of this that was the second point i want to make and that is if your position is commonsense has nothing to do with that there are technical legal rules then just say so but if common sense has a role i would like to know why it isn't the common sense of the situation that both sides assume that the secrecy protections would continue until the original submission was rejected which didn't happen until after all these purchases of devices your honor now either they're totally separate you win or they're related and go together you lose so seemingly you've got to would dress why one might logically think they merge together versus are totally separate the reason they do not merge together to use your r s language is because the purchase orders do not provide for that let's talk about the memorandum of understanding the memorandum of understanding as you are it uses the word device and the memorandum itself uses the word devices as well as that so dumb me i read it and i think well it protects the data on paper and it protects the devices supplied to the army for testing that's what happened here so the wording of the m o u seems to cover both data and devices and the later purchase of thirty three or so of these devices over but when there are later is purchase of devices that are mentioned in the memo of understanding why doesn't the memo of understanding ride along and merge into the purchase or are we on the question fundamentally comes down to a question of breach that is does effectively what is being asserted here that there was the breach of some agreement if we're talking about breach and we're talking bread reach of the purchase orders the purchase orders were fully complied with by the human everybody agree the army paid for the devices he sent the device and the question is whether if there were merger the secrecy provisions now part of the larger contract were breached because allegedly the information about this secret technology was given out to some third party i don't know if that happened or not but having any difference that's what's the lead here so the whole thing seems to turn on whether these two written incorporate by reference the discussion about it world price but they put rate by reference certain other provisions they do not incorporate by reference the memorandum of understanding the parties knew how  where remembering of understanding doesn't have a terminations day it would be no reason for the the leader of west land that i can see to assume that the secrecy agreement had expired it doesn't have an expiration date and it's not limited to data so now he's sending devices earlier he sent data both covered by the express terms of a memo you with no expiration date i think a fire in his shoes i would have assume this secrecy agreement continues in force and effect whether the purchase orders say so or not there are we do know from ten that the memorandum did not remember and of a understanding did not continue in force in effect standing alone but the memorandum of understanding any violation of the memorandum of understanding is not something over which the board at jurisdiction if this case had been brought in the court federal claims and if there was found to be a breach of either an impl in fact contract through the the restrictive captions or a breach of the memorandum of understanding these are both potential agreements concealing with the protection of proprietary information provide data and proposals and to send devices aren't you arguing against the interest of the sovereign here you're going to discourage people like wesley and from trying to help the army have better equipment no no your honor that's n off to the extent that there is a protective legend to the extent there is a memorandum of understanding outside the confines of the contract disputes act it's not as if a violation of that could not be heard could not be entertained it certainly could be before the court of federal claims but the board jurisdiction is confined to the terms of the contract dispute set and the contract disputes that limits the types of contracts the types of cases that can be heard to procurement contracts or contracts for the disposal of her personal property that is not what the memorandum of understanding is it is not what any implied in fact contract based on the restrictive legend's is it is certainly not contract that was entered into your everything you said his agree to by me and mr morehouse and you so why are we talking about things where we all agree seems like what you should address is where you and mr morehouse disagrees here he says they aren't separate you say they are separate team to me that's the heart of the the dispute here therefore presumably the three of us have to decide well are they separate or are they not to your honor i agree that that is the crux of the dispute and the starting point for analyzing that dispute is the plain language of the purchase orders the contract that is supposedly being breached because there is not a claim on which the board can exercise jurisdiction based simply on the restrictive legend's basically on that you so we need to focus on the purchase orders and what the purchase orders say and as i say the starting point for analyzing whether there is any breach of the purchase orders that can be heard by the board is looking at the purchase orders themselves the plain language of the purchase orders there's no incorporation by reference there is no course of prior dealings between the parties suggesting there is no course of prior dealings thirty years of prior dealings back and forth the they send in an unsolicited proposal the army says we can't touch this unless we work out some understanding about secrecy they say ok we'll put the da r legend on it we'll sign the m o you will do whatever you want they do it and then the course of conduct proceed they send more stuff to different army labs are involved in evaluating it in the end natick ends up doing most of the work before it can finish on deciding whether the proposal has any merit meeting says we need to test the real device you can't just look at diagrams we need to test real device we'll buy some from you and they want thirty three it looks to me like it's a continuous integrated series of transactions  does not embody technology where it is written data diagrams and verbal descriptions for example as in a patent would be protected it seems to me that's nonsensical it seems to me that when you send somebody a device that they can take apart and test and see how it works and build variations you're giving them even more of your technology than if you send a little written disclosure with a few dire  honor i just don't understand where you're going here or even if there is even if it's not accepted that there's a distinction between data and a device first of all there is no allegation that there was a misuse of the device themselves there's an allegation that there was a disclosure of data been on a misuse of a device the devices were in fact used for testing and testing of a device heald new data they're claiming that that data was given i think to a legit lead to a competitor and i have no idea if those allegations are right or wrong it doesn't matter the allegation is they did that came into the possession from them of the army was improperly disclosed to somebody outside the government true or false that's what they're saying and so then we have to understand well ok where did this data come from well we know there was an original submission of verbal data and then there was a submission of the devices which were then tested at the natick lab which i'm assuming healed further scientific and engineering data and that's the mass of data that they're saying with leak if there is some improper disclosure of data as was a letter that would be a violation of the memorandum of understanding or possibly of a restrictive pledge that's all they're charged but but there would be no violation of the and if there is no breach of the purchase order then there is no possible basis for jurisdiction in the board unless the memorandum of understanding merges in to the sale kind which is what i was trying to get  address from the start your honor if you know all you say is it's not expressively incorporated on the face of the purchase order which is true but you don't seem to have any other argument about why the parties given this course of dealing over many years would assume that there is a merger of the m o you with the purchase of your own there is also no evidence in the record that as was done with the original proposals that there was any restrictive legit on the equipment it's all rights that's not in our thank you your time has expired mr harrington  taking over the case for miss hogan whose son available mr morehouse you have just shy of three minutes if you needed for whatever rebuttal you care to make i don't repeat anything but anything new is worth saying yes you're memorandum and the purchase order one piece of evidence i would highlight it specifically says the fist flex hydration system that was the name of the system that was in unsolicited also fist soldiers fist he flexes the ball water shoots into the mask that was the trade name if you will whatever you want to call it the time that was the name of it that clearly ties it back to the unsolicited post it simply doesn't say drinking tube it doesn't say prototype it uses the specific name of the scott and we thought when the board was becoming uncomfortable with that precedent that we needed to address d m scott and to see the differences him scott there was not a contractor in scott was disappointed off war wesley and company was an actual contractor to the government the purchase orders are d d form fifty five they are excuse me eleven fifty five on the very back general provisions they say they are subject to the contract disputes act so our argument is on the day that he walked into the board with that complaint the board had jurisdiction over the case and that's it thank