Lockheed Martin Aeronautics Company ( 2022 )

ARMED SERVICES BOARD OF CONTRACT APPEALS
Appeals of - )
)
Lockheed Martin Aeronautics Company ) ASBCA Nos. 62249, 62727
)
Under Contract No. N00019-02-C-3002 )
APPEARANCES FOR THE APPELLANT: John E. McCarthy, Jr., Esq.
Nicole J. Owren-Wiest, Esq.
Jonathan M. Baker, Esq.
Yuan Zhou, Esq.
Crowell & Moring LLP
Washington, DC
APPEARANCES FOR THE GOVERNMENT: Craig D. Jensen, Esq.
Navy Chief Trial Attorney
David M. Ruddy, Esq.
Thomas G. Radtke, Esq.
Trial Attorneys
OPINION BY ADMINISTRATIVE JUDGE WITWER ON
RESPONDENT’S MOTION FOR SUMMARY JUDGMENT
These appeals involve a dispute over the scope of the government’s license
rights in nine items of noncommercial computer software that are part of the
verification simulation software for the F-35 Joint Strike Fighter program.
Appellant, Lockheed Martin Aeronautics Company (LM Aero or Lockheed),
asserts that respondent, the Department of the Navy (Navy), is entitled to specifically
negotiated license rights in the software. The Navy counters that it is entitled to
government purpose rights.
The Navy moves for summary judgment in ASBCA No. 62249, contending
that LM Aero has failed to meet its burden to justify its asserted restrictions.
More specifically, the Navy contends that LM Aero cannot meet its burden to show
that the software items are “developed,” as that term is defined in the applicable
software license rights clause. LM Aero opposes the Navy’s motion on the grounds
that there are material facts in dispute related to whether the software items are
developed by LM Aero. In support of its opposition, LM Aero relies upon several
declarations submitted by the individuals responsible for developing and testing the
software in dispute. The Navy argues that the Board should afford these declarations
no weight because they are not accompanied by contemporaneous, corroborating
evidence. The Navy urges the Board to depart from the “garden variety” standard of
review for summary judgment and, instead, to adopt a heightened standard of review.
Thus, the central question presented by the Navy’s motion is the quantum and
character of evidence necessary to establish a genuine dispute of material fact.
After consideration of the parties’ respective positions, we decline to impose
the heightened standard of review suggested by the Navy. Instead, applying the
well-established standard of review for a motion for summary judgment, we conclude
that there is a genuine dispute as to whether the nine software items are developed.
We further conclude that, even were we to find that the software in question is not
developed, the Navy has failed to establish that it is entitled to judgment as a matter
of law. Thus, we deny the Navy’s motion for summary judgment.
STATEMENT OF FACTS FOR PURPOSES OF THE MOTION
The following facts are undisputed or uncontroverted, unless stated otherwise.
I. The Contract
In October 2001, the Navy’s F-35 Joint Strike Fighter Program Office (JPO)
awarded Contract No. N00019-02-C-3002 to LM Aero for the development of the
F-35 Joint Strike Fighter (JSF) Air System (R4, tab 20 at 002783; GSUMF ¶ 1;
app. opp’n at 7). 1 The JSF Air System is “a family of multi-role aircraft, and
autonomic logistic elements” (app. supp. R4, tab 1 at A_000009). Relevant here,
the contract identified various methodologies for verification of the air system
requirements, including verification by modeling and simulation (R4, tab 20
at 003947-49; tab 32 at 024936; app. supp. R4, tab 1 at A_000213-15; compl. ¶ 69). 2
The dispute before us involves certain items of the verification
simulation (VSim) software. The VSim software is a simulation model used to test
F-35 aircraft design in a simulated environment without having to fly the aircraft.
(ASGIMF ¶ 3; GASUMF ¶ 3) The nine items of noncommercial computer software
in dispute are: CORE, FusionTech, AlgTech, LM Aero Containers, SimAudio,
LabSys_Base, Fifth Generation Simulation Interface (FSI), FSI Test Models, and
FSI API documentation (R4, tab 11 at 0001541; compl. ¶ 26; GSUMF ¶ 16).
1
“GSUMF” refers to the Government’s Statement of Undisputed Facts dated
October 30, 2020. “ASGIMF” refers to Appellant’s Statement of Genuine
Issues of Material Fact dated February 12, 2021. “GASUMF” refers to the
Government’s Reply to Appellant’s Response to the Government’s Statement
of Undisputed Facts dated April 2, 2021.
2
Citations to the complaint and answer are to the pleadings in ASBCA No. 62249.
2
At the time of contract award, there was no contractual requirement for
LM Aero to deliver any portion of the VSim software (compl. ¶¶ 6, 71; answer ¶¶ 6,
71). Thereafter, the Navy sought to amend the contract to require LM Aero to deliver
certain software items that LM Aero was developing (compl. ¶ 7; answer ¶ 7). At that
point, LM Aero asserted restrictions on the Navy’s rights in the requested software,
contending that the software was developed exclusively at private expense (id.).
The Navy disputed LM Aero’s asserted restrictions (compl. ¶¶ 7, 78; answer ¶¶ 7, 78).
II. Software Rights Clauses
The contract incorporated by reference several Department of Defense Federal
Acquisition Regulation Supplement (DFARS) data and software rights clauses.
Relevant here, the contract incorporated clause 252.227-7014, RIGHTS IN
NONCOMMERCIAL COMPUTER SOFTWARE AND NONCOMMERCIAL
COMPUTER SOFTWARE DOCUMENTATION (JUN 1995) and ALTERNATE I
(JUN 1995), and clause 252.227-7019, VALIDATION OF ASSERTED
RESTRICTIONS—COMPUTER SOFTWARE (JUN 1995) (R4, tab 20 at 003061;
compl. ¶ 5; answer ¶ 5). Additionally, once a disagreement arose over the rights to
the software in question, the parties modified the contract to incorporate an additional
clause, titled VSIM SOFTWARE LICENSE RIGHTS (DEVIATION 2017-N0001 TO
DFARS 252.227-7014 AND DFARS 252-227.7019) (R4, tab 11 at 001541; compl.
¶ 8; answer ¶ 8). The parties refer to this as the “H-40” clause.
Through the H-40 clause, the parties modified the contract to include
specifically negotiated license rights and specialized challenge procedures for the nine
items of VSim software at issue here (R4, tab 11 at 001541-43). 3 Because the license
rights granted to the Navy and the specialized challenge procedures deviate from the
requirements of DFARS clauses 252.227-7014 and 252.227-7019, the Navy obtained
an individual DFARS deviation, Deviation 2017-N0001, dated January 2, 2018 (R4,
tab 11 at 001541, 001543; tabs 52-54).
The license rights granted to the Navy through the H-40 clause include
restricted rights, as defined by DFARS 252-227-7014(a)(14), subject to additional
limitations (R4, tab 11 at 001542-43). The additional limitations, which are delineated
in the H-40 clause, are not relevant to our resolution of the pending motion. The rights
granted under the H-40 clause are premised on LM Aero’s assertion that the nine items
3
Although the H-40 clause contains the phrase “Specially Negotiated License Rights,”
we believe this to be a typographical error and that the contract should read
“Specifically Negotiated License Rights,” which is the category of rights set
forth in the DFARS provision referenced in the H-40 clause (R4, tab 11
at 001542 (referencing DFARS clause 252.227-7014(b)(4)).
3
of VSim software were “developed exclusively at private expense” and conditioned on
the Navy’s validation of this assertion (id. at 001541-42, 001545).
As noted above, the H-40 clause also included specialized challenge procedures
that deviate from the challenge procedures of DFARS clause 252.227-7019 (R4, tab 11
at 001543). Among other things, the specialized procedures required LM Aero to
furnish or make available with 30 days “all records sufficient to justify the assertions
that the Software was developed exclusively at private expense” (id.). The records
were to be provided to the Defense Contract Audit Agency (DCAA), the Defense
Contract Management Agency (DCMA), or equivalent audit agency (id.), who was
required to issue an audit report (id.). 4
III. Audit and the Contracting Officer’s Final Decision
In May 2018, the contracting officer initiated a challenge to LM Aero’s
assertion that the software was developed at private expense (R4, tab 10; GSUMF
¶ 20; app. opp’n at 2; compl. ¶ 82; answer ¶ 82). The Navy subsequently designated
DCAA to be the lead audit agency (R4, tab 13 at 001593; compl. ¶ 82; answer ¶ 82).
Over the course of the next year, the government and LM Aero engaged in
various communications regarding LM Aero’s assertion that the software was
developed exclusively at private expense (R4, tabs 14-14.4, 19, 21-22, 24-25, 28;
app. supp. R4, tabs 3-37; GSUMF ¶¶ 22-37; app. opp’n at 31-50). The parties do
not dispute that, during this period, LM Aero provided records to the government
(GSUMF ¶¶ 22-23; app. opp’n at 3; ASGIMF ¶¶ 22-23). Instead, the parties dispute
whether LM Aero complied with the requirement of the H-40 clause to furnish or
otherwise make available “all records sufficient to justify the assertions that the
Software was developed exclusively at private expense” (R4, tab 11 at 001543;
see also gov’t mot. at 37-38, 43-44; app. opp’n at 3; compl. ¶ 84; answer ¶ 84).
In the end, DCAA’s audit was inconclusive. In its May 2019 report, DCAA
stated that it was “unable to obtain sufficient and appropriate evidence to form an
opinion as to whether the development of the subject [software] was accomplished
exclusively at private expense” (R4, tab 29 at 008693). In August 2019, the Navy
contracting officer issued a final decision, concluding that LM Aero had failed to
justify its asserted restrictions (R4, tab 32 at GOV24948; GSUMF ¶¶ 39, 41;
app. opp’n at 51-52). The contracting officer further concluded that the Navy was
4
The H-40 clause has limited bearing on our decision here because the H-40 clause
does not alter the definition of the term “developed” as set forth in DFARS
clause 252.227-7014(a)(6), and, as noted, the definition of developed forms the
basis of our decision today. For that reason, we focus our attention primarily on
the DFARS software license clauses incorporated into the contract.
4
entitled to government purpose rights in the software (R4, tab 32 at GOV24948;
GSUMF ¶ 41; app. opp’n at 52).
LM Aero appealed the decision to the Board in October 2019. We docketed the
appeal as ASBCA No. 62449. The appeal docketed as ASBCA No. 62767 was filed in
November 2020 and involves a government claim for the reimbursement of
$13 million in licensing fees. The Navy has not moved for summary judgment in
ASBCA No. 62767.
DECISION
I. Standards for Summary Judgment
Summary judgment is proper when there is no genuine dispute as to any
material fact, and the moving party is entitled to judgment as a matter of law. Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is “material” if it might affect
the outcome of the case under the governing law, and a dispute is “genuine” if there is
sufficient evidence for a reasonable trier of fact to decide in favor of the nonmoving
party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding
summary judgment motions, the Board does not resolve controversies, weigh
evidence, or make credibility determinations. Conquistador Dorado Joint Venture,
ASBCA No. 60042, 20-1 BCA ¶ 37,628 at 182,678 (citing Liberty Lobby, 477 U.S.
at 255).
“The moving party bears the burden of establishing the absence of any genuine
issue of material fact and all significant doubt over factual issues must be resolved in
favor of the party opposing summary judgment.” Mingus Constructors v. United
States, 812 F.2d 1387, 1390 (Fed. Cir. 1987) (citing United States v. Diebold, Inc.,
369 U.S. 654, 655 (1962)). Still, the nonmoving party “must do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “Mere denials or
conclusory statements are insufficient” to ward off summary judgment. TechSearch,
L.L.C. v. Intel Corp., 286 F.3d 1360, 1372 (Fed. Cir. 2002).
II. Applicable Law
Before delving into the relevant DFARS provisions, we must first note that,
unlike rights in technical data, which are set forth in 10 U.S.C. § 2320 (2020),
redesignated as 10 U.S.C. §§ 3771-3775 (2021), 5 there is no corresponding statute
5
Computer software is specifically excluded from the definition of technical data that
applies to this statute. 10 U.S.C. § 2304(a) (2020), redesignated as, 10 U.S.C.
§ 3013 (2021).
5
governing what rights the government may obtain in computer software. Thus, we
proceed directly to the regulations. We will return later to the statutory authority for
rights in technical data as it has some relevance to our analysis of the pending motion.
But, for the moment, we proceed to the applicable regulations.
A. Categories of License Rights
DFARS clause 252.227-7014 establishes four categories of license rights in
noncommercial computer software: unlimited, restricted, government purpose, and
specifically negotiated. DFARS 252.227-7014(b). For the sake of brevity, we refer to
this clause as the -7014 clause, where appropriate. As a general matter, the scope of
the license rights acquired by the government under the -7014 clause is determined by
the source of funds used for the development of the software. DFARS 227.7203-4(a)
If the software is developed exclusively with government funds,
the government receives unlimited rights and may use, modify, reproduce, release,
perform, display, or disclose the software, in whole or in part, to anyone and for any
purpose. DFARS 252.227-7014(a)(15), (b)(1). If the software is developed
exclusively at private expense, the government receives restricted rights, which
include, among other things, the right to use the software on one computer at a time,
to make minimum copies for backup, to modify the software only for the
government’s own use or backup, and to disclose the software to other contractors or
subcontractors only in certain limited situations. DFARS 252.227-7014(a)(14), (b)(3).
If the software is developed with mixed funding (i.e., with both government and
private funding), the government receives government purpose rights for a five-year
period or other negotiable period and may use, modify, reproduce, release, perform,
display, or disclose the software within the government without restriction and may
release or disclose the software outside the government only for government purposes.
DFARS 252.227-7014(a)(11), (b)(2). After expiration of the five-year period or
negotiated period, government purpose rights revert to unlimited rights. DFARS
252.227-7014(b)(2)(ii).
The final category—specifically negotiated license rights (SNLR)—can be
employed in any of the three funding scenarios discussed above. DFARS 252.227-
7014(b). The specific rights afforded to the government are flexible and determined
through the mutual agreement of the parties, except that SNLR may not be more
restrictive to the government than are restricted rights. DFARS 252.227-7014(b)(4)(i).
Any SNLR agreed to by the parties must be identified in a license agreement made
part of the contract. DFARS 252.227-7014(b)(4)(ii). Here, as reflected in the
H-40 clause, the parties agreed to SNLR for the nine items of computer software and
the rights negotiated by the parties are premised on LM Aero’s assertion that the
software was developed exclusively at private expense (R4, tab 11 at 001541,
001545).
6
B. Definition of “Developed Exclusively at Private Expense”
The phrase “developed exclusively at private expense” is a term of art defined
in the DFARS. Specifically, the -7014 clause provides:
Developed exclusively at private expense means
development was accomplished entirely with costs charged
to indirect cost pools, costs not allocated to a government
contract, or any combination thereof.
DFARS 252.227-7014(a)(7). The term “developed” is also defined in the DFARS
clause. For computer programs and software, developed is defined as follows:
Developed means that—
(i) A computer program has been successfully operated in a computer
and tested to the extent sufficient to demonstrate to reasonable persons
skilled in the art that the program can reasonably be expected to
perform its intended purpose;
(ii) Computer software, other than computer programs, has been tested
or analyzed to the extent sufficient to demonstrate to reasonable
persons skilled in the art that the software can reasonably be expected
to perform its intended purpose[.]
DFARS 252.227-7014(a)(6)(i)-(ii). 6
C. Burden of Proof
In Cubic Defense Applications, Inc., we held that the contractor bears the
burden of proof to justify its asserted restrictions. Our decision provides, as follows:
In requiring a contractor or subcontractor to furnish
“written justification” for a restriction asserted on [the] use
6
The Navy asserts that LM Aero has never indicated whether it considers the nine
VSim items in dispute to be computer programs or software (gov’t mot.
at 36 n.10; gov’t reply at 5 n.5). LM Aero does not respond to this assertion in
its opposition. We observe, however, that in LM Aero’s complaint and
opposition to the Navy’s motion, it refers to the items almost exclusively as
software (see e.g., compl. ¶ 26; app. opp’n at 2-3). Thus, we conclude that
LM Aero views the items in dispute to be computer software. In any event,
the distinction is not relevant for our purposes here.
7
of noncommercial data or software furnished pursuant to a
contract and specifying the contractor’s written submittal
will be treated as a “claim” under the [Contract Disputes
Act], Congress clearly placed the burden of proof for
validating a use or release restriction on a contractor or
subcontractor and established that the “validation” of such
restrictions under contracts subject to 10 U.S.C.
§ 2321 containing a DoD “validation” clause, as here,
constitutes a “claim” by a contractor under the CDA.
ASBCA No. 58519, 18-1 BCA ¶ 37,049 at 180,371.
In reaching this conclusion, we relied, in part, on 10 U.S.C. § 2321 (since
redesignated) and DFARS clause 252.227-7037, VALIDATION OF RESTRICTIVE
MARKINGS ON TECHNICAL DATA (SEP 1999)—neither of which applies to
computer software. Cubic Def. Applications, Inc., 18-1 BCA ¶ 37,049 at 180,371,
180,375. Nevertheless, DFARS clause 252.227-7019, which applies to computer
software and which is incorporated into this contract, largely imposes the same
requirements as 10 U.S.C. § 2321 and DFARS clause 252.227-7037 and supports our
continued holding that the burden of proof is on the contractor. DFARS 252.227-
7019(b) (requiring the contractor to maintain records sufficient to justify the validity of
its asserted restrictions and to be prepared to furnish a written justification for those
restrictions). 7 Thus, LM Aero bears the burden to demonstrate that the software in
question was developed exclusively at private expense.
III. Parties’ Contentions
The Navy’s motion for summary judgment is premised on the straightforward
notion that LM Aero cannot meet its burden to justify its asserted restrictions.
The Navy contends that LM Aero has not demonstrated that the software at issue is
“developed,” as that term is defined in DFARS clause 252.227-7014(a)(6) (gov’t mot.
at 2). The Navy further contends that, because LM Aero cannot show that the
software is developed, the Board should grant judgment in favor of the Navy and
invalidate LM Aero’s asserted restrictions on the government’s license rights (id.).
The Navy does not move for summary judgment on the issue of whether the
development of the software was funded exclusively at private expense,
i.e., the financial element of LM Aero’s burden (gov’t mot. at 3; GASUMF ¶ 3). 8
7
The H-40 clause imposes similar requirements. R4, tab 11 at 001543-44.
8
The Navy’s opening motion raised several issues for the Board’s resolution.
In its reply brief, however, the Navy represented that resolution of its motion
had been narrowed to a “sole question,” namely “whether Lockheed under the
8
In opposing the Navy’s motion, LM Aero argues that there is a triable issue of
fact as to whether the nine items of software are developed. For support, LM Aero
relies on declarations submitted by the software engineers, project leads, and system
architects responsible for developing and testing the software. The declarants describe
the tests and analyses they conducted to ensure that the software could reasonably be
expected to perform its intended purpose.
For the most part, the Navy does not contend that the declarations submitted by
LM Aero fail to meet the evidentiary standards upon which the Board typically relies
in deciding motions for summary judgment. Instead, the Navy advocates for a
different standard. The gravamen of the Navy’s argument is that the Board should
impose a heightened standard to establish disputed material facts. More precisely,
the Navy argues that the Board should impose a “corroboration requirement” requiring
the production of contemporaneous evidence of development (gov’t reply at 3).
We find the Navy’s argument to be misplaced and unpersuasive. In the
subsequent analysis, we first address whether LM Aero has put forth sufficient
evidence under the well-established standard of review to demonstrate that there is a
genuine dispute of material fact. Next, we address the Navy’s argument for a
heightened standard of review. Finally, we address whether the Navy is entitled to
judgment as a matter of law even assuming, for the sake of argument, that we were to
adopt the Navy’s proposed standard.
IV. Under Well-Established Standards for Summary Judgement, There is a Genuine
Dispute of Material Fact as to Whether the Software Items Are Developed,
Which Precludes our Granting the Navy’s Motion.
After reviewing the parties’ respective arguments and the evidence submitted,
the Board finds that LM Aero has put forth sufficient evidence in the form of
declarations to raise a triable issue of fact, namely whether the software items are
developed.
A. LM Aero has Presented Declarations Supporting a Finding That the
Software is Developed.
Under our Board rules, we look to Rule 56 of the Federal Rules of Civil
Procedure (FED. R. CIV. P.) for guidance when considering motions for summary
judgment. Board Rule 7(c)(2); Conquistador Dorado Joint Venture, 20-1 BCA
¶ 37,628 at 182,678. On the subject of declarations, Rule 56 provides that “[a]n
proper legal interpretation of ‘developed’ under DFARS 252.227-7014(a)(6)
has failed to meet its burden of proof to justify the use and release restrictions
asserted for the challenged software at issue” (gov’t reply at 3).
9
affidavit or declaration used to support or oppose a motion [for summary judgment]
must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.” FED. R. CIV. P. 56(c)(4). The declarations submitted by LM Aero meet the
criteria under Rule 56 to oppose a motion for summary judgment. The declarations
are made on personal knowledge, set out facts that would be admissible in evidence,
and show that the declarants are competent to testify on the matters stated.
As a representative example, LM Aero submitted a declaration from
James Gibbs, a software engineer with LM Aero’s Integrated Avionics Performance
Prediction and Analysis (IAPPA) internal development team (app. opp’n, ex. E, Gibbs
decl.). Mr. Gibbs states in his declaration that he has served in this role since 2002
(id ¶ 1). Mr. Gibbs further states that, in this role, he is “responsible for software
development under IAPPA, and was the primary author of IAPPA’s LM Aero
software library (also referred to as the ‘LM Aero Containers’ software library)”
(id.)—one of the disputed items of software in these appeals. Mr. Gibbs describes the
general nature and functionality of the LM Aero Containers software library (id. ¶ 2),
and asserts that “[a]s part of [the] development process,” he personally tested the
software “after writing the source code in order to confirm that the software would
perform as intended” (id. ¶ 4). More specifically, Mr. Gibbs asserts that he “conducted
unit testing, which included writing code to run the standalone LM Aero software
library pieces” so that he “could confirm functionality of key capabilities” (id.).
Mr. Gibbs contends that he conducted this testing “prior to IAPPA’s first release of the
LM Aero software library” (id. ¶ 5).
Mr. Gibbs also describes the “iterative process” for testing subsequent releases
of the software. Specifically, Mr. Gibbs contends that, over the past 17 years,
“the software has been incrementally developed and released as different versions (or
‘builds’), each with unique and/or undated software capabilities” (id. ¶ 6). Mr. Gibbs
states that, prior to the release of each build, he “develop[ed] the software and
conduct[ed] unit testing of all source code that [he] author[ed]” (id.). Additionally,
he states that, “when it is time to release the software, [he] prepared the written and
tested LM Aero software library for release” (id.). Mr. Gibbs contends that, “[b]ased
on this testing, [he] confirmed that the LM Aero software library developed for each
release would function as intended to the best of [his] knowledge and belief” (id.).
Mr. Gibbs states that, as a final step, his Project Lead would run “additional testing to
ensure all the software for that particular release would perform as intended” (id.).
As Mr. Gibbs explains, “[a]fter my Project Lead’s testing was concluded and it was
confirmed that the software would perform as intended, the software was released and
made available to the LM Aero programs” (id.).
In conclusion, Mr. Gibbs states that, “[f]rom his perspective as the software
developer, the LM Aero software library at issue was entirely developed, tested, and
10
validated to work as intended, namely to meet its requirements, by the time the IAPPA
team released the software for use by the airframe programs, such as the F-35 program”
(id. ¶ 7). To support this statement, Mr. Gibbs points out that “the LM Aero library has
been in use continually on the F-35 program for over a decade” (id.).
B. LM Aero’s Declarations are Sufficient to Preclude Summary Judgment.
We conclude that the declaration of Mr. Gibbs is based upon personal
knowledge, sets out facts that would be admissible in evidence, and demonstrates his
competence to testify as to the matters described therein. Accordingly, we find the
declaration of Mr. Gibbs meets the criteria under Rule 56 to oppose a motion for
summary judgment. We also find the declaration of Mr. Gibbs to be representative of
the other declarations submitted by LM Aero describing software developmental work
(see app. opp’n, exs. F-I). 9
As noted previously, the gravamen of the Navy’s argument is that we should
depart from the “garden variety” standard of review for summary judgment and,
instead, to adopt a heightened standard of review. That said, the Navy also briefly
attacks the submitted declarations under the well-established, “garden variety”
standard of review (gov’t mot. at 33-35; gov’t reply at 21). In this regard, the Navy
alleges that the declarations are conclusory because they “provide no concrete dates
asserting when testing occurred, who else witnessed the tests, and provide no details
as to the parameters, scope, or results of any such tests” (gov’t reply at 21).
As an initial matter, we do not entirely agree with the Navy’s characterization
of the contents of the declarations. Even if we did, however, we find that the
declarations set forth sufficient facts to defeat the Navy’s summary judgment motion.
“It is well settled that a ‘conclusory statement on the ultimate issue does not create a
genuine issue of fact.” Applied Cos. v. United States, 144 F.3d 1470, 1475 (Fed. Cir.
1998) (internal citation omitted). See also CLC Constr. Co., ASBCA No. 59110,
20-1 BCA ¶ 37,584 at 182,493 (“A nonmoving party may not simply rest upon vague
allegations of disputed facts in opposing summary judgment.”). Instead, the
nonmoving party “must demonstrate that evidentiary conflicts exist on the record as to
9
In addition to the declarations submitted by LM Aero with its opposition, LM Aero
also relies upon declarations it submitted in 2018 as part of the DCAA audit.
See R4, tabs 14-14.4. Although these declarations were not submitted for the
sole purpose of establishing a genuine dispute of material fact as to whether the
software is developed, they supply relevant details regarding development.
As an example, Daryl Marling, a Project Lead and Lead Technical Engineer
responsible for the development of the IAPPA team’s noncommercial computer
software, including some of the software in dispute here, provides details
regarding the dates of development (R4, tab 14.4 at 2495-97, Marling Decl.).
11
material facts at issue.” Id. (citing Armco, Inc. v. Cyclops Corp., 791 F.2d 147,
149 (Fed. Cir. 1986)) (other citations omitted).
Here, the declarants provide more than a mere opinion on the ultimate issue in
this appeal. Rather, they describe the software in question and the testing they
performed to assure themselves that the software performed as intended. Despite the
Navy’s demand for additional details, LM Aero, as the nonmoving party, is not
required at this stage to present its entire case in response to a summary judgment
motion to avoid defeat. CLC Constr. Co., 20-1 BCA ¶ 37,584 at 182,493. Moreover,
we are not persuaded that certain details, such as concrete dates and/or substantiating
witnesses, are required for LM Aero to meet its burden to establish that the software is
developed. Hence, we are not convinced such facts are material.
As it must, the Board draws all justifiable inferences in favor of LM Aero as
nonmovant for this motion. Consequently, we conclude there is a genuine dispute of
material fact as to whether the software items are developed that precludes granting
summary judgment. 10
V. The Navy Provides No Basis to Depart from the Well-Established Standard of
Review for Summary Judgment.
The crux of the Navy’s argument is that the submitted declarations, without
more, are insufficient to establish a disputed material fact regarding whether the
nine items of noncommercial computer software are developed, as that term is defined
in the -7014 clause (gov’t reply at 3). The Navy argues that the Board should impose
a heightened standard on LM Aero to establish disputed material facts regarding this
issue, namely a “corroboration requirement” requiring the production of
contemporaneous, corroborating documentary evidence of development to support the
submitted declarations (id. at 3). The Navy, however, does not cite any binding
10
The Navy also raises an “alternative, secondary basis” to support summary
judgment, namely that we should find that LM Aero breached the H-40 clause
of the contract by not producing all records sufficient to justify the assertion
that the software was developed exclusively at private expense (gov’t reply
at 2 n.2, 16-17; gov’t mot. at 43-44). As a remedy for breaching this clause,
the Navy argues that we should impose an evidentiary sanction—we should
prohibit LM Aero, in opposing summary judgment, from relying on any
document not produced during the DCAA audit (gov’t reply at 17). This would
include the declarations on which LM Aero relies to establish disputed material
facts. There are numerous flaws with this argument. Most importantly, the
Navy has moved for summary judgment in ASBCA No. 62249, which does not
involve a government claim for breach of contract. Thus, the Navy’s argument
requires us to examine claims not properly before us in this matter.
12
authority requiring the Board to do so. Rather, the Navy seeks to import patent law
concepts and standards into our analysis of whether declarations are sufficient to
defeat motions for summary judgment in this context (gov’t mot. at 33-35). 11
More precisely, the Navy urges the Board to construe the term “developed” in
the -7014 clause as requiring “actual reduction to practice”—a term of art used to
establish an inventor’s priority rights under the patent laws. Assuming we were to do
so, the Navy next urges us to adopt the attendant corroboration requirement the Navy
asserts the Federal Circuit has imposed in patent priority disputes. (Id. at 33-34 (citing
Medichem, S.A. v. Rolabo, S.L., 437 F.3d 1157, 1170 (Fed. Cir. 2006); Lockheed
Aircraft Corp. v. United States, 553 F.2d 69, 74 (Ct. Cl. 1977))). The Navy explains
that construing the term developed in this manner and adopting the “corroboration case
law” is what “differentiates this case from a garden variety summary judgment,
11
The only non-patent law decisions of any note cited by the Navy are Am-Pro
Protective Agency, Inc. v. United States, 281 F.3d 1234 (Fed. Cir. 2002), and
Exceed Resources, Inc., ASBCA No. 61652, 20-1 BCA ¶ 37,634 (gov’t reply
at 27-28). These decisions emphatically do not stand for the Navy’s stated
proposition. In both cases, the contractor executed a release and then years
later contended, in an uncorroborated affidavit, that the contracting officer (CO)
used threats to force the contractor to sign the release. In Am-Pro Protective
Agency, the Federal Circuit held that, while an uncorroborated affidavit would
have been enough in an ordinary case to create a dispute of facts, it was not
sufficient under the circumstances presented due to the high standard of proof
necessary to show bad faith, i.e., clear and convincing evidence. Am-Pro
Protective Agency, Inc., 281 F.3d at 1241 (“Ordinarily, such an affidavit would
probably meet the evidentiary standard needed to avoid summary judgment.
Indeed, if this were a typical summary judgment issue, one that did not involve
a strong presumption in favor of a particular party, the presence of [the
contractor’s] affidavit and the CO’s sworn denials would create a traditional
‘swearing contest’ and thus be inappropriate for summary disposition.”).
The Federal Circuit found the contractor’s affidavit insufficient due to the high
standard of proof necessary to show bad faith, the uncorroborated nature of an
allegation made years later, the inherent implausibility of the allegations, and
the lack of contemporaneous documents recording the alleged threat. Id.
at 1238-39, 1241-43. Relying upon the Federal Circuit’s decision, we reached
the same conclusion under similar facts in Exceed Resources, Inc.
LM Aero’s appeals, however, do not involve allegations of bad faith. Nor is
there a strong presumption in favor of a particular party or undisputed evidence
rendering the testimonial evidence utterly implausible. Rather, to employ the
Federal Circuit’s terminology, the matter before us is “a typical summary
judgment issue.”
13
whereby a declaration, even without more, is sufficient to generate an issue of material
fact” (gov’t reply at 3).
LM Aero counters that de facto rejection of testimonial evidence ignores the
Board’s own rules, which expressly contemplate that, in opposing a motion for
summary judgment, parties may rely upon affidavits and declarations (app. opp’n
at 84 (citing Board Rule 7(c)(2))). LM Aero also argues that the reduction to practice
cases involving patent priority disputes are irrelevant because they pertain to different
statutory and regulatory requirements than those at issue in this appeal (id.). In this
respect, LM Aero points out that the reduction to practice cases stem from statutory
requirements in patent law that require an invention to be novel before a patent may be
granted. (Id. (citing BASF Corp. v. SNF Holding Co., 995 F.3d 958, 964 (Fed. Cir.
2020)). LM Aero asserts that the statutory and regulatory requirements pertaining to
rights in technical data and computer software do not contain any novelty requirement.
(Id. at 84-85 (citing 10 U.S.C. §§ 2320-2321 (2020), redesignated as 10 U.S.C. §§
3771-3775, 3781-86 (2021))); DFARS 252.227-7013 (JUN 1995); DFARS 252.227-
7014 (JUN 1995)). Further, LM Aero points out that the DFARS clause for
noncommercial technical data, DFARS clause 252.227-7013, explicitly rejects the
concept of reduction to practice (id. at 85).
Finally, LM Aero argues that de facto rejection of testimonial evidence would
be unfair and misplaced in the context of a data or software rights dispute because the
contractor has no obligation to maintain records of development unless and until the
computer software is identified as a deliverable (id. at 86). As a result, LM Aero
contends that it was not required to maintain records until May 2018, when the
software became a deliverable under the contract here (id.). This date, according to
LM Aero, was long after the software items were developed (id.). 12
12
Despite LM Aero’s contention that it was not required to maintain corroborating
records, it alleges that it possesses source code and related technical
documentation, including testing documentation, that would corroborate the
evidence proffered in the declarations (app. opp’n at 67). LM Aero, however,
did not provide this material to the Board in support of its opposition. Instead,
LM Aero asserts that such highly confidential material can only be produced
subject to enhanced protections and blames the Navy for the parties’ failure to
negotiate a mutually agreeable addendum to the protective order (id. at 85 n.10,
88 n.12). To the extent LM Aero thought such material necessary to defeat the
Navy’s motion, it should have moved for an addendum to the protective order
while opposing the Navy’s motion. Instead, it did not move for an addendum
until months after the conclusion of briefing. In its motion for an addendum,
LM Aero did not seek leave to supplement its opposition to the Navy’s motion.
It is well settled that promises of future evidentiary proof are insufficient to
avoid summary judgment. See e.g., Maldonado-Denis v. Castillo-Rodriguez,
14
We find that the Navy’s arguments provide no basis for the Board to depart
from the ordinary standards for summary judgment in this context. As we explain
below, the plain language of the -7014 clause, incorporated into the contract, does not
require that computer software be developed to the point of actual reduction to
practice. Moreover, even if we were to rely on the patent law concept of reduction to
practice to define the term developed, the attendant corroboration requirement
imposed in patent priority disputes exists primarily to prevent inventors from
perpetrating fraud. The Navy fails to convince us that similar concerns exist here.
A. The Contract Does Not Require Development to the Point of Actual
Reduction to Practice.
Contract interpretation is a matter of law. The Boeing Co., ASBCA No. 60373,
18-1 BCA ¶ 37,112 at 180,624. In interpreting a contract, we begin with the plain
language of the contract. Id. (citing Banknote Corp. of Am., Inc. v. United States,
365 F.3d 1345, 1353 (Fed. Cir. 2004)). If the contract language is clear and
unambiguous, the plain language controls, and extrinsic evidence is not allowed to
contradict the plain language. ECC Int’l Constructors, LLC, ASBCA No. 59138,
19-1 BCA ¶ 37,281 at 181,387 (citing Coast Fed. Bank, FSB v. United States,
323 F.3d 1035, 1040 (Fed. Cir. 2003)). Here, we find that the plain language of the
contract is clear and unambiguous. Thus, our inquiry ends and the plain language of
the contract controls. Hunt Constr. Grp., Inc. v. United States, 281 F.3d 1369, 1373
(Fed. Cir. 2002).
1. The Plain Language of the Contract Does Not Require
Actual Reduction to Practice.
The contract here incorporates DFARS clause 252.227-7014 (R4, tab 20
at 003061). In defining the term “developed,” the plain language of the -7014 clause
does not require that computer software be developed to the point of actual reduction
to practice. See DFARS 252.227-7014(a)(6)(ii). Rather, it requires that the software
“has been tested or analyzed to the extent sufficient to demonstrate to reasonable
persons skilled in the art that the software can reasonably be expected to perform its
intended purpose.” Id.23 F.3d 576, 581 (1st Cir. 1994) (holding that “motions for summary judgment
must be decided on the record as it stands, not on litigants’ visions of what the
facts might some day reveal”); Walston v. Baldwin, No. 16-884, 2020 WL
2086846 at *4 (S.D. Ill. Apr. 30, 2020) (concluding that “[t]he nonmovant must
identify record evidence (not future evidence) to create a genuine dispute of
material fact and stave off summary judgment”) (citation omitted). Therefore,
we afford no weight to LM Aero’s claims about what such evidence might
demonstrate.
15
The Navy acknowledges the plain language of the clause (gov’t reply at 11-12),
and does not argue that the contract language is ambiguous. Nevertheless, the Navy
asserts that we should read in a requirement for actual reduction to practice (id.
at 6-13; gov’t mot. at 24-27). Having failed to argue, much less establish, that the
contract language is ambiguous, the Navy’s assertion that we should include language
that is not present is improper.
2. The Navy’s Efforts to Go Beyond the Plain Language of the
Contract Are Unavailing.
To justify reading in a reduction to practice test, the Navy points to our seminal
data rights decision, Bell Helicopter Textron, ASBCA No. 21192, 85-3 BCA ¶ 18,415,
in which the Navy claims we relied upon patent law concepts to interpret the term
developed (gov’t mot. at 26, 34; gov’t reply at 3, 6, 7-10). 13 The Navy also points to
the regulatory history of the -7014 clause to support its argument that proof of
reduction to practice is required to establish development (gov’t mot. at 25-26, 34;
gov’t reply at 7, 11-13). Finally, the Navy argues that the canon of construction
known as expressio unius est exclusio alterius compels us to read in a reduction to
practice test. None of these arguments are convincing.
a. The Board, in Bell Helicopter Textron, Rejected Adopting a
Requirement to Demonstrate Actual Reduction to Practice.
The Navy’s reliance upon Bell Helicopter Textron is misplaced. In our
decision, we explicitly rejected the argument advanced by the Navy here. The contract
at issue in Bell Helicopter Textron contained a data rights clause that was a
predecessor to the DFARS clauses at issue here. More specifically, the contract
contained Armed Services Procurement Regulations (ASPR) 7-104.9(a), RIGHTS IN
TECHNICAL DATA (AUG 1969). This clause, like those that preceded it, used, but
did not define, the term developed. Thus, the definition of the term was before us for
interpretation. In our decision, we discussed, but ultimately rejected, adopting the
patent law concept of actual reduction to practice in construing the meaning of the
term in the context of the ASPR clause. Bell Helicopter Textron, 85-3 BCA ¶ 18,415at 92,421-23, 92,434. See also FlightSafety Internat’l, Inc., ASBCA No. 62659,
slip op. at 35 (Nov. 29, 2022).
13
The Navy relies on other decisions (gov’t mot. at 26 n.6; gov’t reply at 10). These
decisions, however, are cases in which a court applied the patent law concept in
patent law litigation. Thus, they are not relevant to our analysis of the term
developed in the context of data and software license rights.
16
In our decision, we noted that the ASPR originally housed the patent rights and
data rights provisions in the same standard clause, but then separated the provisions
and the ASPR Committee repeatedly rejected adopting the patent law concept in the
context of data rights. Id. at 92,422 (“[T]he ASPR Committee could easily have
adopted language such as ‘developed at private expense to the point of actual
reduction to practice’ as the criterion for limited rights, but did not.”); id.
at 92,423 (“In short, it was understood that if an invention had been ‘actually reduced
to practice,’ then it had also been ‘developed,’ but the converse was not necessarily
true.”); see also id. at 92,422 (observing that the ASPR Technical Data Subcommittee,
in addressing comments regarding a previously proposed definition of the phrase
“developed at private expense,” expressly agreed that “developed” was “[n]ot intended
to be the same as ‘reduction to practice’”). After concluding that the regulatory
development of the ASPR clause rejected the patent law concept of actual reduction to
practice (id. at 92,421-23, 92,434), we too rejected the concept in defining the term
developed.
Specifically, after explaining that the term developed included concepts of
“practicability, workability, and functionality,” we included the following caveat:
All “development” of the item or component need not be
100 percent complete, and the item or component need not
be brought to the point where it could be sold or offered
for sale. An invention which has been “actually reduced to
practice” under patent law has been “developed,” but the
converse is not necessarily true in every case.
Id. at 92,434. We further observed that, although “our construction of the term
‘developed’ is quite close to the classic patent law concept of ‘actual reduction to
practice,’ and indeed in many fact situations, the two concepts might be identical[,] . . .
[w]e do not hold, however, that ‘developed’ and ‘actually reduced to practice’ are
necessarily identical concepts in every case.” Id. at 92,422.
In sum, our decision in Bell Helicopter Textron is inapplicable because we were
interpreting the term developed in the context of an ASPR provision pertaining to
technical data that did not provide an express definition of the term. Here, of course,
we are interpreting the term developed in the context of a DFARS provision pertaining
to software that provides an express definition. In any event, Bell Helicopter Textron
evidences a clear refusal to construe developed as requiring actual reduction to
practice. For this reason, we find the Navy’s reliance on our decision to be misplaced,
to say the least—especially since the Navy did not address or even acknowledge those
portions of our decision in which we expressly rejected adopting the patent law
concept.
17
b. The Regulatory History of the 1995 DFARS Provisions
Demonstrates Rejection of Actual Reduction to Practice.
The second argument advanced by the Navy is that the regulatory history of the
1995 DFARS provisions supports its position that a reduction to practice test should be
read into the definition of developed (gov’t reply at 7, 11-13). To be clear, because the
meaning of the text of the -7014 clause is plan and unambiguous, we need not accept
the Navy’s invitation to consider the regulatory history. See e.g., N.L.R.B. v. SW
General, Inc., 137 S.Ct. 929, 941-42 (2017). But, even were we to do so, we would
reach the same conclusion.
By way of background, the ASPR clause at issue in Bell Helicopter Textron
was a predecessor to the -7014 clause at issue in this appeal, as well as the DFARS
clause applicable to noncommercial technical data, DFARS 252.227.7013, RIGHTS
IN TECHNICAL DATA—NONCOMMERCIAL ITEMS (JUN 1995). For the sake
of brevity, we refer to this latter clause as the -7013 clause, where appropriate.
These DFARS provisions were issued in June 1995, almost a decade after Bell
Helicopter Textron. 60 Fed. Reg. 33,464 (June 28, 1995). In our recent decisions,
Cubic Def. Applications, Inc., ASBCA No. 58519, 18-1 BCA ¶ 37,049, and
FlightSafety Internat’l, Inc., ASBCA No. 62659, slip op. (Nov. 29, 2022), we recount,
in detail, the statutory and regulatory history leading to these DFARS provisions.
We examine here those aspects of the history relied upon by the Navy and relevant to
its arguments. What our examination reveals is that the patent law concept of actual
reduction to practice was well-known at the time the regulatory definition was drafted
and, yet, despite this awareness, the drafters of the -7014 clause chose not to require
actual reduction to practice. Thus, we conclude that the omission of the patent law test
was intentional.
i. Congressional Calls for a Regulatory Definition
In 1986, the year after our decision in Bell Helicopter Textron, Congress
amended 10 U.S.C. § 2320, the statutory provision pertaining to rights in technical
data, directing the Secretary of Defense to issue regulations defining the terms
“developed,” “exclusively with Federal funds,” and “exclusively at private expense.”
Pub. L. No. 99-661, 100 Stat. 3949, 3951 (Div. A, Title IX, Part A, § 953(a)) (Nov. 14,
1986) ((codified at 10 U.S.C. § 2320(a)(1), (3), redesignated as 10 U.S.C.
§ 3771(a)(1), (c)). The legislative history of the 1986 amendments demonstrates that
the patent law concept of reduction to practice was considered overly restrictive in the
context of data rights.
Specifically, the conference report states that, although “some flexibility in
defining terms is necessary, the conferees believe that a statement of congressional
18
intent is appropriate.” H.R. Rep. No. 99-1001, at 511 (1986 Conf. Rep.). The adopted
statement of congressional intent provides, in relevant part:
The conferees believe that previously proposed
Department of Defense regulations published for public
comment on September 10, 1985, defined the term
“developed” in an excessively stringent manner by
requiring an “actual reduction to practice”—a term of art
used to establish an inventor’s priority rights under the
patent laws.
Id. Thus, Congress itself did not believe that a contractor needed to demonstrate actual
reduction to practice to establish development. Although the Navy in its briefing
discusses the legislative history accompanying the 1986 amendments (gov’t reply
at 12), the Navy noticeably fails to address or acknowledge the conferees’ statement of
congressional intent.
ii. 807 Committee Report and Recommendations
In response to the 1986 amendments, the Department of Defense (DoD) issued
a series of draft and interim rules, see Cubic Def. Applications, Inc., 18-1 BCA
¶ 37,049 at 180,364-65, prompting Congress, once again, to weigh in. In section 807
of the National Defense Authorization Act (NDAA) for Fiscal Years 1992 and 1993,
Congress tasked the Secretary of Defense to form a joint government-industry
advisory committee that would finally implement the requirements of 10 U.S.C.
§ 2320 and recommend regulations to supersede the interim regulations. NDAA,
FY 1992 and 1993, Pub. L. No. 102-190, 105 Stat. 1290, 1421-23 (Div. A, Title VIII,
Part A, Sec. 807) (1991). The Navy and other sources refer to this committee as the
807 Committee. We adopt that nomenclature here. 14
As required by section 807, the committee was composed of industry members
representing developers of military equipment and suppliers of spare parts, as well as
government members and representatives of academia (R4, tab 34 at 024985).
14
In Cubic Defense Applications, we refer to the 807 Committee as the “Technical
Data Advisory Committee.” 18-1 BCA ¶ 37,049 at 180,366. In FlightSaftey
International, we refer to it as the “government-industry committee.” ASBCA
No. 62659, slip op. at 30. To the extent there is a question as to whether the
Board may look to the 807 Committee report in interpreting the 1995 DFARS
provisions, see The Boeing Co., ASBCA No. 60373, 20-1 BCA ¶ 37,629at 182,684 n.3; but see FlightSafety Internat’l, Inc., ASBCA No. 62659, slip op.
at 30-31; Cubic Def. Applications, Inc., 18-1 BCA ¶ 37,049 at 180,366, we note
that it is the Navy who invites us to consider the report.
19
After holding meetings between July 1992 and December 1993, the 807 Committee
issued a report containing its recommendations (R4, tab 34). For our purposes here,
the report is notable in two respects. First, the committee recommended separate
treatment for computer software, believing that separate treatment “would provide
greater flexibility to deal with evolving practices” and “new statutory requirements or
technological advancements that affect either technical data or computer software only
or affect both to varying degrees” (R4, tab 34 at 024962-63, 024974). See also 50 Fed.
Reg. 31,583, 31,585 (June 20, 1994). Accordingly, the committee proposed two
separate clauses—one pertaining to rights in technical data for noncommercial
items and one pertaining to rights in noncommercial computer software (R4, tab 34
at 025017, 025031). The committee designated the former as proposed DFARS
clause 252.227-7013 and the latter as proposed DFARS clause 252.227-7014 (id.).
Both proposed clauses included definitions of the term developed. The definitions
recommended by the committee were adopted in the 1995 version of the -7013
and -7014 clauses. Compare R4, tab 34 at 025017-18, 025032 to 60 Fed. Reg. 33,464,
33,490, 33,493-94 (June 28, 1995) (codified, as amended, DFARS 252.227-7013(a)(6)
and DFARS 252.227-7014(a)(6)).
The second reason the report is notable is because it reflects that the
807 Committee was aware of and declined to incorporate the patent law concept of
actual reduction to practice when defining the term developed. The report shows that,
for the purposes of technical data, the committee debated whether the definition should
include a requirement for reduction to practice, with developers’ representatives
advocating to eliminate the patent law test and non-developers’ representatives
advocating to adopt it (R4, tab 34 at 024966-67). Ultimately, the committee chose not
to include such a requirement. (Id. at 025017) (“To be considered ‘developed,’ the
item, component, or process need not be . . . actually reduced to practice within the
meaning of Title 35 of the United States Code.”) Instead, as explained in the report,
the committee opted for a definition that included concepts such as existence and
workability (id. at 024967).
For the purposes of computer software and programs, it does not appear that
representatives proposed the patent law test for consideration (id. at 024977-78).
Instead, the 807 Committee’s debate centered around whether computer software
should be considered developed when the initial flow diagrams had been constructed
or whether the software should be subject to a workability test (id.). From this we can
deduce that, although representatives were well aware of the concept, none proposed
the patent law concept for computer software or programs. Rather, as explained in the
report, the committee opted for a definition that included sufficient testing and analysis
20
for computer software and successful operation in a computer for computer programs
(id. at 024978). 15
In June 1994, DoD published a proposed rule expressly adopting the
recommendations of the 807 Committee, 59 Fed. Reg. 31,584 (June 20, 1994), and,
the following year, DoD issued the final rule, 60 Fed. Reg. 33,464 (June 28, 1995).
Importantly, adopting the recommendation of the 807 Committee, the 1995 regulations
marked the first time that technical data and computer software were treated
separately. Further, as explained above, the definitions of developed proposed by the
807 Committee were incorporated into the DFARS provisions. To reiterate, neither
definition includes a requirement to demonstrate actual reduction to practice and, in
fact, the definition set forth in the -7013 clause expressly excludes the requirement.
DFARS 252.227-7013(a)(6) (“To be considered “developed,” the item, component, or
process need not be at the stage where it could be offered for sale or sold on the
commercial market, nor must the item, component, or process be actually reduced to
practice within the meaning of Title 35 of the United States Code.”) (emphasis added).
In short, the 807 Committee—like the ASPR Committee discussed in our
decision in Bell Helicopter Textron—was familiar with the patent law concept of
actual reduction to practice and its potential application to the area of license rights in
15
At the time the 807 Committee met, the law regarding the patentability of computer
software and programs was uncertain, given that the U.S. Patent and Trademark
Office, the Federal Circuit, and the Supreme Court had resisted treating
computer software and programs as patentable subject matter. Gottschalk v.
Benson, 409 U.S. 63, 72-73 (1972) (rejecting patentability of digital computer
program and noting that such patents are typically “rejected on the ground of
nonstatutory subject matter”) (internal citation and quotation omitted);
Parker v. Flook, 437 U.S. 584, 594-95 (1978) (noting that “[t]he youth of the
industry may explain the complete absence of precedent supporting
patentability” of computer programs); Diamond v. Diehr, 450 U.S. 175, 187-88
(1981) (concluding that “the process as a whole does not thereby become
unpatentable subject matter” because there is “computer use incorporated in the
process patent”). It was not until 1994 (after the 807 Committee met and issued
its report) that the Federal Circuit brought some certainty to the patentability of
computer software and programs. In re Alappat, 33 F.3d 1526, 1545 (Fed. Cir.
1994) (en banc) (holding that “a computer operating pursuant to software may
represent patentable subject matter, provided, of course, that the claimed
subject matter meets all of the other requirements of Title 35”), abrogated on
other grounds by In re Bilski, 545 F.3d 943 (Fed. Cir. 2008) (en banc), aff’d
sub nom. Bilski v. Kappos, 561 U.S. 593 (2010). Thus, the 807 Committee’s
silence on using patent terminology regarding computer software and programs
arguably makes sense.
21
technical data and computer software. Despite this familiarity, the drafters of
the -7014 clause choose not to adopt language such as “developed to the point of
actual reduction to practice” as the criterion for establishing that computer software
and programs were developed, which they easily could have done. Accordingly, we
conclude that the drafters acted purposely in excluding such language from the
definition of developed and we decline to require such showing. See, e.g., Sistek v.
Dep’t of Veterans Affairs, 955 F.3d 948, 954 (Fed. Cir. 2020) (declining to add
“retaliatory investigations” to the list of qualifying personnel actions under the
Whistleblower Protection Act where the Federal Circuit found that Congress was
aware of such investigations and, despite this knowledge, expressly declined to add
such investigations to the statute); Pfizer, Inc. v. Teva Pharm. USA, Inc., 518 F.3d
1353, 1362 (Fed. Cir. 2008) (declining to interpret the safe harbor provisions of
35 U.S.C. § 121 to include continuation-in-part applications where the Federal Circuit
found that Congress was aware of such applications and could have explicitly included
them in the statutory language, but did not do so); Ammex, Inc. v. United States,
52 Fed. Cl. 303, 312 (2002) (declining to interpret “duty-free operator” in 19 U.S.C.
§ 1955 as including “exporters” where the court found the drafters of the statute were
aware of the term and chose not to include it in the statute).
As a final point, we note that, although the Navy discusses the 807 Committee
report in detail, the Navy once again fails to address or acknowledge language in the
report that undercuts its argument.
c. The Expressio Unius Canon of Construction
Does Not Alter Our Analysis.
The Navy’s final argument for including the patent law test relies on the canon
of construction known as expressio unius est exclusio alterius. Noting that the -7013
clause pertaining to technical data explicitly rejects a reduction to practice test,
whereas the -7014 clause pertaining to computer software is silent on the matter,
the Navy urges us to interpret this silence as evidence that the drafters intended to
mandate such a test for computer software (gov’t mot. at 30-31 n.8; gov’t reply
at 11-13). This argument is not persuasive for several reasons, not the least of which is
that the canon simply does not apply in this context.
The canon of expressio unis stands for the proposition that “the expression of
one thing is the exclusion of the other.” Elkem Metals Co. v. United States, 468 F.3d
795, 801 (Fed. Cir. 2006) (citation omitted). The canon does not apply to every
statutory listing or grouping; the canon applies only when the statute identifies
“a series of two or more terms or things that should be understood to go hand in
hand,” thus raising the “sensible inference that the term left out must have been meant
to be excluded.” Chevron U.S.A. Inc. v. Echanzabal, 536 U.S. 73, 81 (2002). In sum,
the canon is used to support the argument that when one or more things of a class are
22
expressly mentioned, others of the same class are excluded. The Navy, however,
does not rely on the canon to advance the argument that items of the same class were
intentionally excluded. Rather, the Navy relies on the canon to argue that we should
include language that was omitted, which is simply not the law as discussed above.
We find the more appropriate cannon of construction to be the canon of casus
omissus pro omisso habendeus est, under which a statute or regulation should not be
read to include matter it does not include. See e.g., Lamie v. U.S. Trustee, 540 U.S.
526, 538 (2004) (rejecting construction that “would have us read an absent word into
the statute” because it “would result not in a construction of the statute, but, in effect,
an enlargement of it by the court” (citing Iselin v. United States, 270 U.S. 245, 251
(1926) (cleaned up)); Mamani v. Berzain, 825 F.3d 1304, 1310 (11th Cir. 2016)
(noting that the court is not “allowed to add or subtract words from a statute” that may
better serve a certain policy and underscoring that a court’s “task is merely to apply
statutory language, not to rewrite it”). We decline here to insert words or tests that the
drafters of the -7014 clause did not include.
In conclusion, based upon the plain language of the -7014 clause, as further
supported by our decision in Bell Helicopter Textron and the regulatory history,
we conclude that a contractor need not show actual reduction to practice to
demonstrate that computer software is developed, as that term is defined in the -7014
clause.
B. The Navy Fails to Establish that a Corroboration Requirement
Is Necessary in the Context of Software Rights.
As stated above, the Navy’s argument for a heightened standard of review fails
for another reason. Even assuming that we were to rely on the patent law concept of
reduction to practice to define the term developed, the Navy does not persuade us that
we should adopt the attendant corroboration requirement imposed in patent priority
disputes.
The corroboration requirement imposes a heavy burden of proof, requiring
that an inventor’s self-serving testimony be corroborated before it can be considered.
Medichem, S.A., 437 F.3d at 1169-70 (Fed. Cir. 2006). 16 In the context of such
16
The corroboration requirement has most often been applied in post-trial judgments.
See e.g., Medichem, S.A., 437 F.3d 1157; Lockheed Aircraft Corp. v. United
States, 553 F.2d 69 (Ct. Cl. 1977). Contrary to LM Aero’s assertions (app.
opp’n at 85 n.10), however, the requirement also has been applied at the
summary judgment stage. See e.g., Hahn v. Wong, 892 F.2d 1028 (Fed. Cir.
1989); Luminara Worldwide, LLC v. Liown Elecs. Co., No. 14-03103, 2017 WL
1555881 (D. Minn. Mar. 29, 2017).
23
disputes, the corroboration requirement exists to prevent inventors from perpetrating
fraud. The Federal Circuit explains the rationale for the requirement, as follows:
Credibility concerns undergird the corroboration
requirement, the purpose of which is to prevent fraud.
As such, the corroboration requirement provides an
additional safeguard against courts being deceived by
inventors who may be tempted to mischaracterize the
events of the past through their testimony.
Id. at 1170; Chen v. Bouchard, 347 F.3d 1299, 1309 (Fed. Cir. 2003) (“[T]he purpose
of corroboration . . . is to prevent fraud, by providing independent confirmation of the
inventor’s testimony.”) (internal quotations omitted); Hahn v. Wong, 892 F.2d 1028,
1033 (Fed. Cir. 1989) (“The purpose of the rule requiring corroboration is to prevent
fraud.”) (quoting Barry v. Webb, 412 F.2d 261, 267 (CCPA 1979)). See also Baychar,
Inc. v. Burton Corp., No. 04-144, 2006 WL 2162314 at *6 (D. Me. July 28, 2006)
(“[T]he corroboration rule has been applied to prevent an inventor from relying on
self-serving testimony alone to maintain an existing patent.”). The Federal Circuit has
further explained that “[o]nly the inventor’s testimony requires corroboration before it
can be considered.” Medichem, S.A., 437 F.3d at 1169-70 (quoting Price v. Symsek,
988 F.2d 1187, 1195 (Fed. Cir. 1993)).
In the context of patent priority disputes, where an inventor-declarant stands to
gain personally, the corroboration requirement provides a logical safeguard. The Navy
does not convince us that such a safeguard is necessary here. LM Aero relies on
declarations from the software engineers, project leads, and system architects
responsible for developing and testing the software. The Navy does not claim,
let alone establish, that these individuals stand to gain personally from their testimony.
We decline to extend the requirement to the matter before us. Rather, we reserve for
trial our judgments regarding the credibility and reliability of the testimonial evidence.
Conquistador Dorado Joint Venture, 20-1 BCA ¶ 37,628 at 182,678 (citing Liberty
Lobby, 477 U.S. at 255) (judges are not to weigh evidence or to make credibility
determinations in deciding summary judgment motions).
VI. The Navy Has Failed to Demonstrate that It Is Entitled to Judgment as a
Matter of Law.
As a final matter, even assuming for the sake of argument that LM Aero has
failed to show that the software items are developed, we are not persuaded that the
Navy is entitled to judgment as a matter of law. Summary judgment is appropriate
only if there is no genuine dispute as to any material fact, and the moving party is
entitled to judgment as a matter of law. Here, the Navy does not sufficiently address,
24
let alone establish, that it is entitled to summary judgment even were the Board to rule
in its favor on the question of development.
The Navy contends, in passing and without citation to any authority, that,
if the software does not meet the definition of developed, then LM Aero’s asserted
restrictions are invalid and the government may hire another contractor to complete the
development of the software. (Gov’t mot. at 2) (“Without . . . proof [that its software
is ‘developed’], the restrictions are not only invalid, they are unjust in that they prevent
the government from hiring another contractor to complete the development of this
software, thus hindering and adversely impacting [the] government’s ability to manage
the F-35 program”). (See also id. at 30-31; gov’t reply at 32) The Navy’s legal
theory appears to be that the government is entitled to less restrictive license rights
(i.e., government purpose rights or unlimited rights) in noncommercial computer
software provided that the software has not yet reached the point of being developed.
We note, however, that each category of rights set forth in the -7014 clause
contemplates that the software in question is “developed.” DFARS 252.227-
7014(b)(1)(i) (stating that the government “shall have unlimited rights in computer
software developed exclusively with Government funds”) (emphasis added); DFARS
252.227-7014(b)(2)(i) (stating that the government “shall have government purpose
rights in computer software development with mixed funding”) (emphasis added);
DFARS 252.227-7014(b)(3)(i) (stating that the government “shall have restricted
rights in noncommercial computer software . . . developed exclusively at private
expense”) (emphasis added). Hence, contrary to the Navy’s assertions, if the software
is not developed, there appears to be no basis for the Navy to obtain any category of
rights under the -7014 clause. To the extent the Navy is concerned that it has licensed
software that cannot reasonably be expected to perform its intended purpose, it is
unclear why the remedy for the failure to supply a deliverable under the contract
would be a broadening of the license rights granted to the government, rather than one
of the well-established contractual remedies available to the government when a
contractor provides non-conforming goods or services. In any event, as the moving
party, the Navy bears the burden to show that it is entitled to judgment as a matter of
law. We conclude that the Navy has failed to satisfy its burden.
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CONCLUSION
The Navy’s motion for summary judgment is denied. An order addressing
further proceedings in these appeals will follow.
Dated: December 9, 2022
ELIZABETH WITWER
Administrative Judge
Armed Services Board
of Contract Appeals
I concur I concur
RICHARD SHACKLEFORD J. REID PROUTY
Administrative Judge Administrative Judge
Acting Chairman Vice Chairman
Armed Services Board Armed Services Board
of Contract Appeals 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. 62249, 62727, Appeals of
Lockheed Martin Aeronautics Company, rendered in conformance with the Board’s
Charter.
Dated: December 12, 2022
PAULLA K. GATES-LEWIS
Recorder, Armed Services
Board of Contract Appeals
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