Jed Margolin 1981 Empire Rd.
Phone: 775-847-7845 Email: jm@jmargolin.com June 10, 2009
Administrator
NASA Headquarters
Appeal under the Freedom of Information Act to
the NASA Response dated May 14, 2009 and received via email May 18, 2009.
Jed Margolin FOIA 08-270 Filed: June 28, 2008
Sir:
This is an Appeal under the Freedom of Information Act to the NASA
Response dated May 14, 2009 and received via email May 18, 2009 [Appendix NA1 -
NA65] in FOIA Request 08-270 filed June 28, 2008 [Appendix NA66].
Because NASA’s response was sent (and received) on May 18, 2009 this
appeal is timely.
Summary
In its very tardy response to FOIA Request 08-270 by Jed
Margolin (“Margolin”) NASA withheld documents, citing 5 U.S.C.§552(b(5).
One of the
documents that NASA withheld from Margolin is a letter dated March 19, 2009 that
was sent by Gary G. Borda (“Borda”) NASA Agency Counsel for
Intellectual Property to Optima Technology Group (“OTG”). (This document was
given to Margolin by OTG.) In this letter Borda denies Claim I-222 regarding
NASA’s infringement of U.S. Patent 5,904,724 (‘724) in the X-38 project.
Margolin’s FOIA 08-270 request to NASA was to produce
documents relating to Claim I-222 and NASA withheld the most material document so far.
The Borda letter asserts:
“… numerous pieces of
evidence were uncovered which would constitute anticipatory prior knowledge and
prior art that was never considered by the U.S. Patent and Trademark Office
during the prosecution of the application which matured into Patent No.
5,904,724.”
And states, “… NASA reserves the right to introduce
such evidence of invalidity in an appropriate venue, should the same become
necessary.”
Circulating the patent report solely within NASA or among
other federal agencies is not an appropriate venue for NASA to use to have a
patent declared invalid. The only appropriate venues for NASA to challenge the
validity of a U.S. Patent are in the U.S. Court of Federal Claims and the Court
of Appeals for the Federal Circuit.
Therefore, the exemption under 5 U.S.C.§552(b)(5)
does not apply.
The Borda letter also suggests the existence of other
materials and/or documents, especially relating to whether NASA risked the X-38
by failing to provide compensation for the time delays in the synthetic vision
flight control loop.
Details
Most of the documents NASA sent to Requestor Jed Margolin (“Margolin”)
were documents Margolin already had, especially the documents Margolin had
himself sent to NASA. There were other documents NASA admits to having but
refused to provide [Appendix NA1]:
It has been determined
that portions of the records found responsive to your request contain
information which is exempt from disclosure under the deliberative process
privilege of Exemption 5. This privilege covers advisory opinions,
recommendations, and deliberations, which are part of the government
decision-making process, 5. U.S.C.§552(b)(5).
The reference 5. U.S.C.§552(b)(5) states, referring to Section (a)
which requires agencies to make information available to the public:
(b) This section does
not apply to matters that are -
.
.
.
(5) inter-agency or
intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency;
NASA did not give an estimate of the volume of the
documents being withheld, in violation of 5 U.S.C.§552(a)(6)(F):
(F) In denying a
request for records, in whole or in part, an agency shall make a reasonable
effort to estimate the volume of any requested matter the provision of which is
denied, and shall provide any such estimate to the person making the request,
unless providing such estimate would harm an interest protected by the exemption
in subsection (b) pursuant to which the denial is made.
And, since NASA did not give even a minimal description of
the documents being withheld, that would probably have been the end of the
matter. Without even a minimal description of the documents being withheld
Margolin would have had no way of knowing if NASA was acting properly and in
good faith.
NASA has a record of acting in bad faith toward Margolin.
See:
1. Letter from Jed Margolin to Alan
Kennedy (NASA Office of the General Counsel) dated January 6, 2004 confirming a
portion of the telephone conversation Margolin had with Kennedy on December 10,
2003 [Appendix
NA72]
2. Fax
from Jed Margolin to Acting Administrator Scolese dated April 27, 2009 detailing
NASA’s almost-6 years of bad faith shown to Margolin. [Appendix NA73]
Note that
neither document was included in NASA’s Response to Margolin’s FOIA Request,
which suggests NASA withheld them in an attempt to avoid embarrassment to the
Agency and for no other reason. 5 U.S.C.§552(b) does not include
”embarrassment to the agency” as a reason to withhold documents.
NASA is
still acting in bad faith toward Margolin.
One of the
documents that NASA withheld from Margolin is a letter dated March 19, 2009 that
was sent by Gary G. Borda (“Borda”) NASA Agency Counsel for
Intellectual Property to Optima Technology Group (“OTG”). (This document was
given to Margolin by OTG.) In this letter Borda denies Claim I-222 regarding
NASA’s infringement of U.S. Patent 5,904,724 (‘724) in the X-38 project. [Appendix NA80]
Margolin’s FOIA 08-270 request to NASA was to produce
documents relating to Claim I-222 and NASA withheld the most material document so far.
The Borda letter is so important that it will be reproduced
here in its entirety.
Dear Dr.
Adams:
This
letter concerns the above-identified administrative claim for patent
infringement.
NASA
received the initial notification of this claim in an email dated May 12, 2003,
from Mr. Jed Margolin addressed to attorneys at the NASA Langley Research Center
claiming that "NASA may have used one or more of [Mr. Margolin's] patents in
connection with the X-38 project and may be using one or more of my patents in
other projects using Synthetic Vision". Mr. Margolin identified two patents that
he believed NASA may be infringing; the subject patent and Patent No. 5,566,073.
On June 7, 2003, Mr. Margolin submitted his claim by fax to the NASA HQ
attorney, Mr. Alan Kennedy. Mr. Kennedy responded by letter dated June 11, 2003
acknowledging the administrative claim and requesting that Mr. Margolin give a
more detailed breakdown of the exact articles or processes that constitute the
claim. Mr. Margolin responded by letter dated June 17, 2003, withdrawing his
claim with regard to U.S. Patent No. 5,566,073, leaving the remaining claim for
the subject patent. NASA is aware of the long pendency of this matter and we
regret the delay.
On July
14, 2008 Optima Technology Group sent a letter addressed to Mr. Kennedy stating
that they were the owners of the Jed Margolin patents due to an assignment and
requesting that NASA now license the technology of the subject patent. With an
email dated August 6, 2008 from Optima, NASA received a copy of a Patent
Assignment, dated July 20, 2004, executed by Jed Margolin, the sole inventor on
the subject patent, by which the entire right, title and interest in the patent
has been assigned to Optima Technology Group, Inc. We previously noted in a
letter dated August 20, 2008 from Mr. Jan McNutt of our office addressed to you
that NASA believes there are certain irregularities surrounding this and
collateral assignment documents associated with the subject patent. However,
NASA will at this time forestall a detailed consideration of that issue.
Instead, we will assume your bona fides in asserting that you are the legitimate
owner of the subject patent and communicate
2
our
findings directly with you. To the extent that Mr. Margolin has any interest in
this matter, formally or informally, we will leave it up to you whether or not
to communicate with him.
In light
of the prior claim by Mr. Margolin, we consider your license proffer as an
administrative claim of patent infringement. We turn now to the substance of
your claim. In response to your initial letter dated July 14, 2008, Mr. McNutt's
August 20, 2008 letter posed a number of questions, the purpose of which was to
enable NASA to fully evaluate the details of your claim. Your organization
failed to respond to these questions and, further, advanced the position that
this matter does not involve a new claim (
U.S.
Patent No. 5,904,724 issued with twenty claims, claims 1 and 13 being the sole
independent claims.
In order
for an accused device to be found infringing, each and every limitation of the
claim must be met by the accused device. To support a finding of literal
infringement, each limitation of the claim must be met by the accused device
exactly, any deviation from the claim precluding a finding of infringement. See
Lantech, Inc. v.
Kelp Mach. Co., 32 F.3d 542 (Fed. Cir. 1994). If an express claim limitation
is absent from an accused product, there can be no literal infringement as a
matter of law. See Wolverine World Wide, Inc. v. Nike, Inc., 38 F.3d 1192,
1199 (Fed. Cir.1994).
In
applying these legal precepts, reproduced below are the relevant portions of
claims 1 and 13.
Claim
1. A system
comprising:
***
a
computer
***
said
computer is,.. for determining a delay time for communicating said flight
data between said computer and said remotely piloted aircraft, and wherein said
computer adjusts the sensitivity of said set of one or more remote flight
controls based on said delay time. (emphasis added.)
Claim
13. A station for flying a remotely piloted aircraft that is real or simulated
comprising:
***
a
computer
***
3
said
computer... to determine a delay time for communicating. . flight
control information between said computer and [a] remotely piloted aircraft, and
said computer to adjust the sensitivity of [al set of remote flight controls
based on said delay time. ... (emphasis added.)
NASA has
investigated activities surrounding the X-38 program at its Centers that
conducted X-38 development efforts and has determined that no infringement has
occurred. This result is compelled because none of NASA's X-38 implementations
utilized a computer which is "for determining a delay time for communicating
said flight data between said computer and said remotely piloted aircraft," as
required by claim 1, nor a "computer ... to determine a delay time for
communicating ... flight control information between said computer and [a]
remotely piloted aircraft," as required by the limitations of claim 13.
Given
that a computer which measures delay time is lacking from the NASA X-38
configuration, it follows that the NASA X-38 configuration had no "adjusting of
the sensitivity of [a] set of one or more remote flight controls based on said
delay time", as required in claim 1. Similarly, because the NASA X-38
configuration had no "computer to determine a delay time for communicating ...
flight control information between said computer and [a] remotely piloted
aircraft, the configuration also had no adjusting of "the sensitivity of [a] set
of remote flight controls based on said delay time", as called for by claim
13.
For at
least the above-explained exemplary reasons, claims 1 and 13 have not been
infringed. It is axiomatic that none of the dependent claims may be found
infringed unless the claims from which they depend have been found to be
infringed. Wahpeton
Canvas Co. v. Frontier, Inc., 870 F.2d 1546 (Fed. Cir. 1989). One who does
not infringe an independent claim cannot infringe a claim dependent on, and thus
containing all the limitations of, that claim.
NASA's
X-38 development efforts ended in 2002. There may also be other features in
NASA's X-38 development efforts that, upon further analysis, would reveal yet
more recited claim limitations that are lacking in the NASA configuration
related to those efforts.
We also
note as a point of particular significance that the limitations included in
claims 1 and 13 discussed above were added by amendment during the prosecution
of the patent application. It is clear from an analysis of the patent
application file wrapper history that the individual prosecuting the application
stressed the importance of "the measurement of a communication delay in order to
adjust the sensitivity of flight controls based on that delay." Also noted is
the distinguishing arguments that these claims require that there be a "computer
... located in the pilot station" and that "at least one real time measurement
of the delay and some adjustment is contemplated." (See Applicant's Amendment
and Remark, February 27, 1998 and Response Under 37 C.F.R. § 1.116, July 6, 1998).
Clearly, the Patent Office Examiner allowed the application based on these
prosecutorial arguments.
We have
completed our investigation regarding the claim of patent infringement of U.S.
Patent No. 5,904,724 and have determined that there is no patent infringement
by, or
4
unauthorized use on behalf of, NASA. The above detailed
discussion explains the basis for NASA's analysis and decision regarding the
subject administrative claim.
As an
aside, during NASA's investigation, numerous pieces of evidence were uncovered
which would constitute anticipatory prior knowledge and prior art that was never
considered by the U.S. Patent and Trademark Office during the prosecution of the
application which matured into Patent No. 5,904,724. In view of the clear
finding of lack of infringement of this patent, above, NASA has chosen to
refrain from a discussion that would demonstrate, in addition to
non-infringement, supra, invalidity of the subject patent. However, NASA
reserves the right to introduce such evidence of invalidity in an appropriate
venue, should the same become necessary.
This is
a FINAL agency action and constitutes a DENIAL of the subject administrative
claim for patent infringement.
Pursuant
to 35 U.S.C. § 286, the statute of limitations for the filing of an action of
patent infringement in the United States Court of Federal Claims is no longer
tolled. Thus, any further appeal of this decision must be made by filing a claim
for patent infringement in the United States Court of Federal Claims, pursuant
to 28 U.S.C. § 1498(a).
Sincerely,
Gary G.
Borda
Agency
Counsel for Intellectual Property
The Borda letter is not just a material document, it’s a
smoking gun.
1. Despite the
documents supplied by OTG, and Margolin’s confirmation in a telephone
conversation with Jan McNutt (Office of the General Counsel), that OTG owns the
subject patent, NASA continues to cast doubt on the legal ownership of the
patent.
We previously noted in a letter dated August 20, 2008 from
Mr. Jan McNutt of our office addressed to you that NASA believes there are
certain irregularities surrounding this and collateral assignment documents
associated with the subject patent.
2. NASA asserted it
had found prior art to invalidate the patent.
As an aside, during NASA's investigation, numerous pieces
of evidence were uncovered which would constitute anticipatory prior knowledge
and prior art that was never considered by the U.S. Patent and Trademark Office
during the prosecution of the application which matured into Patent No.
5,904,724. In view of the clear finding of lack of infringement of this patent,
above, NASA has chosen to refrain from a discussion that would demonstrate, in
addition to non-infringement, supra, invalidity of the subject patent. However,
NASA reserves the right to introduce such evidence of invalidity in an
appropriate venue, should the same become necessary.
In order to make this statement, NASA must have produced a
patent report showing how each reference is directed to the claims in the ‘724
patent. This patent report is not exempt under 5 U.S.C.§552(b)(5)
because it is not “inter-agency or
intra-agency memorandums or letters which would not be available by law to a
party other than an agency in litigation with the agency;”.
The reason it is not exempt is because “NASA reserves the right
to introduce such evidence of invalidity in an appropriate venue, should the
same become necessary.”
Circulating the patent report solely within NASA or among
other federal agencies is not an appropriate venue for NASA to use to have a
patent declared invalid. The only appropriate venues for NASA to challenge the
validity of a U.S. Patent are in the U.S. Court of Federal Claims and the Court
of Appeals for the Federal Circuit.
Since this patent report is material under Margolin’s FOIA
Request and is not exempt under 5 U.S.C.§552(b)(5) Margolin requests NASA immediately
hand it over to him.
There is another reason NASA needs to hand over the patent
report. Although Margolin no longer owns the ‘724 patent he is still the named
inventor. By asserting it has evidence to invalidate the patent, and then
withholding that evidence, NASA has defamed Margolin’s reputation as an
inventor. It also smacks of 1950s McCarthyism (making damaging accusations
without providing proper evidence).
Margolin takes such attacks seriously. There is an article
in the December 2008 issue of AUVSI’s Unmanned Systems Magazine
entitled Synthetic Vision Technology for Unmanned Systems: Looking
Back and Looking Forward by Jeff Fox, Michael Abernathy, Mark Draper and Gloria
Calhoun [Appendix
NB58].
The article consists of a spurious history of synthetic
vision. Many of the listed sources are from NASA, such as the HiMat
project. [Appendix
NB8]
(While HiMat produced valuable results, it did not use synthetic
vision.)
Margolin responded with the article Synthetic Vision – The Real Story. [Appendix NB1].
Although the editor of AUVSI Magazine had promised Margolin
the opportunity to respond in the magazine, he later refused to even mention the
controversy about the Abernathy article. [Appendix NB60]
NASA should be familiar with the name Mike Abernathy (Rapid
Imaging Software). He provided the synthetic vision system for the X-38
project.
NASA should also be interested in the statements made on
Abernathy’s behalf in a letter from Abernathy’s law firm to Optima Technology
Group dated October 13, 2006. [Appendix NA143]
As you know, RIS creates computer software, and does not
use or manufacture UAV systems or ground control stations. RIS software is used in UAVs to provide situation awareness
for sensor operators. It is not used for piloting air vehicles. The sensor
operator does not pilot the aircraft, and instead sits at a separate workstation
operating a payload containing one or more cameras, which may be controlled
using a joystick to point the camera package during search or tracking
operations.
As you know, RIS refuses to allow
its products to be used as a pilot aid, and RIS product licenses specifically
prohibit use for piloting. None of RIS's customers use its software for
piloting, for very good reason. Serious military regulations control
placement of anything
-synthetic vision included- on a pilot workstation. Before
anything can be placed on the display in front of a pilot, it has to have met
stringent criteria (MIL-STD 1787C, DO-178B, etc.), it must have been thoroughly
ground tested, and it must have been fully flight tested. RIS software has never
been through this process, and thus is prohibited from use for piloting.
Accordingly, UAV manufacturers have purchased RIS products for use on the sensor
operator console, but none for the pilot console. This is a matter of Army
doctrine and applies to Shadow, Warrior and Hunter.
Nor does RIS have its software in a
form that would make it marketable for piloting. RIS software products are all
based on the Microsoft Windows operating system. This offers many advantages, but
is inappropriate to piloting aircraft because it is a not a POSIX compliant
real-time operating system. POSIX compliance is required by flight safety
regulations. To create such a version would entail a one- to two-year conversion
program in which RIS has not invested.
It is important to realize that the market for RIS products
is quite different from the relaxed civilian world. If a military pilot chose to
use synthetic vision in spite of military regulations or in defiance of a
software license agreement, his career would be damaged or destroyed. Military
pilots cherish their wings and would not consider risking them on something like
synthetic version.
Finally, it appears from your correspondence that you
regard research activities like NASA's X-38 prototypes (before the program was
cancelled in 2002) as infringing the Margolin patents. This was not the case
because of the claim limitations of the Margolin patents. However all RIS work
for government agencies, including NASA, was authorized and consented to by the
U.S. Government, and is protected under 28 U.S.C. §1498(a). As you are aware,
any remedies you may have are against the government and are circumscribed by
that statute and related law.
Although we need not discuss the invalidity of the Margolin
patents given the above circumstances, you should be aware that both patents
were anticipated by profound prior art dating back to 1977. If it should ever
become necessary, we are confident that both would be held invalid.
(emphasis added)
He is asserting that Abernathy’s synthetic vision software
may not be used for piloting an aircraft, either remotely or with the pilot
onboard. And yet, it was used for remotely piloting the X-38. [Appendix NB20]
From Appendix NB21:
On December 13th, 2001,
Astronaut Ken Ham successfully flew the X-38 from a remote cockpit using
LandForm VisualFlight as his primary situation awareness display in a flight
test at Edwards Air Force Base,
Did NASA really trust the safety of an expensive test
vehicle (X-38) to a synthetic vision system using Microsoft Windows?
To end this section, note that in 5
U.S.C.§552(f):
(f) For purposes of this
section, the term—
(1) “agency” as defined
in section 551 (1) of this title includes any executive department, military
department, Government corporation, Government controlled corporation, or other
establishment in the executive branch of the Government (including the Executive
Office of the President), or any independent regulatory agency; and
(2) “record” and any
other term used in this section in reference to information includes—
(A) any information that
would be an agency record subject to the requirements of this section when
maintained by an agency in any format, including an electronic format; and
(B) any information
described under subparagraph (A) that is maintained for an agency by an entity
under Government contract, for the purposes of records management.
Under this definition, neither Margolin nor Optima
Technology Group (the owner of Claim I-222) is an “agency.” It also means that
NASA is required to provide the records between NASA and Rapid Imaging Software
(Mike Abernathy) which provided the synthetic vision system for the X-38 project
which was referred to in the Borda letter.
3.
The basis for NASA’s rejection of Claim I-222 in the Borda letter is that
the X-38 project did not implement one of the elements in the patent claims.
said computer is,.. for determining a delay time for
communicating said flight data between said computer and said remotely piloted
aircraft, and wherein said computer adjusts the sensitivity of said set of one
or more remote flight controls based on said delay time. (emphasis added.)
To be precise, said computer does more than determine and
compensate for time delays.
Claim 1 says:
1. A system comprising:
a remotely piloted aircraft including,
a position determining system to
locate said remotely piloted aircraft's position in three dimensions; and
an orientation determining system
for determining said remotely piloted aircraft's orientation in three
dimensional space;
a communications system for
communicating flight data between a computer and said remotely piloted aircraft,
said flight data including said remotely piloted aircraft's position and
orientation, said flight data also including flight control information for
controlling said remotely piloted aircraft;
a digital database comprising terrain data;
said computer to access said
terrain data according to said remotely piloted aircraft's position and to
transform said terrain data to provide three dimensional projected image data
according to said remotely piloted aircraft's orientation;
a display for displaying said
three dimensional projected image data; and
a set of one or more remote flight controls coupled to said
computer for inputting said flight control information, wherein said computer is
also for determining a delay time for communicating said flight data between
said computer and said remotely piloted aircraft, and wherein said computer
adjusts the sensitivity of said set of one or more remote flight controls based
on said delay time.
Claim 13 says:
13. A station for flying a remotely piloted aircraft that
is real or simulated comprising:
a database comprising terrain data;
a set of remote flight controls
for inputting flight control information;
a computer having a communications unit configured to
receive status information identifying said remotely piloted aircraft's position
and orientation in three dimensional space, said computer configured to access
said terrain data according to said status information and configured to
transform said terrain data to provide three dimensional projected image data
representing said remotely piloted aircraft's environment, said computer coupled
to said set of remote flight controls and said communications unit for
transmitting said flight control information to control said remotely piloted
aircraft, said computer also to determine a delay time for communicating said
flight control information between said computer and said remotely piloted
aircraft, and said computer to adjust the sensitivity of said set of remote
flight controls based on said delay time; and
a display configured to display said three dimensional
projected image data.
Is Borda saying that NASA did not determine and compensate
for time delays in the X-38 synthetic vision flight control loop or simply that
NASA did not use a computer to do so? If they did not use a computer, what did
they use?
NASA is well aware of the problems caused by failing to
compensate for time delays in flight control systems.
When a UAV is manually flown by a remote pilot, failure to
compensate for delays in the communications link will lead to
Pilot-Induced-Oscillation, which frequently leads to the loss of the
aircraft.
This is a potential problem in Flight Control Systems even
in aircraft with the pilot onboard.
The article Fly-By-Wire - A Primer for Aviation
Accident Investigators (Air Line Pilot, February 2000, page 18 By F/O
Steve Stowe (Delta), Local Air Safety Chairman, Delta Council 16) gives a basic
explanation of the Control Systems Engineering analysis of the problem. From Appendix NA87:
Now for the bad news.
While FBW technology could make an aerodynamically unstable aircraft flyable, it
can also destabilize an otherwise stable airframe.
FBW flight control laws
may not be stable for all values of gain or phase angle (the difference between
pilot input and airplane response in terms of frequency; exactly opposite would
be a 180-degree phase angle) that can be applied. Now costarring with static
margin as stability factors are "gain margin" and "phase margin"--measures of
how much additional gain or phase-angle lag are available until the system
becomes unstable. Computer simulation or flight testing can determine these two
margins. But these data are often the manufacturer's proprietary information, so
don't look for it on your weight-and-balance sheet.
Highly augmented
aircraft, in which fly-by-wire transforms the basic aircraft aerodynamics, can
exhibit cliff-like handling qualities.
“One reason is that fly-by-wire systems are susceptible to time delay, from a
number of causes, which can seriously degrade the pilot's ability to control the
aircraft. Time delay may vary for different sizes or frequencies of inputs.
U.S. military standards suggest that time delays should be less than one tenth
of a second for good handling qualities and that loss of control may occur with
delays more than one quarter of a second (MIL STD 1797).”
(emphasis added)
Fly-By-Wire” means the
aircraft surfaces are controlled through a computer instead of being controlled
directly by the pilot.
From the same article [Appendix NA92]:
* Time delay--Delay from pilot input to FBW aircraft
response. Caused by many factors including the effect of filters, computer
processing time, task time-sharing by computers and signal processors, "higher
order" effects of the feedback control system, digital sampling effects, and/or
actuator rate limiting. Time delays of more than 0.25
second can cause enough lag to make the FBW aircraft unstable during certain
tasks, especially in "high gain" situations.
(emphasis added)
There was a problem with Pilot-Induced-Oscillation during
the development of the Space Shuttle. The following is from NASA Technical
Memorandum NASA-TM-81366 ANALYSIS OF A LONGITUDINAL
PILOT-INDUCED OSCILLATION EXPERIENCED ON THE APPROACH AND LANDING TEST OF THE
SPACE SHUTTLE , Author: J. W. Smith, December 1981.
From the Introduction (Appendix NA96):
During the final free
flight (FF-5) of the shuttle's approach and landing test (ALT) phase, the
vehicle underwent pilot-induced oscillations (PIO's) near touchdown (refs. 1 to
3). The oscillations were present in both the pitch and roll axes and were
initiated when the pilot made pitch controller inputs in an effort to control
sink rate by changing pitch attitude. Because the control inputs were large and
fairly rapid, the elevons rate limited in the pitch axis at the maximum priority
rate limit set in the computers. The elevon rate limit also limits the vehicle's
roll control capability, and this was partially responsible for the lateral
control problem.
Several unpublished studies indicate that time delays as
well as priority rate limiting were a significant factor in the PIO's. A
simulator study of the effect of time delays on shuttle PIO's is reported in
reference 4.
This report describes
the combined effect of pilot input rate limiting and time delays. Frequency
responses are predicted for various parameters under rate saturated conditions
by using nonlinear analysis.
(emphasis added)
Note that the above references were for Flight Control
Systems for aircraft with the pilot onboard. When an aircraft is flown manually
through a communications link, the delays caused by the communications link
become part of the flight control system.
From U.S. Patent 5,904,724 column 8, lines 14 – 36 [Appendix
NA142]:
Flying an RPV is further
complicated because there are additional time delays in the loop. The computer
in the remote aircraft must first determine the aircraft's position and
orientation. The additional processing for transmitting a secure signal by
encryption and/or spread spectrum techniques may create additional delays.
Transmission delay of signals between the remote aircraft and remote pilot
station is negligible for a direct path. However, if the signals are relayed
through other facilities the delay time may be appreciable, especially if an
orbiting satellite is used. There are additional delays in the remote pilot
station as the remote aircraft's position and orientation are used to transform
the data from the digital database to present the pilot with the synthesized 3D
projected view from the remote aircraft. In one embodiment, the RPV system
measures the various delays and modifies the control laws used by the computer
in the remote pilot aircraft and in the feedback provided by the computer in the
remote pilot station to the remote pilot. For example, the computer may adjust
the sensitivity of the User Flight Controls 408 according to the delay (e.g., as
the delay increases, the computer will decrease the sensitivity of the flight
controls). The system also displays the measured delay to the remote pilot.
The issue of time delay in a UAV communications link was
addressed in the literature by the Master’s Thesis Improving UAV Handling Qualities Using Time Delay
Compensation by Andrew J. Thurling (17 Sep 97-24 Feb 00, AIR FORCE INST OF
TECH WRIGHT-PATTERSONAFB OH). From Appendix NA139:
Abstract
This study investigated
control loop time delay and its effect on UAV handling qualities. Compensation
techniques to improve handling qualities in the presence of varying amounts of
time delay were developed and analyzed. One technique was selected and
successfully flight-tested on a UAV.
Flight-testing occurred
at a constant flight condition with varying levels of additional time delay
introduced into the control loop. Research pilots performed a pitch tracking
task and gave Cooper-Harper ratings and comments. Tracking errors were used as a
quantitative measure of Pilot/Display/UAV system performance.
Predictive pitch
compensation was found to significantly reduce pilot workload and improve
Cooper-Harper ratings. Using the predictive display doubled the amount of system
time delay that research pilots could tolerate while tracking the task bars.
Overall system tracking performance, however, was not improved.
Parameter variations of
+/- 20% in the aerodynamic model used to generate the predictive display
produced statistically significant, although not operationally significant,
changes in both pilot opinion and performance.
Analysis of flight test
data and follow-on simulations resulted in predictor improvements that increased
predictor accuracy to the point of restoring system tracking performance to
equal that of the system with no additional time delay.
From Appendix NA140:
Preface
The effects of control
system time delays on manned aircraft handling qualities are well understood.
Unmanned aircraft have similar control, system delay, but have an additional
latency caused by the datalink of the human operator's commands from control
station to aircraft. The purpose of this thesis is to
investigate the effects of time delay on the handling qualities of Unmanned
Aerial Vehicles (UAV) and develop compensation strategies to mitigate the
adverse effects of the delay. It is my hope that with techniques developed
and investigated in this thesis future UAV operators will be able to employ UAVs
from anywhere in the world thus increasing the flexibility of this already
versatile platform.
(emphasis added)
And from the same report (Appendix NA141):
2.3.4 Time Delay Effects
on Handling Qualities. Control difficulties during the 1977 Space
Shuttle Approach and Landing Tests and YF-17 development resulted in efforts to
investigate whether time delays associated with digital flight computers might
be a contributing factor to the handling qualities problems. As discussed above,
delays in flight control systems may come from a variety of sources. The effects
of phase lag due to higher order effects, or analog time delay, had been studied
(15) and were relatively well understood. A detailed study of the effects of
pure delay, transport delay due to digital systems, had yet to be accomplished.
In 1978 a NASA study employed an F-8 fighter aircraft modified with a digital
flight control system to accomplish a detailed study of the effects of pure time
delays on aircraft handling qualities (7, 4, 6). In 1979, Hodgkinson and others
(29) conducted a study on the USAF/Calspan NT-33 inflight simulator in which
they tested how mismatches between the higher order system and the LOES affected
pilot opinion. They also investigated how well the delay term, e-ST, in the LOES approximated the higher order phase
lags and if the difference caused variations in pilot opinion. Both studies
showed a strong correlation between pilot rating and the magnitude of the time
delay, see Figures 2.8 and 2.10. The NT-33 data also showed that the degradation
in pilot rating was similar for both digital transport delay and analog delay,
or delay due to phase lag from higher order effects. The
insidious nature of time delay's effects on handling qualities is demonstrated
in a pilot comment during the F-8 research (7)
Pilots desire some
response immediately upon stick input. It doesn't have to be much, but if he
doesn't get response, his gains skyrocket.
The pilots in the NT-33
study also voiced similar concerns with delay after control inputs and the
rapidity of the response following the delay. The authors of the F8 study (7)
make a further observation that aircraft dynamics have an impact on system
sensitivity to time delay.
(emphasis added)
So, is Borda saying that NASA did not determine and
compensate for time delays in the X-38 synthetic vision flight control loop or
simply that NASA did not use a computer to do so?
Which is it, because when a UAV is manually flown by a
remote pilot, failure to compensate for delays in the communications link will
lead to Pilot-Induced-Oscillation, which frequently leads to the loss of the
aircraft.
Did NASA risk the X-38 by failing to provide compensation
for the time delays in the synthetic vision flight control loop?
Conclusion
In its very tardy response to FOIA Request 08-270 by Jed
Margolin (“Margolin”) NASA withheld documents, citing 5 U.S.C.§552(b)(5).
One of the
documents that NASA withheld from Margolin is a letter dated March 19, 2009 that
was sent by Gary G. Borda (“Borda”) NASA Agency Counsel for
Intellectual Property to Optima Technology Group (“OTG”). (This document was
given to Margolin by OTG.) In this letter Borda denies Claim I-222 regarding
NASA’s infringement of U.S. Patent 5,904,724 (‘724) in the X-38 project.
Margolin’s FOIA 08-270 request to NASA was to produce
documents relating to Claim I-222 and NASA withheld the most material document so far.
The Borda letter asserts:
“… numerous pieces of
evidence were uncovered which would constitute anticipatory prior knowledge and
prior art that was never considered by the U.S. Patent and Trademark Office
during the prosecution of the application which matured into Patent No.
5,904,724.”
And states, “… NASA reserves the right to introduce
such evidence of invalidity in an appropriate venue, should the same become
necessary.”
Circulating the patent report solely within NASA or among
other federal agencies is not an appropriate venue for NASA to use to have a
patent declared invalid. The only appropriate venues for NASA to challenge the
validity of a U.S. Patent are in the U.S. Court of Federal Claims and the Court
of Appeals for the Federal Circuit.
Therefore, the exemption under 5 U.S.C.§552(b)(5)
does not apply.
Margolin requests NASA produce the evidence that Borda
refers to when he asserted:
“… numerous pieces of
evidence were uncovered which would constitute anticipatory prior knowledge and
prior art that was never considered by the U.S. Patent and Trademark Office
during the prosecution of the application which matured into Patent No.
5,904,724.”
Margolin also requests that NASA show how such materials
and/or documents are directed to the ‘724 claims.
And, finally, under 5 U.S.C.§552(f) NASA is required to provide the records
between NASA and Rapid Imaging Software (Mike Abernathy) which provided the
synthetic vision system for the X-38 project which was referred to in the Borda
letter.
Respectfully,
/Jed Margolin/
Jed Margolin
1981 Empire Rd.
775-847-7845