Case
No. 3:09-CV-00421-LRH-VPC
NASA’s ANSWER TO SECOND AMENDED COMPLAINT
Matched to Margolin’s Second Amended Complaint
Quick Links
Paragraph 1 Paragraph 2 Paragraph 3 Paragraph 4 Paragraph 5 Paragraph 6
Paragraph 7 Paragraph 8 Paragraph 9 Paragraph 10 Paragraph 11 Paragraph 12
Paragraph 13 Paragraph 14 Paragraph 15 Paragraph 16 Paragraph 17 Paragraph 18
Paragraph 19 Paragraph 20 Paragraph 21 Paragraph 22 Paragraph 23 Paragraph 24
Paragraph 25 Paragraph 26 Paragraph 27 Paragraph 28 Paragraph 29 Paragraph 30
Paragraph 31 Paragraph 32 Paragraph 33 Paragraph 34 Paragraph 35 Paragraph 36
Paragraph 37 Paragraph 38 Paragraph 39 Paragraph 40 Paragraph 41
Defendant’s Prayer For Judgment
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1. This paragraph contains Plaintiff's characterization of this lawsuit — not allegations of fact — and thus no response is required. To the extent a response is required, Defendant admits that this matter purports to be an action for injunctive and other relief brought pursuant to the Freedom of Information Act ("FOIA"). Defendant denies the remaining allegations of this paragraph. |
Margolin 1. This is an action under the Freedom of Information Act, 5 U.S.C. § 552 (2007) (“FOIA”), for injunctive and other appropriate relief seeking the disclosure and release of agency records improperly withheld from plaintiff by defendants Charles F. Bolden, in his official capacity as Administrator of the National Aeronautics and Space Administration, and the National Aeronautics and Space Administration. |
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2. This paragraph contains Plaintiff's conclusions of law regarding the scope and extent of the Court's jurisdiction, to which no response is required. To the extent a response is required, Defendant admits that this Court has jurisdiction over this action. |
Margolin 2. This Court has subject matter jurisdiction over this action and personal jurisdiction over the parties pursuant to 5 U.S.C. § 552(a)(2)(A), 5 U.S.C. § 552(a)(2)(C), 5 U.S.C. § 552(a)(3)(A), 5 U.S.C. § 552(a)(3)(C) , 5 U.S.C. § 552(a)(6)(A)(ii), and 5 U.S.C. § 552(a)(6)(F). |
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3. This paragraph contains Plaintiff's conclusions of law regarding the appropriate venue for this action, to which no response is required. To the extent a response is required, Defendant admits that venue is proper in this Court. |
Margolin 3. Venue is proper in this district pursuant to Section 552(a)(4)(B), as this is the district in which plaintiff resides. |
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4.
Defendant admits that Plaintiff lives at 1981 Empire Rd., VC Highlands, |
Margolin 4.
Plaintiff Jed Margolin (“Margolin”) is an engineer
and independent inventor who resides at 1981 Empire Rd., VC Highlands, |
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5. Defendant admits the allegations contained in this paragraph. |
Margolin 5.
Defendant National Aeronautics and Space Administration (“NASA”) is an
independent administrative agency within the Executive Branch of the |
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6. Defendant admits the allegations contained in the first sentence of this paragraph. |
Margolin 6. Margolin is the named inventor on U.S. Patent 5,566,073 (‘073) Pilot aid using a synthetic environment and U.S. Patent 5,904,724 (‘724) Method and apparatus for remotely piloting an aircraft . |
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Defendant lacks sufficient knowledge and information to form a belief as to the truth of the allegations contained in the second and third sentences of this paragraph and, on that basis, denies those allegations. |
The ‘073 patent teaches the use of what is now called synthetic vision in manned aircraft. The ‘724 patent teaches the use of synthetic vision for controlling unmanned aerial vehicles (UAVs). |
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The allegations contained in the fourth and fifth sentences of this paragraph purport to characterize documents attached to Plaintiff’s second amended complaint. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required. |
The front page of the ‘073 patent is Exhibit 2 at Appendix Volume 1 A20. The front page of the ‘724 patent is Exhibit 1 at Appendix Volume 1 A15. |
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7. Defendant admits that Plaintiff contacted NASA Langley Research Center in May 2003. |
Margolin 7. Margolin contacted NASA in May 2003 after he became aware that they had used synthetic vision in the X-38 project. |
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph and, on that basis, denies those allegations. |
Because the use of synthetic vision for controlling a UAV can be used to the detriment of this country by unfriendly entities he wanted a friendly conversation because he thought NASA should buy the ‘724 patent in order to control the technology. |
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8. Defendant admits that patent counsel at NASA Langley Research Center ordered the United States Patent and Trademark Office prosecution histories for U.S. Patent Nos. 5,566,073 and 5,904,724.
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Margolin
8. NASA immediately ordered copies of the file wrappers for U.S. Patent 5,566,073 and U.S. Patent 5,904,724.
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Defendant admits that the prosecution histories were ordered May 16, 2003. |
See Exhibit 3 at Appendix Volume 1 A22.
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph and, on that basis, denies those allegations.
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Only a small portion of the file wrappers has been included in the present Appendix. |
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9. Defendant admits that Plaintiff was referred to the NASA Headquarters Office of General Counsel in June 2003 and spoke to Alan Kennedy. |
Margolin
9. In June 2003 Margolin was turned over to Mr. Alan Kennedy (“Kennedy”) in the Office of the General Counsel.
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Defendant admits that Mr. Kennedy is no longer employed with NASA. |
??? |
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph and, on that basis, denies those allegations. |
This is what Margolin recorded in his Contact Log:
Summary: He basically said that what most independent inventors have is junk and that since I am an independent inventor what I have is probably junk. If NASA evaluates it as a license proffer it will give it a pro forma rejection and I will file a claim anyway, so the same people who rejected it as a proffer will reject it as a claim, but in the process will have had to do more work, so to save them some work they will ignore the proffer and handle it as a claim.
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10. Defendant admits that Plaintiff submitted information supporting an administrative claim for patent infringement to the NASA Headquarters Office of General Counsel in a letter dated June 17, 2003. The remaining allegations contained in the first sentence of this paragraph purport to characterize the contents of that letter. That letter speaks for itself and contains the best evidence of its contents and thus no response is required. |
Margolin 10. As a result, in June 2003 Margolin filed a claim, completely answering all the questions on NASA’s claim form. See Exhibit 1 at Appendix Volume 1 A5.
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph and, on that basis, denies those allegations. |
Then Kennedy informed him that NASA would conduct an investigation (expected to last 3-6 months) and that the purpose of the investigation would be to find prior art to invalidate the patent. |
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11. Defendant admits that Plaintiff did not receive a determination on his administrative claim for patent infringement by December 2003.
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Margolin 11. After six months Margolin did not hear from NASA so he called Kennedy, who said: |
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations regarding Mr. Kennedy’s purported comments to Plaintiff as set forth in sections a. through e. of this paragraph and, on that basis, denies those allegations. |
a. The investigation had not been done.
b. NASA had a Research Exemption for using the patent. Margolin advised him this was not true. See Madey v. Duke 307 F.3d 1351 (Fed. Cir. 2002).
c. "The X-38 never flew." Margolin informed him of the video on NASA's web site showing the X-38 flying.
d. The Statute of Limitations gives NASA 6 years to respond to Margolin’s claim.
e. It would cost Margolin more to sue NASA in Federal Claims Court than he could hope to recover from NASA. |
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Defendant admits that Plaintiff sent a letter dated January 8, 2004 addressed to Mr. Kennedy. The allegations contained in this paragraph purport to characterize the contents of that letter. That letter speaks for itself and contains the best evidence of its contents and thus no response is required. Defendant admits that no response to Plaintiff's January, 8, 2004 letter was sent and thus Plaintiff received no response thereto. |
Margolin sent Kennedy a letter dated January 8, 2004, asking him to confirm some of the things he had said. See Exhibit 4 at Appendix Volume 1 A33. Margolin received no response to his letter. |
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12. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained in this paragraph and, on that basis, denies those allegations. Defendant admits that it has no record that Plaintiff contacted Defendant regarding the status of his administrative claim for patent infringement after January 8, 2004. Defendant admits that it has no record of any contact by Plaintiff between January 8, 2004 and June 28, 2008 — the date Plaintiff filed his FOIA request. |
Margolin 12. After that, Kennedy refused to talk to Margolin or respond to his letter. Then, various things came up and Margolin was unable to pursue his claim against NASA. |
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13. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained in this paragraph and, on that basis, denies those allegations. Defendant admits that due to deficiencies in the United States Patent Office records relating to the alleged assignment of U.S. Patent Nos. 5,566,073 and 5,904,724, Defendant has been unable to definitively determine the current ownership of these patents. Defendant admits that it received notification from Optima Technology Group (“OTG”) dated July 14, 2008 alleging that the patents had been assigned to OTG. Defendant further admits that OTG claimed that the patents were assigned in July 2004 — four years before the date notice was received by NASA. |
Margolin 13. Margolin later assigned the patents to Optima Technology Group and the claim against NASA went with them. |
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14. Defendant admits that Plaintiff submitted a request for records under FOIA on June 28, 2008. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in the first sentence of this paragraph and, on that basis, denies those allegations. |
Margolin 14. Although Margolin no longer owned the claim against NASA he still wanted to know the results of NASA’s investigation so, on June 28, 2008 he filed a FOIA request. See Exhibit 5 at Appendix Volume 1 A35.
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Defendant admits that the FOIA matter was assigned FOIA HQ 08-270.
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It was assigned FOIA HQ 08-270. |
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Defendant admits that Jan McNutt, who worked in the NASA Headquarters Office of General Counsel, was assigned to conduct a search for records responsive to Plaintiff's FOIA request.
Defendant admits that Mr. McNutt sent Plaintiff a letter dated August 5, 2008. The allegations in this paragraph purport to characterize the contents of that letter. That letter speaks for itself and contains the best evidence of its contents and thus no response is required.
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For some reason it was turned over to Mr. Jan McNutt (“McNutt”) in the Office of the General Counsel. McNutt’s response, dated August 5, 2008, is Exhibit 6 at Appendix Volume 1 A37. In his response he said,
We regret the delay in processing your claim and assure you that we are now undertaking measures to provide a resolution of your claim as soon as possible. Unfortunately. Mr. Alan Kennedy retired from NASA earlier this year and the action on your claim was not conveyed to management in a timely manner. In addition the local attorney responsible for review of your claim also departed from NASA. We are now cognizant of the importance of proceeding with a review of the claim and will contact you when we have reached a decision.
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Defendant lacks sufficient knowledge and information to form a belief as to the truth of the allegations contained at lines 15-18 of this paragraph and, on that basis, denies those allegations. |
In a telephone conversation with McNutt he said that Margolin’s claim “had fallen between the cracks.” This led Margolin to believe that no investigation had been done, or that it had not been completed (“We are now cognizant of the importance of proceeding with a review of the claim and will contact you when we have reached a decision.”). |
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Defendant admits that Mr. McNutt is no longer employed with NASA. |
??? |
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Defendant admits the allegation contained in the last sentence of this paragraph. |
In McNutt’s letter he asked Margolin to give NASA a 90-day extension to his FOIA request. |
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15. Defendant admits the allegations contained in the first sentence of this paragraph. |
Margolin 15. On August 8, 2008 Margolin agreed to the extension. See Exhibit 7 at Appendix Volume 1 A39. |
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Defendant lacks sufficient knowledge and information to form a belief as to the truth of the remaining allegations contained this paragraph and, on that basis, denies those allegations. |
However, despite being told several times that the requested documents were being sent out, NASA did not send any documents to Margolin until May 2009. It is likely that the reason NASA finally responded to Margolin’s FOIA Request is the fax he sent to Acting Administrator Christopher Scolese where he asked Mr. Scolese to confirm that he had exhausted all the administrative remedies that NASA had to offer. See Exhibit 8 at Appendix Volume 1 A41. Margolin had previously sent the letter to Mr. Scolese by Certified Mail, but USPS did not deliver it and had no explanation how or where it was lost. |
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16. Defendant admits that it withheld documents, citing FOIA Exemption (b)(5), in its initial response to Plaintiff’s request for records under the FOIA. |
Margolin
16. In its very tardy response to Margolin’s FOIA Request, NASA withheld documents, citing 5 U.S.C.§552(b)(5). See Exhibit 9 at Appendix Volume 1 A45.
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Defendant admits that its first response to Defendant's request for records under the FOIA did not include the referenced March 19, 2009 letter from Gary Borda of the NASA Headquarters Office of General Counsel.
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a. One of the documents that NASA withheld from him 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. See Exhibit 10 at Appendix Volume 1 A48. Margolin’s FOIA 08-270 request to NASA was to produce documents relating to Claim I-222 and NASA withheld the most material document at that point.
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Defendant admits that the March 19, 2009 letter from Mr. Borda is the final agency action on the administrative claim for patent infringement of U.S. Patent No. 5,904,724 originally filed by Plaintiff.
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The Borda Letter denied the claim based on a detailed claims analysis of ‘724 as applied to the X-38 project. |
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained in the sentence at page 6, line 10 of this paragraph regarding Plaintiff's allegation that he received the letter from OTG and, on that basis, denies the allegation.
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[again: page 6, line 10] (This document was given to Margolin by OTG.)
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The allegations contained in the sentence at page 6, lines 10-12,
and in the sentences at page 6, line16, through page 7, line 2, purport to characterize the contents of the March 19, 2009 letter. That letter speaks for itself and contains the best evidence of its contents and thus no response is required.
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[again: page 6,
lines 10-12] 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. See Exhibit 10 at Appendix Volume 1 A48.
The Borda Letter denied the claim based on a detailed claims analysis of ‘724 as applied to the X-38 project. It also made the assertion: “… 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 threatens, “… NASA reserves the right to introduce such evidence of invalidity in an appropriate venue, should the same become necessary.” However, the Borda Letter did not provide a detailed claims analysis of ‘724 against the purported prior art. It did not even list the purported prior art.
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Defendant denies the allegations contained at page 6, lines 12-14 of this paragraph.
Defendant admits that the NASA Headquarters Office of General Counsel belatedly conducted the initial search of its files on Plaintiff's administrative claim in January 2009 and provided responsive documents to the NASA HQ FOIA office on January 22, 2009.
Defendant admits that Plaintiff was advised on January 23, 2009 during a telephone call with Kellie Robinson, of the NASA Headquarters FOIA Office, that the FOIA Office had received the responsive documents resulting from the initial search for processing on January 22, 2009.
Defendant admits that Mr. Borda's March 19, 2009 letter was created after the initial search was conducted and was therefore not within the scope of Plaintiff's FOIA request.
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[again: page 6,
lines 12-14] Margolin’s FOIA 08-270 request to NASA was to produce documents relating to Claim I-222 and NASA withheld the most material document at that point. |
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Defendant denies the allegations contained at page 7, lines 4-5 of this paragraph and denies that any document that could constitute a “Borda Patent Report” was ever prepared, much less withheld.
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It also made the assertion:
“... 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 threatens, “... NASA reserves the right to introduce such evidence of invalidity in an appropriate venue, should the same become necessary.”
However, the Borda Letter did not provide a detailed claims analysis of ‘724 against the purported prior art. It did not even list the purported prior art.
[page 7, lines 4-5]: NASA later claimed an exemption for the Borda Patent Report under Deliberative Process, Attorney Work Product, or Attorney-Client exemptions of 5 U.S.C. § 552(b)(5).
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The allegations contained at page 7, line 7, through page 8, line 7, constitute legal conclusions to which no response is required.
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However, documents that are subject to Discovery in a court action are not exempt. A good explanation can be found in Martin v. Office of Special Counsel Merit Systems Protection Board, 819 F.2d 1181, 260 U.S.App.D.C. 382. (U.S. App. D.C., 1987) From ¶11:
FOIA Exemption (b)(5) protects from disclosure those
"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." 5 U.S.C. Sec. 552(b)(5) (1982). Though the Supreme Court has
noted that this language "clearly contemplates that the public is
entitled to all such memoranda or letters that a private party could discover
in litigation with the agency," Mink, 410 U.S. at 86, 93 S.Ct. at 835, the exact relationship between ordinary
civil discovery and Exemption (b)(5), particularly the application of
discovery privileges under the exemption, has bedeviled the courts since the
Act's inception.
(Emphasis added)
Therefore, if a document is “normally” or “routinely” available through Discovery, it is not exempt from production under 5 U.S.C. Sec. 552(b)(5).
Even so, NASA’s threatened use of the Borda Patent Report would not even require Discovery.
The only appropriate venues for NASA to challenge the validity of a U.S. Patent are the U.S. Court of Federal Claims, the U.S. Court of Appeals for the Federal Circuit, and the USPTO. The Courts and the USPTO will not accept NASA’s word that a patent is invalid due to prior art. NASA would be required to produce the evidence. Because NASA’s threatened use of the Borda Patent Report requires that it be made public, it is not subject to the Deliberative Process, Attorney Work Product, or Attorney-Client exemptions of 5 U.S.C. § 552(b)(5). Therefore, the exemption NASA claims under 5 U.S.C.§552(b)(5) does not apply.
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained at page 8, lines 9-10 of this paragraph and, on that basis, denies those allegations. |
b. Margolin already had most of the documents NASA sent him because they were documents he had sent to NASA. |
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Defendant admits that it did not provide an estimate of volume of withheld documents in its initial response to Plaintiff's FOIA request, as alleged at page 8, lines 12-13 of this paragraph.
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c. Although 5 U.S.C. § 552(a)(6)(F) requires agencies to give an estimate of the volume of the documents being withheld, NASA failed to do so.
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17. Defendant admits the allegations contained in this paragraph.
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Margolin
17. Margolin filed a FOIA Appeal on June 10, 2009. See Exhibit 11 at Appendix Volume 1 A54. The Appendices in the appeal have been omitted due to their length. Margolin’s FOIA Appeal was received at NASA Headquarters on June 12, 2009. See Exhibit 12 at Appendix Volume 1 A75.
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18. Defendant admits that Plaintiff spoke to Randolph Harris of the NASA Headquarters Office of General Counsel on July 21, 2009 and on July 22, 2009.
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Margolin
18. On Monday, July 21, 2009, Margolin called the NASA Office of the General Counsel to inform NASA that they had failed to respond by the 20 day statutory deadline required by 5 U.S.C. § 552(a)(6)(A)(ii), and to ask what NASA’s intentions were.
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Defendant admits that Mr. Harris lacked personal knowledge regarding the manner and timing of NASA’s response to Plaintiff's FOIA appeal. |
He spoke to Mr. Randolph Harris who said he would look into the matter and call him back later that day. Mr. Harris did not call him back that day, so the next day he called Mr. Harris. Mr. Harris said that NASA would be sending Margolin a bunch of documents but he did not know what the documents were or when they would be sent. He guessed seven days.
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Defendant admits that Mr. Harris declined to accept service on behalf of Defendant by USPS Express Mail. |
Margolin also asked whether NASA would waive legal service and accept a Complaint by USPS Express Mail. Mr. Harris said, “No.” Only Certified mail. After Margolin told him about the problem when he had sent NASA the letter of April 6, 2009 to Acting Administrator Scolese (USPS never delivered it) Mr. Harris still said, “No.”
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Defendant admits that Plaintiff e-mailed Mr. Harris a letter on July 21, 2009. The allegations contained in this paragraph purport to characterize the contents of that letter. That letter speaks for itself and contains the best evidence of its contents and thus no response is required.
Defendant lacks sufficient knowledge and information to form a belief as to the truth of the remaining allegations contained in this paragraph and, on that basis, denies those allegations.
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Margolin emailed Mr. Harris a letter asking him to confirm what he had said in the telephone conversation. See Exhibit 13 at Appendix Volume 1 A77. |
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19. Defendant admits that Mr. Harris did not reply to Plaintiff's July 21, 2009 letter.
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Margolin
19. Margolin did not receive a reply from Mr. Harris.
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Defendant admits that Mr. McNutt sent Plaintiff an e-mail asking for a 20-day extension of time in which to respond to Plaintiff's FOIA appeal. That e-mail speaks for itself and is the best evidence of its contents. |
Instead he received an email from Mr. Jan McNutt, who asked for a 20-day extension for NASA to respond to Margolin’s FOIA Appeal. See Exhibit 14 at Appendix Volume 1 A79.
Whereas Mr. Harris had promised him NASA would be sending more documents, McNutt did not.
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Defendant admits that, in a July 24, 2009 e-mail to Mr. McNutt, Plaintiff declined to provide the requested extension of time. That e-mail speaks for itself and is the best evidence of its contents.
Defendant denies that NASA acted in bad faith or took improper advantage of any courtesies Plaintiff may have extended.
Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph and, on that basis, denies those allegations. |
Since NASA had been acting in bad faith toward Margolin for over six years and McNutt had already taken improper advantage of the number of courtesies he had extended to him regarding McNutt’s actions in the FOIA request, Margolin said “No” to McNutt’s request for an extension. See Exhibit 15 at Appendix Volume 1 A81.
NASA had failed to respond to Margolin’s FOIA Appeal (or ask for an extension) within the 20 day statutory period required by FOIA, and there was no reason to believe NASA had changed course and was suddenly going to start acting in good faith.
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20. Defendant admits the allegations contained in this paragraph.
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Margolin
20. Margolin filed a FOIA lawsuit against NASA on July 31, 2009 in U.S. District Court for the District of Nevada, case No. 3:09-cv-00421-LRH-VPC. |
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21. Defendant admits that it denied Plaintiff's FOIA appeal in a letter dated August 5, 2009. The allegations contained in this paragraph purport to characterize the contents of the August 5, 2009 letter. That letter speaks for itself and contains the best evidence of its contents and thus no response is required.
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Margolin
21. After Margolin filed the Court action NASA sent him their Denial of his FOIA Appeal. See Exhibit 16 at Appendix Volume 1 A84 .
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Defendant lacks knowledge and information sufficient to form a belief as to the remaining allegations contained in this paragraph and, on that basis, denies those allegations.
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On August 10, 2009 Margolin received NASA’s Denial of his Appeal. The letter was from Thomas S. Luedtke, Associate Administrator for Institutions and Management. It was dated August 5 (four days after Margolin’s Complaint appeared on Pacer and two days after he served the U.S. Attorney) and postmarked August 6, which was the same day the Post Office delivered the Summons and Complaint to NASA.
NASA denied Margolin’s FOIA Appeal and produced no additional documents, only more reasons to withhold them. NASA admitted to withholding 100 pages of documents.
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22. Defendant admits that it sent documents comprising a supplemental response to Plaintiff's June 2008 FOIA request in two boxes in November 2009 with a cover letter from Stephen L. McConnell, NASA FOIA Officer.
Defendant admits that, upon further review of Defendant's FOIA request as a result of the instant litigation, Defendant determined that it would not be unreasonable to expand its search to include documents and electronic records at NASA Field Centers even though Plaintiff submitted his June 2008 FOIA request only to NASA Headquarters.
Defendant admits that Plaintiff did not submit a FOIA request to any NASA Field Office seeking documents relating to the review of his administrative claim for infringement.
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Margolin
22. On November 16, 2009 Margolin received two boxes of documents from Stephen L. McConnell (“McConnell”), NASA Freedom of Information Act Officer. See Exhibit 17 at Appendix Volume 2 A4. The cover letter is Exhibit 18 at Appendix Volume 2 A6. |
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Defendant admits that the cover letter stated that the supplemental response included approximately 4,000 pages of documents. Defendant admits that 4,000 is a number greater than 100. |
According to NASA there are about 4,000 pages of documents, which is a great deal more than the 100 pages they admitted to withholding in their Denial of FOIA Appeal.
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Defendant admits that it did not provide an index of the documents included in the supplemental response to Plaintiff’s 2008 FOIA request and that it had no duty to do so.
Defendant admits that there are duplicates of documents included in the supplemental response to Plaintiff’s 2008 FOIA request.
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They are not in any particular order. There is no index. There are many duplicates. Although the pages are numbered the numbers are frequently illegible. There are gaps in the numbers indicating that sections were entirely withheld, usually in the most interesting parts. Is NASA really this disorganized? |
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Defendant admits that certain documents were withheld from the supplemental response to Plaintiff’s 2008 FOIA request under FOIA Exemptions (b)3, (b)(4), (b)(5) and (b)(6).
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The pages run from 00017 to 05605 indicating that around 1600 pages were entirely withheld. Many of the emails are redacted. Sometimes the entire body of the email is redacted under §552 (b)(5) which McConnell characterizes as:
(b)(5) – which protects inter-agency documents generated which "are predecisional and/or deliberative in nature" and information protected as attorney work product; and .....
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in this paragraph and, on that basis, denies those allegations.
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That is what this entire case is about. However, by providing the documents (such as they are) it may mean NASA does not have to provide a Vaughn Index or provide them to the Court for in-camera inspection or have the Court appoint a Special Master to review them. This places the entire burden on Margolin. The documents are too voluminous to file in their entirety in this Court action. The most relevant parts are reproduced in Appendix Volume 2 and Appendix Volume 3.
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23. Defendant denies the allegations contained at page 11, lines 11-14 of this paragraph. |
Margolin 23. The approximately 4,000 pages of documents Margolin received from NASA on November 16, 2009 tell a very different, and very disturbing, story of the period of time from when he contacted NASA in May 2003 about their infringement of ‘724 to when they finally responded to his FOIA request in May 2009.
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Defendant admits that it has not provided any patent infringement analysis prepared by Mr. Frank Delgado to Plaintiff. Defendant admits that such pre-decisional information prepared at the request of Agency counsel was appropriately withheld under FOIA Exemption (b)(5). Defendant denies the allegations contained at page 11, lines 16-26, through page 12, lines 1-13, of this paragraph.
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They show: a. The synthetic vision software for the X-38 project had been done by Mike Abernathy (“Abernathy”) of Rapid Imaging Software, working with NASA’s Frank Delgado (“Delgado”) (JSC-NASA). Delgado was brought onboard NASA’s claim investigation in early 2004. Abernathy was brought onboard a few months later and has been heavily involved ever since. Delgado said the X-38 project did not infringe the ‘724 patent but his analysis has not been provided. Abernathy provided a few references that he said were prior art that would invalidate ‘073 and ‘724. However, a true analysis report requires showing how the patent claim elements are present in the purported prior art. Abernathy failed to do that. A list of references without such a detailed analysis is worthless. Both Delgado and Abernathy are incensed that the ‘073 and ‘724 patents were even issued and argue that NASA should file a Request For Re-Examination with the Patent Office. Both Delgado and Abernathy display a profound ignorance of patents and the patent system. There is no evidence that NASA’s attorneys (some of whom are patent attorneys) made any attempt to educate them. NASA appears to have accepted the Delgado and Abernathy reports uncritically, and in July, 2004, decided to deny Margolin’s claim.
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Defendant denies the allegations in the first sentence of subsection b. of this paragraph and admits that a final agency determination was made on the administrative claim for infringement originally filed by Plaintiff on March 19, 2009 — the date that Mr. Borda, as the deciding official, issued his letter. The allegations contained in the second sentence of subsection b. of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, the allegations contained in the second sentence of subsection b. of this paragraph are denied.
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b. NASA decided in July 2004 to deny Margolin’s Claim, relying heavily on information supplied by Abernathy. All of the documents dated after that are post-decisional. Therefore, they are not exempt under 5 U.S.C.§552(b)(5)
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Defendant denies the allegations contained in subsection c. of this paragraph.
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c. In September 2004 NASA approved a plan to file a Request for Re-Examination with the Patent Office because: It seems clear that the technical folks have determined that the Margolin patent on Synthetic Vision creates a substantial problem for many of our partners in the aviation safety industry for a variety of reasons. For reasons that are not given, the Request for Re-Examination was not filed.
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Defendant admits that it appropriately engaged in communications with Michael Abernathy, as Defendant's contractor, regarding the allegations of infringement initiated by Plaintiff. Defendant admits that certain communications between Defendant and Mr. Abernathy contained in the supplemental response to Plaintiff's 2008 FOIA request were redacted. Defendant admits that its employees conducted a telephone conference that included Mr. Abernathy. Defendant denies the remaining allegations contained in subsection d. of this paragraph.
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d. In September 2006 the issue heated up again when Robert Adams of Optima Technology asked Abernathy to license the Patents. There was considerable communications between Abernathy and NASA on the subject even though much of it has been redacted. There was also a conference call between Abernathy and various NASA staff members. Although Abernathy showed a profound ignorance of patents and patent law, NASA continued to accept his work uncritically. |
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The allegations contained in subsection e. of this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, Defendant denies that Mr. Abernathy is Defendant's agent.
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e. The relationship between NASA and Mike Abernathy has been so close that it is reasonable to believe Mike Abernathy has been acting as NASA’s Agent.
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24. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegation that certain individuals are “major players,” and, on that basis, denies that allegation.
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Margolin
24. The following are the major players. For a fairly complete list of the players see Exhibit 19 at Appendix Volume 2 A9.
• Alan Kennedy (Attorney, Office of the General Counsel, NASA HQ, now retired) • Barry V. Gibbens (Attorney, Langely Research Center , now deceased)
• Edward K. Fein (Intellectual Property Counsel, NASA Johnson Space Center ). • John Muratore (Program Manager, X-38/Crew Return Vehicle).
• Franciso (Frank) J. Delgado of the Engineering Directorate ( Johnson Space Center ) headed up the software project for the X-38 program.
• Mike Abernathy (Rapid Imaging Software) is the contractor who supplied the synthetic vision software for the X-38 project.
• Gary G. Borda (Office of the Associate General Counsel, Agency Lead Attorney, NASA HQ)
• Robert F. Rotella (Attorney, Office of the General Counsel, Commercial and Intellectual Property Law Practice Group)
• Dan Baize (Project Manager, Synthetic Vision, NASA Langley Research Center)
• Mark W. Homer (Patent Counsel, NASA Management Office -JPL)
• John H. Del Frate is director of the Advanced Planning and Partnerships Office at NASA's Dryden Flight Research Center.
• Kurt G. Hammerle is a patent attorney at Johnson Space Center.
• Mr. Jan McNutt (Attorney, Office of the Associate General Counsel, Commercial and Intellectual Property Law Practice Group, NASA Agency Counsel for Intellectual Property, NASA HQ)
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25. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained at page 14, lines 12-18 of this paragraph and, on that basis, denies those allegations.
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Margolin
25. The earliest email in the NASA documents starts February 13, 2004 at 10:52 AM and is part of a long complicated email thread. See Exhibit 20 at Appendix Volume 2 A13. In order to show them in a less confusing manner they have been converted to text and will be reproduced here in what appears to be the correct chronological order and without unnecessary duplication. The page numbers refer to the NASA page numbers followed by the Appendix Volume 2 page number. (When emails are part of a chain of quoted messages and they come from different time zones it can be difficult to precisely determine the proper chronological order.)
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Defendant admits that it has appropriately redacted or withheld certain documents included in the supplemental response to Plaintiff's 2008 FOIA request under Exemptions (b)3, (b)(4), (b)(5) and (b)(6) of the FOIA.
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This first email is from Edward K. Fein (Intellectual Property Counsel, NASA Johnson Space Center) to John Muratore (Program Manager, X-38/Crew Return Vehicle). Unfortunately, NASA has completely redacted the message under 5 USC, §552(b)(5) . They have completely redacted many messages under (b)(5).
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The allegations contained at page 15, line 3, through page 18, line 39, purport to characterize certain documents contained in Defendant's supplemental response to Plaintiff's 2008 FOIA. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required.
Defendant denies the remaining allegations contained at page 15, line 3, through page 18, line 39.
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[NASA emails with expository commentary by Margolin]
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained at page 19, line 1, through page 20, line 2, and, on that basis, denies those allegations. |
If Abernathy had done even a small amount of due diligence he would have discovered that there are a number of U.S. Patents for making peanut butter and jelly sandwiches. U.S. Patent 3,552,980 issued June 5, 1971 to Cooper, et al. is a good example. See Exhibit 21 at Appendix Volume 2 A22. From Column 1 line 45 - Column 2 line 23:
[Discussion
of
This patent is probative because it shows Abernathy’s ignorance of basic patent law concepts and his inability to do even a minimum amount of diligence.
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Defendant denies the allegations contained at page 20, lines 4-6 |
Yet, as later documents show, NASA relied on his work uncritically in making their decision to deny Margolin’s claim. NASA’s refusal to comply with the Freedom of Information Act is due, at least in part, to their desire to avoid embarrassment to the Agency.
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Defendant lacks sufficient knowledge and information to form a belief as to the truth of the allegations contained at page 20, lines 8-26, and, on that basis, denies those allegations.
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[More discussion of U.S. Patent 3,552,980. See Second Amended Complaint.]
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The allegations contained at page 21, line 1, through page 24, line 8, purport to characterize certain documents contained in Defendant's supplemental response to Plaintiff's 2008 FOIA request. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required.
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[NASA emails]
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Defendant denies that it made a determination with regard to Plaintiff's claim in July 2004. The remaining allegations contained at page 24, lines 11-22, constitute legal conclusions to which no response is required. |
NASA
decided to deny the claim in July, 2004. All of the documents that
came afterwards are post-decisional documents that are, therefore, not exempt
from disclosure. Traditionally, the courts have established two fundamental
requirements, both of which must be met, for the deliberative process
privilege to be invoked. See Mapother v. Dep't
of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) ("The deliberative
process privilege protects materials that are both predecisional
and deliberative." (citing Petroleum Info. Corp. v.
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained at page 24, line 24, through page 25, line 3, and, on that basis, denies those allegations. |
The statement, “There is always a chance that Margolin will file a law suit, but with all of the information you guys have turned up, I think the chance of that is small”, makes no sense because NASA never informed Margolin of “all of the information you guys turned up.” Margolin has learned of this only now, in 2009, as a result of the present lawsuit. In order for a deterrent to work, your opponent has to know of its existence. This is one of the messages of the classic 1964 Stanley Kubrick film Dr. Strangelove, or How I learned to stop worrying and love the Bomb.
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26. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained in this paragraph and, on that basis, denies those allegations. |
Margolin 26. Abernathy’s Detailed Analysis of Prior Art appears to be contained in the email from Mike Abernathy to Edward Fein dated June 28, 2004. See Exhibit 22 at Appendix Volume 2 A32. A true prior art analysis requires an actual discussion of purported prior art pointing out where the elements in the patent claim being discussed are present in the purported prior art. Abernathy has failed to do this, especially with the article that is in Dutch. See Exhibit 22 at Appendix 2 A42. |
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27. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained at page 25, lines 12-20, of this paragraph and, on that basis, denies those allegations. The allegations contained at page 25, line 21, through page 39, line 4, purport to characterize certain documents contained in Defendant's supplemental response to Plaintiff's 2008 FOIA request. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required. |
Margolin 27. Although NASA had already made the decision to deny the claim, the story is just getting started. Exhibit 23 at Appendix Volume 2 A45 contains a complicated email thread that took place on September 1, 2004. They were in the same section in the NASA files as an email where Jan McNutt introduced himself to Edward Fein after Mr. McNutt started working at NASA and the case was dumped into his lap. The September 2004 documents may have been provided to McNutt as a result of his email to Mr. Fein. The following is an attempt to present the thread in order and without unnecessary duplicates. |
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Defendant denies the remaining allegations contained at page 25, line 21, through page 39, line 4, of this paragraph. |
[NASA emails with commentary by Margolin. See 2nd Amended Complaint.] |
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28. Defendant admits that it did not file a Request for Reexamination on U.S. Patent Nos. 5,566,073 and 5,904,724. |
Margolin
28. Despite NASA’s Plan to file a Request for Re-Examination with the Patent Office, they didn’t do it.
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Defendant denies the allegations contained in page 39, lines 9-21 of this paragraph. |
It’s possible that NASA concluded they did not infringe. However, they had already decided they did not infringe when they decided to deny Margolin’s claim in July. Besides, NASA’s reason for wanting to invalidate the Patents was to benefit their partners.
There is another possibility to consider, which is that an analysis of Abernathy’s purported prior art did not stand up to careful scrutiny. Thus, the patents would survive a Re-Examination and come out of it even stronger.
Since NASA’s reason for wanting to invalidate the Margolin patents was to benefit their partners, this places any and all communications between NASA (or any NASA employee or anyone outside NASA acting at NASA’s direction) and NASA’s partners (or anyone acting for NASA’s partners) that relate to the Margolin patents, the Infringement Claim, and Margolin’s FOIA request subject to Margolin’s FOIA request.
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The allegations contained at page 39, line 23, through page 40, line 15, constitute conclusions of law to which no response is required. Defendant lacks knowledge and information sufficient to form a belief as to the allegations contained in the last sentence of this paragraph and, on that basis, denies those allegations. |
Not
only are the documents post-decisional the threshold issue under Exemption 5
is whether a record is of the type intended to be covered by the phrase
"inter-agency or intra-agency memorandums" -- a phrase which
appears to encompass only documents generated by an agency and not documents
circulated beyond the executive branch. See United States Dep't of Justice
v. Julian, 486
However,
the Supreme Court shed light on this issue when it ruled on the contours of
Exemption 5's "inter-agency or intra-agency" threshold requirement
for the first time in Department of the Interior v. Klamath Water Users
Protective Ass'n. 532
Thus, records submitted to the agency by the Tribes, as "outside consultants," did not qualify for attorney work-product and deliberative process privilege protection in the case. (Id. at 16)
NASA partners, especially Abernathy, have an interest in having U.S. Patents 5,566,073 and 5,904,724 declared invalid.
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29. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained at page 40, line 20, through page 43, line 12, of this paragraph and, on that basis, denies those allegations.
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Margolin
29. There was no apparent activity in the case until two years later, in September 2006 when Robert Adams of Optima Technology Group contacted Mike Abernathy about licensing the Margolin Patents. See Exhibit 24 at Appendix Volume 2 A59.
In the numerous exchanges between Adams and Abernathy several things are apparent.
a. Abernathy showed a deeply flawed understanding of patents. One of Abernathy’s themes is that an autopilot is absolutely essential in flying a UAV, that the ‘724 patent does not have an autopilot, and therefore, the ‘724 patent is “defective.” Abernathy’s understanding of what constitutes a “defective” patent is defective. See 35 U.S.C. 251. . . . [For the remainder of paragraph 29 see 2nd Amended Complaint]
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The allegations contained at page 43, line 14, through page 67, line 17, purport to characterize certain documents contained in Defendant's supplemental response to Plaintiff's 2008 FOIA request. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required. Defendant denies the remaining allegations contained in this paragraph.
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[See 2nd Amended Complaint] |
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30. Defendant admits the allegations contained at page 67, lines 21-29, except that Plaintiff filed his FOIA request on June 28, 2008 and Mr. McNutt requested a 90-day extension on August 5, 2008.
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Margolin
30. Margolin filed his FOIA Request on July 1, 2008. It was turned over to McNutt of the Office of the General Counsel. McNutt asked Margolin for a 90-day extension on July 24, 2008. Margolin agreed on August 8, 2008. |
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The allegations contained at page 67, line 31, through page 70, line 8, purport to characterize certain documents contained in Defendant's supplemental response to Plaintiff's 2008 FOIA request. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required.
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Shortly thereafter McNutt asked Laura Burns (Law Librarian for the Office of the General Counsel) for Court documents in the then-ongoing litigation between Universal Avionics Systems Corporation (“UASC”) and Optima Technology Group (OTG) and Jed Margolin in U.S. District Court for the District of Arizona (Universal Avionics Systems Corporation vs. Optima Technology Group, et. No. CV 07-588-TUC-RCC). See Exhibit 25 at Appendix Volume 2 A99.
[NASA email]
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Defendant denies the remaining allegations contained at page 67, line 31, through page 70, line 8. |
Why did McNutt do this? The litigation between UASC and OTG had nothing to do with Margolin’s Claim or Margolin’s FOIA Request.
Since NASA wanted the Margolin patents invalidated it is reasonable to ask the following questions:
a. Did McNutt (or any NASA employee or anyone outside NASA at NASA’s direction) have communications with UASC regarding the Margolin Patents, Margolin’s Claim, or Margolin’s FOIA Request?
b. Did McNutt (or any NASA employee or anyone outside NASA at NASA’s direction) aid UASC in its litigation with OTG? McNutt’s actions place any and all communications between NASA (or any NASA employee or anyone outside NASA acting at NASA’s direction) and Universal Avionics Systems Corporation (or anyone acting for Universal Avionics Systems Corporation) that relate to the Margolin patents, the Infringement Claim, and Margolin’s FOIA request subject to Margolin’s FOIA request.
It should be noted that the UASC litigation was settled long before it even got to the part that was supposed to be about the patents.
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31. The allegations contained at page 70, lines 10-25, purport to characterize certain documents contained in Defendant's supplemental response to Plaintiff's 2008 FOIA request. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required.
Defendant denies the remaining allegations contained at page 70, lines 10-25.
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Margolin
31. In or around October 2008 NASA Dryden (DFRC-NASA) was apparently asked if any of their projects might infringe on the Patents. The answers are informative. See Exhibit 26 at Appendix Volume 2 A103. In the following email (written by Mark Homer, quoting John Del Frate - October 21, 2008), although he concludes that Dryden’s work does not infringe he pays the patent (‘724) a high compliment.
Since May of 1999, we have tested a number of UAVs. This patent would be addressed to our most
sophisticated UAVs which would include: X-36, X-45
(UCAV), Pathfinder Plus, Helios/Centurion,
And he also reveals which projects probably infringe.
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Defendant denies the allegations contained at page 70, line 26, through page 71, line 8, of this paragraph.
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• X-36, X-45 and X-48B were done by Boeing.
• Pathfinder Plus and Helios/Centurion were sponsored by the Office of Aerospace Technology at NASA Headquarters. They were managed by the NASA Dryden Flight Research Center in partnership with AeroVironment, Inc., Monrovia, Calif.
• Altus and Altair are General Atomics.
• Lkhana is a modified version of the Predator B manufactured by General Atomics.
• Hyper-X (X-43) was a project managed by NASA-Langley and included partners Boeing, Micro Craft, Pratt & Whitney, RJK Technologies, and Boeing, who was responsible for the vehicle design, thermal protection system, flight control system and the navigation.
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The allegations contained at page 71, line 9, through page 74, line 6, purport to characterize certain documents contained in Defendant’s supplemental response to Plaintiff's 2008 FOIA request. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required.
Defendant denies the remaining allegations contained at page 71, line 9, through page 74, line 6.
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[NASA emails with some expository commentary by Margolin] |
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32. The allegations contained at page 74, line 9, through page 76, line 3, purport to characterize certain documents in Defendant's supplemental response to Plaintiff's 2008 FOIA request. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required. Defendant denies the remaining allegations contained at page 74, line 9, through page 76, line 3, in this paragraph.
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Margolin
32. In early October 2008 McNutt contacted Abernathy and asked for help in the infringement action. This is another tangled email thread. Again, in order to show them in a less confusing manner they have been converted to text and will be reproduced here in what appears to be the correct chronological order and without unnecessary duplication. The page numbers refer to the NASA page numbers followed by the Appendix Volume 2 page number. (When emails are part of a chain of quoted messages and they come from different time zones it can be difficult to precisely determine the proper chronological order.) See Exhibit 27 at Appendix Volume 2 A106.
[NASA emails with some expository commentary by Margolin]
About the Serrafian reference: Simulator Evaluation of a Remotely Piloted Vehicle Lateral Landing Task Using a Visual Display. Serrafian published two reports about HiMat.
NASA Technical Memorandum 84916 (May 1984): NASA Technical Memorandum 85903 (August 1984):
Although the material in both reports is mostly the same they are not identical. Abernathy’s failure to distinguish the two reports (or note that there are two reports) is poor scholarship.
Abernathy also failed to mention that neither report shows the use of synthetic vision.
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained at page 76, lines 6-18 and, on that basis, denies the allegations.
The allegations contained at page 76, lines 20-30, purport to characterize a technical report. That document speaks for itself and contains the best evidence of its contents and thus no response is required.
Defendant denies the remaining allegations contained at page 76, lines 20-30 of this paragraph.
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The Serrafian report that Abernathy should have read is NASA Technical Memorandum 88264 Effect of Time Delay on Flying Qualitities: An Update by Rogers E. Smith and Shahan K. Sarrafian. See Exhibit 29 at Appendix Volume 3 A4.
From the Introduction:
The advent of modern, full-authority electronic flight control systems produced many exciting advances in aircraft handling and performance capabilities. Unfortunately, this improved capability has not evolved without cost. Chief among the problems related to this modern technology is the introduction of additional time delay in the response of the aircraft to pilot input. These time delays can produce a significant degradation in the flying qualities of the aircraft during demanding tasks.
This Serrafian report is about the need to compensate for time delays in the control systems used in modern manned aircraft. There are additional time delays with unmanned aircraft which must be considered, and they are considered in the ’724 patent.
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Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained at page 77, lines 1-19 of this paragraph and, on that basis, denies those allegations.
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Abernathy cited Wikipedia as a source. Anyone can edit Wikipedia. Wikipedia states (http://en.wikipedia.org/wiki/Wikipedia:About)
Wikipedia is written collaboratively by an international group of volunteers. Anyone with internet access can write and make changes to Wikipedia articles. There are no requirements to provide one's real name when contributing; rather, each writer's privacy is protected unless they choose to reveal their identity themselves.
The Wikipedia article on Highly Maneuverable Aircraft Technology was started March 24, 2006 by a contributor named Arado, and simply said:
The Highly Maneuverable Aircraft Technology (HiMAT) was a NASA-program to develop technologies for future fighter aircraft. Among the technologies explored were close-coupled canards, fully digital flight control (including propulsion), composite materials (graphite and fiberglass), winglets etc.
The article did not mention synthetic vision until February 5, 2008. That contributor, using the name SoarIT, has chosen to remain anonymous. In short, Wikipedia cannot be relied upon for reliable information on subjects where people have an agenda to promote.
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The allegations contained at page 77, line 20, through page 84, line 25, purport to characterize certain documents contained in Defendant's supplemental response to Plaintiff's 2008 FOIA request. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required. |
[NASA emails, See 2nd Amended Complaint] |
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Defendant denies the remaining allegations contained at page 77, line 20, through page 84, line 25, of this paragraph.
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[NASA emails, See 2nd Amended Complaint]
The preceding emails show there was a conference call with at least Jan McNutt, Bob Rotella, Ed Fein, Mike Abernathy, and Abernathy’s attorneys.
The close cooperation between these parties constitute agency, misconduct, or conspiracy.
McNutt says, “Hopefully, we will find a solution that everyone can share in.”
Everyone except Margolin and Optima Technology Group, that is. And who did McNutt mean by “everyone” ?
It is not known if McNutt kept his promise to Abernathy, “I will let you know the development of this in as much as I can.” The NASA documents are silent on the matter.
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33. Defendant admits that Jeffrey L. Fox, a NASA civil servant employee at Johnson Space Center, contributed to an article entitled Synthetic Vision Technology for Unmanned Systems: Looking Back and Looking Forward.
Defendant denies that NASA has withheld documents that are not exempt from production.
Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in Paragraph 33 and, on that basis, denies those allegations. |
Margolin
33. The article that Abernathy sent to NASA to preview (See Exhibit 30 at Appendix Volume 3 A18) was published in the December 2008 issue AUVSI’s Unmanned Systems Magazine as Synthetic Vision Technology for Unmanned Systems: Looking Back and Looking Forward. The authors are Jeff Fox, Michael Abernathy, Mark Draper and Gloria Calhoun. See Exhibit 31 at Appendix Volume 3 A26.
Abernathy is with Rapid Imaging Software, Mark Draper and Gloria Calhoun are with AFRL, and Jeff Fox is listed as Flight Operations Engineer at NASA Johnson Space Center. (See Exhibit 31 at Appendix Volume 3 A27) Jeff Fox was not listed as a co-author on the preview copy Abernathy gave to NASA. A comparison of the two versions shows that it was tightened up and made more readable, presumably by AUVSI Editor Brett Davis. There are no major additions. The addition of Mr. Fox’s name and affiliation with NASA indicates that NASA gave its approval to the article. It also gave the article more credibility.
The article presents a spurious history of synthetic vision.
Margolin responded with the article Synthetic Vision – The Real Story. See Exhibit 32 at Appendix Volume 3 A29. 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. See Exhibit 33 at Appendix Volume 3 A87. As result, Margolin posted his response on his personal web site at www.jmargolin.com .
NASA decided to deny Margolin’s claim in July, 2004. (See Exhibit 20 at Appendix Volume 2 A19]. Everything after that is post-decisional and therefore not exempt from production.
Although NASA has now provided approximately 4,000 pages of documents many are redacted and it is likely that many have been entirely withheld.
NASA must disclose all these documents in their entirety, preferably in their original electronic format.
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34. Defendant admits that Plaintiff sent an electronic copy of a document named "auvsi_answer.pdf" to Mr. McNutt. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in Paragraph 34 and, on that basis, denies those allegations.
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Margolin
34. Margolin sent a copy of his response to McNutt. See Exhibit 34 at Appendix Volume 3 A91. There is no evidence in the NASA documents that anyone at NASA discussed the Margolin Response. It is hard to believe that no one at NASA discussed it.
The NASA documents from Abernathy end with one where he expresses pleasure at the apparent misfortune of others. (See Exhibit 28 at Appendix Volume 2 A125)
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35. The allegations contained in this paragraph consist of Plaintiff's characterization of certain documents that are attached to the second amended complaint. Those documents speak for themselves and contain the best evidence of their contents and thus no response is required.
Defendant denies that it is engaging in a war against Plaintiff and admits that doing so would be especially difficult during the four and a half year period between January 2004 and July 2008 when neither Plaintiff nor OTC communicated at all with Defendant regarding the patent claim.
Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in Paragraph 35 and, on that basis, denies those allegations. |
Margolin 35. Finally we find out what this has all been about in these emails from Robert F. Rotella, Senior Patent Attorney, Office of the General Counsel, NASA Headquarters. [See Exhibit 34 at Appendix Volume 3 A94] The first one appears to have been sent when he was offsite and sent the email to himself. The second one was to his staff. Emphasis has been added. ________________________________________ [Page 02363] [AV3-A94] [redacted] From: Bob Rotella [r.rotella@att.net] Sent: Thursday, March 19, 2009 10:17 AM To: Rotella, Robert F. (HQ-MC000) Subject: war
NASA Administrative Claims - Jed Margolin and its successor in interest, Optima, have pursued an administrative claim for patent infringement. Upon completion of investigation by JSC and DFC, reviewed all materials and prepared initial draft of final agency determination letter denying claim based on lack of infringement. (Rotella, McNutt, Borda)(3/9/09) ________________________________________
________________________________________
[Page 02364] [AV3-A95] [redacted] From: Rotella, Robert F. (HQ-MC000) Sent: Thursday, March 19, 2009 10:24 AM To: Borda, Gary G. (HQ-MC000); Graham, Courtney B. (HQ-M0000) Cc: Bayer, Kathy (HQ-MC000) Subject: WAR item
NASA Administrative Claims - Jed Margolin and its successor in interest, Optima, have pursued an administrative claim for patent infringement. Upon completion of investigation by JSC and DFC, reviewed all materials and prepared initial draft of final agency determination letter denying claim based on lack of infringement. (Rotella, McNutt, Borda)
Robert F. Rotella Senior Patent Attorney Office of the General Counsel NASA Headquarters [redacted (b)(6)]
This document, including any attachments, contains information that is confidential, protected by the attorney-client or other applicable privileges, or constitutes non-public information. It is intended only for the designated recipient(s). If you are not an intended recipient of this information, please take appropriate steps to destroy this document in its entirety and notify the sender of its destruction. Use, dissemination, distribution, or reproduction of this information by unintended recipients is not authorized and may be unlawful. ________________________________________
NASA has been at war against Margolin and Optima Technology Group.
In modern warfare there are no rules. NASA’s actions during the past 6+ years confirm that they considered the patent claim a war, a war they were resolved to win even at the cost of fairness and honesty.
The very next document is also interesting. ________________________________________
[Page 02367] [AV3-A96] [redacted] From: Rotella, Robert F. (HQ-MC000) Sent: Tuesday, May 05, 2009 2:14 PM To: Graham, Courtney B. (HQ-MC000) Subject: CIPLG Practice Group
1) Node 3 module of ISS online naming contest: Drafted set of rules and entry conditions for participants; the most significant was that the agency was not bound to accept the results of the online voting which avoided having to name Node 3 after Stephen Colbert, who encouraged viewers to nominate him.
2) Administrative Claims for Patent Infringement:
a) Delta Engineers' allegation of infringement of its
b) Margolin/Optima allegation of patent infringement by X-38 Project, based on patent covering "Synthetic Vision." Claim was denied in a final agency decision following extensive review and coordination with Center patent staffs.
3) NASA trademarks: agency will pursue formal trademark registration in US and European Community for NASA brands, including: meatball, NASA seal, NASA acronym, "National Aeronautics and Space Administration.
Robert F. Rotella Senior Patent Attorney Office of the General Counsel [redacted (b)(6)]
This document, including any attachments, contains information that is confidential, protected by the attorney-client or other applicable privileges, or constitutes non-public information. It is intended only for the designated recipient(s). If you are not an intended recipient of this information, please take appropriate steps to destroy this document in its entirety and notify the sender of its destruction. Use, dissemination, distribution, or reproduction of this information by unintended recipients is not authorized and may be unlawful. ________________________________________
NASA denied the ‘724 claim (again) as well as the claim by Delta Engineers.
It then decided to pursue formal trademark registration for various NASA brands. Why should anyone respect NASA’s Intellectual Property when NASA refuses to respect the Intellectual Property of others?
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36. Defendant lacks knowledge and information sufficient to form a belief as to the truth of the allegations contained in Paragraph 36 and, on that basis, denies those allegations. |
Margolin
36. Over a period of only a few days in early November 2009 Margolin’s personal web site (www.jmargolin.com) was visited by Abernathy’s attorneys (Sutin Thayer), Universal Avionics Systems Corporation (both Arizona and Washington State), and the law firm of Greenberg Traurig.
This is known because every server on the Internet keeps a log of accesses containing information such as the IP address of the computer accessing the server, time and date of access, and the page or file being accessed. As the Webmaster for his web site, Margolin has access to his server’s logs.
Every computer on the Internet has an IP address. It is how data packets are routed to where they are supposed to go.
Through publicly available tools it is generally possible to determine who the IP Address belongs to and if it is assigned to a named server. For example, using the Whois service provided by Network Solutions it is possible to determine that the IP Address of 209.191.175.42 belongs to a range of IP Addresses assigned to Greenberg Traurig.
http://www.networksolutions.com/whois/index.jsp
209.191.175.42 Record Type: IP Address
Internap Network Services Corporation PNAP-1-98 (NET-209-191-128-0-1) 209.191.128.0 - 209.191.191.255
Greenberg Traurig INAP-NYC-GREENBERG-3496 (NET-209-191-175-40-1) 209.191.175.40 - 209.191.175.47
This says that IP addresses from 209.191.175.40 to 209.191.175.47 are assigned to Greenberg Traurig. IP Address 209.191.175.42 is within that range so it belongs to Greenberg Traurig.
By using a program that uses the Reverse IP Lookup command supported by DNS Servers it was determined that the IP Address 207.114.136.186 is associated with the domain name sutinfirm.com, which is the web site for Sutin Thayer.
Sutin Thayer, Universal Avionics Systems Corporation, and Greenberg Traurig have all been to Margolin’s web site before, but such visits have been relatively rare. For all of them to occur within such a short period of time attracted Margolin’s attention.
The following are exemplars. For all the Web accesses from Greenberg Traurig, Sutin Thayer, and Universal Avionics Systems Corporation for 2009 see Exhibit 36 at Appendix Volume 3 A98.
Items of interest have been emphasized.
Greenberg Traurig
209.191.175.42 209.191.175.42 - - [03/Nov/2009:22:48:23 -0500] "GET /tomcat/tomcat.htm. HTTP/1.1" 301 258 www.jmargolin.com "-" "Mozilla/4.0 (compatible; MSIE 6.0; Windows NT 5.2; SV1; .NET CLR 1.1.4322; .NET CLR 2.0.50727)" "-"
209.191.175.42 209.191.175.42 - - [06/Nov/2009:15:51:26 -0500] "GET /nasa/nasa.htm HTTP/1.1" 200 60378 jmargolin.com "http://jmargolin.com/" "Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; .NET CLR 1.1.4322; .NET CLR 2.0.50727; InfoPath.1; .NET CLR 3.0.04506.30; .NET CLR 3.0.04506.648)" "-"
209.191.175.42 209.191.175.42 - - [06/Nov/2009:15:56:35 -0500] "GET /svr/auvsi_answer.htm HTTP/1.1" 200 392069 jmargolin.com "http://jmargolin.com/svr/auvsi_response_index.htm" "Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; .NET CLR 1.1.4322; .NET CLR 2.0.50727; InfoPath.1; .NET CLR 3.0.04506.30; .NET CLR 3.0.04506.648)" "-"
Universal Avionics Systems Corporation - Tucson, AZ
mx.uasc.com 206.169.91.33 - - [04/Nov/2009:00:14:09 -0500] "GET /tomcat/tomcat.htm HTTP/1.1" 200 21340 www.jmargolin.com "-" "Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; .NET CLR 1.1.4322; .NET CLR 2.0.50727; InfoPath.1)" "-"
Universal Avionics Systems Corporation - Redmond, WA
phoenix.uascwa.com 206.169.227.226 - - [04/Nov/2009:11:23:19 -0500] "GET /tomcat/tomcat.htm HTTP/1.1" 200 21340 www.jmargolin.com "-" "Mozilla/5.0 (Macintosh; U; Intel Mac OS X 10_6_1; en-us) AppleWebKit/531.9 (KHTML, like Gecko) Version/4.0.3 Safari/531.9" "-"
[They came to www.jmargolin.com from a Google search for: Jed Morgolin] phoenix.uascwa.com 206.169.227.226 - - [04/Nov/2009:12:44:56 -0500] "GET / HTTP/1.1" 200 16200 www.jmargolin.com "http://www.google.com/search?sourceid=navclient&aq=t&ie=UTF-8&rlz=1T4ADBF_enUS312US312&q=Jed+Morgolin" "Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; .NET CLR 1.1.4322; .NET CLR 2.0.50727; InfoPath.1)" "-"
phoenix.uascwa.com 206.169.227.226 - - [04/Nov/2009:12:45:05 -0500] "GET /svr/auvsi_response_index.htm HTTP/1.1" 200 2673 www.jmargolin.com "http://www.jmargolin.com/" "Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; .NET CLR 1.1.4322; .NET CLR 2.0.50727; InfoPath.1)" "-"
phoenix.uascwa.com 206.169.227.226 - - [04/Nov/2009:12:45:25 -0500] "GET /nasa/nasa.htm HTTP/1.1" 200 60378 www.jmargolin.com "http://www.jmargolin.com/" "Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; .NET CLR 1.1.4322; .NET CLR 2.0.50727; InfoPath.1)" "-"
phoenix.uascwa.com 206.169.227.226 - - [04/Nov/2009:13:06:08 -0500] "GET /patents2/pilot.htm HTTP/1.1" 200 12578 www.jmargolin.com "http://www.jmargolin.com/tomcat/tomcat.htm" "Mozilla/5.0 (Macintosh; U; Intel Mac OS X 10_6_1; en-us) AppleWebKit/531.9 (KHTML, like Gecko) Version/4.0.3 Safari/531.9" "-"
Sutin Thayer
mail.sutinfirm.com 207.114.136.186 - - [02/Nov/2009:20:11:13 -0500] "GET /svr/auvsi_answer.pdf HTTP/1.0" 200 268354 www.jmargolin.com "http://www.jmargolin.com/svr/auvsi_response_index.htm" "Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; GTB6; .NET CLR 1.1.4322; .NET CLR 2.0.50727; .NET CLR 3.0.4506.2152; .NET CLR 3.5.30729)" "-"
[They came to www.jmargolin.com from a Google search for: jmargolin] mail.sutinfirm.com 207.114.136.186 - - [02/Nov/2009:19:35:58 -0500] "GET / HTTP/1.0" 200 16200 www.jmargolin.com "http://www.google.com/search?hl=en&source=hp&q=jmargolin&aq=f&oq=&aqi=&rlz=1R2ADFA_enUS342" "Mozilla/4.0 (compatible; MSIE 7.0; Windows NT 5.1; GTB6; .NET CLR 1.1.4322; .NET CLR 2.0.50727; .NET CLR 3.0.4506.2152; .NET CLR 3.5.30729)" "-"
The web page tomcat.htm is the article Margolin wrote in 2001 titled TomCat - Atari's Last XY Game . TomCat was a 3D flying game that was never produced. It became an object of controversy during the Universal Avionics Systems Corporation lawsuit. Because Margolin is the Keeper of the TomCat History he was obliged to write about its role in the case. See Exhibit 37 at Appendix Volume 3 A130. Although Margolin expended considerable effort to make videos of the game, none of the Visitors bothered to look at them.
The web page auvsi_answer.pdf is Margolin’s response to the Abernathy AUVSI article. See Exhibit 32 at Appendix Volume 3 A29.
The web page auvsi_answer.htm is an html version of Margolin’s Response.
The web page pilot.htm is Margolin’s index page for the ‘073 patent.
The web page nasa.htm is Margolin’s article/blog on the current case. When Margolin filed his FOIA request he asked for the Journalist Exemption on the grounds he intended to write an article on How NASA Treats Independent Inventors, and that is what he is doing. (www.jmargolin.com/nasa/nasa.htm)
At one point Universal Avionics Systems Corporation did a Google search for Jed Morgolin. Although they spelled Margolin’s name wrong, Google took them to Margolin’s web site anyway.
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Margolin
37. The reason for these visits was revealed on December 3, 2009 when Margolin received an email from Scott J. Bornstein (“Bornstein”) of the law firm of Greenberg Traurig. See Exhibit 38 at Appendix Volume 3 A134.
Margolin points out that:
• He has never threatened to sue Abernathy for infringement of the Patents.
• He does not own the Patents and, therefore, does not have standing to sue Abernathy for infringement. Thus, Abernathy does not need to fear that Margolin will sue him for infringement.
•
Optima Technology Group/Robert
• Margolin is not Optima Technology Group/Robert Adams’ agent and does not represent them.
Bornstein represented Universal Avionics Systems Corporation in its lawsuit against Optima Technology Group and Margolin. He now also represents Abernathy.
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37. Defendant denies that it has acted illegally or inappropriately, as Plaintiff suggests at pages 94-95.
The allegations at page 95, lines 1-11 purport to characterize the contents of a letter from Mr. McNutt to Plaintiff. That letter speaks for itself and contains the best evidence of its contents and thus no response is required.
Defendant lacks knowledge and information sufficient to form a belief as to the truth of the remaining allegations contained in Paragraph 37 and, on that basis, denies those allegations.
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Abernathy has been constructively working as NASA’s agent since 2004 in NASA’s attempt to invalidate the Patents because, according to NASA:
It seems clear that the technical folks have determined that the Margolin patent on Synthetic Vision creates a substantial problem for many of our partners in the aviation safety industry for a variety of reasons.
See Exhibit 23 at Appendix Volume 2 A55.
Although NASA denied Margolin’s claim in July 2004 (See Exhibit 20 at Appendix Volume 2 A19) they have continued in their attempts to invalidate and discredit the Margolin Patents through, at least, Abernathy.
They have waged a war (NASA’s own word) against Margolin, one conducted by stealth and deception, all the while telling themselves it was for the Public Good. It was not for the Public Good. It was for their own benefit and the benefit of their Partners.
And now Bornstein (representing NASA’s agent Abernathy) has threatened Margolin with unspecified legal action which, if taken, would subject Margolin to a frivolous and malicious lawsuit.
NASA has crossed a line.
This line separates civilized behavior from uncivilized behavior.
This line separates decency from indecency.
This line separates bureaucratic self-interest from criminal misconduct.
According to McNutt’s August 5, 2008 letter to Margolin (See Exhibit 6 at Appendix Volume 1 A37):
We regret the delay in processing your claim and assure you that we are now undertaking measures to provide a resolution of your claim as soon as possible. Unfortunately. Mr. Alan Kennedy retired from NASA earlier this year and the action on your claim was not conveyed to management in a timely manner. In addition the local attorney responsible for review of your claim also departed from NASA. We are now cognizant of the importance of proceeding with a review of the claim and will contact you when we have reached a decision.
{Emphasis added]
It is hardly credible that the group dealing with the Margolin Claim, and then the Margolin FOIA request, could have kept their actions secret from NASA management considering the enormous amount of time spent by various NASA personnel on it over the years.
Still, since the core group was relatively small, they might have been able to operate under the radar.
This Rogue Group has committed criminal misconduct under cover of authority.
Normally, the department charged with investigating criminal misconduct is the Department of Justice. However, DOJ is representing NASA in the present case, which presents an insurmountable conflict of interest.
The only way a proper investigation can be conducted is for the United States Attorney General to appoint Special Counsel as provided by 28 C.F.R. § 600 .
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Cause of Action
(Breach of Duty to Disclose Responsive Documents)
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39. Defendant repeats and re-alleges the responses made in paragraphs 1-38.
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Margolin
39. Plaintiff incorporates and re-alleges all preceding paragraphs as if fully set out herein. |
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40. The allegations contained in this paragraph constitute conclusions of law to which no response is required. To the extent a response is deemed required, Defendant denies the allegations. |
Margolin
40. Defendants have violated their duty of disclosure under 5 U.S.C.§ 552(a)(2) et seq. by failing to disclose all documents related to the Administrative Claim of Jed Margolin for Infringement of U.S. Patent Nos. 5,566,073 and 5,904,724; NASA Case No. I-222.
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41. Defendant admits that Plaintiff has exhausted his administrative remedies under the FOIA.
The remaining paragraphs of the complaint contain Plaintiff's requested relief, to which no response is required.
To the extent a response is deemed necessary, Defendant denies the allegations. Defendant further denies all allegations of the complaint not previously expressly admitted.
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Margolin
41. Plaintiff has constructively exhausted all his administrative remedies as set forth in 5 U.S.C. § 552(a)(6)(C)(i).
Requested Relief
WHEREFORE, plaintiff respectfully requests that this Court:
A. Order defendant to disclose requested records in their entireties and provide copies to plaintiff, said records to include: the patent report alleged to exist, but not provided, in the Borda letter; contacts between NASA and Mike Abernathy (and/or Rapid Imaging Software and/or its employees and/or agents); contacts between NASA (and/or those acting at NASA’s direction) and Universal Avionics Systems Corporation; and contacts between NASA (and/or those acting at NASA’s direction) and its partners including, but not limited to, Boeing, General Atomics, and AeroVironment.
B. Issue an Order finding that defendant’s actions were in bad faith, arbitrary, capricious, and contrary to law;
C. Provide for expeditious proceedings in this action;
D. Award plaintiff his costs incurred during the administrative proceedings and in this action;
E. Recommend to the United States Attorney General that he appoint Special Counsel to investigate criminal misconduct committed by NASA employees under color of authority; and
F. Grant such other relief as the Court may deem just and proper.
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Affirmative Defenses
AS A FIRST AFFIRMATIVE DEFENSE, defendant avers that the FOIA request that is
the subject of this lawsuit implicates information that is protected from
disclosure by one or more statutory exemptions, including, but not limited to,
Exemptions (b)3, (b)(4), (b)(5) and (b)(6) of the FOIA. Disclosure of such
information is not required or permitted.
Defendant reserves the right to amend its answer with additional defenses of
which it may become aware and to raise any other matter constituting an
avoidance or affirmative defense.
WHEREFORE, Defendant prays for judgment as follows:
1. That judgement be entered in favor of Defendant
and against Plaintiff;
2. That Plaintiff take nothing by way of his complaint;
3. For costs of suit; and
4. For such other relief as may be proper.
Respectfully submitted,
DANIEL G. BOGDEN
United States Attorney
/s/ Holly A. Vance
HOLLY A. VANCE
Assistant