GAL-OR v. USA
Filing
59
PUBLISHED MEMORANDUM OPINION and ORDER granting in part and denying in part 38 Motion to Dismiss - Rule 12(b)(1) and (6). Signed by Judge Susan G. Braden. (dls) Copy to parties. [Published Opinion and Order sent by FED EX International Air to all plaintiff's. Tracking Numbers 8685 9626 7130, 8763 3589 6534 and 8763 3589 6556] Modified on 11/22/2013 (bre).
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In tbe @nftel $ltutes @surt of 3FeDerst @tsfmB FTLED
No.09-869C
November2l,2}l3
NOV 2 I Z0l3
********* ***** *** **** ***********
Act
n Thetime of June 15, lglT (authorizing *agbt*"^ l"dJo,,r,s
expropriation ofproperty and
BENJAMIN GAL-OR. DR. VALERY ^^.;
Payrrrcnt ofjust compensation);
*
SHERBAUM, and DR. MICH Fr
Filed:
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d'
't
LICHTSINDER
v.
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p,ainirrs, .:
*
THE SNITED
srATES,
Defendant.
*
*
*
*
*
_
U S' const' amend'
v;
l:1!'^t ^
jlU:l:E
iifi3[]l[Tff:1i;Hi:,T:[f;,'
by the federal govemment);
^^ .tnlt:g"-.nt
28 U.S.C. $ 2501 (statute of limitations);
2502(a) (the "Reciprocitv Act");
?8^Yf '.c^'.$
RCFC 12(bX1) (lack of subject matter
* ^jurisdiction);
RCFC l2OX6) (failure to
state a claim).
**** *** **,* * *** {.**,t *****'*:}***** *** ***
Benjamin Gal-Or, Malabalay City, Mindanao Philippines, Plaintiff, pro
Dr. Valery Sherbaum, Kiriat Yam, Israel, Plaintiff, pro se.
Dr. Michael Lichtsinder, Haifa, Israel, Plaintiff , pro se.
se.
Scott Slater, Trial Attorney, United States Department of Justice, Civil Division, Washington,
D.C., Counsel for the Government.
MEMORANDUM OPINION AND ORDERREGARDING THE
GOVERNMENT'S THIRD MOTION TO DISMISS
BRADEN, -/udge.
This case concerns allegations made by an Israeli citizen that the United States ("the
Government") infringed a United States Patent that he co-owned and misappropriated his trade
secrets, without authorization.
To facilitate review of this Memorandum Opinion and Order, the court includes the
following outline:
I.
RELEVANTFACTS.
II.
PROCEDURAL HISTORY.
IIL
DISCUSSION.
"
A.
Jurisdiction.
B.
Standard Of Review For Pro Se Litigants.
C.
Standard Of Review For A Motion To Dismiss Pursuant To RCFC 12(bxl).
D.
Standard Of Review For A Motion To Dismiss Pursuant To RCFC l2(bx6).
E.
Issues Raised By The Government's Third Motion To Dismiss,
l.
Whether 28 U.S.C, $ 2502(a) Divests The Court Of Subject Matter
Jurisdiction To Adjudicate Plaintiffs' Claims.
a.
b.
The Plaintiffs' Response,
c.
2,
The Government's Argument.
The Court's Resolution,
Whether The Disclosure Of Trade Secrets Extinguishes Attendant
Property Rights.
a,
b,
The Plaintiffs' Response.
c.
IV.
The Government's Argunent.
The Court's Resolution.
CONCLUSION.
RELEVANT FACTS.'
Plaintiff, Benjamin Gal-Or, is an Israeli citizen, scientist, and former professor of
engineering at domestic and intemational universities. Amended Complaint ("Am. Compl.") fl
1.1. Dr. Valery Sherbaum and Dr. Michael Lichtsinder were co-owners of United States Patent
5,782,43\ ("the'431 patent") with Mr. Gal-Or from July 21, 1998 to July 26,2006, at which
'
The relevant facts discussed herein were derived from a 41-page August 2, 2010
Amended Complaint, including 40 pages of appendices ('Pl. App. A-H") and 8 pages of
"References & Notes;" Plaintiffs' September 18,2012 Response to CFC-38 ("P1. Resp.");
Plaintiffs' January 14, 2013 Response to/Reconsideration-in-Part Motion ofOrder 46 ("P1. Br.");
and the April 17,2013 Re-Assignment Motion, AND Deny CFC-38/50 Motion AND Brief
Ordered by CFC-53 ("P1. Supp. Br."). The court's factual discussion also is informed by GalOr v. United States,97 Fed. Cl.476 (2011) ("Gal-Or ?').
time the '431 patent expired, because the maintenance fee was not paid. Am. Compl. fl 1.3;see
a/so Pl. App. G at 66.
at least six different technologies, some are the subject of the ,431
patent, while others are trade secrets. Am. compl. at 7-8; Pl. supp. Br. at 3-4. The inventions
Mr. Gal-Or
o\4"ns
are: (l) "Stealth;" (2) "Pure Jet Control;" (3)
,,Enhanced Survivability
and
Supermaneuverability;" (a) "RanPas Supermaneuverability;" (5) ,.Cruise Missiles;" and (6) ,,Sea
and Land rhrust vectored control." Am. compl. at 5-8. Mr. Gal-or owns "100% of
[items] I
to3...and90%;oof[items]4and5,"sharing10%ownershipofitems4and5with..his
assistants Dr. valery Sherbaum and Dr. Michael Lichtsinder." Am. compl. 2.2. only the
u
"Enhanced Survivability and Supermaneuverability" and "Sea and Land TVC" inventions were
subject to the '431 patent during 1998-2006. Am. compl. at 7-8. other inventions, including
the trade secrets at issue in this case, are related to, or derived from, Israeli Patent Application
78402, fied in 1986. Am. compl. fl 1.3; pl. Br. at 12. Mr. Gal-or describes these trabe secrers
as "visionary-futuristic military technology that has influenced the direction of fiehter aircraft
design " Pl. Br. at 4 (internal quotations omitted). Although the relationship betweJ1 these trade
secrets and the '431 patent is not entirely clear, Mr. Gal-or insists that the .,patent is on a
different technology than [his] taken hade secrets.', pl. Supp. Br. at 3.
During the 1980's and 1990's, multiple disclosures of Mr. Gal-or,s technoloqies were
made to the Govemment and other third parties. Am. Compl. at l5 ("Said disclosures-involved
documents, video tapes [and] reports confened only in conference, office, or lecturing rooms, or
at [Mr. Gal-or's] laboratory or during [Mr. Gal-or's] flight tests ar Megiddo ot Ei, shr^",
airfields.') (italics in original); see also Am. compl. at4, 16-25; pl. App. at 43. For example,
after the Israeli Patent Application 78402 was filed on April 2, 19g6, experts were invited to
inspect Mr. Gal-or's models and view tests of his flight inventions. Am. compl. at 16. None
of
the visiting experts, however, signed a confidentiality agreement prior to attending Mr. Gal-or's
demonstrations. Am. compl. at 16 c'[s]aid experts were unauthorized to sign
proprietary
information disclosure agreemenr.', (emphasis in original)).
i
iy
In 1986, Mr. Gal-or was invited by the president of rhe Boeing company (,.Boeing') to
visit the united states and discuss various aspects of Israeli patent Application zt+oz. am.
compl. at 17. on August 25, 1996, Mr. Gal-or entered into a iioprietary Information
Agreement authorizing Boeing to provide information about Mr. Gal-Or's lsraeli patent
Application 78402 to the Govemment and other third parties. Am. compl. at I 7-l g. Thereafter,
Gal-Or provided Boeing with this information, tabeled "classified," together with the names
of the co-owners of Israeli Patent Applicati on 79402. Am. compl. at lg. B--oeing then proceeded
to infringe Israeli Patent Application 78402 in competing for Govemment -contracts. Am.
Compl. at 18. In turn, the Govemment used the inventions iubject to the '431 patent and
Israeli
Patent Applicati on 78402.
M_r.
In 1986, Mr. Gal-Or also disclosed information about his inventions to Dr. Sam Williams
of williams Intemational. Am. compl. at 22. This disclosure, however, was made without
a
proprietary information disclosure agreement. Am. compl. at 22 (stating
that ,,Dr. williams
invited [Mr. Gal-or] to disclose-his [proprietary information] . . . but... rJfrained
from srgning
any proprietary information disclosure agreement,').
And, in August 1986, Mr. Gal-Or visited Pratt & Whitney and provided their senior
engineers with information about various aspects of his inventions, including information related
to engine nozzles for single or twin manned and unmanned air vehicles. Am. Compl. at 2L In
August 1986, Mr. Gal-or also disclosed classified and unclassified aspects of his work to Eli
Benstein of Teledyne Technologies Incorporated. Am. Compl. at 22-23.
In 1987, Mr. Gal-Or visited a propulsion laboratory operated by the United States Air
Force ("Air Force") and met with a Dr. Richey to discuss Mr. Gal-or's inventions. Am. compl.
at 18-19. Also present during this meeting were Messrs. J.A. Laughrey and D. Bowers. Am.
compl. at 19. Thereafter, Mr. Gal-or received $300,000 from the Air Force for him to conduct
test flights between 1987 and 1992. Am. compl. at 19. The results of these tests were
incorporated into aspects of the Air Force flight program, resulting in substantial savings. Am.
compl. at 20. But, as Gal-or l observed, "[t]here was apparently no confidentiality agreement
executed regarding the flight tests." Gal-Or I,97Fed. Cl. at479 n.4.
sometime in 1986 or 1987, Mr. Gal-or again disclosed aspects of his proprietary
information to General Dynamics corporation ("General Dynamics') and Lockheed Martin
corporation ("Lockheed Martin"). Am. compl. at 20. The information that Mr. Gal-or
disclosed to General Dynamics apparently was "classified," but allegedly made its way into
various aspects of the Govemment's F-16 flight program. Am. compl. at 20-21. when Mr.
Gal-Or made a presentation to Lockheed Martin, he also disclosed aspeits of his.,know-how and
trade secrets" that were "strategic" and "theoretical." Am. compl. at 20-21 . Thereafter, General
Dynamics and Lockheed Martin paid Mr. Gal-or to conduct flight tests until 1997. Am. compl.
at2l.
Between 1987 and 1992, Mr. Gal-Or also shared information about his inventions with
twelve members of the Air Force in san Antonio, Texas. Am. compl. at 23. Between August
1990 and December 1991, Mr. Gal-Or provided the Air Force with piototypes of his inventions.
Am. Compl. at 23.
In 1991' Mr. Baumann, a captain in the Air Force, worked in Mr. Gal-or's laboratory2
for three months, to assist him in conducting Air Force funded flight experiments. pl. App. F. at
62. These Air Force funded experiments were different from the $300,000 .,funding ;ontract
with USAF/DoD" that Mr. Gal-or had secured in 1997. pl. App. F at 63. During -this time,
Captain Baumann repeatedly transmitted confidential reports aboui Mr. Gal-or's trad-e secrers
ro
his supervisors, without Mr. Gal-or's permission. pl. App. F at 63. In addition, after retuming
to the united states, captain Baumann gave a public lecture that discussed Mr. Gal-or's trade
secrets and other information obtained during captain Baumann's work in Mr. Gal-or's
laboratory. Pl. App. F at 64. Nevertheless, Mr. Gal-or indicates that he.,politely
[continued] to
work with [Mr.] Bower[s] and [captain] Baumann," allowing reports they published to contain
his confidential information. Pl. App. F at 64.
'It is unclear whether Mr. Gal-or's laboratory was in Israel or Germany. compare pl.
App. F at 62 (describing Mr. Gal-or's "TIIT Jet Laboratory in Israel"), with il. App.
F at 63
^
(stating that the Department of Defense approved only a "3-month stay
in Germany").
Between 1993 and 1995, Mr. Gal-Or conducted numerous "[d]issemination seminars" for
the Federal Aviation Administration (.'FAA), at which he shared details of his proprietary
information. Am. Compl. at 25. As a result of these seminars, Mr. Gal-Or received $50,000
from the FAA to fund additional test flights. Am. Compl. at 25.
Sometime in 1994 or 1995, Mr. Gal-Or accepted an invitation from the National
Aeronautics and Space Administration C'NASA) to speak at a seminar with approximately fifty
participants. Pl. App. H at 72. On this occasion, he also met with Mr. Burcham, a NASA
employee, and individuals representing two of NASA's clients. During this meeling, Mr. Gal-Or
was asked and agreed to disclose a report containing classified Israeli material.r Pl. App. H at
In 1994, Mr. Gal-Or also met with Col. Mike Francis, a Director of the Defense
Advanced Research Project, during which Mr. Gal-Or's disclosed various aspects of his
propriety information. Am. Compl. at 24.
In 2007, NASA released a Report publicly recognizing that the DHS "created the
Propulsion-Controlled Aircraft Recovery project in 2005." Pl. App. H at 76. Mr. Gal-Or
believes this project used the technology that he disclosed to Mr. Burcham in 1994 or 1995. Pl.
App. H at72-76.
Between 1986 and 1990, Mr. Gal-Or also disclosed information about "rectangular PJC
nozzles" to General Electric. Am. Compl. at24;Pl. App. H at 75. Thereafter, General Electric
provided Mr. Gal-Or's information to the Government, who incorporated these nozzles into the
production of the RQ-107. Pl. App. H at 75. On December 4,2009, the Govemment first
revealed the RQ-l07. Pl. App. Hat76.'
IL
PROCEDURALHISTORY.
Mr. Gal-Or, proceeding pro se, filed a Complaint in the United States Court of Federal
Claims on December 16, 2009, that was assigned to Senior Judge Eric G. Bruggink. On
February 4,2010, the Govemment filed a Motion To Dismiss. In response, on June 25, 2010,
the court dismissed the December 16,2009 Complaint and directed Mr. Gal-Or to file an
'
In 2005, Mr. Gal-Or discovered that Mr. Burcham worked for the Department of
Homeland Security ('DHS'). Pl. App. H at 73. And, Mr. Gal-Or subsequently learned that Mr.
Burcham filed an application for a United States Patent, which issued as No. 6,126,1 1 1 (..the
' I 1 1 patent"), that usurped portions of Mr. Gal-Or's inventions. Pl. App. H ar 73-7 4.
o
the
'1
I
Between 1989 and 1992, Mr. Gal-Or also allegedly disclosed the technology subject to
was used in the F-15 prototype. Pl. App. H at
I patent to the Air Force that subsequently
74.
s
Mr. Gal-Or contends that this is the date on which his claim for patent infringement
accrued. Pl. App. H at 77.
amended complaint "setting out his claims with more precision." Gal-Or
t6.
I,97 Fed. Cl. at 477-
The August 2, 2010 Amended Complaint alleges that the Govemment infringed the '431
patent and misappropriated twenty-fiveo of Plaintiffs trade secrets without authorization,
violating the Taking Clause of the Fifth Amendment to the United States Constitution. Am.
Compl. tf 1.2.'
*+*
Specifically, the August 2, 2010 Amended Complaint catalogs at least fourteen different
incidents in which Mr. Gal-Or allegedly disclosed aspects of his inventions to the Govemment
and/or other entities. Am. Compl. at 4, 16-25; Pl. App. B at 43. These disclosures occurred
between 1986 and 1997 and did not always take place under the auspices of a nondisclosure
agreement. Am. Compl. at 4, 16-25; Pl. App. B at 43; Pl. Resp. at l7 ("[D]isseminarion . . . was
conducted via unclassified, non-confidential, academic [and] industrial seminars/re-education of
pilots [and] engineers, sometimes delivered under standard, 'Non Disclosure Agreements."')
(emphasis added). Because the Govemment subsequently utilized information obtained during
these disclosures without paying Mr. Gal-Or, the Amended Complaint alleges that at least six of
his inventions have been, or are currently being, used by the Govemment without authorization.
Am. Compl. ]n 1.2-1.5, 2.1. The Amended Complaint alleges that the Government has
infringed the '431 patent under 28 U.S.C. g 1498(a), and misappropriated Mr. Gal-Or's trade
secrets in violation of the Fifth Amendment to the United States Constitution. Am. Compl. lf 1.2.
In addition, the Amended Complaint alleges that six of Mr. Gal-Or's technologies have been
"diffused into an enormous number of classified Federal Government programs." Am Compl. u
4.1. The Amended Complaint requests damages in the amount of $71,572,000.00. Am. Compl.
at 1.
On September 16,2010, the Govemment filed a second Motion To Dismiss, arguing that:
the court did not have subject matter jurisdiction to adjudicate Mr. Gal-or's patent takings
claims; the remaining claims were untimely or inadequately pled; and that Mr. Gal-or lacked
standing to sue, because the co-owners ofthe '431 patent did not join this case as co-plaintiffs.
On February 28,2011 the court issued a Memorandum Opinion and Order granting in
part and denying in part the Govemment's Motion To Dismiss. see Gal-or I,97 Fed. cl. at 4g3.
Therein, the court ruled that: (1) it lacked subject matter jurisdiction to adjudicate Mr. Gal-Or's
u
Mr. Gal-Or asserts ownership of fifty-seven trade secrets. pl. Br. at 3; pl. Resp. at l. 2:
but see Pl. Supp. Br. at 2 (describing Mr. Gat-or's ownership of "hundreds" of trade secreis).
Mr. Gal-or, however, concedes that he can pursue claims alleging misappropriation of only
twenty-five trade secrets, because the others are baned by 28 U.S.C. $ 2501. pl. Resp. at 4, 16;
Pl. Br. at 12 ("[t]here are 25 timely takings out of57 [trade secrets] taken") (emphasis removed);
but see Pl. Resp. at 8 (stating that sixteen trade secrets.,remain protected,,).
7
In Plaintiffs' filings with the court, the '431 patent has been referred to as "property
and the trade secrets collectively have been referred to as ..property 8.,' pl. Resp. at,l--6.
A,"
takings claims; (2)
all but two of the claims for
patent infringement and trade secret
misappropriation were barred by 28 U.S.C. g 2501; (3) an actionable claim was pled as to
infringement of the '431 patent by the Govemment in 2005; but (4) Mr. Gal-Or currently lacked
standing to sue on the patent infringement claim, because Drs. Sherbaum and Lichtsinder, as coowners of the patent, were indispensable parties who had not joined the action. See Gal-Or 1,97
Fed. Cl. at 48G-483.
On July 21,2011, after multiple failed attempts to join Drs. Sherbaum and Lichtsinder,
the court dismissed Mr. Gal-Or's claim for patent infringement for failure to join indispensable
parties.,SeeGal-Orv.UnitedStates,No.09-869C,2011WL10550570(Fed.Cl.July2l,20ll)
("Gal-Or Il'). Mr. Gal-Or appealed. The United States Court of Appeals for the Federal Circuit
held: (l) that the court erred because the Amended Complaint appeared to assert a
misappropriation of trade secrets claim that was cognizable as a Fifth Amendment taking; and
(2) the court ened in determining that all of the takings claims were untimely. See GalOrv. UnitedStates,4T0Fed. Appx. 879,884 (Fed. Cir.2011) ("Gal-Or IIt'). The United States
Court of Appeals for the Federal Circuit vacaled Gal-Or 11 and instructed the court, on remand,
to determine: whether the remaining takings claims were timely; whether Drs. Sherbaum and
Lichtsinder were necessary parties; and the effect of Mr. Gal-or's unsuccessful attempts to join
Drs. Sherbaum and Lichtsinder when considering the remaining claims.
on July 2, 2012, the court granted Mr. Gal-or's motion for joinder and directed the clerk
to add Dr. Sherbaum and Dr. Lichtsinder as co-plaintiffs, the effect of which was to re-lnsrate
Mr. Gal-or's 2005 patent infringement claim. The Jt:Jy 2,2012 order summarized the status of
Mr. Gal-Or's patent infringement claims:
In our previous opinion, we held that all but two of [Mr. Gal-Or's] claims were
baned by the six-year statute of limitations provided by 28 U.S.C. g 2501 (2006).
Although the Federal Circuit vacated that previous decision, it nevertheless held
that we correctly determined that, except for [Mr. Gal-Or,s] patent claim relating
to production of drone aircraft in 2005, the patent claims were time-barred. The
Federal Circuit also did not question our holding that any patent infringement
claims accruing after 2006 failed to state a cause of action because the patent
expired in 2006, thus extinguishing the very patent rights to be enforced. [Thus,]
[w]e will treat the pre-2003 and post-2006 patent claims as barred.
I,,tly 2,2012 order at 2-3, Gal-or v. united states Q.,lo. 09-g69), Dkt. No. 37 (intemal citations
omitted).
The July 2, 2012 Order further clarified that Dr. Sherbaum and Dr. Lichtsinder were nor
joined as parties in this case with respect to the trade secret claims and also advised the parties
that additional briefing on Mr. Gal-or's trade secrets claims was necessary, because although
"some patent claims expired in 2006, th[at] did not mean that the trade secrets claims associated
\^/ith that patent also expired." 1d at 3.
on August 15,2012, the Govemment filed a third Motion To Dismiss ("Gov't Mot.").
arguing that Plaintiffs, as foreign citizens, failed to satisft the "reciprocity', requirement under 2'g
U.S.C. $ 2502(a) ("Reciprocity Act").8 On September 18,2012, Plaintiffs filed a Response. On
September 26, 2012, the Govemment filed a Reply.
***
On October 2, 2012, this case was transferred to now Senior Judge Nancy B. Firestone,
pursuant to RCFC 40.1(b). On October 17,2012, the cout did not rule on the Govemment's
August 15,2012 Motion to Dismiss, but issued an Order directing Mr. Gal-Or to submit
evidence of "reciprocity," as required by 28 U.S.C. $ 2502(a), and included: a copy of 28
U.S.C. $ 2502(a); a statement specifying the type of evidence required to establish reciprocity;
and copies of relevant court cases construing 28 U.S.C. $ 2502(a). The October 1'1,2012 Order
also advised Mr. Gal-Or that the court would dismiss the Amended Complaint, pursuant to the
Reciprocity Acq unless sufficient evidence ofreciprocity was proffered by January 18, 2013.
On January 14, 2013, Plaintiffs submitted: a Memorandum, together with excerpts from
various websites; a "u.S.-Israel Reciprocity case;" a summary of bilateral treaties and
memoranda of understanding between the United States and Israel; and a translated extract of
Israeli law on foreign judgments. Pl. Br. at 15-31. On February 11,2013, the Govemment filed
a Response. On March 13,2013, Plaintiffs filed a Reply.
On March 21, 2013, the court issued an Order ruling that Plaintiffs met their burden to
establish reciprocity under 28 u.s.c. $ 2502(a), because the Treaty of Friendship, commerce,
and Navigation between the United States and Israel provides for: "national treatment and mostfavored-nation treatment with respect to access to the courts of justice and to administrative
tribunals and agencies within the tenitories of the other Party." March 21, 2013 order at6, Gator v. united ,srares (No. 09-869), Dkt. No. 53 (quoting Treaty of Friendship, commerce and
Navigation, U.S-Israel, Aug.23, 1951, 5 U.S.T. 550). The March 21,2013 Order, therefore,
denied the Govemment's August 15,2012 Motion to Dismiss, in put. Id. (stating that the court
"rejects the govemment's motion to dismiss all of the plaintiffs' claims based on the Reciprocity
Act").
To resolve the remaining trade secrets takings claims, the March 21,2013 Order directed
Mr. Gal-or to file supplemental briefing by April 15, 2013 that: (1) identified with specificity the
25 trade secrets that are the subject ofthe takings claims; (2) explained why Mr. Gal-or had not
disclosed those trade secrets, as the Govemment argued; and (3) discussed the relationship
between the alleged trade secrets and the subiect matter of the .431 patent.
o
It appears that Dr. Sherbaum and Dr. Lichtsinder are citizens of a foreign govemment,
and that the Govemment and Senior Judge Firestone assumed that these co-plaintiffs were
Israeli. Gov't Mot. at 4; see also october 17 , 2012 order at 2, Gal-or v. united states (No. 09869), Dkt. No. 46.
April 16,2013, this case was reassigned to the undersigned judge, pusuant to RCFC
40.1(b). On April 17, 2013, Plaintiffs filed a Supplemental Brief. On April 29,2013, the
On
Government filed a Response. On July 8, 2013, Plaintiffs filed a Status Report.
III.
DISCUSSION.
A,
Jurisdiction,
The United States Court of Federal Claims has jurisdiction under the Tucker Act, 28
U.S.C. $ l49l, "to render judgment upon any claim against the United States founded either
upon the constitution, or any Act of congress or any regulation of an executive department, or
upon any express or implied contract with the United States, or for liquidated or unliquidated
damages in cases not sounding in tort." 28 u.s.c. $ la91(a)(1). The Tucker Act, however, is "a
jurisdictional statute; it does not create any substantive right enforceable against the United
states for money damages . . . . [T]he Act merely confers jurisdiction upon [the united states
Court of Federal Claims] whenever the substantive right exists." Ilnited States v. Testan, 424
u.s. 392,
398 (1976).
To pursue a substantive right under the Tucker Act, a plaintiff must identifu and plead an
independent contractual relationship, Constitutional provision, federal statute, and,/or eiecutive
agency regulation that provides a substantive right to money damages. see Toddv. united
states,386 F.3d 1091, 1094 (Fed. Cir. 2004) ("[J]urisdiction under the Tucker Act requires the
litigant to identify a substantive right for money damages against the United States separate from
rhe Tucker Act . . . ;'); see also Fisher v. (Jnited states,402 F.3d 1167,1172 (Fed. cii. 2005) (en
banc)("TheTuckerAct...doesnotcreateasubstantivecauseofaction;...aplaintiffmust
identif, a separate source of substantive law that creates the right to money damagls. . . .
[T]hat
source must be 'money-mandating,"'). Specifically, a plaintiff must demonstrate that the source
of substantive law upon which he relies "can fairly be interpreted as mandating compensation by
the Federal Govemment." united states v. Mitcheil,463 u.s. 206,216 (l9g3J (quoting zesrar,
424 u.s. at 400). And, the plaintiff bears the burden of establishing jurisdiction by a
preponderance of the evidence. see Reynolds v. Army & Air Force Exch. serv., g46 F.2d 746,
748 (Fed. cir. 1988) ("[o]nce the [rrial] court's subject matter jurisdiction
[is] put in question. . .
. [the plaintiff] bears the burden of establishing subject matter jurisdiction bai p."ponderance of
the evidence.").
Because the Amended Complaint in this case alleges that tle Govemment infringed the
patent, the United States Court of Federal Claims has jurisdiction to adiudicate that claim.
'431
see 28 U.S.c. g 1498(a); see also Crater corp. v. Lucent Techs.. \nc.,255 F.id 1361, 1364 (Fed.
Cir. 2001) (holding that "the United States Court of Federal Claims [has] exclusive jurisdiction
over patent infringement suits against the [G]ovemment"). In addition, since the Amended
complaint alleges that the Govemment has taken Mr. Gal-or's trade secrets, without just
compensation, the court has jurisdiction to adjudicate those claims. see Gal-or III, 470 Fed,.
Appx. at 884 ("It is undisputed that trade secrets are protected by the Taking Clause ofthe Fifth
Amendment . . . . In light of this fact, the Court of Federal Claims ened whin it determined that
the
amended complaint
did not state Fifth
Ruckelshaus v. Monsanto,467
Amendment takings claims[.],, (citing
see also Morris v. unilei itates,392
u.s. 986, 1003-{4 (19sa));
F.3d, 1372, 1375 (Fed. Cir. 2004) ("Absent an express statutory grant of jurisdicrion ro the
contrary, the Tucker Act provides the Court of Federal Claims exclusive jwisdiction over takings
claims for amounts greater than $ 10,000.).
The Govemment's aforementioned jurisdictional argument, based on 28 U.S.C. g 2502(a)
is addressed below.
B.
Standard Of Review For Pro Se Litigants.
The pleadings of a pro se plaintiff are held to a less stringent standard than those of
litigants represented by counsel. see Haines v. Kerner,404 u.s. 519, 520 (1972) (holding that
pro se complaints, "however inartfully pleaded," are held to "less stringent standards than formal
pleadings drafted by lawyers"). It has been the tradition of this court to examine the record "to
see if la pro se] plaintiff has a cause of action somewhere displayed." Ruderer v. united states,
412 F.2d' 1285, 1292 (ct. cl. 1969). Nevertheless, while the court may excuse ambiguities in a
pro se plaintiff complaint, the court "does not excuse [a complaint's] failures."
Henke v. United Stdtes,60 F.3d 795, 799 (Fed. Cir. 1995).
s
C,
Standard Of Review For A Motion To Dismiss pursuant To RCF,C
l2(bxl).
A challenge to the United States Court ofFederal Claims' "general power to adjudicate in
specific areas of substantive law
. is properly raised by a [Rule] l2(b)(l) motion.',
Palmerv.United States, 168 F.3d 1310, 1313 (Fed. Cir. 1999); see aiso RCFC 12(bX1)
(allowing a party to assert, by motion, "lack of subject-matter jurisdiction"). When considering
whether to dismiss ar action for lack of subject matter jurisdiction, the court is "obligated to
assume all factual allegations [of the complaint] to be true and to draw all reasonable inferences
in plaintifPs favor." Henke,60F.3d at797.
D.
Standard Of Review For A Motion To Dismiss pursuant To RCFC l2(bx6).
A challenge to the United States Court of Federal Claims' "[ability] to exercise its
general power with regard to the facts peculiar to the specific claim . . . . is raised by a
[Rule]
12(bX6) motion . . .
Palmer v. United States, 168 F.3d 1310, l3l3 (Fed. Cir. 1999j; see also
RCFC l2(bx6) (allowing a party to assert, by motion, "failure to state a claim upon which relief
can be granted"). When considering whether to dismiss an action for failure to siate a claim, the
cout must assess whether the complaint states "allegations plausibly suggesting (not merely
consistent with)" behavior by defendant that, if proven, would entitle the plaintiff to judiciil
relief. ,see Bell Atl. Corp. v. Twombl/, 550 u.s. 544,557 (2007); see also Aihcroft v. Iqial,556
u.s. 662, 679 (2009) ("[o]nly a complaint rhat states a plausible claim for rejief survives a
motion to dismiss."). In other words, "[a] claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable lnferen"" that the defendant is liable
for the misconduct alleged." Iqbal, 556 U.S. at 678. "Factual allegations must be enough to
raise a right to relief above the speculative level, on the assumption that all the allegations in the
complaint are true (even if doubtful in fact)." Bell Atl. Corp.,550 u.S. at 555 (intemal citations
omitted). But see lqbal,556 u.s. at 678 ('[T]he tenet that a court must accept as true all the
allegations contained in a complaint is inapplicable to legal conclusions.,').
;'
l0
E.
Issues Raised By The Government's
Third Motion To Dismiss.
The court construes the August 2,2010 Amended Complaint to present two claims for
adjudication: (1) infringement of the '431 patent, in violation of 28 U.S.C. g 1498(a), for the
Government's alleged use of the '431 patent in the 2005 Propulsion-Controlled Aircraft
Recovery project; and (2) a taking under the Fifth Amendment of twenty-five trade secrets
owned by Mr. Gal-Or by misappropriation by the Govemment.
1.
Whether 28 U.S.C. g 2502(a) Divests The Court Of Subject Matter
Jurisdiction To Adjudicate Plaintiffs' Claims.
u,
The Governmentts Argument.
The Government argues that, because all three Plaintiffs are citizens ofa foreign country,
the court's Tucker Act jurisdiction is limited by the Reciprocity Act, 28 U.S.C. g 2502(a),e that
has been interpreted as authorizing the United States Court of Federal Claims to adjudicate cases
only if "the alien's home country accords to citizens of the United States the right to prosecute
claims against their govemment in its courts." Gov't Mot. at 4 (quoting Ferreiro v. United
States,350 F.3d 1318, 1320 (Fed. Cir. 2003) (internal citation omitted)).
Specifically, the Reciprocity Act requires that a plaintiff establish reciprocity in law and
practice as a jurisdictional prerequisite, i.e., that U.S. citizens are able sue the foreign
governrnent of a plaintifPs nation of citizenship on the same terms as that nation's citizens.
Gov't Mot. at 4 (citing El-Shifa Pharm. Indus. Co. v. United States,378 F.3d 1346, 1354 (Fed.
Cir. 2004) (explaining that "the Reciprocity Act burdens alien plaintiffs who invoke the process
of the [United States] Court of Federal Claims with showing that their home courts treat natives
and American citizens equally when they adjudicate claims brought against their home
countries")). This requires that a foreign plaintiff provide statutes or case law, affidavits from
experienced attomeys, or statements from govemmental officials, showing that ,,American
citizens have equal standing to sue in the [applicable foreign] court system." Gov't Mot. at 5
(quoting Mexican Intermodal Equip. v. United States, 61 Fed. Cl. 55,
6l
(2004)).
Because Mr. Gal-Or is an Israeli citizen and Dr. Sherbaum and Dr. Lichtsinder also
appear to be "citizens of a foreign nation," they have the burden of demonstrating reciprocity.
'Section 2502(a) of Title 28 provides that:
Citizens or subjects of any foreign governrnent which accords to citizens of the
United States the right to prosecute claims against their govemment in its courts
may sue the United States in the United States Court of Federal Claims if the
subject matter ofthe suit is otherwise within such court's iurisdiction.
28 U.S.C. g 2s02(a).
1l
Gov't Mot. at 5. Plaintiffs in this case have provided no affidavits from competent attomeys or
govemment officials and no statutes or official case law demonstrating reciprocity and, therefore,
have failed to meet their burden under 28 U.S.C. $ 2502(a). Gov't Reply at 3. Therefore, the
court does not have jurisdiction to adjudicate the claims alleged in the Amended Complaint,
which must be dismissed for lack of subject matter jurisdiction. Gov't Mot. at 4-5.
b.
The Plaintiffs' Response.
Plaintiffs respond that the evidentiary requirement to establish reciprocity under 28
U.S.C. $ 2502 is lenient, and can be satisfied with "only the slightest evidence." Pl. Br. at 16
(quoting Note, Jurisdiction in the Court of Claims: Foreign Plaintffi and the Reciprocity
Statute,1962 DUKE L. J. 145, 150 (1962)). In addition, Plaintiffs provided the court witl a list of
agreements, treaties, memoranda of understanding between the United States and Israel, and
secondary sources conceming foreign judgments in Israel to demonstrate reciprocity. Pl. Br. at
2, 16, App. A-B. One of the treaties cited is the Treaty of Friendship, Commerce, and
Navigation. ,See U.S.-Israel, A,ag. 23, 1951, 5 U.S.T. 550 ("Treaty of Friendship, Commerce,
and Navigation"). Article V of that Treaty provides:
Nationals and companies of either Party shall be accorded national treatment and
most-favored-nation treatment with respect to access to the courts ofjustice and to
administrative tribunals and agencies within the territories of the other Party, in
all degrees of jurisdiction, both [i]n prusuit and in defense of their rights. It is
understood that companies of either Party not engaged in activities within the
territories of the other Party shall enjoy such access therein without any
requirement of registration or domestication.
Treaty of Friendship, Commerce, and Navigation, U.S.-Israel, Art. V, Aug. 23, 1951 , 5 U.S.T.
550.
The Court's Resolution.
On March 21, 2013, now Senior Judge Firestone issued an Order ,'find[ing] that the
plaintiffs have satisfied their burden of demonstrating reciprocity under 28 U.S.C. g 2502(a), and
reject[ing] the govemment's motion to dismiss all of the plaintiffs' claims based on the
Reciprocity Act." March 21, 2013 Order at 6, Gal-Or v. United States (No. 09-869), Dkt. No.
53. Therein, the court determined that under the terms of the Treaty of Friendship, commerce,
and Navigation, "united states citizens are to have free access to the courts of Israel," and
concluded that this was sufficient to defeat the Government's jurisdictional challenge under 28
U.S.C.$2502(a). Id.(citingZalcmanisv.UnitedStates, 173F.Supp.355,357 (Ct.Cl. 1959)
(stating that a heaty permitting "united states citizens free accass to Latvian courts" was
sufficient to demonstrate reciprocity)). The March 21,2013 order is a well-reasoned decision,
concluding that the Reciprocity Act should not be interpreted "rigidly in circumstances where
there is evidence that United States citizens may prosecute claims in the home courts ofa foreign
national," and that the Treaty of Friendship, commerce, and Navigation provides evidencealbeit limited evidence-that American citizens have this access. see Ferreiro,350 F.3d at
1322. The court has determined that this Treaty govems the Govemment's Third Motion to
12
Dismissl0 and that reciprocity has been established as to Mr. Gal-Or, as well as to Dr. Sherbaum
and Dr. Lichtsinder, if they are Israeli citizens.rr See Zalcmanis, 173 F. Supp. at 357 (finding
reciprocity based on a treaty that afforded "United States citizens free access to Latvian courts").
In addition, the court's independent research indicates that_
State of Israel may be sued as a
-the
defendant without regard to the nationality of the plaintiff.'' The Reciprocity Act only requires
that: "American citizens enjoy an equal standing with foreigners in actions against the foreign
State and does not require that the scope of actions for which the respective countries render
themselves liable to suit shall be coextensively identical and in pari material." Nippon Hodo
Co.v. Unitedstates,l52ct. cl. 190, 193 (1961).
For these reasons, the court has determined that, to the extent that all Plaintiffs are
citizens of Israel, the requirements of the Reciprocity Act have been met. In addition, insofar as
the Government argues for dismissal of Mr. Gal-Or's takings claims based on trade secret
misappropriation, that argument is arguably foreclosed by Russian Volunteer Fleet v. United
states, 282 u.s. 481 (1931). In that case, a foreign corporation filed a suit against the
Govemment in the Court of Claims, to recover just compensation under the remedial provisions
of the Act of June 15, l9n.t3 Id. at 486. The court of claims determined that it did not have
jurisdiction to adjudicate plaintiffls claims, because they failed to establish reciprocity. See
Russian volunteer Fleet v. united states,68 ct. cl. 32,36 (1929). on appeal, the united states
Supreme court reversed, explaining that reciprocity was not a "condition precedent" to reoovery
under the Act of June 15,1917, because the Fifth Amendment guarantees that "private property
shall not be taken for public use without just compensation [and] establishes a standard for our
[G]ovemment which the Constitution does not make dependent upon the standards of other
govemments." Russian volunteer Fleet, 282 u.s. at 492. Because the Government exercised
"the power of eminent domain in taking the [plaintiff s] property, the united States became
bound to pay just compensation;' Id. at 489 (intemal citations omitted). In addition, the United
States Supreme court declined to interpret the statute as conditioning recovery on a
demonstration of reciprocity, because doing so, "to say the least, would raise a grave question as
to the constitutional validity ofthe [A]ct." Id. at492.
For these additional reasons, the court has determined that is has jurisdiction to adjudicate
the claims alleged in the August 2, 2010 Amended complaint as to infringement of the ,431
patent, in violation of 28 U.s.c. g 1498(a), for the Govemment's alleged use of the '431 patent
r0
l,
See Treaties in Force, U.S. Dep't of State, Jan,
2012, http://www.state.gov/
documents/organizationl2|2293.pdf (last visited October 21, 201 3).
1l
Based on Plaintiffs' submissions to the cout,
Sherbaum are Israeli citizens.
it
appears that
Dr. Lichtsinder and Dr.
t2
see Law of civil Procedure Amendment (State as a Lawyer), 5719-195g (195s) (Isr.),
available at httpJ/www.nevo.co.il/law html/lawOu055 0l2.htm#_ftnl (website translated using
Google Translate).
13
The Act of June 15, 1917 authorized the expropriation of ships and other propeny
during war, but required the payment ofjust compensation.
IJ
in the 2005 Propulsion-Controlled Aircraft Recovery project. Therefore, the Govemment's
Motion To Dismiss, pursuant to RCFC 12(bXl), is denied.
2.
Whether The Disclosure Of Trade Secrets Extinguishes Attendant
Property Rights.
a.
The Governmentts Argument.
The Government argues that even if Mr. Gal-Or's inventions warranted trade secret
protection, he "no longer possess[es] any legally protected rights in [the trade secrets]," because
he widely disseminated any protected information over the course of many years. Gov't Mot. at
8. The scope ofthe property right in a trade secret "is defined by the extent to which the owner
of the secret protects his interest from disclosure to others." Gov't Mot. at 9 (quoting
Ruckelshaus y. Monsanto Co.,467 U.S. 986, 1002 (1984). In other words, a trade secret loses
protection when it is publicly disclosed. Gov't Mot. at 9. Trade secret protection also is vitiated
when an owner discloses confidential information to "persons who are under no obligation to
safeguard lit]," i.e., when it is revealed without marking the material as "confidential,', ,.trade
secret," or when disclosure is made without a signed non-disclosure agreement. Gov't Mot. at 9.
The Government analogizes this case to Block v. United States,66Fed. Cl. 68, 7l (2005),
wherein the court dismissed takings claims based on trade secret misappropriation, because of
disclosure to the Government and the failure to protect proprietary information. Gov't Mot. at 9
(citing Block,66 Fed. Cl. at 75 ("Because [plaintiff] disclosed his alleged trade secrets to others,
'who were under no obligation to protect the confidentiality of the information,' at both NASA
and the FAA, the plaintiff lost any property interest he may have had." (quoting Ruckelshaus,
467 U.S. at 1002))); see also Sterner v. United States,434F.2d 656,657 (Ct. Cl. 1970) (holding
that protected property rights are lost by publishing them
the public domain);
Grayton v. United States, 92 Fed. Cl. 327, 33+35 (2010) (Since plaintiff .,failed to place a
restrictive legend on the proposal he sent to the [Government]" any property interest he had in
those ideas was destroyed).
in
In this case, Mr. Gal-Or acknowledged that he voluntarily disclosed information
regarding his inventions to the Govemment and other third parties on "at least fourteen occasions
between 1986-1997." Gov't Mot. at l0 (quoting Gal-Or 1,97 Fed. Cl. at 478). Because this
information was disclosed, without requiring "a confidentiality or non-disclosure agreement" or
designating that this information was "confidential, proprietary, or trade secrets," Mr. Gal-or
voluntarily relinquished the property rights protected by the Taking clause
Amendment. Gov't Mot. at 1l-12 (intemal quotations omitted).
b,
of the
Fifth
The Plaintiffs' Response.
Mr. Gal-Or's response, expressed in over 90 pages of filings and/or submissions, appears
to be that he "never published or disclosed the 57 taken weapons-type [trade secrets] to anyone
but employees with DoD-clearance in classified contracts." pl. Resp. at 12. Mr. Gal-or
further explains that twenty-two of these trade secrets "have never been published by anyone.,'
Pl. Resp. at 12. As such, these fifty-seven tmde secrets were "confidentially maintained." pl.
14
Resp. at 2. While acknowledging that he shared his proprietary information with the
Government and various goverffnent contractors, Mr. Gal-Or contends that all of these entities
were involved with "black U.S. Programs" where "employees have [Department of Defense]
clearances." Pl. Supp. Br. at24. In fact, disclosures to government contractors, such as General
Electric, were made only within the context of classified or confidential work projects. Pl. Resp.
at 1.
Specifically, as to the 1986 Proprietary Inlormation Agreement with Boeing, Mr. Gal-Or
with the following legends:
"LEGAL PROPERTY OF TECHNION-IIT and Gal-Or," "Patent Pending," "TURBO and JETENGINE LABORATORY," and "submitted to Boeing Milirary Airplane Co., Sept.., 1986 in lieu
of our Proprietary Information Agreement of Aug. 25, 1986."'u Pl. Resp. at 8; 12-13. Mr. GalOr insists that he "safeguarded the confidentiality of the information" discussed during lectures
and kept his trade secrets "strictly confidential" to maintain legal protection. Pl. Resp. at 8. Mr.
Gal-Or argues, however, that the only way to conduct his classified work with various
govemment contractors and market his inventions is to share his information in the manner that
he did. Pl. Supp. Br. at 24. Thus, Mr. Gal-Or disseminated information pertaining to his trade
secrets "via unclassified, non-confidential, academic [and] industrial seminars/re-education of
pilots [and] engineers, sometimes delivered under standard, 'Non Disclosure Agreementsf,f,
prior to entering into any classified contract work." Pl. Resp. at 17 (emphasis added).
states that he subsequently marked at least forty-one trade secrets
In addition, Mr. Gal-Or contends that the Air Force, in particular, ,,knowingly
and
intentionally" published information about eight of his trade secrets. Pl. Resp. at 16. Mr. Gal-or
also is of the opinion that the United states Navy, the United states Department of Defense, and
the Department of Homeland Security, among others, "unintentional[ly]" published information
pertaining to twenty-seven of his trade secrets in 1986. Pl.Resp.at16.
In sum: Mr. Gal-Or disclosed information pertaining to his trade secrets only to persons,
whether employed by the Govemment or govemment contractors, who had highJevel security
clearances; and, it was these individuals who were responsible for disclosing his trade secrets.
on some occasions, however, Mr. Gal-or marked his trade secrets with restrictive legends,
although disclosures to third parties occurred in the context of his attempt to market his
inventions or while performing work on classified projects. In addition, Mr. Gal-Or gave
lectures discussing his trade secrets where he occasionally, but not always, utilized nondisclosure agreements.
Mr. Gal-Or states that the President of Boeing invited ,,professor Gal-Or to the U.S. to
disclose to [Boeing] his stealth design and flight testing trade secrets. on g125/1996, that was
done via classified contract. Boeing immediately adopted that taken property . . . . [and]
[t]his
violated contract [and the Fifth Amendment]." Pl. Supp. Br. at l. consequentiy, Boelng
committed an "undisputed, 1986 taking[] of weapon-type, Israel-State-classified, trade secrets
and inventions and present[ed] them to the [United states Govemment] as its own." pl. Br. g.
'o
15
The Court's Resolution.
As a matter of law, trade secrets are protected by the Taking Clause of the Fifth
Amendment. See Ruckelshaus, 467 U.S. at 1003-04 ("[T]o the extent that [Plaintiff] has an
interest in its . . . data cognizable as a trade-secret property right under [state] law, that property
right is protected by the Taking Clause of the Fifth Amendment."). But, as the United States
Supreme Court has observed, "property interests . . . are not created by the Constitution. Rather,
they are created and their dimensions are defined by existing rules or understandings that stem
from an independent source such as state law." Ilebb's Fabulous Pharmacies, Inc. v. Beckwith,
449 U.S. 155, 161 (1980) (intemal citations omitted). Therefore, in light ofthe intangible nature
of trade secrets, "the extent of the property right therein is defined by the extent to which the
owner ofthe trade secrets protects his interest from disclosure to others." Block, 66 Fed. Cl. at
75 (quoting Ruckelshaus,46T U.S. at 1002) (emphasis added). As such, broad-based public
disclosure, such as when a person places their "ideas in the public domain by publishing them,"
eliminates trade secret protection. See Sterner,434 F.2d, a|657 (intemal citation omitted).
Therefore, when trade secret information is submitted to the Govemment or other third
parties, it is incumbent on the owner to "protect the information from disclosure to
others.. . . [by] mark[ing] [their] proposal 'confidential' or 'trade secret."' Block,66 Fed. Cl. at
75. The purpose of that marking is to impose on the Govemment "an obligation to protect the
confidentiality ofthe informati on." Id. A non-disclosure agreement also suffices to protect the
confidentiality of trade secrets. ./d But, disclosing trade secrets without taking the minimal
steps necessary to maintain trade secret protection is "fatal to [a] taking claim." 1d
For purposes of resolving the issue of whether the disclosure of Mr. Gal-Or's trade
secrets extinguished his property rights, the court assumes that Mr. Gal-Or in fact owned legally
cognizable trade secrets. '' Nevertheless, Mr. Gal-Or's repeated public disclosures throughout
the 1980's and 1990's, albeit with sporadic efforts to ameliorate such disclosure, as a matter of
"
Federal law defines a trade secret as:
and types of financial, business, scientific, technical, economic, or
engineering information, including pattems, plans, compilations, program
[A]ll forms
devices, formulas, designs, prototypes, methods, techniques, processes,
procedures, programs, or codes, whether tangible or intangible, and whether or
how stored, compiled, or memorialized physically, electronically, graphically,
photographically, or in writing
if-
(A) the owner thereof has taken reasonable
measures
to keep such
information secret; and
(B) the information derives independent economic value, actual
or
potential, lrom not being generally known to, and not being readily
ascertainable through proper means by, the public[.]
l8 u.s.c. $ 1839(3).
16
law relinquished their protected status.
75; Sterner, 434 F .2d at 657 .
,See
Ruckelshaus,46T U.S. at 1002; Block,66 Fed. Cl. at
The Amended Complaint describes numerous occasions wherein Mr. Gal-Or disclosed
trade secrets or other proprietary information without imposing an obligation to maintain
confidentiality, e.g., "[s]aid disclosures involved documents, video tapes [and] reports confened
in conference, office, or lecturing rooms, or at [Mr. Gal-Or's] laboratory or during [Mr. GalOr's] flight tests." Am. Compl. at 15.'o Other instances in which Mr. Gal-Or took proactive
steps to protect the confidentiality of his trade secrets are simply overwhelmed by the number of
times he did not. More fundamentally, because Mr. Gal-Or's submissions make it impossible to
identifr the trade secrets that were protected from those that were not, the August 2, 2010
Amended Complaint is so vague that it fails to meet the pleading requirements of RCFC 8. ,See
RCFC 8(a)(2) (requiring a "short and plain statement of the claim showing that the pleader is
entitled to relief').
The series of events described in the August 2, 2010 Amended complaint undeniably
"placed [Mr. Gal-Or's] ideas in the public domain." Sterner, 434 F.2d at 657. Even if Mr. GalOr disclosed his trade secrets to persons with classified security clearances, their obligation as to
secrecy was to the Government, not Mr. Gal-or, and the additional "failure to place any
restrictive markings on his [trade secrets] before submitting [them] to [Govemment] personnel,"
or "identiff any proprietary information [as trade secrets] . . . [meant that] the [G]overnment was
not under any obligation to protect the confidentiality of the information." Block, 66 Fed. cl. at
75i see also, e.g,, Grayton,92 Fed. cl. at 335 ("[p]recedent holds that a federal agency is under
no obligation to keep unsolicited proposals confidential, when restrictive legends that could
identify the proprietary information therein are inadequate or missing." (citing Xerxe Group,
Inc. v. United states, 278 F.3d 1357, 1360 (Fed. cir.2002) (determining thar plaintiffs .,failure
to identify and clearly demarcate what it considered restricted data is fatal to its claim"))).
In sum, because Mr. Gal-Or disclosed trade secrets to others, ,,.who were under no
obligation to protect the confidentiality of the information' . . . [Mr. Gal-or] lost any property
interest he may have held. If there is no property interest there can be no taking." Bioc,t, 66 Fed.
cl. at75 (quoting Ruckelshaus,46T u.s. at 1002 (intemal citation omitted).r? Moreover, the
court has no jurisdiction over any trade secret allegedly misappropriated by Boeing and, to the
extent that Mr. Gal-Or alleges that the Govemment induced trade secret misappiopriation or
benefitted therefrom, any such claims expired in 1992. Sea 28 U.S.C. g 2501.
16
To the extent that these disclosures were made to individuals who Dossessed secuntv
clearances, that does not alter the fact that "[o]nce the data that constitute a trade secret are
disclosed to others, or others are allowed to use those data, the holder of the trade secret has lost
his property interest in the data;' Ruckelshaus, 467 U.S. at l0l 1 .
17
The Government also argues that Drs. Sherbaum and Lichtsinder "are probably"
necessary parties to Mr. Gal-Or's trade secrets claim, such that their participation is required for
purposes of standing. Gov't Mot. at 6. In addition, the Govemment argues that almost ill of Mr.
Gal-or's trade secrets claims are timebaned by 28 U.S.c. $ 2501. Gov't Mot. at 7. Because of
the court's disposition of Mr. Gal-Or's trade secrets claims, it is unnecessary for the court to
consider these additional arguments.
t7
IV.
CONCLUSION.
For these reasons, the Govemment's August 15., 2012 Motion To Dismiss is denied,
insofar as it requests dismissal, pursuant to RCFC l2(bx1), for a failure to satis$ the reciprocity
requirement of 28 U.S.C. $ 2502(a). But, the Govemment's August 15, 2012 Motion To
Dismiss as to the trade secrets claims alleged in the August 2, 2010 Amended Complaint is
granted, pursuant to RCFC 12(bX6).
Mr. Gal-Or's claim for infringement, under 28 U.S.C. $ 1498(a), of the '431 patent by
virtue of the Govemment's 2005 alleged use in the Propulsiontontrolled Aircraft Recovery
project, is not dismissed. The court will convene a status conference with the parties to discuss
further action in this oroceedins.
IT IS SO ORDERED.
s/ Susan G. Braden
SUSAN G. BRADEN
Judge
18
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