Free Motion for Leave to File - District Court of Federal Claims - federal

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 1 of 222

IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 92-580

Chief Judge Damich

SPARTON CORPORATION, Plaintiff,

v.

THE UNITED STATES, Defendant.

DEFENDANT'S RESPONSE TO SPARTON'S PROPOSED FINDINGS OF FACT PETER D. KEISLER Assistant Attorney General JOHN FARGO Director GARY L. HAUSKEN Attorney Commercial Litigation Branch Civil Division Department of Justice Washington, D. C. 20530 Telephone: (202) 307-0342 Facsimile: (202) 307-0345

November 19, 2007

Attorneys for Defendant, United States

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 2 of 222

In accordance with paragraph 2.a.ii(1) of the court's Pretrial Order [Docket No. 290], The United States hereby provides its responses to Plaintiff's Proposed Findings of Fact. The government's responses are set out below in Times Roman type face and indented to distinguish them from plaintiff's use of Courier type.

I. BACKGROUND A. 1. World War ("WW") I illustrated the effectiveness of the submarine as an attack vessel. B885, 896-97. the submarine was even more lethal. Id. During WW II,

The German

submarine fleet almost single-handedly won the battle for the Atlantic. Id. About a month before the end of WWII,

July 26, 1945, the infamous U.S.S. Indianapolis transported the Hiroshima and Nagasaki atomic bombs to the Tinian Island B-29 U.S. airbase. 500008-9. Four days later on its journey to the Philippines, it was sunk in 12 minutes by a Japanese submarine. Id. This submarine claimed about 880 U.S.

military lives. 500009-10. Government Response: Defendant does not dispute that the cited reference states information substantially the same as the statement of fact. But the cited text is imprecise as to when and where the stated events occurred and does not cite its sources. The cited text is hearsay and, in any event, cannot be held up to scrutiny or challenged due to lack of detail or sources. And the characterization of the USS Indianapolis

1

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 3 of 222

and "infamous" is unsupported and inaccurate. Finally, the proposed statement of fact is irrelevant to any issue in this litigation. 2. Since WW II, the submarine has become an important warship in the Soviet Navy. B885-87, 896, 906, 914-15, 500017-18, 500063-74. Subsequent to WW II, there was a

tremendous growth in the Soviet submarine fleet. Id. and 500022-74. As a result, the Soviet fleet soon had more Between

submarines than any other Navy in the world. Id.

1962-1970, the Soviet Union produced many different classes of nuclear powered submarines having submerged missile launch capability with which to destroy targets hundreds of miles away. Id. and B891-94, 500049-61. For example, the

Soviet nuclear powered Yankee Submarine Class contained missiles having a range of about 1,500 statute miles (1 statute mile = 5,280 feet). Id. The Soviet nuclear powered

Charley Submarine Class possessed cruise missiles capable of following an electronic map of terrain, flying at a low altitude and destroying a distant target. Id. Government Response: Defendant cannot evaluate the truth of this statement. Plaintiff cites at least 60 pages of text in support of this allegation. In particular, 52 pages of a book are cited, but plaintiff fails to adequately identify on which pages the asserted facts are found. A review of the citations did not reveal any statements that would support the entire paragraph. It is unreasonable to make Defendant

2

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 4 of 222

search through such voluminous materials to try to find the asserted facts without clear internal citation. Further, the book is hearsay and fails to cite its sources. Accordingly, it is not possible to check the truth of the statements. Further, the proposed statement of fact is irrelevant to any issue in this litigation. 3. As a result of the capability of its submarines, the Soviets have issued subtle warnings to the U.S. when the Cold War had a tendency to "heat up." 500062. On one such

occasion, Soviet General Chervov stated that the Soviets might deploy submarines armed with nuclear missiles 100 miles off the U.S. coast. Id. Traveling time of missiles

launched from Soviet submarines a few hundred (or a 1,000) miles from a U.S. coastline would still be very short. Id. Such a strike would make it difficult for U.S. anti-missile forces to shoot them down. Id. Much worse, it would give

the President little time to evaluate the attack and launch a counterattack. Id. Government Response: Defendant does not dispute that the cited page states information substantially the same as the statement of fact. But the cited text is imprecise as to when and where the stated events occurred and does not cite its sources. Accordingly, the text is hearsay and, in any event, cannot be held up to scrutiny or challenged. Further, the proposed statement of fact is irrelevant to any issue in this litigation.

3

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 5 of 222

4. From the Soviets point of view, placing their submarines close enough to the U.S. coastline is an acceptable response to the deployment of American missiles, such as the Pershing II, close to Soviet borders. 500062. Since the Yankee

submarine missile range was about 1500 miles, the placement of a Yankee submarine 100 miles off the U.S. East and West coasts would enable said submarines to attack just about any city or target in the United States. Id. Government Response: Defendant does not dispute that the cited page states information substantially the same as the statement of fact. But the cited text is imprecise as to when and where the stated events occurred and does not cite its sources. Accordingly, the text is hearsay and, in any event, cannot be held up to scrutiny or challenged. Indeed, any presentation of "the Soviet point of view" is heresay. Further, the proposed statement of fact is irrelevant to any issue in this litigation.

5. Normally, the Soviets have a Yankee Class submarine on patrol off each U.S. (mainland) coastline with a third in transit to or from its home base port. 500062. These

submarines are positioned so that they may be close enough to their targets. Each of these submarines carries 16

missiles that can travel up to 3,000 kilometers (~1875 miles) and hit a target within 1,400 meters (~4666 feet or less than a mile).

4

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 6 of 222

Government Response: Defendant does not dispute that the cited page states information substantially the same as the statement of fact, except that the text does not support the text "the Soviets have a Yankee Class submarine on patrol off each U.S. (mainland) coastline." The text however supports the proposition that "the Soviets have a Yankee Class submarine on patrol off each U.S. coastline." But the cited text is imprecise as to when and where the stated events occurred and does not cite its sources. Accordingly, the text is hearsay and, in any event, cannot be held up to scrutiny or challenged. Further, the proposed statement of fact is irrelevant to any issue in this litigation. 6. The first Soviet Charley Class submarine appeared in 1968 and was able, as was the Soviet Yankee Class, to fire missiles from a submerged position. B891-94, 1414-15. Boyle. These two submarines illustrated below further helped fuel the Soviet Cold War threat which further prompted the U.S. Navy to seek a dual depth DIFAR sonobuoy. Id. Government Response: 6a. The first Soviet "Charley Class" submarine is reported to have appeared in service initially in 1968. PX-171 at B891-94. The Charley class submarines and Soviet Yankee Class submarines were reported to have had the capability to fire missiles from a submerged position. PX-171 at B891-94. The second sentence is a statement of opinion, not of fact, and the sentence is not supported by the factual statements of the references.

5

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 7 of 222

7. While a submarine's primary strategic role during the world wars was against surface warships and sea born logistic traffic, the evolution of submarine launched ballistic missiles and later cruise missiles has enabled the submarine to perform an even more important strategic role, that of striking at targets in an enemy's homeland. B885-86, 1415. Boyle. Indeed, no spot on earth is now beyond the Nuclear powered

reach of a submarine launched weapon. Id.

submarines are an underwater weapon system capable of worldwide deployment and destruction. Id. Nuclear powered

submarines travel submerged at speeds at least equal to those of attacking surface vessels. Id. In its current

role, the ballistic missile nuclear submarine is the ultimate deterrent, while its inherent survivability gives it a virtually guaranteed second strike defense role. Id. Government Response: See PX-171 (Although submerged submarines are difficult to locate, all underwater craft give both acoustic and non-acoustic indications of their presence. SB886. There is no such thing as an undetectable submarine. B886.)

B. 8. The U.S. Navy purchases hundreds of thousands of sonobuoys a year, mainly because they are expendable devices, i.e. they are used just once and thereafter self-

6

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 8 of 222

destruct through a scuttling mechanism. B285-354, 356, 359-60, 458-59, 1430-31.

Boyle, G. Martin, A sonobuoy is a

sophisticated underwater electroacoustic device capable of detecting and locating the source of underwater sounds. Id. It is primarily used to detect, locate and classify submerged submarines. Id. To perform these functions, it is

dropped into the ocean from a hunter aircraft or vessel ("the hunter"). Id. The sonobuoy detects underwater sounds,

i.e. acoustic energy from a submarine, through the use of a transducer containing a hydrophone, converts them to electrical signals which are then transmitted by the hydrophone to a transmitter located in an electronics housing within the sonobuoy. Id. The sonobuoy transmitter

transmits the electrical detection information to an antenna for transmission to the hunter. Government Response: 8a. The U.S. Navy purchased hundreds of thousands of sonobuoys a year, during at least part of the relevant time period for this action. Testimony of McGavock. 8b. Sonobuoys are expendable devices, i.e., they are used just once and thereafter are expended or self-destruct through a scuttling mechanism. PX-114 at B459. 8c. A sonobuoy is a sophisticated underwater electro-acoustic device capable of detecting and locating the source of underwater sounds. PX-114 at B459, 948.

7

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 9 of 222

B459. It is primarily used to detect, locate and classify submerged submarines. PX-114 at B459. Dropped into the ocean by an aircraft, the sonobuoy is equipped with a radio transmitter to send detection information back to the aircraft. Together, the sonobuoy and aircraft provide submarine surveillance capability over vast ocean areas. To perform its function, it is dropped into the ocean from an aircraft or vessel. PX-114 at B459. 8d. The sonobuoy transmitter then transmits the electrical signal through an antenna and then by radio signal to an aircraft or vessel. PX-114 at B459; PX176.

9. There are three distinct types of sonobuoys. B428-32, 459-60, 1415-16. The passive sonobuoy is strictly a device

for acoustic energy detection and does not reveal its presence to the hunted submarine. Id. A passive sonobuoy

can detect with its hydrophone(s) the presence of even the most modern submarines at great distances and transmits this detection information to the hunter. Id. The active

sonobuoy is a miniature sonar system similar to those installed on ships. Id. The active sonobuoy uses a

transducer that can transmit acoustic signals into the ocean through a projector and receive through its hydrophone(s) acoustic energy underwater. Id. The active sonobuoy

transmits short pulses of sound into the ocean and locates the presence of a submarine by detecting the return pulses

8

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 10 of 222

reflected by the target. Id.

These return pulses are

transmitted to the hunter and are used to measure the time taken for the pulses to reach the target and return to the sonobuoy. Id. From this time measurement, accurate distance The third type of sonobuoy is This sonobuoy type may

information is computed. Id.

a special purpose type sonobuoy. Id.

measure the temperature of the ocean at various depths to determine the location of thermoclines (i.e. densitypressure and/or temperature differences between oceanic layers). Id. Instead of listening for acoustic energy with

a hydrophone(s), like the passive or active sonobuoy, this sonobuoy may contain a probe for sensing water temperature and transmitting the temperature reading to hunter aircraft. Id. Generally speaking, the passive sonobuoys are used to

detect the submarine target; then, the active sonobuoys are used to attack it. Id. and 16454-55, 16501. Government Response: 9a. There are two basic types of sonobuoys. PX-114 at B459-60. The passive sonobuoy is strictly a listening device and does not reveal its presence. PX-114 at B459-60. A passive sonobuoy can detect even the most modern submarines at great distances and can transmit this information to an aircraft or vessel. PX-114 at B459-60. 9b. The active sonobuoy is a miniature sonar system similar to those installed on ships. PX-114 at B459-60. The active sonobuoy uses a transducer

9

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 11 of 222

that can transmit acoustic signals into the ocean and receive acoustic energy back from the water. PX-114 at B459-60. The active sonobuoy transmits short pulses of sound and locates the presence of an object by detecting the return pulses reflected by the target. PX-114 at B459-60. These return pulses are transmitted to the aircraft, where equipment is used to measure the time taken for the pulses to reach the target and return to the sonobuoy. PX-114 at B459-60. From this time measurement, accurate distance information is computed. PX-114 at B45960. The latest types of active sonobuoys can provide both distance and bearing information from a single sonobuoy. 9c. Bathythermograph buoys are sometimes referred to as "special purpose sonobuoys," although bathythermographs do not transmit or receive sound. PX-111 at B428. The bathythermograph measures the temperature of the ocean down to 1000 feet. PX-111 at B428. The temperature information is used to determine sound paths and the location of thermoclines (i.e. density-pressure and/or temperature differences between oceanic layers). PX-111 at B428. This information is useful in selecting optimal hydrophone depths. PX-111 at B428. Instead of listening for acoustic energy with a hydrophone(s), like the passive or active sonobuoy, this buoy contains a probe that measures the difference in impedance, which varies with ocean temperature. Testimony of Mr. Hudson. The measurements are then transmitted to an aircraft or vessel where the measurements are correlated to determine the water temperature. Testimony of Mr. Hudson.

10

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 12 of 222

10. The AN/SSQ-53 ("SSQ-53" or "DIFAR") class sonobuoys are passive and called DIFAR sonobuoys because they are DIrectional Frequency Analysis and Recording devices. B429, 459-60, 953-56, 1415-16, 16499, 16454-55. Earlier types of A

passive sonobuoys had no useful directional sense. Id.

submarine could only be located by deploying patterns of three or more sonobuoys in a given area and plotting signals from all in an airplane or ship. Id. The location of a This

submarine was then derived through geometry. Id.

process was time consuming and was not effective against high speed submarines that could "run away" from the sonobuoy before the "location" process was completed. Id. Beginning with fleet use of SSQ-53 sonobuoys, which contained a built-in compass, an omnidirectional hydrophone and a directional hydrophone, the U.S. fleet was able to obtain detection and bearing information from a single SSQ53 sonobuoy. Id. A pair of SSQ-53 sonobuoys provided the

specific location of a targeted submarine. Id. Government Response: 10. The AN/SSQ-53 ("SSQ-53" or "DIFAR") class sonobuoys are passive and called DIFAR sonobuoys, which is an acronym of DIrectional LOFAR. PX111 at B429. The LOFAR was an earlier model of sonobuoy the name of which was an acronym for Low Frequency Analysis and Ranging. Earlier types of

passive sonobuoys had no useful directional capability. PX- 114 at B459. A

11

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 13 of 222

submarine could only be located by deploying patterns of three or more sonobuoys in a given area and plotting signals from the buoys in an airplane. PX114 at B459. The location of a submarine was then derived through geometry. PX- 114 at B459. Beginning with fleet use of SSQ-53 sonobuoys, which contained a built-in compass and a directional hydrophone, the U.S. fleet was able to obtain detection and bearing information from a single SSQ-53 sonobuoy. PX114 at B459. 11. The SSQ-36 is a special purpose sonobuoy which determines a profile of ocean temperature and permits aircraft crews dropping their sonobuoys to plan search patterns based on these oceanic temperature readings. B16455, 16498. Government Response: 11. The bathythermograph measures the temperature of the ocean down to 1000 feet. PX-111 at B428.

12. The SSQ-62 class sonobuoys are active, commandable ones which provide range and bearing information about a target submarine. B16454-55, 16501. They are called DICASS

sonobuoys, the acronym standing for Directional Command Active Sonobuoy System. Id. When this sonobuoy is deployed,

it remains passive until commanded to an active function by an ASW aircraft. Id. This sonobuoy is used to provide

12

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 14 of 222

simultaneous range, Doppler and bearing information for localizing and attacking subsurfaced targets. Id. Government Response: 12. The AN/SSQ-62 sonobuoys are active, commandable sonobuoys which provide range and bearing information about a target submarine. PX-114 at B454. They are called DICASS sonobuoys, an acronym standing for Directional Command Active Sonobuoy System. PX-111 at B431. When this sonobuoy is deployed, it remains passive until commanded to an active function by an ASW aircraft. PX-111 at B431. This sonobuoy is used to provide simultaneous range, Doppler and bearing information for localizing subsurface targets. PX-111 at B431.

13. The SSQ-57 class sonobuoys are passively used to measure target submarine sound and ambient noise levels which assist aircraft personnel in the planning of a submarine search pattern. B16455, 16500.

Government Response: 13. The SSQ-57 class sonobuoys are calibrated passive listening devices primarily used for special applications where accurate sound measurements are required and are uniquely used for obtaining ambient noise level measurements. PX-111 at B430.

14. The SSQ-77 class sonobuoys are passive also. B16502, 16455. These sonobuoys provide improved passive detection

13

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 15 of 222

in deep water because they are highly sensitive. Id.

To

achieve this sensitivity, these sonobuoys use a vertical line array of omni-directional hydrophones which form directional beam patterns to increase detection range and help discriminate against noise. Id. They also utilize a

standard DIFAR hydrophone to determine the bearing of detected submarines. Id. Thus, the passive SSQ-77 class

sonobuoys are more effective than the passive SSQ-53 DIFAR sonobuoys in deep ocean areas. Id. Government Response: 14. The SSQ-77 class sonobuoys are passive. PX-111 at B432. These sonobuoys "provide improved passive acoustic detection against the new generation subsurface threat and are compatible with the processors in the DIFAR capable P-3, S-3 and SH-60 aircraft." PX-111 at B432. The SSQ-77 uses a line array of omnidirectional hydrophones and DIFAR directional hydrophone. PX111 at B432. "The line array hydrophones form directional beam patterns which increase detection range and help discriminate against noise[,] while the DIFAR hydrophone elements enable determination of the bearing of detection frequencies." PX-111 at B432.

15. Prior to the development of the Sparton patented inventions, the deployment of the electronic or electrical receiving devices (e.g., hydrophone(s) within transducer(s)) contained within active, passive and special purpose

14

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 16 of 222

production sonobuoys was through the bottom end of these sonobuoys. B1416.

Government Response: Testimony of Messrs. Hudson and Boyle.

C. Sound Waves In The Ocean 16. Although sound waves propagate in the ocean, they are also absorbed (attenuated) by the ocean, with high frequencies being absorbed at a faster rate per unit distance than low frequencies. B950. There are varying

factors which affect the propagation of sound waves in the ocean. Id. Among these are weather changes, density changes

affected by changes in water pressure and/or temperature, water salinity changes, subsurface currents, changing ocean floor topography and the existence of macro and microorganisms in the ocean. Id. Density changes in the oceans

at the thermoclines, i.e. a thermocline is the interface between two or more layers of sea water each having different temperatures and thus densities, have a major influence on sound propagation and antisubmarine warfare ("ASW") as they affect the velocity and direction of sound propagation. Id. The velocity of sound reaches a minimum in

the permanent thermocline in the oceans, which may be found at depths hundreds of feet below the surface of the ocean. Id. Sound propagation in the ocean depths is reflected or

15

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 17 of 222

refracted when sound waves strike a thermocline. Id.

Thus,

a submarine can remain undetected if traveling below or in a thermocline if the detecting device is located above the thermocline. B867-68; A109-11, 929-37, 950, 1416-18, B1592916165, 21005. Submariners learned quite well how to manage

this information so as to hide their boats in and under the thermoclines. Id. The illustrations below show the

reflection or refraction of sound waves as they strike a thermocline. B887-90. Government Response: 16a. Although sound waves propagate in the ocean, they are also absorbed (attenuated) by the ocean, with high frequencies being absorbed at a faster rate per unit distance than low frequencies. PX-76 at B950. There are varying factors which affect the propagation of sound waves in the ocean, including: weather changes, density changes affected by changes in water pressure and/or temperature, water salinity changes, subsurface currents, changing ocean floor topography and the existence of macro and micro-organisms in the ocean. PX-76 at B950. 16b. A thermocline is an area in the ocean where the temperature changes more rapidly per unit of depth than in the areas above and below. PX-171 at B887. As such, it represents a transition zone between the layer above and the layer below. PX-171 at B887; PX-174 at 933. Thermoclines affect the velocity and direction of sound propagation. PX-171 at B887; PX-174 at 933. Sound

16

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 18 of 222

propagation in the ocean depths is reflected or refracted when sound waves strike a thermocline. PX-174 at 933.

17

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 19 of 222

D. The Navy's Need for a Dual Depth DIFAR Sonobuoy 17. Captain Peter Huchthausen, U.S. Navy retired, served aboard navy destroyers involved in ASW operations and search and rescue operations for the lost submarine USS Thresher. 500075. He participated in the Cuban Missile Crisis

blockade, and his ship, the USS Blandy, forced a Soviet submarine to surface in the height of the Cuban Missile Crisis. Id. He also served as Chief Engineer aboard the

destroyer USS Orleck and operated off the coast of Vietnam. Id. He commanded a River unit of ten river patrol boats in He served as a Soviet naval

combat on the Mekong River. Id.

submarine analyst and in ASW warfare positions on the staffs of Naval Forces Europe, the U.S. First and Third Fleets, and the Commander in Chief Pacific. Id. He was assigned as the

senior U.S. Naval Attaché to Yugoslavia and Romania and subsequently became the chief of attaché and human intelligence collection operations in Western Europe for the Defense Intelligence Agency. Id. He served three years in

Moscow, 1987-1990, as the senior U.S. Naval Attaché to the USSR during the years immediately preceding the fall of the Soviet Union. Id. Government Response: 17. This statement simply recites, almost verbatim, Captain Huchthausen's résumé on his web page http://www.peterhuchthausen.com. However, CAPT Huchthausen was not identified as a potential witness and his

18

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 20 of 222

deposition has not been taken. Unless he testifies, the information is irrelevant. Accordingly, the Government has no basis for agreeing or disagreeing with the stated information. 18. Captain Huchthausen was personally knowledgeable of (a) the use by the Soviet submarines and U.S. ASW forces during the Cuban Missile Crisis of the hide and seek tactics employed by them vis-à-vis the thermocline layer and (b) the inability of U.S. ASW forces to detect one or more of these Soviet submarines sailing at deep depths, i.e. below the thermocline layer. Captain Huchthausen wrote a book,

entitled "October Fury," about these hide and seek tactics. 500075-124. Government Response: 18. The information in this proposed statement of fact appears to have been taken largely from CAPT Huchthausen's book October Fury, published in 2002. On his website, however, CAPT Huchthausen admits that the book is a "reconstruction" of an event that happened some 40 years before the book was published. See http://peterhuchthausen.com/octfury.htm. In short, it is at least partly fictional. Further, contrary to this proposed statement, CAPT Huchthausen could not have had personal knowledge of what the Soviet submarine forces knew or did in 1962, since he was aboard a U.S. Navy destroyer at the time. Accordingly, the citations fail to provide factual support for the statement proposed.

19

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 21 of 222

19. By September 1962, the Soviets, pursuant to a mission called Anadyr, installed ballistic missiles with nuclear warheads in Cuba causing the U.S. to create a naval blockade of Cuba preventing further Soviet military shipments from landing in Cuba. 500078, 500083, 500103. Soviet Admiral

Rybalko supervised the naval part of that mission, called Kama. Id. Pursuant to this mission, four Soviet Foxtrot

attack submarines, each armed with a nuclear tipped torpedo, were to (a) covertly proceed to Cuba to reconnoiter approaches to Cuba, (b) log acoustic conditions in these approaches and (c) enter the Cuban Port Mariel to make preparations for the arrival of seven ballistic missile submarines to home base there. 500078, 500080. The B-4, B-

36, B-59 and B-130 Soviet submarines departed the Soviet Union for Cuba on October 1, 1962 to perform their covert mission. 500087-92. On October 20, 1962, two days before

President Kennedy ordered the Cuban blockade, their mission changed, and they were ordered to curtail transits to Port Mariel and take combat patrols in the Sargasso Sea off the Islands of the Bahamas. 500101-103. Government Response: 19. The information in this proposed statement of fact appears to have been taken largely from CAPT Huchthausen's book October Fury, published in 2002. On his website, however, CAPT Huchthausen admits that the book is a

20

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 22 of 222

"reconstruction" of an event that happened some 40 years before the book was published. See http://peterhuchthausen.com/octfury.htm. Accordingly, the citations fail to provide factual support for the statement proposed.

20. U.S. ASW forces in the Caribbean responsible for implementing the Cuban blockade consisted of carrier groups comprising destroyers and aircraft. 500084-86. The four Soviet attack submarines contained diesel engines, and as a result, they were required to snorkel or surface from time to time to recharge their batteries. 500087-92. The art of ASW, including the effect of a thermocline upon sound propagation and submarine detection above and below it was well understood by U.S. ASW and Soviet forces. 500084-86. Government Response: 20. The information in this proposed statement of fact appears to have been taken largely from CAPT Huchthausen's book October Fury, published in 2002. On his website, however, CAPT Huchthausen admits that the book is a "reconstruction" of an event that happened some 40 years before the book was published. See http://peterhuchthausen.com/octfury.htm. Accordingly, the citations fail to provide factual support for the statement proposed.

21. At the Caicos Passage near Cuba, the B-36 submarine settled below a thermocline to avoid acoustic detection until a Norwegian tanker ship arrived at which point the B-

21

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 23 of 222

36 submarine slipped under the tanker to further avoid detection through the Caicos Passage. 500096-100. After the tanker sailed away, the B-36 continued on its journey. 500099-100. On October 29, 1962, the B-36 was traveling 400 miles north of San Juan Puerto Rico in Caribbean waters having a constant temperature to depths of a 100 meters which made it difficult to hide under the isothermic layer. 500108. The B-36 had plotted the hydroacoustic conditions,

i.e. water temperature at various depths, to plot the thermocline layer. Id. As a result, the USS Cecil

destroyer, which was the escort for the carrier USS Randolph, was able to detect the B-36 submarine because the isothermic layer was below 300 feet and that depth was too deep for a submarine to hide beneath. 500109. Government Response: 21. The information in this proposed statement of fact appears to have been taken largely from CAPT Huchthausen's book October Fury, published in 2002. On his website, however, CAPT Huchthausen admits that the book is a "reconstruction" of an event that happened some 40 years before the book was published. See http://peterhuchthausen.com/octfury.htm. Accordingly, the citations fail to provide factual support for the statement proposed.

22. On October 31, 1962, the B-36 submarine was forced to surface, thereby not achieving the secrecy required of its

22

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 24 of 222

mission as a result of being unable to hide below the isothermic layer. 500109-114. After remaining surfaced for two days, the B-36 submarine escaped by diving below the thermocline and resumed its patrol. 500114. While on

patrol, it went to periscope depth, only to determine that USS ships were near. Id. The B-36 descended below the

thermocline layer and drifted off not being further detected. Id. It was ordered to return to the Soviet Union Id.

on November 7, 1962. Government Response:

22. The information in this proposed statement of fact appears to have been taken largely from CAPT Huchthausen's book October Fury, published in 2002. On his website, however, CAPT Huchthausen admits that the book is a "reconstruction" of an event that happened some 40 years before the book was published. See http://peterhuchthausen.com/octfury.htm. Accordingly, the citations fail to provide factual support for the statement proposed.

23. The B-59 submarine initially sailed from the USSR at a deep depth to avoid detection on its journey to Cuba and only surfaced to charge its batteries. 500094. On October

29, 1962, the B-59 submarine was about 380 miles southeast of Bermuda and had no isothermic layer to hide beneath, inasmuch as it was traveling 60-100 meters below the surface, when it had to charge its batteries. 500105-107.

23

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 25 of 222

It was detected by the USS carrier Randolph which had one of its escort destroyers, the USS Cony, track the B-59 submarine for 12 hours. Id. The B-59 submarine was forced

to surface, thereby not achieving the secrecy required of its mission as a result of being unable to hide below the isothermic layer. Id. Government Response: 23. The information in this proposed statement of fact appears to have been taken largely from CAPT Huchthausen's book October Fury, published in 2002. On his website, however, CAPT Huchthausen admits that the book is a "reconstruction" of an event that happened some 40 years before the book was published. See http://peterhuchthausen.com/octfury.htm. Accordingly, the citations fail to provide factual support for the statement proposed.

24. On October 30, 1962, the USS Blandy destroyer, on which was Ensign Peter Huchthausen was located, was sailing 300 miles northeast of the Caicos Passage, east of Cuba and north of Haiti, when it received a message from a U.S. P3 aircraft that it had radar and visual contact of the B-130 submarine. 500115. The B-130 determined that a U.S.

destroyer had detected it, and as a result, it dove to 150 meters which was well below the thermocline layer it had measured when it was at 75 meters. 500115-116. By plotting

the thermocline line and sailing beneath it where sound

24

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 26 of 222

waves were refracted differently, the B-130 believed that its 150 meter depth would render it partially or completely invisible to the U.S. destroyer's sonar, the SQS-23, which was actively scouring the ocean depths for the B-130. 500117. The B-130 then held depth at 120 meters and drifted

for hours while the destroyer circled two miles away. Id. The USS Blandy had classified its contact with the B-130 as a Soviet Foxtrot submarine. 500118. The B-130 was finally

forced to surface by the USS Blandy after the B-130 suffered casualties to all three diesel engines and only had one of them working with reduced power. 500119. The USS Blandy had

held the B-130 submerged for almost 17 hours and upon the surfacing of the B-130, the USS Blandy escorted the B-130 for an additional 24 hours. 500119-120. The B-130 was

instructed by Moscow to rendezvous with a rescue tug and return home since it could no longer submerge with its malfunctioning engines. 500119. Government Response: 24. The information in this proposed statement of fact appears to have been taken largely from CAPT Huchthausen's book October Fury, published in 2002. On his website, however, CAPT Huchthausen admits that the book is a "reconstruction" of an event that happened some 40 years before the book was published. See http://peterhuchthausen.com/octfury.htm. Accordingly, the citations fail to provide factual support for the statement proposed.

25

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 27 of 222

25. The B-4 submarine had passed through the Windward Passage between Cuba and Haiti on October 20, 1962 when it received the order to abort its transit to Port Mariel in Cuba and instead assume covert combat patrol. 500121. The B4 hid below a thermocline layer on its journey into Cuban waters through the Sargasso Sea off the Islands of the Bahamas. 500102, 500121. Then after passing through the

Windward Passage between Cuba and Haiti, the B-4 headed south and around the southeastern point of Cuba to avoid contact with a host of U.S. ASW warships in the area. 500122. On November 2, 1962, an S2F Tracker aircraft from

the USS Independence carrier group and a helicopter obtained radar contact on the B-4. Id. While the B-4 surfaced

momentarily to receive orders from Moscow, a U.S. P2V aircraft detected the surfaced B-4. 500123. The B-4

immediately submerged to a hundred meters to evade further detection by the aircraft. Id. After a few hours, the B-4

sailed at a depth of 60 meters which was just below the thermocline layer as plotted by the ship's navigator. 500124. The thermocline layer had given them acoustic Despite all the sonobuoys being dropped to

protection. Id.

detect and locate the B-4, the U.S. lost contact with the B4 and was unable to detect it again either on radar or with sonobuopy patterns. Id. When the B-4 was safe from

26

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 28 of 222

detection, it surfaced to charge its batteries and resumed covert combat patrol. Id. The B-4 used a new RG-10 passive

sonar to obtain early and greater range detection of U.S. shipping than its normal acoustic systems were capable of obtaining. Id. Whenever a U.S. ship came close to it, the

B-4 descended to 120 meters below the thermocline layer to prevent detection. Id. The B-4 was the sole submarine that

was not forced to surface by U.S. forces during the Cuban Missile Crisis as a result of its ability to avoid detection by hiding below the thermocline layer. Id. On November 20,

1962, the B-4 received orders to return home. Id. Government Response: 25. The information in this proposed statement of fact appears to have been taken largely from CAPT Huchthausen's book October Fury, published in 2002. On his website, however, CAPT Huchthausen admits that the book is a "reconstruction" of an event that happened some 40 years before the book was published. See http://peterhuchthausen.com/octfury.htm. Accordingly, the citations fail to provide factual support for the statement proposed.

26. About 2-3 years after the Cuban Missile Crisis, Magnavox and Sanders Corporations ("Magnavox and Sanders") were selected by the Navy in the 1964-65 fiscal year time frame to design and develop the SSQ-53 sonobuoy. spanned a 3-4 year time period. This development

Production of the SSQ-53

27

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 29 of 222

sonobuoy first occurred in fiscal year ("FY") 1968.

Sparton

was added by the Navy as an SSQ-53 third supplier in FY 1969 by virtue of contract N00019-69-C-0465 ("the 0465 contract"). B31-50, 770.

Government Response: 26. In Fiscal Year ("FY") 1964-65 time period, Magnavox and Sanders Corporations ("Magnavox and Sanders") were selected by the Navy to design and develop the DIFAR sonobuoy as an improvement of the then-extant Low Frequency and Ranging (LOFAR) sonobuoys. PX-152 at B770. This development spanned a 3-4 year time period. PX-152 at B770. Production of the SSQ-53 sonobuoy first occurred in FY 1968. PX-152 at B770. Sparton was added by the Navy as an SSQ-53 third supplier in FY 1969 when it was awarded contract N00019-69-C-0465 ("the 0465 contract") by the Navy. PX-152 at B770.

27. The SSQ-53 was the first production passive sonobuoy providing the Navy with both target detection and bearing information from a single sonobuoy. B1416. The U.S. naval

fleet was provided with production SSQ-53 sonobuoys and, upon using them at their deployed depth of 90 feet, recommended that they include a dual depth capability, i.e. the deployed hydrophone(s) functioning at a shallow 90 foot or deep 500 or 1,000 foot depth (below the 300 foot thermocline). B503-18. The Naval Air Development Center

("NADC"), the Navy's sonobuoy research and development arm,

28

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 30 of 222

had conducted theoretical studies and sea tests which confirmed that a deeper hydrophone would result in an improved submarine detection capability. B506. Government Response: 27. The U.S. naval fleet was provided with production SSQ-53 sonobuoys and, upon using them at their deployed depth of 90 feet, recommended that they include a dual depth capability, i.e. the deployed hydrophone(s) functioning at a shallow 90 foot or deeper depth. PX-120 at B506. The Naval Air Development Center ("NADC") had conducted theoretical studies and sea tests which confirmed that a deeper hydrophone would result in an improved submarine detection capability. PX-120 at B506.

28. According to the Navy, as told to its defense contractors at National Security Industrial Association ("NSIA") meetings, the Soviet Union had developed technology for rapidly sending submarines deep below the oceanic thermocline located hundreds of feet below the oceanic surface. A109-112; B867-68. Sonobuoys deployed at a depth

of 90 feet either could not detect or obtained reduced detection of these Soviet submarines because the thermocline, located between the targeted submarine below the thermocline and the deployed sonobuoy above the thermocline, prevented or impaired the transmission of submarine acoustic signals through the thermocline to the

29

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 31 of 222

sonobuoy. Id.

A failure to rapidly and accurately detect

these new, fast, deep diving Soviet submarines posed a national security threat the U.S. Navy needed to counter. Id.; B1418. Government Response: 28. The National Security Industrial Association ("NSIA") was an organization created to foster a close working relationship and effective communication between the Navy and the industries which support it. Testimony of Pickrell, Dep. at 12:4-18:13. Through the NSIA, the Navy informed its contractors that it was interested in obtaining sonobuoys capable of deploying to deeper depths in order to improve the ability of the sonobuoys to detect submarines below thermoclines. Testimony of Boyle (see Dep. of Boyle at 205:16 - 207:4); PX-120 at B506.

29. The problem of obtaining a rapidly deploying deep depth sonobuoy persisted for years. B506, 867-68, 1418. sonobuoy contractors were aware of it. Id. The U.S.

The U.S. Navy

finally funded the three contractors manufacturing the SSQ53 sonobuoy to solve the deep depth rapid deployment problem. B506, 514. The Sanders Associates and Magnavox

Company were the original manufacturers of the SSQ-53 sonobuoy. Id. They attempted to solve the problem through They lengthened the

conventional techniques. B503-18.

existing cable connecting the electronics to the upper part

30

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 32 of 222

of the sonobuoy so that the electronics would deploy to a 1,000 foot depth. Id. Deployment of the electronics within

the sonobuoy was effectuated through the lower end of the sonobuoy. Id. Government Response: The cited references do not support the first two sentences. 29. The U.S. Navy finally funded its three contractors manufacturing the SSQ-53 sonobuoy to design a dual depth DIFAR sonobuoy. PX-120 at B506. Sanders Associates and Magnavox Company were the original manufacturers of the SSQ-53 sonobuoy. PX-120 at B506; PX-152 at B770. They produced dual depth sonobuoys that were similar to standard production models. PX-120 at B506. On the Sanders and Magnavox dual depth sonobuoys, a rotochute was used to retard the descent of the sonobuoy through the air and the electronics within the sonobuoy were deployed through the lower end of the sonobuoy.

30. On the other hand, Sparton, the third SSQ-53 manufacturer, recognized that this purported solution was ill advised. B506 this approach. Rapid deployment was unobtainable with

By the time the electronics deployed to

depth under this purported solution, the submarine to be detected would have sped away, thus evading detection. B86768, 1418-20. Accordingly, the primary factor to the

solution of developing a deep depth sonobuoy was the speed at which the sonobuoy could deploy its electronics. Id.

31

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 33 of 222

Sparton departed from conventional wisdom and was the company which developed a rapidly deploying deep depth sonobuoy. Sparton solved one of our country's most pressing That solution formed the basis

Cold War ASW problems. Id.

of the two patented inventions in suit. Id. Government Response: The cited references do not support the proposed statement of fact. See PX-120 at B506; Deposition of Mr. Graff 111:1-15 (no differences in performance between Sparton buoys and those of Magnavox and Sanders); Testimony of Mr. Madera.

31. As a result of U.S. fleet recommendations, NADC theoretical studies and sea tests, the Naval Air Systems Command ("NAVAIR"), the Navy's sonobuoy contracting arm, granted an Engineering Change Proposal ("ECP") at about the same time (FY70-72) to each of its three SSQ-53 producers, to supply the Navy with 500 buoys deployable at 90 or 500 feet (Magnavox), 300 buoys at 90 or 1000 feet (Sanders) and 300 buoys at 90 or 1000 feet (Sparton). B506, 514, 967-68.

The ECP effort with Sparton occurred under the 0465 contract as ECP 0465-2. B514. The U.S. Navy determined that 1,000

feet was an optimum deep depth for the operation of its SSQ53 sonobuoy. The Navy decided to remove Sanders from its

mobilization base of qualified SSQ-53 suppliers when Sanders was unsuccessful in developing the deep depth deployment 32

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 34 of 222

function in its SSQ-53 sonobuoy (which already contained a 90 foot shallow depth deployment function) under its ECP. B770. Government Response: 31. The Naval Air Systems Command ("NAVAIR") approved Engineering Change Proposals ("ECPs") at about the same time (FY70-72) to each of its three SSQ-53 producers to supply the Navy with dual depth sonobuoys. The Magnavox ECP required delivery of 500 sonobuoys capable of deployment to either 90 foot or 500 foot depths; Sanders' required 300 sonobuoys capable of deployment to either 90 foot or 1000 foot depth; and Sparton's required delivery of 300 sonobuoys capable of deployment to 90 foot or 1000 foot depths. B506, 514, 967-68. The ECP effort with Sparton occurred under the `0465 contract as ECP 0465-2. B514. The U.S. Navy determined that 1,000 feet was an optimum deep depth for the operation of its SSQ-53 sonobuoy. The Navy decided to remove Sanders as a qualified SSQ-53 supplier when Sanders was unsuccessful in developing its dual depth SSQ-53 sonobuoy (which already contained a 90 foot shallow depth deployment function) under its ECP. B770; Testimony of A. Madera.

32. Notwithstanding Sanders' failure, Sparton's ECP program was a huge success. Sparton's developmental ECP program led

to deliveries in April and June 1972 (at about the same time the other contractors delivered their sonobuoys) of a developmental quantity of 300 dual depth sonobuoys with

33

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 35 of 222

which the Navy was "extremely pleased," a specification and nomenclature change (from SSQ-53 to SSQ-53A) and the commencement of pilot production in FY74 under a follow-on contract N00019-72-C-0585 ("the 0585 contract"). 510-16, B281-82, 628-82, 770-71, 967-68. A445-48,

The Navy concluded

that "[t]he AN/SSQ-53A was developed as a part of a Product Improvement Program by Sparton in FY72 [ECP 0465-2]and limited production quantities were awarded solely to Sparton in FY74 and FY 75 [0585 contract]." B770-771. The SSQ-53A

was Sparton's dual depth sonobuoy and became the Navy's first dual depth DIFAR sonobuoy purchased to combat the Soviet nuclear submarine threat during the height of the Cold War and end of the Viet Nam War. Government Response: 32a. Sparton's ECP program was a success. Sparton's developmental ECP program led to deliveries in April and June 1972 of a developmental quantity of 300 dual depth sonobuoys. At about the same time, Sanders and Magnavox delivered their ECP sonobuoys. Sparton employee Widenhofer reported that Navy employee Earl Rice was "extremely pleased" with the performance of Sparton's Mod 4 sonobuoy during a June 7, 1972 test. B282. 32b. A Navy business clearance proposal stated that "[t]he AN/SSQ-53A was developed as a part of a Product Improvement Program by Sparton in FY72 and limited production quantities were awarded solely to Sparton in FY74 and FY B1418.

34

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 36 of 222

75." B770-771. Sparton's dual depth sonobuoy became the Navy's first dual depth DIFAR sonobuoy. 32c. On June 30, 1975 the Navy published a new specification for DIFAR sonobuoys in which the designation was changed from AN/SSQ-53 to AN/SSQ53A. DX-223. That specification required that AN/SSQ-53A sonobuoys have a dual depth capability, with a nominal depth of 30 meters (approximately 90 feet) in shallow mode and 300 meters (approximately 1000 feet) in deep mode. DX223.7-223.8. The specification does not require the use of the so-called "inverse" or "upside-down" deployment method. DX-223.

33. Although the ECPs were issued and performed by the SSQ53 producers, FY 1972 funding limitations prevented the Navy from entirely funding the "previously authorized SSQ-53 product improvement program," which involved "non-recurring" (engineering) costs with the three SSQ-53 producers. B776, 506, 778. In this regard, Sparton expended a substantial

amount of its own funds to develop this new dual depth sonobuoy in the interests of national security to counter a threat perceived by our Navy. Government Response: Sparton's statement that "FY1972 funding limitations prevented the Navy from entirely funding the `previously authorized SSQ-53 product improvement program,' which involved `non-recurring' (engineering) costs with the three SSQ53 producers" is not supported by Sparton's citations. Page B776 relates to the B355-58, 424-26, 1418.

35

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 37 of 222

SSQ-57A not the SSQ-53A. Page B506 is part of Mr. Graff's test plan and does not establish the level of funding. And page B778 does not support Sparton's contention. In pertinent part, B778 states: 2. Initial procurement of the improved sonobuoys was accomplished with FY 1972 funds on a NAVAIR contracting officer's determination and funding. The procurement was negotiated under an exception 10[,] due to the involvement of proprietary processes in fabrication and the contractor's control of the engineering definition of their SSQ-53 sonobuoy. 3. The pilot production of the 2000 improved sonobuoys is a continuation of the FY 72 program and is a separate consideration from the major production procurements authorized by reference (c) of the basic correspondence. 4. Since pilot production is involved for the 2000 improved sonobuoys, and OPN funds have been programmed and are available, it is recommended that NAVAIR proceed with procurement using the same rationale and method employed for the FY 72 pilot procurement at Magnavox. NAVAIR must insure that an appropriate D&F is obtained prior to exercising the option. The 2000 sonobuoys do not appear to be the same as Sparton's 300 ECP sonobuoys (the contract for which must have been accomplished using FY 1971 or earlier funding). Sparton's second sentence, while perhaps literally true, gives a false impression. First, Sparton states: "Sparton expended a substantial amount of its own funds to develop this new dual depth sonobuoy in the interests of national security to counter a threat perceived by our Navy." Sparton's statement overlooks the fact that ECP, as integrated into the `-0465 contract, was a full fixed price modification. PX-4. Sparton bore the risk that it would lose money on the modification. Testimony of Boyle; Testimony of McGavock. That it did so was

36

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 38 of 222

not "in the interest of national security," but merely because it made a business judgment with respect to the cost of the project. PX-4.

II. A. Sparton's Deep Depth Sonobuoy Program 34. Sparton established a DIFAR research and development company sponsored program in the mid 1960s. B945-47, 1418.

This program was soley funded by Sparton to assist in its efforts to obtain a Navy contract for the production of the SSQ-53 sonobuoy. Sparton obtained this contract in March B31-34, 1419.

1969 in the form of the 0465 contract. Government Response:

The citations do not support Sparton's statement that "[t]his program was solely funded by Sparton to assist in its efforts to obtain a Navy contract for the production of the SSQ-53 sonobuoy." 34. Sparton established a company-sponsored DIFAR research and development program in approximately 1966. B945-47 (stating that "Sparton has engaged in DIFAR-related projects for the past three years" prior to submitting its bid for the `-0465 contract). The Navy awarded the `-0465 contract to Sparton in March 1969. B31-34.

35. Sparton was informed by the Navy in the mid-late 1960's or early in 1970 of its dual depth need and the reason which created it. A109-112. The 0465 contract executed March 5,

37

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 39 of 222

1969 was a fixed price supply contract which required Sparton to provide the Navy in the first program year with 50 SSQ-53 sonobuoys for first article testing, 1,600 SSQ-53 sonobuoys subjected to production sampling aircraft drop tests prior to delivery for typical fleet use (with a Federal Stock Number to be assigned to them), and 200 technical manuals. In the second program year, Sparton was

required to supply the Navy with 9,600 production SSQ-53 sonobuoys provided that the first article testing of Sparton's SSQ-53 sonobuoy was successful. B31-34.

Successful first article testing was required for and triggered the commencement of production. Government Response: 35a. Sparton was informed by the Navy prior to March 1971 of its dual depth need and the reason which created it. Testimony of Boyle (see Dep. of Boyle at 206-07). 35b. Contract No. N00019-69-C-0465 was awarded on March 5, 1969, which is the effective date of the contract. B31, B35. The original `-0465 contract was a fixed price supply contract based on Sparton's offer, dated January 3, 1968. B31, B35. 35c. The `-0465 contract was divided into two parts ­ the "First Program Year (Fiscal Year 1969)" and the "Second Program Year (Fiscal Year 1970)" ­ based on the year the program funds became available. B40-41. Under the `-0465 contract, the First Program Year effort, required Sparton to provide the Navy with B31-34.

38

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 40 of 222

50 SSQ-53 sonobuoys for preproduction first article testing beginning 10 months after the contract effective date; delivery of an initial production quantity of 1,600 SSQ-53 sonobuoys in lots of 100-600 sonobuoys during each of the 19th through 23d months, inclusive, after the contract effective date; delivery of 200 manuals; and delivery of design data. B40-41, B46, B48. The initial production quantity was to be delivered in accordance with Navy instructions. 35d. The Second Program Year (Fiscal Year 1970) effort required Sparton to supply the Navy with 9,600 production SSQ-53 sonobuoys. B41. Funding for the Second Program Year (Fiscal Year 1970) effort was made contingent upon formal notification of the contractor by the contracting officer not more than 45 days after Government approval of the preproduction First Article models. B32, B41. 35e. Successful pre-production First Article testing was prerequisite to the commencement of production of either the 1600 sonobuoys or the 9600 sonobuoys. B48-49.

36. The 0465 contract contained a security classification specification, DD Form 254, which indicated that any information relative to the following subjects was classified, such that its disclosure to the public was prohibited by law, 18 U.S.C. §793-94: detection range and reliability, bearing range, military application of sonobuoy and technical advances in the state of the art. B31-50,

39

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 41 of 222

781, 811-14.

The 0465 contract did not contain a Patent

Rights Clause. Id. Government Response: 36a. The `-0465 contract incorporated a DD Form 254 (Contract Security Classification Specification) and DD Form 254C (Contract Security Classification Specification (Continued)). PX-158 at B811-14. Together, the forms which indicate that information relative to the following subjects was classified, such that its disclosure to the public was prohibited by law, 18 U.S.C. §793-94: detection range and reliability, bearing range, military application of sonobuoy and technical advances in the state of the art. PX-158 at B811-14. However, the external view of the device was not classified, the quantities procured and the cost were not classified. B814. Information regarding the SSQ-53 sonobuoys was available to personnel having "reciprocal clearances." PX-158 at B812. 36b. The `-0465 contract does not identify any of the clauses in Armed Services Procurement Regulation (ASPR) § 9.107-5 (Patent rights clauses for domestic contracts) as being incorporated in the contract either in haec verba or by reference.

37. Between the late 1960s and early 1970, Sparton mechanical design engineer Widenhofer conceived of an idea for rapidly deploying the SSQ-53 DIFAR sonobuoy to a deep depth by using (a) the top end of the sonobuoy as an exit for deployable sonobuoy internal components, (b) a release plate mechanism actuated by a force imparted by a float

40

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 42 of 222

assembly to either retain or deploy the sonobuoy internal components within or from the sonobuoy housing, and (c) the sonobuoy housing as a descent vehicle to assist the rapid deployment of sonobuoy internal components to a deep depth. The idea was called an "inverse" or "upside-down" deployment design because all production sonobuoys up to that time routinely contained release plate assemblies located at the bottom of the sonobuoy to deploy sonobuoy components from the bottom end of a sonobuoy. The "upside-down" design

completely departed from convention wisdom in the manner by which sonobuoy components should be deployed. 66, 1418-20. Government Response: 37a. Sparton mechanical design engineer James Widenhofer conceived of an idea for rapidly deploying a sonobuoy having a parachute-type decelerator and an inflating float by using pressure from the inflating float to actuated the release plate. DX-119, DX-17. As initially conceived by Mr. Widenhofer, a sonobuoy having an inflatable floatation device (a float) stored at the "top" end of the housing could be deployed out of that end by incorporating a release plate just above the float. DX-119, DX-17. Mr. Widenhofer further conceived that upon water entry, a sea water battery would actuate an explosive device, which would mechanically puncture a CO2 cartridge. DX-119, DX-17. Mr. Widenhofer recognized that the inflating float would "produce a large directed force[,] which A205-08, B62-

41

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 43 of 222

may be applied to cause the release mechanism to operate and literally be blown out of the top end of the sonobuoy." DX-119, DX-17. 37b. The first documentation of Mr. Widenhofer's idea was in a report entitled "Mechanical Feasibility Design for a Sound Reference Sonobuoy," prepared by Mr. Widenhofer and C. Werner, and dated April 15, 1970. DX-119. The existence of that report, and the information it contained, was reported in a note on Sparton internal document entitled "Patent Information on a Float Pressure Actuated Release Plate Mechanism," signed by Mr. Widenhofer on January 7, 1971. DX-119. 37c. Mr. Widenhofer's initial conception of this release mechanism did not include the specific single-piece substantially-circular plate design which is described in the `120 and `233 patents. DX-222. 37d. The idea became known as the "inverse" or "upside-down" deployment design because most sonobuoys being produced at that time contained "impact" release plate assemblies located at the bottom of the sonobuoy to deploy sonobuoy components from the bottom end of a sonobuoy. DX-119; Dep. of Boyle at 434.

38. On September 16, 1970, Sparton project engineer Devereaux issued a memorandum to his superior, lab manager Hungerford, which outlined a program schedule under company sponsored Job number 7400 for developing a 1,000 foot DIFAR sonobuoy. The proposed schedule concerned design modifications required for providing a deep 1,000 foot

42

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 44 of 222

capability for the SSQ-53 sonobuoy.

The major redesign

areas were the hydrophone, electrical and mechanical sections. The mechanical design changes were considered the most extensive and required the greatest effort. B70-71.

This program was called a "Deep DIFAR" sonobuoy program because Sparton had already developed and produced the SSQ53 sonobuoy for shallow depth operation. With a solution to

rapid deployment for deep operation, Sparton would then have a DIFAR sonobuoy capable of shallow or deep depth operation, i.e. a dual depth DIFAR sonobuoy. B1419-20. Government Response: 38. On September 16, 1970, Sparton project engineer Neill Devereaux prepared a memorandum to R. Hungerford, which outlined a program schedule under company-sponsored Job Number 7400. PX-7 at B70. The program called for development of a DIFAR sonobuoy capable of deploying its hydrophone to a 1,000 foot depth. PX-7 at B70. The proposed schedule concerned design modifications required for providing a deeper operating depth, but did not include a dual depth capability. PX-7 at B70. Mr. Devereaux identified the major areas of redesign as being those with respect to the hydrophone design, electrical design and mechanical design. PX-7 at B70-71. The mechanical design changes were considered the most extensive and required the greatest effort. PX-7 at B70. Mr. Devereaux indicated that Sparton was proposing a five hour battery life because "an eight hour battery would be larger, more expensive and entail additional

43

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 45 of 222

design complications including the necessity of qualification testing." PX-7 at B70.

39. The program schedule required the fabrication of six (6) dummy hydrophone engineering models and twenty (20) final hydrophone engineering models to be designed and constructed between December 13, 1970 and January 31, 1971. The preliminary mechanical design was to commence on November 1, 1970 and be completed by January 17, 1971. A drop test of

six (6) mechanical dummy sonobuoy models was to occur on November 22, 1970, redesign was to follow and another drop test of fully operational models was to occur on January 10, 1971. Although the mechanical design was to be completed by

January 17, 1971, the 20 engineering models constructed to that design were to be assembled and tested by February 21 and March 7, 1971, respectively. B70-71. Government Response: 39. The program schedule required the fabrication of six (6) deep depth hydrophone prototypes by December 13, 1970 and twenty (20) "final" hydrophone prototypes by January 31, 1971. PX-7 at B71. The preliminary mechanical design was to be completed by November 1, 1970 and be completed by January 17, 1971. PX-7 at B71. A drop test of six (6) mechanical dummy sonobuoy models was to occur by November 22, 1970, redesign after testing was to be completed by December 31, 1970.

44

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 46 of 222

PX-7 at B71. A drop test of fully functional models was to be completed by January 10, 1970, completion of the mechanical design phase no later than January 17, 1971. PX-7 at B71. Completion of the program was to be achieved by building an additional 20 fully functional models by February 28, 1971, and testing those models by March 7, 1971. PX-7 at B71.

40. On October 21, 1970, Devereaux informed Hungerford that it was not feasible to incorporate a battery package in Sparton's deep DIFAR sonobuoy to perform at a 1,000 foot depth and yet operate over an eight (8) hour period. Thus,

battery life for this sonbouoy had to be shortened in any proposal to the Navy. B72. Government Response: The cited reference does not support the second sentence of plaintiff's statement of fact. 40. On October 21, 1970, Mr. Devereaux informed Mr. Hungerford that Sparton employee R. William did not believe that it was feasible to incorporate a battery that would operate for eight hours at a 1000 foot depth at that time. B72.

41. On November 11, 1970, Sparton chief engineer Passman issued a memorandum to Hungerford addressing a proposal to be made to the Navy for a dual depth SSQ-53 DIFAR sonobuoy. Sparton's technical proposal for this dual depth SSQ-53

45

Case 1:92-cv-00580-EJD

Document 305

Filed 02/04/2008

Page 47 of 222

sonobuoy was to (a) contain manually selectable hydrophone depths of 90 and 1,000 feet, (b) tabulate equipment specification changes and additions, (c) be hardware oriented,