PETITIONER: CONTRACT:

Westinghouse Electric Corporation

NAS 1-1350

sembly--PETITION GRANTED

STATEMENT OF FACTS: The Petitioner, Westinghouse Electric Corporation, is a contractor of the National Aeronautics and Space Administration, under Contract NAS 1.1350. The petition was made for waiver of title of the United States in an invention entitled "Arc Heater Apparatus and Heat Shield Assembly for Use Therein," described in an attachment to the petition. The invention was made by Thomas E. Browne, Jr. and Charles B. Wolf, employees of the Petitioner, in the performance of work required under the above-identified contract, and in the manner specified by Section 305(a) of the National Aeronautics and Space Act of 1958, as determined by the Administrator. The petition was considered by the Inventions and Contributions Board on April 30, 1965.

The Board, having duly considered the allegations and claims of the above-identified petition, expressly makes the findings required under Section 1245.106(b) of the NASA Patent Waiver Regulations (1964), (which Section, in its entirety, is hereby expressly incorporated by reference), and concludes that the invention does not fall within the enumerated proscriptions of the cited Section. The reasons for the Board's findings are stated below, corresponding in each case to the respective criterion set forth in each subsection.

SECTION 1245.106(b)(1). Although the invention, which relates to an improved arc air heater, is applicable to commercial aerodynamic research programs, as well as possibly in the chemical and petroleum industries, its primary application is in the governmental space program, in that it was specifically designed to implement a Government contractual effort to develop an

improved structure for simulating ballistic or satellite vehicle atmospheric reentry conditions at NASA's Langley Research Center.

SECTION 1245.106(b)(2). Since the arc air heater of the present invention is limited to use primarily in the aerodynamic research program of the Government, it is not an appropriate item for use by the general public at home or abroad, and it is therefore highly unlikely that it will be required for such use by governmental regulation or otherwise.

SECTION 1245.106(b)(3). The invention is directed solely to the field of aerodynamic research, with no apparent relation to the public health or public welfare.

SECTION 1245.106(b)(4). While the record indicates substantial expenditures by the Government on electric arc devices, which is the field of science or technology of the invention, including arc heaters, plasma generators, magnetohydrodynamic devices, and certain types of circuit breakers, private industry has likewise been active in the field, including the Petitioner itself, the General Electric Co., and Avco, among others. Petitioner also claims to have many patents and patent applications in the relevant field of technology, and submits exhibits in support of its considerable activity. Additionally, the Petitioner indicates an expenditure of at least $1,000,000 for research and development in magnetohydrodynamics, and at least $500,000 for research, development, construction, and testing of arc heaters. Thus, it is obvious that there has been significant privately-funded experience in the defined field of invention; moreover, it is apparent that it has not been

established that the Government has been the principal developer of the field. In any event, it is equally clear that, in view of the considerable activity in the related areas of endeavor concerned with the defined field of technology of the invention, as indicated hereinabove, acquisition of exclusive rights in the improved arc heater of the present invention would not likely confer on Petitioner a preferred or dominant position.

The Board further expressly finds that the contract meets the criteria of Section 1245.106(c)(1), (which is hereby expressly incorporated by reference), which Section encompasses the criteria of Section 1245. 104(a), subsections (1) through (4), (which are also hereby expressly incorporated by reference). The reasons for the Board's findings are stated below, corresponding in each case to the respective criterion set forth in each subsection.

SECTION 1245.104(a)(1). In accordance with the provisions of the pertinent Statement of Work, the purpose of the present contract was the design, fabrication, and assembly of an Electric Arc Air Heating System and conversion control equipment. In addition, the contractor was to provide acceptance test procedures and installation of said Electric Arc Air Heating System. While such a system could conceivably be employed commercially, there was no intention by the parties to the contract to develop or adapt inventions that may arise out of the contract for use by members of the general public.

SECTION 1245.104(a)(2). The

field of

science or technology of the contract is electric arc devices having no relation, direct or indirect, to health or welfare, public or otherwise.

SECTION 1245.104(a)(3). The field of science or technology of the contract is defined as electric arc devices, which is considered to include arc heaters, plasma generators, magnetohydrodynamic devices, and certain types of circuit beakers. Although large expenditures have indeed been made by the Government in this field, including $1,028,300 on this contract alone, activity by private industry has also been considerable and of a significant nature. The Petitioner and others, including General Electric and Avco, have long been active in one or more of the related areas of endeavor involved in the abovementioned field of science or technology of the contract. In this regard, the Petitioner sub

mits a fairly lengthy listing of its patents and patent applications relating to the defined field, which are illustrative of its considerable involvement. As further support of its contentions, the Petitioner notes its expenditures prior to 1929 in research and development work in utilizing a magnetic field to move an electric arc over an arcing surface at a rapid rate, including work on large current sources of power for sustaining an arc. In addition, the Petitioner has indicated an expenditure of at least $1 million on research and development work in magnetohydrodynamic devices, as well as at least $500,000 on arc heater research, development, construction, and testing. It is thus quite apparent that significant experience has been gained outside of Government in the contract field. In this connection, the NASA evaluator also notes that the Government has not necessarily been the principal developer of the field; and, at any rate, since the contract obviously contemplated improvements in existing arc heaters, and, in view of the considerable work and experience already accumulated in the defined field, it is it is likewise apparent that the acquisition of exclusive rights in inventions likely to arise out of the contract could not reasonably be expected to confer on the Petitioner a preferred or dominant position.

SECTION 1245.104(a)(4). A review of the pertinent provisions of the contract clearly indicates a requirement that the Petitioner was to use its own plant, equipment, tools, and materials in performing the contract, except for the installation phase.

Moreover, the Board expressly finds that waiver of title would be an effective incentive to bring the invention to the point of practical application at the earliest practicable date. This finding is supported by the currently rather undeveloped state of the invention, as evidenced by the Petitioner's present difficulty in achieving proper operation of the invention, and by its expressed willingness, its obvious capability, and its know-how to further prepare the invention for marketing, should waiver be granted.

On the basis of all the above-enumerated findings, the Inventions and Contributions Board concludes that the interests of the United States would best be served by waiving title under Section 1245.106 of the NASA Patent Waiver Regulations of August 27, 1964, and therefore RECOMMENDS THE GRANT OF THE PETITION.

technical evaluator have indicated quite significant experience gained through the expenditures of private funds. In particular, the evaluator, in noting that the defined contract field is "fraught" with manufacturers who have large nongovernmental businesses, lists the following companies as examples: American Standard, Crane, and York. AiResearch and United Aircraft Corporation are also listed as companies that have sold many products in the airborne area of environmental control to nongovernmental customers. The Petitioner itself notes its own considerable experience gained through the expenditure of $26 million of its own funds between 1955 and 1963 in the development of environmental conditioning systems. It further notes that its Hamilton Standard Division has acquired 53 patents relating to this field of technology, and it attaches a list of the same in support of its contention relative thereto. Finally, the Petitioner further notes the considerable experience it has gained in supplying to industry items that are considered included within the field of environmental control, as, for example, air-conditioning systems, pressure controls, humidity controls, and gas removal. In view of the foregoing information, it is considered readily apparent that the Government has not been the principal developer of the field, and that there has been considerable experience, both by the Petitioner itself and others, through the expenditure of company funds. Furthermore, in view of the recognition of the considerable already-existing knowledge, as well as significant competition and knowhow gained from previous work in the defined contract field, it is held that the Petitioner would apparently not be placed in any advantageous position over its competitors by its prospective acquisition of exclusive rights in inventions expected to be developed in the defined field under the present contract.

SECTION 1245.104(a)(4). A review of the pertinent provisions of the contract work statement reveals no allocation of Government facilities or materials to the contractor, and further indicates that the contractor is to use its own personnel, materials, services, and plant facilities in performing the terms of the contract.

SECTION 1245.104(a)(5). The information presented in the petition regarding Petitioner's quite significant previous work in the field of environmental control and related fields clearly supports a finding that already extensive prior knowledge exists in the field involved in the present contract, and it appears obvious both that the Petitioner will utilize, and that the contract contemplates, use of this previous knowledge in the development of the present Gas-Management Assembly.

SECTION 1245.104(a)(6). Petitioner's technical competence in the defined contract field is considered well-supported by its extensive involvement since 1949 in the field of airborne environmental control. The latter finding is supported in particular by the information presented in the petition regarding the significant nature of the experience gained in the defined contract field outside of Government-funded work. Thus, the Petitioner's notation of an expenditure of $26 million of its own funds in the years between 1955 and 1963 in the development of environmental conditioning systems, and its development, manufacture, and sale of environmental control systems for more than 45 military and commercial aircraft, provide ample evidence of its significant technical competence in the defined field. As further support for its technical competence, and, additionally, to support a finding of an established nongovernmental commercial position, the Petitioner indicates, in the area of providing a habitable atmosphere (considered to be encompassed in the defined contract field), its supply to the aircraft industries since 1949 of various types of air-conditioning systems, and it also presents exhibits illustrating some of the items it is currently supplying to industry, which, together with the information previously referred to, appears clearly to support a finding that the Petitioner has a commercial line of business in environmental control per se, the defined contract field, and other more specific areas incorporated therein, and that, since its technical competence is also in the same area, it is evident that adequate support exists for the requisite favorable determination under this finding.