Many have questioned the US Army’s right to use a recently announced camouflage pattern, so a few weeks ago we decided to put it to bed and asked the Army about it. They offered us a rather curt, but confident, answer. But then DLA began a quest to fund a new printer that didn’t pay commercial printing royalties to Crye Precision for Scorpion. So last week, we ran a story regarding the US Army’s statement that they had “Appropriate rights to use the Operational Camouflage Pattern” and, in the process, exposed a major controversy that had arisen over printing royalties for OCP.
The US Army uses the name Operational Camouflage Pattern to refer to the Scorpion W2 camouflage pattern which is a 2010 modification of the so-called Scorpion pattern originally introduced by Crye Precision in 2001 and patented in 2004. What is at question, is whether or not the Army can use the pattern, royalty-free.
We know that Crye filed for, and was granted, a patent for this camouflage by the US Patent and Trademark Office, Camouflage Pattern Applied to Substrate US D487,848 S, March 30, 2004. We also know that not long after the patent was granted, the Army asked the PTO to insert the following addendum into the patent:
After claim, insert the following:
–Statement as to rights to inventions made under federally sponsored research and development.
The U.S. Government has a paid-up license in this invention and the right in limited circumstances to require the patent owner to license others on reasonable terms as provided for by the terms of contract No. DAAD16-01-C-0061 awarded by the US Army Robert Morris Acquisition Natick Contracting Division of the United States Department of Defense.–
From this, we surmised that the US Army’s assertion of appropriate rights is based on the funding of the Scorpion project via contract (DAAD16-01-C-0061) in September of 2001. This 13 year-old contract has remained the missing piece to this puzzle. Does this contract, in fact, prefer rights to the camouflage to the US Army?
Now, SSD has obtained a copy of that Natick contract as well as Crye’s formal proposal to accomplish the task which was accepted in its entirety as part of the contract. As you will see, both documents must be used in concert with another to determine whether the US Army’s claim of rights to the patented camouflage technology are valid.
It is important to note that while we refer to Crye Precision throughout this article, the actual contract was between Natick and Crye Associates. Crye Precision, who we generally think of when we are talking military issues, didn’t yet exist, and was stood up later as a manufacturing subsidiary.
Additionally, although the camouflage pattern is known as ‘Scorpion’ it gained this nickname due to its association with the Scorpion ensemble, which was initially part of the Objective Force Warrior and later the Future Force Warrior initiatives. Scorpion components were also produced in other patterns such as Desert All Over Brush and the 3-color desert camouflage seen below.
From the outset in their proposal for the work to Natick, Crye specifically called out several technologies that it had already been working on, and although they would be willing to demonstrate as part of the project, would retain full ownership of. This list included “novel camouflaging technologies.” Remember, when the contract was written, there was no such thing as ‘Scorpion Camouflage’.
As you can see, Crye’s language in the proposal is very specific and very restrictive. It is obvious that they intended to protect their rights to their preexisting ideas.
Several times, Crye Associates makes their point. This is obvious to anyone that reads the document.
At the actual contracting stage, Crye references the proposal in the Army contract, which not only makes it germane to the discussion here, but also a vital addendum to the actual contract between Crye Associates and Natick. The Army signed the contract after Crye, without changes, thereby executing it. That tells us the Army read the contract as well as the proposal which was referenced in the contract, and agreed to the terms. Now, they seem to be singing a different tune.
The contents of these official documents not only calls into question the Army’s assertion of rights to use the pattern, but also their modification of Crye’s patented baseline Scorpion pattern in 2010 to create the W2 variant which more closely resembles the patented MultiCam pattern, and is currently adopted as OCP. One would wonder why Crye Precision has remained silent through all of this until the realization hits that the Army’s actions have all been behind the scenes. They have only become public knowledge because of our reporting. It is our understanding that Crye Precision initially found out about Scorpion W2 and its adoption by the Army at the same time as everyone else, by reading about it in the news. When the Army has been asked about these issues by the press, they either ignore the inquiries or offer very generic statements with no explanation.
Ultimately, while this question may well have to be answered in court, it is our opinion that Crye Precision obviously intended for their preexisting technologies (including camouflage) to remain solely their property. They disclosed this in their proposal and backed this up with specific wording in the contract which was not challenged by the Natick contracting office. By executing the contract, the Army agreed. This is evident in the executed contract we’ve shared here on SSD. What remains to be explained is the government’s position, in spite of the language in the contract, to rights to the technology. The Army has not been forthcoming regarding this issue but rather offered, what comes across as a very flippant statement, asserting that they possess “appropriate rights”. Perhaps the Army is hanging its hat on the rather lengthy boilerplate in the Patent Rights section of page 13. The issue with this argument is that the Contracting Officer agreed to Crye’s terms as well. Someone will surely come forward and say, “The FAR says ‘X’ regarding IP rights.” In this case, the Army chose to sign a contract that included these specifically negotiated rights that exempt Crye’s camouflage as well as other technologies from Government ownership. This agreement between Natick and Crye takes precedence over the FAR.
You have to wonder if the Army bothered to actually look at these records at all, or if someone simply verified that a contract existed and just applied standard procedure. Time after time, throughout the Army’s process to identify a new camouflage, issues have arisen that should have been identified had only PEO Soldier conducted a thorough due diligence. Once again, it appears that such a thorough review did not take place. Perhaps the Army has additional documentation that further clarifies their position but sat this point, we doubt it. Getting answers out of them is like pulling teeth. They have yet to substantiate these claims to rights, while our investigation into the matter continues to paint an entirely different picture. At SSD, we believe in government transparency and feel that everyone deserves an accounting for the Army’s actions throughout this rather protracted camouflage improvement effort. Industry is also watching this situation very closely to determine how they will proceed with government in the future.
It’s time to check the egos at the door and deal with this head on. We urge the US Army to cease its schemes to avoid paying Crye Precision for use of their intellectual property and to enter into good faith negotiations to bring this issue to a conclusion that is satisfactory for both the American taxpayer and Crye Precision.
Feel free to read the full proposal and contract. They are offered here so that no one will question the extracts that we have included in the story, and so that the entire documents are available in order to spur informed debate. Some information has been redacted such as Privacy Act info. We encourage you to read them, but we have used pertinent screen captures of the information at hand, to illustrate points throughout the article.
As for our readers, you’ve now read the documents. What do you think?