The US Army recently licensed the commercial printing and sale of the Scorpion W2 Operational Camouflage Pattern.
The US Army has been wearing the pattern for several years, but it hasn’t been available from commercial sources. The US Air Force is poised to make the transition to the Army Combat Uniform in OCP as well.
Pre-order yours at tacticalgear.com/ocp-uniform.
SSD Sponsor Belleville Boot, created this handy OCP boot transition guide for USAF personnel.
Looks like the OCP color issues are worse than we thought.
This isn’t just a hat like we showed last time, this is the entire uniform for a Four-Star General, forward deployed, in a combat zone. These are unaltered DoD photographs and the shading problem is obvious next to the other uniforms.
The Army has got to get this printing locked in. Of course, they wouldn’t have this problem if they’d have just kept using MultiCam.
A deployed SSD reader was recently issued a patrol cap through Army Direct Ordering which featured a rather shoddy example of OCP.
As you may recall, the US Army’s Operational Camouflage Pattern was adopted last year and is a variant of the so-called Scorpion camouflage pattern originally developed by Crye Precision which was used for the US Army’s Objective Force Warrior program in the early 2000s. Crye Precision later refined the developmental Scorpion pattern into the highly successful MultiCam pattern which has been adopted by USSOCOM as well as the US Army. Despite being less effective than MultiCam, OCP was instituted in order to avoid paying license fees to MultiCam IP owner, Crye Precision.
Hopefully, those buying gear for our troops will be a bit more discriminating in their acceptance of OCP printed goods, putting performance ahead of saving a buck.
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On Friday, 22 April, 2016, Federal Judge Denise L. Cote published a ruling, granting Duro Textiles motion for summary judgement and dismissing with prejudice Crye Precision’s remaining claims against Duro Textiles, stemming from a lawsuit filed against Duro in early 2015. This is actually a second lawsuit although the initial suit was filed in late 2014 and withdrawn in early 2015.
Specifically, the Judge dismissed three specific allegations in this suit; breach of contract, trade dress infringement and common law unfair competition arising from Duro’s printing of a camouflage pattern owned by the US Government.
Crye Precision’s MultiCam licensing agreement was central to their claims against Duro. Duro last signed such an agreement with Crye in 2012 and once it had expired in 2014, and Duro began printing the Army’s OCP, legal actions commenced.
Below is the paragraph 3(h), in question.
According to New York law, this clause from the 2012 agreement is unenforceable due to reasons stipulated in the ruling. Furthermore, the judge ruled that it was too broad in scope. At face value, it seems like a pretty straightforward ruling by the court, until you consider that it could create a situation where the premise it is based upon fundamentally changes. The full order, seen below, is quite detailed and worth the read.
To be sure, this is a victory for Duro, but perhaps a bittersweet one. Duro was essentially a lone horse in printing OCP for the Army. Now, they are sure to see competition for this business in the future. What’s more, the Army may well lose control of the pattern it created for use in place of MultiCam. Whether the Army likes it or not, we may see commercial OCP, or really close copies, by Christmas.
Here’s why. Much to the chagrin of those of us watching from the sidelines, the Judge’s decision does not declare whether MultiCam and OCP (Scorpion W2) are similar. Rather, the court is very clear that Duro is just printing what the Army paid them to print; namely, OCP and claims that the government can tell the difference.
Judge Cote dismissed Crye Precision’s claim of trade dress infringement. The court’s ruling may well have set creating about an interesting situation. Consider this:
The Government is the creator and only purchaser of Scorpion W2. It is a sophisticated consumer, as its creation of Scorpion W2 and its announced switch from MUTLICAM in 2014 evidences. Duro’s only sales of Scorpion W2 have been for the Government, specifically to Government contractors and subcontractors in the supply chain for the U.S. Army. These contractors order Scorpion W2 from Duro by name. Thus, while MULTICAM and Scorpion W2 compete in the same Government sales market, there is no likelihood of actual confusion on the part of the Government or its contractors.
It’s the second and third order, or should I say “disorder” effects that will be interesting. For example, what if the consumer is no longer just the US Army but also commercial customers. Could that expanded consumer group tell the difference between these two patterns?
This exact situation may be additional fallout from this ruling, and it may not just affect Crye Precision. By declaring the competition clause of Crye’s licensing agreement void, could printers, licensed or not, begin to make counterfeit versions of MultiCam, or for that matter OCP, consequence free?
Although Judge Cote declared the provisions of Crye Precision’s licensing agreement too broad, you have to wonder how specific they would have to be to satisfy the court and protect the pattern(s). As far as I know, current licensees are under a newer 2014 version of the contract which may contain updated language that already addresses the court’s concerns and were signed under different circumstances than the long-standing agreements with Duro. It must be noted that this ruling by Judge Cote is specific to the situation with Duro.
It is yet to be seen whether Crye Precision will appeal the ruling, but it doesn’t stop them from defending their IP on other fronts. Also, although many are concerned with license fees for the printing of both MultiCam and OCP. This ruling doesn’t address them. Regardless, the bottom line here is that Crye is going to have to sue the US Army if it wants to ultimately settle the MultiCam vs OCP question. We’ll keep you posted if we hear anything.
We told you that there’d be crossing of the streams while the transition to OCP occurred. The vast majority of environmental clothing systems in the field are in the old Universal Camouflage Pattern while Soldiers have flocked to the new hotness, the Operational Camouflage Pattern, authorized for wear just this summer. Unfortunately, the Army has yet to issue any environmental clothing in OCP. However, Many Soldiers have either ECWCS Gen III or FREE in MultiCam, a camouflage pattern purchased from Crye Precision by the military under the name Operation Enduring Freedom Camouflage Pattern. The Army’s new OCP is quite similar in color and shape to the OEF-CP it began purchasing in 2010.
At any rate, without cold weather clothing in the appropriate pattern, Soldiers will have two choices; freeze or clash. The Army has wisely chosen to allow authorize Soldiers to mix patterns, at least as it pertains to issued TA-50, or Organizational Clothung and Equipment.
Below is an Army News Service article that explains their decision. It also puts to bed a question that keeps coming up; which color flag to wear with the new ACU in OCP. The answer is full-color in Garrison and subdued while deployed, just like with the original ACU in UCP.
WASHINGTON (Army News Service, Nov. 30, 2015) — As winter weather approaches and temperatures drop, Soldiers turn to their cold-weather gear to keep warm outdoors while conducting training or operations.
Many Soldiers now wear their Army Combat Uniform, or ACU, in the new Operational Camouflage Pattern. But their organizational clothing and individual equipment, or OCIE, such as their wet-weather gear and their Extended Cold Weather Clothing System sport the Universal Camouflage Pattern, or UCP.
Soldiers don’t need to freeze so as to avoid a uniform faux pas, however, the Army wants Soldiers to know that it’s okay to wear the foliage green fleece cold-weather jacket and other UCP cold-weather gear on top of their new Operational Camouflage Pattern uniform.
“Soldiers should continue to use the equipment they have been provided to remain safe and warm in environments that call for it,” said Sgt. Maj. Eva M. Commons, uniform policy sergeant major, Army G-1. “This is why the Army gives you this gear to wear.”
Cold-weather gear is not part of the “clothing bag” issued to Soldiers during basic training. Instead, Soldiers get items like the fleece cold-weather jacket, the wind cold-weather jacket, the soft shell cold-weather jacket and trousers, or the extreme cold/wet-weather jacket and trousers from the clothing issue facility, or CIF, at their installation.
Commons said that no matter what ACU Soldiers are wearing – the one in UCP pattern or the one in Operational Camouflage Pattern – they are allowed to wear the winter-weather gear that is issued by the CIF.
“Any item issued from CIF is permitted for wear,” she said. “There is no restriction based on camo pattern or color.”
The Army also has two different colored T-shirts available for wear under their ACU. There is the “sand-colored” T-shirt and the “Tan 499” T-shirt. Belts are also available in both of those colors. Boots are available in sand or coyote colors, as well.
The rule here, Commons said, is that when a Soldier is wearing the UCP ACU, he or she must wear the undershirt, belt and boots designed for wear with the UCP ACU. However, when Soldiers wear the Operational Camouflage Pattern ACU, they can wear “any combination” of boots, belt and T-shirt, in any of the available colors; the boots, belt, and t-shirt do not have to match each other.
Commons caveated that, however, by saying “both your left and right boot must be the same color.”
The Army, Commons said, has an inventory of items including belts, boots, T-shirts, uniforms, and cold- and wet-weather gear. Each of those items has a certain wear life on them. Items such as cold-weather jackets last a very, very long time, she said. Other items, such as T-shirts, can be worn for less than a year before they ought to be replaced.
The liberal policy for how uniform items can be mixed with the Operational Camouflage Pattern ACU allows the Soldiers more flexibility in the wear of their uniform, and additionally allows more time for the Army to eventually get OCIE in the new Operational Camouflage Pattern.
“With all these different uniforms, we have to give the widest range of allowance to Soldiers to properly wear, and not have that come out of pocket,” she said. “It also allows the Army to make sure they have proper stock in issuing facilities to support demand.”
Commons said that Soldiers can continue to wear the UCP ACU until Sept. 30, 2019. After that, they must show up to work wearing the Operational Camouflage Pattern ACU.
Soldiers who are deploying or have an operational need are provided with OCIE items in the Operational Enduring Freedom Camouflage Pattern, also known as OEF-CP.
“Deployers will never go without,” Commons said. “The Army will ensure Soldiers get the appropriate equipment for their mission.”
The Army has been issuing the pattern to those deploying for some years and will continue to do so until the transition to Operational Camouflage Pattern.
It will be some years before UCP OCIE is exhausted and is replaced with Operational Camouflage Pattern OCIE because the items are “quite durable,” Commons said.
Commons also said some Soldiers had expressed confusion about what camouflage pattern the name and service tapes should be in on their UCP-colored fleece jacket. She said the name and service tape pattern should match the color of the fleece jacket, not the pattern of the ACU the Soldier is wearing underneath.
BLUE, WHITE AND READ THE REGULATIONS
Commons said that for some time, the OEF-CP was worn only in Afghanistan. And while deployed to Afghanistan, the rule was to wear the tactical subdued American flag patch on the right sleeve.
“Soldiers had only seen the subdued patch on that uniform, so they assumed that is the only patch allowed with that uniform,” Commons said.
But that is not the case.
According to AR 670-1, paragraph 21-18, “All Soldiers will wear the full-color U.S. flag embroidered insignia on utility and organizational uniforms, unless deployed or in a field environment.”
Commons said that the OEF-CP ACU, and the Operational Camouflage Pattern ACU can, and should be, worn with the full-color American flag while in garrison. Soldiers should wear the subdued flag patch on those uniforms while deployed, or in a field environment.
First sergeants, she said, will let Soldiers know when they are going to be in a field environment, and what the uniform requirements will be.
On 7 July, 2015 the US Patent and Trade Office issued Utility Patent 9,074,849, Entitled: “Camouflage for Garment Assembly” to the United States of America as represented by the Secretary of the Army. It followed Utility Patent 9,062,938, Entitled: “Camouflage Patterns”, issued two weeks earlier on 23 June, 2015. Both cover Scorpion W20601, initially developed in 2010 by engineers at the Natick Soldier Systems Center and later, after further refinement, recently adopted as the Army’s new Operational Camouflage Pattern.
There are a few curious things about this patent. First off, it’s practically an opus at 59 pages, although admittedly, there are a lot of illustrations. Also, it was issued very quickly, and coincidentally, just in time for the beginning of the Army’s OCP transition. Next, it doesn’t feel like it was written by a patent attorney, but rather by an engineer who was sure to include a great deal of fascinating, although extraneous information on how the pattern was developed and tested. Oddly enough, the Army hasn’t said a peep about it, which is strange considering they continue to assert “appropriate rights to the pattern“. However, once you dig into the details of the patent, you may see why they’ve stayed mum. Finally, the type of data disclosed in the patent tells an interesting story. But before we get to that, let’s address the patent itself.
The Abstract
A garment assembly such as a uniform, a military uniform and a military combat uniform is presented. The garment assembly includes a helmet or head cover being cut from a fabric having a first camouflage pattern with a first set of intermixed colored blotches thereon. The colors of the first set of intermixed colored blotches being selected from a first group of colors including an Olive 527 color, a Dark Green 528 color, a Tan 525 color, a Brown 529 color, a Bark Brown 561 color and a Dark Cream 559 color. The uniform also includes a coat being configured to fit at least a portion of a human torso and a trouser configured to fit at least a portion of human legs, the coat and trouser each being cut from a fabric having a second camouflage pattern with a second set of intermixed colored blotches thereon, the colors of the second set of intermixed colored blotches being selected from a second group of colors comprising an Olive 527 color, a Dark Green 528 color, a Light Sage 560 color, a Tan 525 color, a Brown 529 color, a Bark Brown 561 color and a Dark Cream 559 color.
One could take this revelation at face value, concluding that “the Army did it, they beat Crye!” But not so fast. That Utility Patent might not be all it’s cracked up to be.
Types Of Patents
I’d like to point out that this is a Utility Patent which is very specific and the Army doesn’t seem to have done itself any favors in the specificity of its claims. For those unfamiliar, the claims of a patent are the points that are being protected and the patent itself is essentially a right to exclude, meaning the patent holder gets to decide who can use the intellectual property it protects.
Since it’s a patent, you’ll probably want to immediately put it on the same footing as Crye Precision’s existing MultiCam patent, thinking one cancels out the other. Not so. Lineweight LLC, which is the holding company for all of Crye Precision’s patents, holds a Design Patent for the MultiCam pattern (D592,861). But, a Design Patent is more broad in nature. Think of it as a picture rather than a description of specific elements of the picture.
A Patent’s A Patent, Right?
So what’s the difference between these two types of patents you might ask?
To get around a Utility Patent all you have to do is make changes to what you’ve got until you no longer violate the specific claims of the patent. The more specific the claims are, the easier this is to do.
On the other hand, to determine if someone has violated a Design Patent, they use the “ordinary observer” test. Essentially, if it looks like it infringes to the average person, it does.
At casual inspection, Scorpion W2 sure looks close to me. Just examine this photo. Which swatch of fabric is Scorpion and which is MultiCam?
What’s It All Mean?
While I’m sure Crye Precision is aware of this patent, it’s so new and so restrictive that I doubt they’ll do anything about it. There’s no reason to. Ultimately, the Scorpion patent doesn’t affect Crye’s existing MultiCam IP or any of its contractual agreements with printers. Despite the Army’s new Utility Patent, they will continue to pay a license fee to Crye through the printers in order to use the Scorpion pattern.
Update – Info Regarding Related Patent 9,062,938
The Army fasttracked not just one, but two patents; the “garment assembly” patent which is the main subject of this article, as well as another patent granted about two weeks earlier concerning just the pattern. Both are Utility Patents and contain much the same information regarding the percentages of color used to make up the Scorpion W2 camouflage pattern. While the “Camouflage Patterns” patent also contains all of the extensive information about the ACU and helmet cover substrate, it is just two pages shorter at 57, but does acknowledge up front that it is related to the “garment assembly” patent and incorprates the same data directly from the other patent.
Both patent also include this section:
This is the ‘Hail Mary’ play that the Army has included in the patents. Unfortunately for them, it won’t have the effect the Army has hoped for. They are showing these patents to printers and telling them that they no longer have to pay a royalty. All it seems to be accomplishing is causing further tension in the supply chain as the Army expects businesses to violate contractual obligations and then doesn’t understand why they can’t.
Crye Precision collects the licensing fees for MultiCam and Scorpion from printers through royalty agreements. The Army pays those fees as part of the per unit cost of each garment, just like they do for permethrin treatment. The printers entered into industry standard licensing agreements which were written to protect the MultiCam pattern. It’s business. These patents don’t nullify contracts between Crye Precision and the printers.
It’s All About The Colors
Although the document does go into detail as to why other, prior art camouflage patterns don’t quite work, the actual claims in the Army’s patent revolve mainly around percentages of colors, even down to the tenth of a percentile. That’s right, the Army patented colors. I seem to recall a certain Colonel at PEO Soldier telling the media that Crye couldn’t extend Intellectual Property protection to the colors in the MultiCam pattern and yet, that’s exactly what the Army just did. Feel free to eat some crow on me, Bob.
This heavy reliance on colors to attain the patent is the pattern’s very weakness and may be why the Army hasn’t trumpeted the issue of this Utility Patent, because it literally invites counterfeiters. It is so specific, even the slightest change gets around the limited protection of this patent. In fact, because it contains so much information, the patent itself serves as a recipe on how to get around its very protection. This leaves the Army at the mercy of Crye Precision who has the more expansive Design Patent. It would be up to Crye to determine whether any newly minted Scorpion knockoffs violate the MultiCam patent and then police them.
What About The Bookends?
What does this mean for the so-called bookend patterns? The Army’s new Utility Patent obviously doesn’t protect any color variants due to its specificity, so they wouldn’t be protected by this patent.
And Now, The Rest Of The Story
There’s another, bigger story, lurking in the language of the patent. For over a year now, we’ve been awaiting details on the Army’s rather abbreviated testing used to select the Scorpion pattern. The Army was able to determine in a matter of weeks that Scorpion was the one for them when previous, Camouflage Improvement Effort Phase IV testing had taken well over a year to complete. For some odd reason, they included a great deal of extraneous testing information in the patent, perhaps in their haste to rush the patent through, for the official transition from UCP to OCP on 1 July, 2015.
The application was just submitted on 12 December, 2014. While unusual to be granted so quickly, as I understand it, this is perfectly legal. Although, the application was never published and there was no period for public comment regarding the patent prior to it being granted.
But back to testing. According to the patent, the Army conducted picture-in-picture testing of MultiCam, Scorpion, Digital Transitional Patterns 1 & 2, MARPAT Woodland & Desert and the incumbent Universal Camouflage Pattern across several simulated environments. These were Transitional (Arid, Dormant and Verdant) and Woodland (Dormant and Verdant). This chart (Table 4), embedded in the patent, shows how the patterns performed.
UCP Performs Horribly
Before we go any further, take a gander at UCP’s performance; just abysmal. It makes you wonder how long the Army has known about its performance and how long they ignored it. As it is, this set of testing was conducted in Spring 2014 and we know for sure UCP was also tested during Phase IV, back in 2012 but the Army won’t release those test results.
With Camouflage, Specialization Is A Blessing As Well As A Curse
This chart also validates something else we know to be true. Environmental specific patterns do very well in the environment they are tuned to, but work against the wearer in other environments. Just take a look at the performance of the two MARPAT variants across the environments to see how that works.
Scorpion Doesn’t Perform As Advertised in Arid Environments
The Army also makes an untrue claim in the patent application, declaring the Scorpion pattern, designated 100 in the patent, “significantly better” than all other candidate patterns in the Transitional Arid environment during picture-in-picture testing. As you can see from the patent’s chart, this simply isn’t true. In reality, it performed fifth out of seven patterns. Considering that America’s Army continues to be engaged with our enemies in Arid regions, this is ridiculous to purposefully adopt a pattern that performs worse than what they’ve already got. They made a similar claim regarding the Woodland Dormant environment but naturally, Scorpion was outperformed by the encironmentally specific MARPAT Woodland.
Turns Out, MultiCam Is Best
Despite explaining in the patent why MultiCam doesn’t work, testing demonstrated otherwise. What we learn, from the Army’s own published research, is that OCP aka Scorpion W2 doesn’t perform as well as OEFCP aka MultiCam, except in one environment, the Woodland Dormant environment (think fall and winter). Let me put it another way. According to Army testing, MultiCam outperforms Scorpion in four out of five critical operating environments. And yet, the Army adopted Scorpion anyway and is paying Crye Precision a royalty for this lesser performing pattern. Scorpion or MultiCam, Crye Precision receives a royalty. The Army spent time and taxpayer money to develop a pattern that performs less well than what they already had. In summation, the uniforms our Soldiers are getting now (OCP) don’t perform as well as the uniforms they were issued even a month ago (OEFCP).
Bottom Line
Based on the data presented in the patent, you can only come to one conclusion. When you consider cost and performance, the Army should just drop the charade and fully adopt Crye’s MultiCam. Even better, the Army would gain access to Crye’s environmental specialty patterns which are already seeing limited operational use with certain customers.
A Note To Readers:
I’d like to wrap this up by pointing out that I am not a lawyer, but I did read the patent, and that for brevity, I’ve described some things, like types of patents, in rather generic terms. I’ll let the actual patent attorneys argue over the intricacies of Intellectual Property law but I’m sure there will be plenty of others who also want to chime in. All I ask is that you have an idea of what you are talking about and are prepared to explain the basis of any comments.
This article was updated on 16 July, 2015 to add imformation about patent 9,062,938 “Camouflage Patterns”, 23 June, 2015.
