[00:00:00] Speaker 01: Our next case for argument is 23-1700, Flight Safety International versus Air Force. [00:00:35] Speaker 01: Mr. Wolff-Rota, am I saying it right? [00:00:37] Speaker 03: Wolff-Rota. [00:00:38] Speaker 01: Wolff-Rota, please proceed. [00:00:39] Speaker 01: Thank you. [00:00:40] Speaker 03: Thank you, Your Honor. [00:00:41] Speaker 03: May it please the court, Howard Wolff-Rota, on behalf of Appellant Flight Safety International Incorporated. [00:00:46] Speaker 03: With me here today is my co-counsel, Daniel Abrahams, at council table. [00:00:52] Speaker 03: Your Honors, if the board's decision in this case is left undisturbed, it will confer considerable power upon the government to seize privately funded technical data for virtually all purposes. [00:01:05] Speaker 03: All the government would have to do is declare the data necessary for operations, maintenance, installation, or training. [00:01:13] Speaker 03: And there you go. [00:01:14] Speaker 03: They claim. [00:01:16] Speaker 03: All it has to do is claim it? [00:01:18] Speaker 04: The court doesn't have to make a determination on whether it's omitted data? [00:01:22] Speaker 03: As a practical matter, what happens is if they assert this issue, that it's necessary for operation, maintenance, installation, and training, then there is an argument. [00:01:34] Speaker 03: back and forth that is frankly impractical. [00:01:37] Speaker 03: And in the commercial context, that doesn't confer truly unrestricted rights to use the data in any manner if it is assertedly necessary for operations, maintenance, installation, or training. [00:01:52] Speaker 03: Rather, they have whatever rights that are unrestricted rights under the commercial data clause 252227-7015 [00:02:03] Speaker 03: They're not completely boundless. [00:02:06] Speaker 03: And that's the problem here, is they're asserting that their rights are completely boundless, as if it was non-commercial data. [00:02:15] Speaker 03: And that's a significant difference, because under the non-commercial data- I don't understand them, to be honest. [00:02:20] Speaker 03: OK, I'll step back. [00:02:22] Speaker 03: The non-commercial clause, which is 252-227-7013, [00:02:33] Speaker 03: which governs technical data that is funded in whole or in part by a contractor versus 25227-7015, which governs the treatment and rights of the government with respect to it. [00:02:49] Speaker 04: Your argument, as I understand it, is that the government has the right to the data, but they can't object to a clause [00:02:57] Speaker 04: on the drawings that limits that right. [00:03:01] Speaker 04: That seems to me to make no sense. [00:03:05] Speaker 04: Particularly when the statute specifically gives them the right to object to the logos on the data. [00:03:13] Speaker 04: I'm sorry, Your Honor. [00:03:14] Speaker 04: particularly since the statute specifically gives them the right to object if the logo contradicts their rights? [00:03:24] Speaker 03: That's not quite correct, Your Honor. [00:03:26] Speaker 03: What the statute gives the Defense Department to object to when data is assertively commercial, their challenge is limited to whether or not it's commercial. [00:03:40] Speaker 03: If it is not commercial, [00:03:44] Speaker 03: then the analysis of whether or not a particular legend is appropriate is done under the non-commercial clause, both of which are in this contract. [00:03:54] Speaker 03: But unless and until that finding is made that it's non-commercial, the commercial restrictions apply. [00:04:02] Speaker 03: And the reason for that as a practical matter is that commercial technical data is [00:04:12] Speaker 03: developed at private expense before it reaches the government and before the government seeks it. [00:04:19] Speaker 03: And that's what happened in this case. [00:04:21] Speaker 03: The legends were there. [00:04:23] Speaker 03: And what the government is asserting. [00:04:26] Speaker 00: Do you agree that the government can make challenges to the markings, at least in some instances, regardless of whether the data was developed exclusively at private expense? [00:04:36] Speaker 03: Your Honor, under that language, no. [00:04:40] Speaker 03: They don't get that right. [00:04:41] Speaker 01: What about 37713, which lists categories of commercial data developed exclusively at private expense where the government does have the right? [00:04:54] Speaker 03: That's a separate issue. [00:04:55] Speaker 03: There's two issues here. [00:04:56] Speaker 03: Number one is the existence of the legend on the data as they receive it and acquire it as a commercial actor under the whole notion of commercial contracting. [00:05:09] Speaker 03: But that's distinguished from the actual rights under the contract. [00:05:14] Speaker 03: The legend stays, but the rights are defined by the contract. [00:05:22] Speaker 01: I'm sorry. [00:05:23] Speaker 01: I'm not quite following. [00:05:25] Speaker 01: Are you focused now on the issue of whether the government has the right to challenge, or are you focused on the merits issue if the government has the right to challenge? [00:05:34] Speaker 03: Well, in some ways, they're different sides of the same coin, if you will. [00:05:39] Speaker 03: the right to challenge is limited to the commerciality of the data. [00:05:44] Speaker 04: And if you look at the commercial data clause... What about 3782, which specifically, of the statute, which specifically gives the government the right to challenge the logo? [00:05:58] Speaker 03: The government gets to challenge the logo. [00:06:00] Speaker 03: See, you have to look at all these clauses together in order to understand. [00:06:04] Speaker 03: First of all, the plain meaning of the [00:06:08] Speaker 03: the statute and the validation clause that's based on the statute has limitations. [00:06:14] Speaker 03: But if this court were to conclude that, yes, the government can challenge a commercial clause for whatever reason they might assert, you then go to the commercial data rights clause to figure out, well, what is the remedy? [00:06:28] Speaker 03: Does the government get to dictate the terms on a commercial technical data, in this case drawing, [00:06:38] Speaker 03: And the answer is no, because there is no language that gives them that authority. [00:06:44] Speaker 03: That authority exists under the non-commercial clause, which is why the way the procedure, if you follow it on a decision tree, number one, is it commercial? [00:06:55] Speaker 03: If yes, then case closed. [00:06:58] Speaker 03: If the answer is it's not commercial, you go to the non-commercial clause. [00:07:03] Speaker 03: The government has a lot of latitude to challenge the language [00:07:07] Speaker 03: a commercial of a restrictive legend. [00:07:12] Speaker 04: And even in situations where that's 3782 of the statute apply to this case or not? [00:07:19] Speaker 04: Forgive me. [00:07:23] Speaker 04: You don't know what this section is? [00:07:26] Speaker 03: My memory is, is that the one where [00:07:30] Speaker 03: Is that the validation, the whole validation clause you were referring to? [00:07:34] Speaker 03: OK, so there's old, there's re-designation. [00:07:38] Speaker 04: It was in the title. [00:07:39] Speaker 04: Technical data challenges the contractor restrictions. [00:07:42] Speaker 04: And it says the Secretary of Defense can challenge a use or release restriction. [00:07:49] Speaker 03: That is there, but 3784, which is the commercial data rights validation statute, [00:07:58] Speaker 03: applies when it's assertedly commercial. [00:08:02] Speaker 04: Does the section I mentioned apply here or not? [00:08:07] Speaker 03: If the data are found to be non-commercial, yes. [00:08:13] Speaker 03: But that's the threshold of question. [00:08:15] Speaker 03: Where does that section say anything about such a distinction? [00:08:21] Speaker 03: What I'm struggling with here in terms of my memory is the difference in the old statute numbers and the new ones. [00:08:27] Speaker 03: I believe it's 3784 is the validation provision. [00:08:32] Speaker 03: And that's the opening question on assertively commercial technical data. [00:08:42] Speaker 03: Once that threshold is found to be non-commercial, then you do get to a broader set of challenges [00:08:51] Speaker 03: where the government can assert all the various reasons. [00:08:54] Speaker 03: So the way this could have worked is the government could have said. [00:08:59] Speaker 04: Well, if the government was confronted with a label on a drawing which said the government has no rights to this drawing, there's no way the government could challenge that if that was privately funded. [00:09:14] Speaker 03: That's our argument, because the government acquires a commercial. [00:09:18] Speaker 04: Even though it does, in fact, have those rights. [00:09:20] Speaker 03: But the contract defines rights. [00:09:21] Speaker 03: The denial of those rights. [00:09:23] Speaker 03: Sorry. [00:09:24] Speaker 03: Their own regulations state that the contract determines their rights. [00:09:29] Speaker 03: And the argument here is simply that- Don't you see how that doesn't make sense, what you're saying? [00:09:34] Speaker 00: Like, listening to your answer to Judge Dyke's hypothetical, do you see why that sounds nonsensical? [00:09:42] Speaker 03: If you assume that commercial data should be treated the same way as non-commercial data, yes, that sounds absurd. [00:09:51] Speaker 03: However, the whole reason why commercial data should be taken differently is, and as I argued in the brief, if you buy a car, and that car has a manual, and suppose that car manual has a legend. [00:10:08] Speaker 03: Does the government have the right to tell the manufacturer of the car to completely redo its manual and remove any such restrictions? [00:10:16] Speaker 03: I think the practical response to that is no. [00:10:19] Speaker 03: Because really, what's defining the rights of the government to take that manual and distribute it to whoever, as long as it's for operation, maintenance, installation, and training, is unrestricted. [00:10:29] Speaker 03: They can do that. [00:10:31] Speaker 03: And the legend doesn't itself change the contractual rights. [00:10:36] Speaker 03: in the commercial context. [00:10:37] Speaker 00: Doesn't the legend cause some confusion or relief with respect to the contractual rights? [00:10:42] Speaker 03: Well, that issue was raised in some extent in the Boeing case, where the government asserts. [00:10:49] Speaker 00: So yes or no, could it cause some confusion with respect to the contractual rights? [00:10:52] Speaker 03: There is no evidence that it would cause confusion. [00:10:56] Speaker 03: And this court in the Boeing case wrote that issue. [00:10:59] Speaker 00: OK, take a bit of the hypothetical. [00:11:01] Speaker 00: Could it cause some confusion with respect to the contractual rights of the alleged as contradictory? [00:11:07] Speaker 03: If the actor is a stranger to the contract and is not part of the program that's being administered to the contract, I suppose it's possible. [00:11:19] Speaker 03: However, what we're talking about here is the use of the data in the context of the contract as it exists. [00:11:26] Speaker 03: If the contracting officer or the technical personnel in the program, the contracting officer's representative and those folks, hand the data off to say a contractor that has a responsibility to somehow operate the system, they will be told our rights are to do x, y, and z. But because they acquire the data on a commercial basis, [00:11:55] Speaker 03: The legend is what it is. [00:11:58] Speaker 03: And that's why this is so significant. [00:12:00] Speaker 03: Because if the government wins this and has the right to remove the legend in its entirety, if this data gets out without any legend whatsoever, and the government didn't offer any alternative in that regard, it just said no legend whatsoever, under the commercial clause where it says the government [00:12:23] Speaker 00: will have no liability on what- There was a challenge process in terms of raising issues with the legend. [00:12:28] Speaker 00: I didn't think it automatically led to removal. [00:12:31] Speaker 00: Am I mistaken there? [00:12:33] Speaker 03: Forgive me, Your Honor. [00:12:34] Speaker 00: I thought there was a challenge process with respect to raising issues with the markings. [00:12:40] Speaker 00: I didn't think it led to automatic removal. [00:12:42] Speaker 00: Am I mistaken there? [00:12:44] Speaker 03: Well, that's what the government asserts, is that here, in this case, they objected to the legends. [00:12:53] Speaker 03: Forgive me. [00:13:00] Speaker 03: They said that the legend should be removed because they didn't like it. [00:13:06] Speaker 03: They then, when flight safety gave its response and proposed an alternative legend, [00:13:13] Speaker 03: the government continued to say that process, that legend is unacceptable, and they initiated the challenge process. [00:13:21] Speaker 03: And that is where we say that that challenge process shouldn't apply beyond the question of whether the data are commercial technical data or not. [00:13:32] Speaker 03: And if the answer is that it's commercial technical data, [00:13:35] Speaker 03: The inquiry ends. [00:13:37] Speaker 03: The legend stays. [00:13:38] Speaker 03: And as I've been pointing out, as a practical matter, that makes sense when you consider the difference between commercial technical data. [00:13:45] Speaker 04: And you can say on the data, on the drawing, you can say the government has no rights to this data. [00:13:53] Speaker 04: There's no way to challenge that. [00:13:55] Speaker 04: And that's it. [00:13:56] Speaker 03: Well, the way of framing that, Your Honor, is a situation as if, and I see that I'm wandering deeply into my rebuttal period. [00:14:07] Speaker 03: But that situation suggests that a commercial contractor is putting a label on it after it is entering into a contract with the government. [00:14:21] Speaker 03: And that's not what's happening here. [00:14:23] Speaker 03: This is the commercially. [00:14:25] Speaker 03: use restriction that's used with respect to all transactions with commercial purchasers. [00:14:33] Speaker 03: And here, the government is standing in the shoes of a commercial purchaser. [00:14:38] Speaker 03: And the only reason it has access to this technical data, given that the automatic assumption is that a commercial contractor only is obligated [00:14:49] Speaker 03: to turn over the technical data that's given to the general public. [00:14:53] Speaker 03: But here they get more. [00:14:56] Speaker 03: And that does not mean they get the right to redo all of the legends that are on that data. [00:15:02] Speaker 03: It merely means they get to use it in accordance with the terms of the contract. [00:15:05] Speaker 01: But the problem is, [00:15:07] Speaker 01: that the statute 3786 expressly says the government has to abide by election, by whatever legend it is, which includes both use and release or disclosure of technical data. [00:15:19] Speaker 01: So if you have this legend on there, it's not just that they can't challenge it. [00:15:24] Speaker 01: That legend binds the government, and they can't use it. [00:15:27] Speaker 01: And the validation clause says exactly the same thing. [00:15:30] Speaker 01: Section G of the validation clause says that the government will be bound by that marking. [00:15:34] Speaker 01: And it says so regardless of whether it's a commercial or a non-commercial clause. [00:15:38] Speaker 01: So I don't understand. [00:15:41] Speaker 03: Well, the problem is, Your Honor, if that is the case, then the language that governs whether or not there can be a legend at all under the commercial clause, I see my time has expired. [00:15:56] Speaker 03: Can I continue? [00:15:56] Speaker 03: Yeah. [00:15:58] Speaker 03: If it's under the commercial technical data clause, the government simply cannot dictate what should be the legend. [00:16:11] Speaker 01: Yeah, but they can't even use it then. [00:16:14] Speaker 01: The way you've labeled these things, if they can't challenge that, then by statute and by the validation clause both, they are not allowed to use the data. [00:16:22] Speaker 03: Your Honor, it's a question of what's in the contract, though. [00:16:24] Speaker 01: The validation clause is in the contract. [00:16:27] Speaker 01: It was imported into the contract. [00:16:30] Speaker 01: Yes, the validation clause... So the government can't use the data because you put this legend on it and they can't challenge, even though they contracted with you, they can't even challenge the legend so that they can use the data. [00:16:42] Speaker 03: No, the issue is whether or not they have rights and that's defined by the contract. [00:16:47] Speaker 03: Here, if the legend were on there... You've agreed that they have rights to the data. [00:16:54] Speaker 03: Yes, they do have rights to the data, but they don't have the right to rewrite legends that are on there. [00:17:01] Speaker 03: They have the right to use the data in accordance with the terms of the contract. [00:17:05] Speaker 01: No, I'm sorry, sir, but the contract can't trump the statute. [00:17:08] Speaker 01: And the statute expressly says under [00:17:12] Speaker 01: 3786, that a use or a restriction or a release restriction, basically your legend impacts the government's right to use technical data or release or disclose technical data. [00:17:24] Speaker 01: So your legend does, by statute, affect their right to use. [00:17:28] Speaker 03: Well, in that sense then, Your Honor, the government's own regulations under 27, I don't recall the exact number off the top of my head, but there is provision in the policy statement [00:17:41] Speaker 03: where it says that there's language that states that the rights of the government are defined by the contract in the regulations. [00:17:53] Speaker 03: And if that's the case, then the regulations fail. [00:17:56] Speaker 01: Do you think either a regulation or a contract can trump the statute? [00:18:01] Speaker 03: In certain senses. [00:18:03] Speaker 01: No, they can't. [00:18:04] Speaker 01: OK, let's hear from the government at this point. [00:18:16] Speaker 02: Morning, Your Honors. [00:18:16] Speaker 02: May I please report? [00:18:18] Speaker 02: The parties do not dispute that flight safety unambiguously granted the government an unrestricted rights license in the drawings at issue in this case. [00:18:26] Speaker 02: The dispute instead concerns what exactly that means. [00:18:29] Speaker 02: And as we've heard, flight safety takes a very maximalist position that it may apply any marking whatsoever, regardless of how inconsistent with the government's rights under the contract, under the statute, et cetera. [00:18:40] Speaker 02: And the government has no vehicle to challenge that whatsoever. [00:18:43] Speaker 02: unless it's in a position to challenge this. [00:18:45] Speaker 01: And not only do you have no vehicle to challenge it, but unless I'm mistaken, under both the statute and the validation clause, which is the regs, and this contract, you, the government, have agreed by statute, by reg, and by contract to be bound by whatever legend they put on there. [00:19:01] Speaker 01: So even though you've contracted and you've paid earnest money to have use of certain data by statute, by reg, and by contract, if his interpretation is correct, you can't actually use the data. [00:19:10] Speaker 02: I think that's exactly right, Your Honor. [00:19:12] Speaker 02: correct to point out the statute because if you one thing for the contract clause which we sort of fully applicable the validation clause I suppose you could say flight safety's position is that that clause doesn't apply in the first place so that the administration wouldn't apply but the statute still applies in any event and so the government is bound by that legend to the extent [00:19:34] Speaker 02: that it has to follow the process of the validation clause, which is exactly what it did here. [00:19:38] Speaker 00: Let me give you an opportunity to respond to opposing counsel's commercial, noncommercial distinction. [00:19:44] Speaker 02: It's an important distinction, but it doesn't have the effect that opposing counsel suggests that it does. [00:19:50] Speaker 02: It's not the case that a challenge has to move a technical data from the commercial realm to the noncommercial realm before it can get into the government's rights on the data. [00:20:01] Speaker 02: And one of the pieces of evidence for that [00:20:03] Speaker 02: is the fact that the statute expressly gives the government additional rights beyond what a commercial purchaser would obtain in certain forms of data, whether form, fit, and function data, here, omit data, operation, maintenance, installation, and training, and some other categories of data. [00:20:18] Speaker 02: So those additional rights are granted to the government above and beyond what you or I as a commercial purchaser, as a consumer, would get in the same technical data and a commercial purchase. [00:20:28] Speaker 02: So that's the sort of false analogy [00:20:30] Speaker 02: With this car analogy, for example, sure, as a consumer walking in to a auto dealer, you have less rights than the government would obtain by statute, by Congress's design, when it purchases commercial data. [00:20:42] Speaker 02: The government is encouraged in many circumstances to make commercial purchases and generally obtain similar rights to what would be obtained in the commercial marketplace, but there are certain clearly delineated exceptions, including the exception for OMID data. [00:20:57] Speaker 01: I have a question just about impact. [00:20:59] Speaker 01: I have never seen a case like this before. [00:21:03] Speaker 01: Are there a lot of such cases out there? [00:21:05] Speaker 01: I guess what I'm getting at is how often do contractors give the government data like this and then put a legend on it that basically would restrict not just dissemination, but even use? [00:21:19] Speaker 02: Well, I think these types of issues come up a lot to the extent that legends are [00:21:25] Speaker 02: provided on data that's provided to the government, and then the government challenges them through the process that's envisioned by the statute, by the clause. [00:21:32] Speaker 02: And so I think that's quite common. [00:21:34] Speaker 02: I think flight safety's position in this appeal is not common and conflicts strongly with the government's understanding, as we pointed out in our brief, as the board concluded, and as the statute and clause are set up. [00:21:46] Speaker 02: Because the validation clause is in place exactly for this type of circumstance, where there's a legend that conflicts with the government's rights. [00:21:53] Speaker 02: The government used its rights as a matter of course through the process envisioned by the clause, by the statute, and effectuated and defended its rights through that process. [00:22:04] Speaker 01: I think their strongest argument is 3784 in the only if language. [00:22:07] Speaker 01: So can you address that? [00:22:08] Speaker 02: Yes, Your Honor. [00:22:10] Speaker 02: So 3784, which again at the time was 2721, [00:22:22] Speaker 02: So this is part of the presumption. [00:22:29] Speaker 02: But that presumption only applies to the question of whether it was developed at private expense or not. [00:22:36] Speaker 02: So the presumption provides that, yes, the government will presume when it's challenging the source of funding that the item was developed at private expense. [00:22:46] Speaker 02: It's an evidentiary presumption. [00:22:48] Speaker 02: And you can challenge that source of funding only if you can bring [00:22:52] Speaker 02: specific evidence that would show that it was not developed at private expense. [00:22:57] Speaker 02: But that does not suggest that that is the entirety of the universe of a challenge to a restrictive marking under the validation clause, under the validation statute. [00:23:08] Speaker 02: And so that's the limitation of that only if. [00:23:11] Speaker 02: In fact, you can see that through on 3784, the beginning of that sentence where only if appears states in such a case. [00:23:18] Speaker 02: And in such a case in our view, [00:23:20] Speaker 02: relates back to specifically the case of a challenge to the source of funding, which is not what we have here. [00:23:27] Speaker 02: What we have instead is a different type of challenge. [00:23:29] Speaker 02: Another indication of this in the old sense. [00:23:33] Speaker 01: How does it relate back to the source of funding? [00:23:35] Speaker 01: Which sentence do you think it relates back to? [00:23:37] Speaker 01: In such a case, I thought the first sentence is, in the case of a challenge to a use or release restriction that is assertive with respect to technical data under a contract for commercial products, the contractor shall presume it was developed at private expense, right? [00:23:54] Speaker 01: So is that, in such a case, do you think relates back to the presumption that it was developed at private expense? [00:23:59] Speaker 02: It's clear in the whole context, in a sense, that government made your job harder in this case by recodifying, that Congress did rather, because in 2321, all of these sections are more clearly connected, and then they were broken apart in the recodification, which post-dated the events of this case. [00:24:16] Speaker 02: But when you see all of it together in the old 2321, it makes more sense that that is a presumption that applies to one specific type of challenge, but not to the challenges overall that are envisioned under that clause. [00:24:28] Speaker 02: under that statute, excuse me. [00:24:33] Speaker 02: And that's clear in a variety of ways through the statute and through the clause, the requirement that a challenge state the specific grounds for challenging the assertive restriction. [00:24:44] Speaker 02: If the only way to challenge was on the basis of the source of funding, you wouldn't need that language. [00:24:50] Speaker 02: And even more clearly, the language that provides for the three-year typical limitation for that challenge [00:24:58] Speaker 02: but then says, well, that doesn't apply if your challenge is based on the fact that it's been made public or it's been provided to the United States without a legend or it's been otherwise provided in an unrestricted matter to the United States. [00:25:10] Speaker 02: Well, again, all of those don't fit into this bucket that my friend for flight safety has suggested, which is that you have to first, as a threshold matter, have a challenge to the source of funding before you even get to any of these other sorts of rights adjudications. [00:25:24] Speaker 02: That's just not the way the statute or the clause in the contract are set up. [00:25:32] Speaker 02: And so the statutory and regulatory and contract scheme are clear that the government has the right to challenge the legends at issue in this case. [00:25:41] Speaker 02: The board also correctly concluded that flight safety's legends, in fact, contradict the government's rights, that they cannot stand, and that the government has the unrestricted right, which includes the right to use these data for the reasons that are stated in the clause and in the statute, which [00:25:58] Speaker 02: The government should have the unrestricted right to use, modify, reproduce, release, perform, display, or disclose technical data, and to permit others to do so. [00:26:08] Speaker 02: This is a very broad unrestricted right. [00:26:11] Speaker 00: So part of your argument as to why you can make challenges beyond what opposing counsel is trying to cabin you into is that Elise says in the statute that you need to state the specific grounds for challenging the assertive restriction. [00:26:24] Speaker 00: And if there were only one ground, [00:26:26] Speaker 00: Maybe you wouldn't need to state that. [00:26:27] Speaker 00: Is that true? [00:26:28] Speaker 00: That's correct, Your Honor. [00:26:28] Speaker 02: Yes. [00:26:29] Speaker 00: And you can say more. [00:26:30] Speaker 00: I don't mean to submit it. [00:26:32] Speaker 02: No, that's exactly right. [00:26:35] Speaker 02: I think there are several layers. [00:26:36] Speaker 02: We're trying to make a textual argument as to what clues we can see in the statute itself. [00:26:41] Speaker 02: That's certainly one of them. [00:26:43] Speaker 02: The other one I mentioned is the provision that permits a challenge past three years for certain reasons, none of which have anything to do with the source of funding. [00:26:50] Speaker 02: So these are clues within the text of the statute itself. [00:26:53] Speaker 02: Certainly, the context of that entire statute [00:26:56] Speaker 02: within the context of the other statutes as well. [00:26:59] Speaker 02: So for example, it would make no sense for Congress to give the government additional rights in OMID data, in form, fit, and function data, in such things, and then provide no avenue by which to effectuate those rights and to defend those rights. [00:27:13] Speaker 02: So read in the context of both that section of the statute as a whole, that section of the United States Code as a whole, [00:27:22] Speaker 02: And the contract clause as a whole, it's clear that this validation clause was intended to include a challenge to other reasons for challenging a restriction other than just the source of funding. [00:27:38] Speaker 02: And we haven't discussed, Your Honor, anything about the extent of the government's rights. [00:27:41] Speaker 02: I'm happy to address that if you have any questions about that. [00:27:44] Speaker 02: Otherwise, I think that the position of the government is clear that the restrictions can be challenged. [00:27:50] Speaker 02: The board explained clearly why flight safety's markings in this case do indeed conflict with the government's unrestricted rights and correctly determined that those unrestricted rights provide the government the right to use this data for the purposes listed, which are very broad and unrestricted and include manufacturing additional items, providing to as part of a competitive acquisition, for example, for replacement of these parts or other purposes of that nature. [00:28:19] Speaker 01: Thank you, counsel. [00:28:21] Speaker 01: Let's restore two minutes of rebuttal time for Mr. Wolf-Rota. [00:28:28] Speaker 03: Thank you, your honor. [00:28:29] Speaker 03: I would just like to focus briefly, assuming that the government had the right to challenge these legends, that then there's two remaining issues, as counsel mentioned. [00:28:41] Speaker 03: One is whether these legends, in fact, contradict with the government's rights. [00:28:46] Speaker 03: The short legend that's identified in [00:28:48] Speaker 03: The provision simply states that the data are proprietary to flight safety. [00:28:54] Speaker 03: That is a statement of fact that is frankly undisputed. [00:28:57] Speaker 03: There is no dispute that flight safety owns the data. [00:29:02] Speaker 03: That simply is all that says. [00:29:04] Speaker 03: That does not conflict with the government's rights. [00:29:07] Speaker 03: Second, the other label that was applied that they challenged specifically acknowledged that the use of the [00:29:17] Speaker 03: of the data were to be governed by things that were done in writing. [00:29:20] Speaker 03: What's the writing here? [00:29:21] Speaker 03: It's the contract. [00:29:22] Speaker 03: The contract defines the rights. [00:29:24] Speaker 03: And so the legend is not inconsistent with that. [00:29:28] Speaker 03: This court has previously held in Boeing that a contractor can include a copyright notice. [00:29:33] Speaker 03: That copyright notice is there and is perfectly fine. [00:29:37] Speaker 03: And there is no conflict there. [00:29:39] Speaker 03: And even if you then turn to the alternative clause that was discussed, again, it makes reference to the contract clause [00:29:45] Speaker 03: And it defines the restriction in terms of what rights the government has. [00:29:49] Speaker 03: It doesn't contradict the rights. [00:29:52] Speaker 03: Now, beyond that, I would like to just briefly touch on the question of purpose. [00:29:57] Speaker 03: The data can be used only with restricted rights, and that restricted rights are connected to the purpose. [00:30:04] Speaker 03: How do we know that? [00:30:06] Speaker 03: The definition of unrestricted rights, although it's not expressly termed a definition, [00:30:11] Speaker 03: There is language there that includes a number of things that the government can do. [00:30:16] Speaker 03: If you compare that with the unlimited rights in the non-commercial clause, there's a key difference. [00:30:22] Speaker 03: And that key difference is and for any other purpose whatsoever. [00:30:26] Speaker 03: If this data was non-commercial, they could take it and throw it and line their rabbit hutches and all that. [00:30:33] Speaker 03: They may not do that. [00:30:34] Speaker 03: They have to use it, as I argued in the brief, to accomplish omit purposes and not beyond that. [00:30:42] Speaker 03: Thank you, Your Honors. [00:30:43] Speaker 03: I request that the decision be affirmed. [00:30:46] Speaker 03: And grant such other relief is also asserted in the brief. [00:30:50] Speaker 03: Thank you. [00:30:51] Speaker 01: Thank you. [00:30:51] Speaker 01: Thank you. [00:30:52] Speaker 01: This case is taken under submission.