31 Fed. Cl. 464 | Fed. Cl. | 1994
OPINION ON COMPENSATION BASE
Hughes Aircraft Company owns U.S. Patent No. 3,758,051, entitled “Velocity Control and Orientation of a Spin-Stabilized Body,” which describes an apparatus for controlling the attitude of a spin-stabilized spacecraft.
I
Hughes filed its complaint on November 13, 1973. Since then, the parties have engaged in a lengthy and costly litigation in both trial and appellate courts. (A description of the course of this litigation and references to background materials are set forth in the Opinion on Liability dated August 16, 1993, 29 Fed.Cl. 197, 201-02.)
In Hughes Aircraft Co. v. United States, 717 F.2d 1351 (Fed.Cir.1983), the Federal Circuit remanded the matter to this court for a determination of the damages due for 14 spacecraft adjudged to infringe. Consequently, the portion of this case occurring since the 1983 remand has been referred to as the “accounting” or “damages” phase. However, in addition to the 14 spacecraft adjudged to infringe in the “liability” phase, Hughes accused 94 spacecraft during this “accounting” phase, for a total of 108 accused spacecraft. Thus, this so-called “accounting” phase has entailed the determination of liability concerning the 94 newly accused spacecraft as well as a determination of damages with respect to all of the 108 spacecraft found to infringe.
Numerous liability issues were resolved during the course of the trial both by ruling and by agreement of the parties. All then-remaining liability issues were resolved by the Opinion on Liability dated August 16, 1993, 29 Fed.Cl. 197, 202 — 18. The appendix to said Opinion on Liability, 29 Fed.Cl. at 243-18, lists each of the 108 spacecraft accused during any stage of this litigation and sets forth, with references, the liability ruling with respect to each one.
II
This opinion addresses all previously unresolved costs issues.
Of the 108 spacecraft accused in this litigation, plaintiff is entitled to recover compensation with respect to the government’s manufacture or use of 81 spacecraft. See 29 Fed. Cl. at 243-48. Appendix B to this opinion lists each of the 81 spacecraft in the compensation base and sets forth precise royalty payment dates and valuations with respect to spacecraft in the compensation base.
A subsequent opinion will address issues pertaining to royalty rate and delay damages.
Ill
There were thousands of costs issues requiring resolution as a predicate to final computation of a damages award. “With the many complex technical issues presented in this case, it is somewhat ironic that one of the most time-consuming areas involved the ascertainment of spacecraft cost.” Pl.Br. (4/16/91) at 26. Most of these issues concerning spacecraft valuation were resolved by agreement of the parties and some were resolved' by ruling during the course of the trial. (See Appendix B to opinion for citations to major stipulations and rulings pertaining to costs.) There remain for resolution cost issues pertaining to 28 spacecraft.
The remaining cost issues result from the parties’ disagreement over the precise amount or the allocation of costs of items on 27 specific spacecraft (DSCS II QTV; FLTSATCOM QTV, FV 7 and 8; GPS FV 6, 15, 18 and 20 through 36; ISEE B, and SOLRAD HA and 11B) and a dispute over whether the agreed value of a non-infringing satellite (AMPTE IRM) should nonetheless be included in the compensation base by addition to the value of an infringing vehicle (AMPTE CCE).
A
One lingering cost issue is whether the value of AMPTE IRM
Resolution of plaintiffs two arguments for inclusion require an understanding of the AMPTE program mission and of the configuration and deployment of the three AMPTE satellites. For a full description of the program, reference is made to the Opinion on Liability, 29 Fed.Cl. at 237-39 and to PX 1435A at 14-23. It will suffice for present purposes to give an abbreviated description as follows: Although each of the three spacecraft was an independently controlled satellite after launch and deployment in space, all three were part of a single program. All were launched together in a stack aboard a single launch vehicle, and their activities in space were carefully coordinated to achieve program mission. In broad terms, the CCE was deployed in an orbit approximately 30,-000 miles from earth within the magnetosphere while the UKS and the IRM were deployed in elliptical orbits having apogees outside the magnetosphere approximately 65,000 miles above the earth; the primary function of the IRM was to release lithium and barium ions — hence its name, Ion Release Module — outside the magnetosphere for study by the UKS and CCE, observation by the UKS to be far more immediate and before entry into the magnetosphere and subsequent detection and analysis by the
Plaintiffs theory that the IRM should be deemed payload for the CCE has some plausibility. The parties are agreed that the compensation base should include “total spacecraft cost,”
Plaintiffs second theory for inclusion relies on the “entire market value” rule applicable to royalty computation. This judicially created rule of base calculation finds its typical application in the commercial context and provides that if unpaterited items accompanied the sale of an infringing item, the unpatented items will be included in the compensation base if the patent owner could have reasonably anticipated making the sale of the unpatented items had it sold the infringing item. See Del Mar Avionics, Inc. v. Quinton Instrument Co., 836 F.2d 1320, 1327-28 (Fed.Cir.1987); TWM Mfg. Co. v. Dura Corp., 789 F.2d 895, 900-01 (Fed.Cir.), cert. denied, 479 U.S. 852, 107 S.Ct. 183, 93 L.Ed.2d 117 (1986); King Instrument Corp. v. Otari Corp., 767 F.2d 853, 865-66 (Fed.Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1197, 89 L.Ed.2d 312 (1986); Paper Converting Machine Co. v. Magna-Graphics Corp., 745 F.2d 11, 22-23 (Fed.Cir.1984); Decca Ltd. v. United States, 225 Ct.Cl. 326, 349-51, 640 F.2d 1156, 1175-76 (1980), cert. denied, 454 U.S. 819, 102 S.Ct. 99, 70 L.Ed.2d 89 (1981); Leesona Corp. v. United States, 220 Ct.Cl. 234, 260-64, 599 F.2d 958, 973-76, cert. denied, 444 U.S. 991, 100 S.Ct. 522, 62 L.Ed.2d 420 (1979); Tektronix, Inc. v. United States, 213 Ct.Cl. 257, 272-73, 552 F.2d 343, 351-52 (1977).
An especially clear statement of the critical element of the rule appears in Paper Converting Machine Co., 745 F.2d at 23:
The deciding factor ... is whether ‘[n]ormally the patentee ... can anticipate sale of such unpatented components as well as of the patented’ ones. Tektronix, Inc. v. United States, 552 F.2d 343, 351 ... (Ct.Cl.1977). If in all reasonable probability the patent owner would have made the sales which the infringer has made, what the patent owner in reasonable probability would have netted from the sales denied to him is the measure of his loss, and the infringer is liable for that.
(Emphasis added.)
In the circumstances of this case, plaintiff could not have reasonably anticipated the
Based on the foregoing, we conclude that the value of AMPTE IRM should not be added to the valuation of AMPTE CCE or otherwise included in the compensation base.
B
The next cost issue pertains to the DSCS II QTV, i.e., the qualification test vehicle for the DSCS II program. The precise issue for resolution is whether the development (and thus non-recurring) costs related to the KIR-23 decryptor and the KGX-28 encryptor should be “charged” to the DSCS II program or whether these devices were first developed for another program.
There is no question that the devices were used on the DSCS II QTV and, consequently, no question that the relatively minor recurring costs related to the devices should be included. Further, there is agreement that the development costs for the coding devices amounted to $5 million, that the cost of the QTV without such development costs was $31.264 million (Pl.Br. (6/9/89) at 32) and that the coding devices were also used on spacecraft in other programs. The issue pertains solely to first use.
Defendant presented credible factual testimony of Albert T. Finney, the DSCS II program director with Aerospace Corporation, a firm organized to furnish general systems engineering support to the Air Force concerning space programs, including the DSCS II program (Tr. 9,486-94). Finney was an official acting on behalf of the Air Force in connection with the DSCS II program from its inception in 1969 until the time of his testimony in 1988. One of his duties as program director was “to be responsible for expending funds on particular programs” (Tr. 9,495).
Finney was certainly in a position to know with certainty whether the enciyptor/decryptor devices were developed initially for the program he was directing for the Air Force; he was emphatic and unequivocal that the coding devices in issue were actually developed for other programs (Tr. 9,535). Although called primarily as an expert witness on liability issues, his testimony concerning this critical cost issue was direct and factual. We find no reason to question this pivotal factual testimony and consequently accept it despite testimony from a witness called by plaintiff suggesting a contrary result.
Based on the foregoing, we exclude from the compensation base the $5 million nonrecurring development costs pertaining to the KIR-23 and KGX-28 coding devices and find that the aggregate cost of the DSCS II QTV was $31.264 million.
C
The next cost issue .pertains to the FLTSATCOM QTV, i.e., the qualification test vehicle for the Fleet Satellite Communications program. The precise issue for resolution is the amount of the development (and thus predominantly non-recurring) costs related to the Fleet Broadcast Processor (FBP) (an electronic “black box” essential to encoding and decoding communications) used on each FLTSATCOM satellite.
The FLTSATCOM satellites, including the QTV, were all manufactured by TRW, Inc., an aerospace contractor. Under the terms of the contract between the Air Force and TRW for the FLTSATCOM QTV, the government was required to supply the FBP as “government furnished equipment” (GFE). (By coincidence, TRW was also the contractor, under a separate, preexisting agreement with the Naval Research Laboratory, for the development of the FBP.) Thus, the focus of
The FBP development contract required some development effort related to ground stations and ground-based equipment (the ground segment) as well as to the airborne processor (the space segment). The parties agree, however, that only the development costs associated with the processor ultimately intended for flight vehicles should be included in the “total spacecraft cost” of the FLTSATCOM QTV.
The parties agree that the weight of the FBP was 29.5 pounds and that its development costs should be attributed to the FLTSATCOM QTV; they disagree only on the amount of such costs. (As noted below, the parties otherwise agree on the cost of the QTV.)
Defendant maintains that the development cost of the processor was $7.433 million; plaintiff asserts a cost of $30 million. Thus, the parties are $22.567 million apart in their assertions of aggregate cost of the FBP. Pl.Br. (6/9/89) at 46; Def.Br. (6/12/89) at 32.
Wendell Kestle, the expert principally relied on by defendant in connection with FBP development costs, used available contract documents and other available cost records to determine the amount actually paid by the government for FBP development. The total sum paid to TRW under the FBP contract was $14.915 million; in addition, equipment valued at $0.931 million was supplied by the government for a total contract value of $15.846 million.
Mindful that the development contract included ground segment items, Kestle carefully reduced the total contract value by cost items plainly related solely to the ground segment and by the cost of “long-lead” items (resulting in recurring costs) to be used on six FLTSATCOM vehicles (Tr. 13,759; DX 2608I35(A)-1, DX 2608I35(B)-1). He then reduced the $14.617 million balance by 50% (because the general nature of the contract covered both the ground and space segments) and finally re-added to the $7.308 million space-segment balance the amount of $0.125 million representing the Jé portion of the “long-lead” items attributable to the QTV (Tr. 13,759-61), resulting in a total FBP development cost of $7.433 million.
The allocation of general costs under the development contract between the ground and space segments on a 50-50 basis, although not the only reasonable allocation which could have been made (Tr. 12,175-76), represented a consensus among three experienced experts called by defendant
Plaintiffs assertion of a $30 million cost for the FBP essentially rests on the admittedly vague recollection (Tr. 3342, 3348) of its expert, Joseph A. Malouin, a former employee of the Space Division, and Malouin’s informal “cost-per-pound” analysis of electronic devices. At the time Malouin first prepared his estimate of development cost of the FBP (originally $50 million, revised to $30 million after presentation of defendant’s cost evidence), he had no contract documents and no cost documents relating to it (Tr. 16,151).
Malouin’s reliance on weight of the FBP as the “cost driver” is plausible and has general acceptance in the field (Tr. 11,421, 12,128), but adoption of his opinion on cost of the FBP requires acceptance of his conviction that the “per-pound” development cost of electronic devices like the FBP must invariably amount to approximately $1 million. We find actual development contract costs more persuasive.
The parties agree (given rulings made during the course of the trial) that the cost of the FLTSATCOM QTV less the FBP development cost was $71.973 million. They disagree to the extent of $22.567 million on the cost of the FBP and, hence, on the total cost
D
The next cost issues pertain to FLTSATCOM flight vehicles 7 and 8.
As with the Fleet Broadcast Processor for the FLTSATCOM QTV, the EHF packages for FV 7 and 8 were furnished by the government without cost to the spacecraft manufacturer. Therefore, the initial focus of the inquiry shifts to the total expended by the government to acquire the EHF packages supplied for installation on FV 7 and 8.
Plaintiff values the two EHF packages at $124.5 million; defendant asserts the total cost of the packages to be $81.691 million. Pl.Br. (6/9/89) at 53; Def.Br. (6/12/89) at 24; Tr. 18,704. Thus, the total amount in dispute is $42.809 million.
The EHF packages were developed and fabricated at the Lincoln Laboratory of the Massachusetts Institute of Technology (Tr. 9825). The total paid to Lincoln Laboratory for its work on the packages was $106.07 million of which $81.691 million was attributable to the airborne devices and thus is the amount properly includable in the compensation base (Tr. 12,153-63; DX 2608134(B), DX 2608134(C)). Plaintiffs assertion of a higher cost is based on general references in budget planning documents and publications pertaining to defense spending; we find more convincing the statements from officials of the laboratory which actually designed and built the equipment concerning payments for the work and the portion of such payments attributable to the space segment.
The remaining issue concerning the EHF equipment is the allocation of the $81.691 million total between FV 7 and 8. Expert witnesses called by the parties differed on the percentage allocable to each because they differed on the “slope” of the learning curve applicable to fabrication of the second package (i.e., the one for FV 8). Although allocation of the costs between the two satellites has no effect on the total compensation base, it has an impact on delay damages because the two spacecraft were not launched simultaneously.
Plaintiffs expert would allocate approximately 90 percent of the total to FV 7, indicating a “steep” learning curve (Tr. 3539-41). The consensus of two experts called by defendant was that approximately 70 percent of the total should be allocated to the first flight vehicle, indicating a more gradual learning curve and resulting in higher recurring costs for the second package (Tr. 12,-165). While all of the experts addressing the matter were highly qualified with extensive experience in the application of learning curves to estimate future costs and explain incurred costs, we are persuaded that the more gradual learning curve should be applied to the experimental broadcast packages developed and fabricated in a research laboratory. As explained by defendant’s expert Barry G. Pineus, who had personal engineering experience in a research laboratory (Tr. 12,163), there is a predictable tendency of engineers in a research laboratory setting to continue to seek improvements and make refinements even after a first article has been completed and delivered (Tr. 12,163-64). Refinements would have been especially appropriate on the second article since there was the prospect that the technology would be applied to numerous other spacecraft (Tr. 16,180).
E
The GPS program has involved a total of 40 spacecraft.
1. GPS FV 6
The remaining issue pertaining to GPS FV 6 relates solely to the cost of a nuclear explosion detection system (NDS) developed for inclusion on the satellite when the GPS QTV was refurbished for use as a flight vehicle. Plaintiff contends that the total NDS cost attributable to FV 6 was $110 million ($100 million non-recurring, $10 million recurring), whereas defendant asserts a total of $8.357 million ($7.119 million nonrecurring, $1.238 million recurring) (Pl.Br. (6/9/89) at 69). Thus, the parties disagree to the extent of $101.643 million.
The NDS was “government furnished equipment” supplied without cost to Rockwell International Corporation, the spacecraft manufacturer. Therefore, as with the Fleet Broadcast Processor for the FLTSAT-COM QTV and the Extremely High Frequency broadcast packages for FLTSAT-COM FV 7 and 8, the focus of the inquiry shifts to the total expended by the government to acquire the NDS which was installed on FV 6.
The NDS was developed and fabricated at th Sandia National Laboratory and at Los Alamos National Laboratory (DX 4608K35, DX 4608K36). The total paid to both Sandia and Los Alamos Labs for their development and fabrication work on the NDS packages was $8.357 million (Tr. 11,748-55; DX 2600K1). Consequently, $8.357 million is the amount attributable to NDS includable in the cost of FV 6.
Plaintiffs assertion of a higher cost is based on the recollection, without supporting documentation, of plaintiffs principal cost expert concerning information received while he was an employee of Rockwell International and of the Air Force Space Division (Tr. 3620-21), on general references in budget planning documents and publications pertaining to defense spending, and on a very general cost-per-pound analysis (Tr. 16,201-09); we find more convincing the statements from officials of the laboratories which actually designed and built the devices concerning payments for the items (Tr. 19,962-92, 19,-992-20,014, 20,024-52, 20,053-93; DX 4608K35, DX 4608K36).
Based on the foregoing, we find that the full cost of the NDS attributable to FV 6 was $8.357 million. The parties are in agreement, given cost rulings made during the course of trial, that the refurbishment cost of FV 6 not including the value of the NDS was $37.321 million. Therefore, it is concluded that the total refurbishment cost of GPS FV 6 was $45.678 million.
2. GPS FV 15, 18 and 20 through 36
The series of GPS spacecraft from FV 13 through FV 40 was the subject of a separate, single contract between the Air Force and ■ Rockwell International Corporation. This group of 28 satellites has been referred to in this litigation as Block II and the group consisting of FV 15,18 and 20 through 40 has been referred to as Block II Improved. See Appendix A. (Although plaintiff conceded non-infringement of FV 37 through 40 since they had not been fabricated as of the patent expiration date, 29 Fed.Cl. at 215 n. 18, these four vehicles have some impact (though minor) on a determination of disputed costs of other satellites in Block II Improved.)
The sole dispute over cost of an individual spacecraft concerns the proper vehicle to bear the Block II Improved nonrecurring contractor costs. The parties agree that with respect to the 19 GPS satellites under discussion (FV 15, 18 and 20 through 36) there was nonrecurring contractor cost (i.e., without regard to cost of government furnished equipment) of $60.034 million; the parties further agree that this nonrecurring cost should be allocated to either FV 22 or 23. The nonrecurring cost at issue was development cost for a new W-sensor receiver-processor (a refinement to the nuclear explosion detection system). The disagreement is over which vehicle was the first to incorporate the sensor, plaintiff maintaining that FV 22 should bear these development costs and defendant asserting that the costs are properly allocated to FV 23.
It apparently is true that FV 22 was intended to be the first vehicle to incorporate the new sensor, and it may well be that the fabrication of FV 22 was commenced prior to that of FV 23. However, we find that, as between the two, FV 23 was the first to receive installation of the sensor, the first to be completely fabricated and tested, the first to be finally accepted by the government (as evidenced by government issuance of a form DD 250) and the first to be launched. Consequently, we accept the government’s position that under the principles of cost estimation and analysis consistently applied in this litigation, the nonrecurring costs under discussion should be assigned to FV 23. (Given our determination of royalty due dates, see Appendix B at 3, the plaintiff obtains some benefit from this allocation, since FV 23 has an earlier delay damages commencement date than FV 22).
All remaining cost disagreements pertaining to GPS Block II Improved are “group level” disputes. The total amount in dispute is $273.766 million. See Appendix A to this opinion for illustration of the computation of this figure and the positions of the parties concerning total cost of each spacecraft in Block II Improved. The amount in issue results from disagreements over the recurring costs of two major items of government furnished equipment
The most significant of these “group level” disagreements involves cost of the nuclear explosion detection system (NDS) used on these 19 satellites.
Plaintiff contends that the total recurring NDS costs attributable to these 19 flight vehicles is $227.759 million, whereas defendant asserts a total of $29.905 million. (See PX 3018.315 at 2 and DX 4600K at 2A for statements of the conflicting positions pertaining to recurring NDS costs for each of the satellites.) Thus, the parties disagree to the extent of $197.854 million.
The NDS was “government furnished equipment” supplied without cost to Rockwell. Therefore, the focus of the inquiry shifts to the amounts expended by the government to acquire the NDS packages installed on these 19 spacecraft.
The NDS packages were manufactured at the Sandia National Laboratory and at Los Alamos National Laboratory (DX 4608K35, DX 4608K36). The total paid to both Sandia and Los Alamos Labs for the 19 NDS packages in issue was $29.905 million (Tr. 11,748^ 55; DX 4600K at 2A) (NUDETS column plus WSRP column).
Plaintiffs assertion of a higher cost is based on the recollection, without supporting documentation, of plaintifPs principal cost expert concerning information received while
Based on the foregoing, we find that the full recurring cost of the NDS attributable to these 19 spacecraft was $29.905 million.
The next “group level” cost issue also pertains to government furnished equipment, to wit, atomic clocks which were installed on FV 29 through 34. The parties differ to the extent of $70.044 million on these costs, the plaintiff contending that the total should be $85.2 million and the defendant asserting that the demonstrable actual cost was $15.156 million. Interestingly, plaintiff also asserts that the cost of these government furnished clocks should be placed entirely on FV 18 rather than on one or more of the spacecraft which actually carried the clocks in issue.
As with the NDS packages, plaintiffs assertion of clock costs is based, not on available actual historical data, but on budget projections and other cost estimates compiled well before the clocks were manufactured. We find more convincing the testimony from an official of Naval Research Laboratory, the procuring agency for the clocks (Tr. 19,755-72), and data pertaining to the procurement contracts with the two companies (Frequency Electronics, Inc. and Kernco, Inc.) which actually built the six clocks under discussion concerning payments for the items (DX 4606K33, DX 4606K34).
We find that the total cost of the government furnished clocks on these six vehicles was $15.156 million; we further find that this total for the government furnished clocks should be allocated among FV 29 through 34 in accordance with defendant’s approach (DX 4600K at 1), rather than added to the cost of any earlier vehicle.
The remaining GPS Block II amount in dispute, $5.868 million, is attributable to disagreements over whether certain Block II contract line items and requested contract price adjustments should be included in the calculation of total spacecraft costs.
The contract between Rockwell and the Air Force pertaining to this series of GPS spacecraft included two different compensa,tion mechanisms. For the complete manufacture of the 28 satellites in Block II (FV 13 through 40), Rockwell was to be compensated on the basis of a firm fixed price (as modified from time to time during the course of the work). In addition to spacecraft production, Rockwell undertook in the contract to provide post-manufacture launch support and orbital operations support, compensation for which the parties agree is properly included in the compensation base; for these post-manufacture services, Rockwell was compensated on a eost-plus-fixed-fee basis. This difference in the manner of compensation has significance in resolving disputes over includable contract items because the production costs for the various satellites in the series are allocated to individual spacecraft by application of a cost reduction curve, resulting in “front end loading” of costs on the earlier flight vehicles and consequently impacting delay damages, whereas costs related to launch and orbital support for each individual vehicle are approximately equal.
In contrast, defendant’s figures are based on a reasonable assessment, supported by testimony of an Air Force engineering official having GPS program management responsibility (Tr. 19,664-69), pertaining to the contract modification requests which were likely to be granted and included only those. Similarly, defendant excluded from the total contract price (used as the starting point to determine the presumptive cost of each individual satellite) the cost of projects and items not directly related to total spacecraft cost and excluded the cost of the FV 12 study which is plainly a “buyer” or “user” cost pertaining to planning of another mission and thus is not includable in total spacecraft cost as that concept has been consistently applied in this litigation. We find defendant's approach convincing both with respect to a determination of “group level” contract costs and to the proper allocation of costs between the fixed-price and cost-plus portions of the contract.
Based on the foregoing, we concur-in and adopt defendant’s position on the value of FV 15, 18 and 20 through 36 as reflected on Appendix A. Of course, the value assigned to a given spacecraft in this series depends in part on its place in the order assigned by the analyst applying a cost reduction curve (88% for these satellites) to spread aggregate spacecraft costs included in the fixed-price segment of the GPS contract over the flight vehicles contemplated in the contract. Thus, our adoption of the government’s proposed value for each of these spacecraft necessarily implies that we also concur in the government’s use of “DD 250 dates” (i.e., dates of formal acceptance by the Air Force) to determine the order of completion of the various satellites as a predicate to application of a cost reduction curve. This approach is consistent with that used for all other spacecraft with respect to which liability has been found, including earlier vehicles in the GPS program, and takes account of the reality that “learning” is involved in the testing phase of manufacture.
Notwithstanding the use of actual launch or formal acceptance dates just described to determine the cost of each satellite, we adopt plaintiffs position reflected on Appendix A concerning the commencement dates for the accrual of delay damages concerning FV 22 and 24 through 36 (“Plaintiff Date of Royalty Payments)”); This approach permits accrual of delay damages (on 90% of the total cost of these 14 flight vehicles) to begin on the date of patent expiration (September 11, 1990) rather than the formal acceptance dates urged by defendant (and reflected on Appendix A). See Tr. 16,926, 17,877-78.
We recognize that this method is a departure from the practice of using the launch date or the DD 250 date as the commencement date for calculation of delay damages consistently applied with respect to all other infringing satellites. However, such consistent use of launch or DD 250 dates was with the concurrence of plaintiff for convenience of all parties and the court. Although the commencement date approach we adopt for these 14 GPS flight vehicles is a departure from use of launch or DD 250 dates, we believe that since we have determined that a taking had occurred with respect to each of these 14 satellites as of the patent expiration date, use of a later damages accrual date would unfairly penalize plaintiff for agreeing to convenient use of launch or DD 250 date for other programs even though the literal moment of taking had necessarily occurred
In summary concerning GPS FV 15, 18 and 20 through 36, we conclude that the total cost of each spacecraft and the proper commencement dates for delay damages are those set forth on Appendix B to this opinion.
F
The next cost issue pertains to ISEE B, which was launched on October 22, 1977 (PX 1435A at 299). (For a description of the ISEE program and' the liability determination for ISEE B, see 29 Fed.Cl. at 236-37.) The parties are $10.662 million apart in their assertions of aggregate value of the spacecraft ($40.425 million versus $29.763 million) (Pl.Br. (6/9/89) at 74; Def.Br. (6/12/89) at 80-83).
ISEE B was supplied by the European Space Agency pursuant to a memorandum of understanding with NASA, 29 Fed.Cl. at 236-37 & n. 59, and was procured by ESA from the STAR consortium of European contractors, see generally 29 Fed.Cl. at 237 & n. 60. It was not designed, fabricated or tested by ESA directly except in ways typical for a buyer/user of a spacecraft constructed by an outside contractor (Tr. 12,751-52, 13,793-95).
To some degree, this issue is necessarily determined by the ordinary rules pertaining to burden of proof. To state the obvious, plaintiff bears the burden to prove all elements of includable costs by a preponderance of the evidence. The hard facts presented by either party pertaining to the cost of ISEE B were scarce, but both sides presented testimony of competent experts who had studied available records. In addition, Donald H. Strope, one of the cost experts called by defendant, had conferred with ESA financial personnel concerning the types of information which particular ESA accounts were intended to capture (Tr. 13,050-56; cf. Tr. 16,465-66). See generally Federal Rule of Evidence 703 (“If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.”). Strope also had personal experience working within NASA (Tr. 11,413-27), an organization similar to ESA in mission and in the practice of building some spacecraft in-house and overseeing the purchase of others from outside contractors. This combination of experience and research made Strope’s opinion testimony concerning ISEE B particularly convincing (Tr. 11,656-63).
Although there is room for debate and plaintiff has presented plausible argument for inclusion of some costs' in addition to the total asserted by defendant, we are persuaded that the total opined by Strope is the correct spacecraft cost. Consequently, we find that the aggregate cost of ISEE B was $29.763 million rather than the higher amount asserted by the plaintiff.
G
The final individual cost issue pertains to the combined value of SOLRAD 11A and 11B. These were two substantially identical satellites built in-house at the Naval Research Laboratory and launched together on March 15, 1976 (PX 1435A at 532). Both parties used NASA cost models to estimate these values. However, primarily as a result of the different cost models used by the parties’ experts,
We are persuaded by the government’s position. The cost expert called by the government, Donald H. Strope, had extensive experience with NASA cost models and, indeed, had a hand in creating the model he used for SOLRAD estimates.
In contrast, plaintiffs expert, Darryl W. Webb, had no prior experience with NASA models, used the one he reHed on because he was “specificaHy directed” to do so by a Hughes official (Tr. 5095) and decHned to express any independent confidence in the model he used (Tr. 5092-93). He acknowledged that he was “given a task to do which consisted of using certain formulas with certain input data, and ... [then] made the calculations.” Tr. 5095. The two most critical decisions in the plaintiffs expert’s cost analysis, i.e., the classification of the SOL-RAD ll’s as “Explorer” or “non-Explorer” and whether a second simultaneously constructed satelHte would be considered “second generation” rather than a foUow-on spacecraft in the same generation as the first, were actuaUy made by a Hughes official and simply accepted and appHed by plaintiffs expert (Tr. 5062-63, 5067). However, we are persuaded that accurate determinations through the use of cost models require appH-cation of experience and judgment by the cost expert, not merely an accurate calculation based on a formula selected by an interested non-expert. See Tr. 10,651-53, 13,279, 13,301-02.
We are left with an “either-or” choice between the positions of the parties. We are persuaded by the testimony of Strope to the effect that the “Explorer” cost model used by him was the more appropriate by reason of the weight of the two spacecraft (and of the individual subsystems) and by his judgment that the costs attributable to SOLRAD 11B were entirely non-recurring rather than “second generation” (and hence partiaHy recurring) costs. Tr. 11,653-55. The two were manufactured together (and launched together) as a single project, not as a program with an initial flight vehicle and a later, foHow-on spacecraft. PX 1435A at 532.
Based on the foregoing, we find that the aggregate cost of SOLRAD 11A and 11B was $27.574 million rather than the higher amount asserted by the plaintiff.
IV
This opinion resolves aH heretofore undetermined costs issues in this Htigation and establishes the compensation base for a determination of the damages to which plaintiff is entitled. Appendix B to this opinion Hsts each of the 81 spacecraft with respect to which HabiHty has been determined and sets forth the precise royalty payment dates and valuations with respect to spacecraft in the compensation base.
In summary, the total of the compensation base for calculation of a reasonable royalty and delay damages is $3,577.518 milHon. See Appendix B.
A subsequent opinion wiH address the remaining issues of royalty rate and delay damages. Judgment wül be withheld pending resolution of aU damages issues.
APPENDIX A
OPINION ON COMPENSATION BASE
FoUowing is an excerpt (page 6) of a joint statement of the parties submitted in open court during final argument on May 20, 1991 (Tr. 20,753-54, 20,890-91).
The portion included in this appendix illustrates, inter alia, the parties’ relative positions concerning 19 satelHtes in the Global Positioning System program designated GPS FV 15, 18, and 20 through 36, coHectively designated Block II Improved.
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APPENDIX B
OPINION ON COMPENSATION BASE
This appendix contains a list of the spacecraft for which liability for a taking under 28 U.S.C. § 1498 has been found,
SPACECRAFT ROYALTY DATES
BASE
1st Date 2nd Date (in millions)
AMPTE (Active Magnetospheric Particle Tracer Explorer) (1)
1. CCE 08/16/84 $ 28.343
SPACECRAFT ROYALTY DATES COMPENSATION CITATION BASE
1st Date 2nd Date (in millions)
CRRES (Combined Release and Radiation Effects Satellite) (1)
2. 03/31/87 80.451 Tr. 18,048
CTS (Communications Technology Satellite) (1)
3. 01/17/76 68.861 Tr. 18,080
DSCS II (Defense Satellite Communications System II) (17)
4. QTV 09/11/73 $ 31.264 This opinion
5. FV1 09/11/73 8.341 Agreement
6. FV2 09/11/73 7.681 Agreement
7. FV3 11/06/73 12/13/73 7.508 Agreement
8. FV4 11/06/73 12/13/73 7.354 Agreement
9. FV5 04/09/75 05/20/75 7.190 Agreement
10. FV6 04/09/75 05/20/75 7.106 Agreement
11. FV7 05/12/77 57.064 Agreement
12. FV8 05/12/77 20.519 Agreement
13. FV9 02/08/78 03/25/78 19.578 Agreement
14. FV10 02/08/78 03/25/78 18.995 Agreement
15. FV11 10/05/78 12/14/78 ' 18.581 Agreement
16. FV12 10/05/78 12/14/78 18.263 Agreement
17. FV13 10/18/79 11/21/79 17.999 Agreement
18. FV14 10/18/79 11/21/79 17.774 Agreement
19. FV15 03/28/80 06/27/80 17.582 Agreement
20. FV16 09/25/80 12/24/80 17.413 Agreement
FLTSATCOM (Fleet Satellite Communications) (9)
21. QTV 02/06/78 $ 79.406 This opinion
22. FV1 12/01/77 02/09/78 65.923 Agreement
23. FV2 03/29/79 05/04/79 51.482 Agreement
24. FV3 10/29/79 01/18/80 50.920 Agreement
25. FV4 09/22/80 10/31/80 44.615 Agreement
26. FV5 06/28/81 08/06/81 40.605 Agreement
27. FV6 04/13/86 07/12/86 101.496 Agreement
28. FV7 09/28/86 12/04/86 170.640 This opinion
29. FV8 03/12/87 06/10/87 110.070 This opinion
GPS (Global Positioning System) (36)
30. QTV 09/22/77 $ 17.813 Agreement
31. FV1 02/22/78 27.875 Agreement
32. FV2 03/31/78 05/13/78 16.651 Agreement
33. FV3 10/06/78 10/7/78 14.953 Agreement
34. FV4 11/06/78 12/11/78 12.741 Agreement
35. FV5 11/30/80 02/28/81 10.494 Agreement
FV6
36. FV7 01/07/80 02/09/80 11.767 Agreement
37. FV8 03/28/80 04/26/80 11.060 Agreement
38. FV9 07/30/84 09/08/84 23.697 Agreement
39. FV10 06/02/83 07/14/83 58.024 Agreement
APPENDIX B--Continued
SPACECRAFT ROYALTY DATES COMPENSATION CITATION BASE
1st Date 2nd Date (in millions)
40. FVll 01/27/84 04/26/84 25.404 Agreement
41. FV12 01/24/86 }
FV12 (imp.)
42. FV13 04/24/87 07/23/87 250.899 Agreement
43. FV14 12/18/87 03/17/88 64.015 Agreement
44. FV15 06/26/90 09/24/90 47.095 This opinion
45. FV16 12/18/87 03/17/88 58.615 Agreement
46. FV17 04/20/88 07/19/88 55.352 Agreement
47. FV18 08/17/89 11/15/89 51.035 This opinion
48. FV19 06/30/88 09/28/88 53.081 Agreement
49. FV20 12/18/89 03/18/90 48.049 This opinion
50. FV21 10/13/89 01/11/90 49.193 This opinion
51. FV22 09/11/90 12/10/90 43.887 This opinion
52. FV23 06/26/90 09/24/90 106.822 This opinion
53. FV24 09/11/90 12/10/90 45.928 This opinion
54. FV25 09/11/90 12/10/90 45.018 This opinion
55. FV26 09/11/90 12/10/90 44.410 This opinion
56. FV27 09/11/90 12/10/90 43.553 This opinion
57. FV28 09/11/90 12/10/90 43.337 This opinion
58. FV29 09/11/90 12/10/90 49.535 This opinion
59. FV30 09/11/90 12/10/90 43.449 This opinion
60. FY31 09/11/90 12/10/90 47.016 This opinion
61. FV32 09/11/90 12/10/90 41.999 This opinion
62. FV33 09/11/90 12/10/90 41.903 This opinion
63. FV34 09/11/90 12/10/90 42.083 This opinion
64. FV35 09/11/90 12/10/90 40.629 This opinion
65. FV36 09/11/90 12/10/90 40.351 This opinion
HELIOS (2)
66. A 12/10/74 $ 99.040 Agreement
67. B 01/15/76 28.882 Agreement
IMP (Interplanetary Monitoring Platform) (2)
68. X 09/11/73 $ 15.639 Agreement
69. J 10/25/73 10.478 Agreement
ISEE (International Sun-Earth Explorer) (3)
70. A 10/22/77 $ 28.434 Agreement
71. B 10/22/77 29.763 This opinion
72. C 08/12/78 25.445 Agreement
IUE-A (International Ultraviolet Explorer) (1)
73. 01/26/78 $ 57.768 Agreement
NTS-2 (Navigation Technology Satellite) (1)
74. 06/23/77 $ 19.276 Agreement
SPACECRAFT ROYALTY DATES COMPENSATION CITATION BASE
1st Date 2nd Date (in millions)
PIONEER (2)
75. 10 09/11/73 }
76. 11 09/11/73 } $ 84.491 Agreement
SOLRAD (Solar Radiation Spacecraft) (4)
77. 9 09/11/73 }
78. 10 09/11/73 } $ 17.511 Agreement
79. 11A 03/14/76 }
80. 11B 03/14/76 } $ 27.574 This opinion
STP 78-2 (SCATHA) (Spacecraft Charging at High Altitude) (1)
81. 10/26/78 $ 35.933 Agreement
TOTAL COMPENSATION BASE: $3,577.518
. The patent was issued to Hughes on September 11, 1973, as assignee of inventor and former Hughes employee, Donald D. Williams. The patent, commonly referred to as the Williams patent, expired on September 11, 1990.
. See our earlier opinion at 15 Cl.Ct. 550, 551 n. 2 (1988), for a list of previously published opinions in this case and other cases involving the Williams patent. The instant opinion is the 15th published opinion directly involving the Williams patent.
. The terms "compensation base" and "royalty base” are used interchangeably in patent litigation to designate both the totality of items and the aggregate dollar valuation of such items with respect to which royalties for patent use are calculated. See, e.g., Decca Ltd. v. United States, 225 Ct.Cl. 326, 349-53, 640 F.2d 1156, 1172-73 (1980); Dynamics Corp. of America v. United States, 5 Cl.Ct. 591, 597-98 (1984). In this opinion, we use the term "compensation base” primarily to mean the aggregate dollar valuation of all infringing items.
. One of the spacecraft accused during the “accounting” phase. The acronym stands for Active Magnetospheric Particle Tracer Explorer, Ion Release Module. The two other spacecraft in the AMPTE program, all launched together on August 16, 1984, were the CCE (Charge Composition Explorer) and the UKS (United Kingdom Subsatellite). PX 1435A at 14.
. The term "total spacecraft cost" in this litigation is understood to mean the total procurement cost to the government for an airborne (or qualification test) vehicle including the cost of designing and developing the vehicle, the cost of designing and developing its components and systems, the cost of assembling the systems, testing all systems and components, fabricating and testing the spacecraft, designing and developing the spacecraft payload, integrating the payload into the spacecraft bus and preparing the vehicle for launch, and including the value of all government furnished equipment.
. Even Joseph A. Malouin, the principal cost witness called by plaintiff, seemed to concede that these coding devices had their first applications on classified programs, not on the DSCS II (Tr. 16,089, 16,282).
. As of the time of trial, Wendell Kestle had 27 years of experience as a cost analyst, including the most recent 16 years as an analyst concerning space systems for Planning Research Corporation (Tr. 13,680-86; DX 2603A). The other two analysts involved in the allocation determination, Donald H. Strope and Barry G. Pincus, had 27 and 22 years of experience, respectively (Tr. 11,395-427, 12,148-49; DX2603D,p. 1; DX 2603B, p. 1), including experience on behalf of both government space organizations and private industry.
. There were a total of nine spacecraft in the FLTSATCOM program consisting of the qualification test vehicle (QTV) and eight flight vehicles (FV 1 through FV 8).
. For a description of the Global Positioning System program and resolution of liability issues pertaining to some of the satellites, see Opinion on Liability, 29 Fed.Cl. 197, 215-24 & n. 18.
. There were three kinds of government furnished equipment on satellites in this series, to wit, encryptor/deciyptor packages, nuclear detection systems and atomic clocks. The parties have no disagreement over costs related to the encryptor/decryptor packages. There are, however, substantial differences pertaining to the other GFE items.
. The stated amount in dispute concerning Block II contract line items and requested contract price adjustments ($5.868 million) is less than that indicated by the parties in briefs (Pl.Br. (4/16/91) at 32-36; Def.Br. (4/16/91) at 47-50) and is essentially a balancing figure constituting the difference between the parties’ well-established disparity pertaining to recurring costs of government furnished equipment ($197.854 million + $70.044 million = $267.898 million) and the clearly stated total cost difference related to Block II Improved ($273.766 million). See Appendix A. The variation, $0.994 million (to wit, $6.862 million less $5.868 million), is probably explained by the assumption that the parties used contract price information applicable to all spacecraft in Block II Improved, including GPS FV 37 through 40, see DX 4616K5 (Comparison of Plaintiff and DOJ Costs), whereas the remaining difference which we address is exclusive of costs allocable to those non-infringing vehicles.
. In one sense it may be said that the cost experts for both parties used the same NASA cost “model" for SOLRAD 11A and 11B in that both sides used a model developed for non-military, non-Shuttle launched spacecraft, which would encompass the two satellites at issue (PX 1338A at 1-1, 3-2; Tr. 18,787). See generally Tr. 11401 (Strope; "Every time that I refer to a model, I mean a cost model, a mathematical or statistical type model that relates cost to ... some physical parameters.”). In this subpart, we use the term "model" in a generic sense to refer to what are really sub-models — distinct categories or classifications of spacecraft within the overall model. For instance, within the overall model, a cost analyst as a preliminary matter must decide
. For a complete list of the 108 spacecraft accused at any stage of this case and the liability determination for each, see appendix to the Opinion on Liability filed August 16, 1993, 29 Fed.Cl. at 243-48.
. The parties generally agree that delay compensation should begin to accrue on either the DD 250 date or the launch date with two exceptions. First, certain spacecraft were launched before the patent term began. The taking date for those spacecraft is September 11, 1973, the day the patent issued. Second, the patent expired before the DD 250 date and launch date for certain GPS spacecraft. With respect to those spacecraft, the date on which delay compensation begins to accrue is the date that the patent expired. Tr. 17,877-83.
When the launch date (or some later date) is used as the taking date, delay compensation accrues on 100% of the compensation base as of that date. When the DD 250 date (or some earlier date) is used as the taking date, delay compensation accrues on 90% of the compensation base as of that date and accrues on 10% of the compensation base as of the launch date or 90 days from the DD 250 date, whichever occurs first. (This division of the compensation base accounts for the fact that some portion of the costs associated with a spacecraft are not incurred until a spacecraft is actually launched.) Tr. 17,877-83, 17,909-10. This column provides a list of these dates. When one date is given, the 100% rule applies, and when two dates are given, the 90%/10% rule applies.
. References in this column are to portions of the record which support the corresponding cost figures shown in the "Compensation Base” column.
. Hughes asserts that the cost of AMPTE IRM • should be included in the compensation base for AMPTE CCE under the entire market value rule and a related theory. See 29 Fed.Cl. at 237-39 & n. 61, 244 n. 3. If plaintiffs position had been adopted, the portion of the base represented by CCE would have been increased by $12,167 mil
. This designation, at each place it appears in the "Citation” column, indicates that, given prior rulings on disputed costs issues, the parties agree that the corresponding figure set forth in the "Compensation Base” column was the total cost of the particular spacecraft for purposes of calculating damages. Plaintiff's Submission on Compensation Base Cost Issues (6/9/89) at 32-36; Defendant’s Post-Trial Memorandum on Unresolved Cost Issues (6/12/89) at 3; Tr. 18,088-124; joint statement of parties submitted in open court on May 20, 1991, Tr. 20,753-54, 20,890-91.
. GPS QTV eventually was modified and became GPS FV 6. Thus, GPS QTV and GPS FV 6 are counted as one satellite for liability purposes, but two different taking dates are relevant when cal-dilating damages.
. GPS FV 12 was the subject of two different contracts, hence the distinction between FV 12 and FV 12 (improved). GPS FV 12 and FV 12 (improved) are considered as one spacecraft for liability purposes. Further, plaintiff has stipulated to a single taking date for calculating damages (Pl.Br., June 9, 1989, p. 85).
