Decades after the U.S. Air Force unveiled one if its first stealth combat planes, the B-2 bomber, lawyers are still arguing over the origins and legal ownership of the technology that allows pilots to fly virtually undetected by enemy radar.
On February 19, a federal appeals court ordered a hearing to determine whether the Pentagon infringed on a patent owned by Zoltek, a materials company from St. Louis, when it developed the stealthy coating for the F-22 fighter plane and B-2 bomber.
In the latest development in a case that has spanned nearly 20 years, the ruling reversed a Federal Claims Court judge’s 2014 decision that sided with the U.S. government by determining that Zoltek’s patent was invalid.
Zoltek was granted a patent in 1988 for a method of making carbon-fiber sheet products more resistant to electricity, and first filed a suit against the government in 1996. The company applied for the patent in 1984, four years before Northrop Grumman publicly unveiled the first B-2 bomber. Zoltek later argued that Northrop Grumman purchased a small number of test sample carbon-fiber sheets in 1983, and used these samples to manufacture the stealth coating on the B-2.
Despite paying Northrop Grumman $44 billion to produce 21 B-2s between 1987 and 2000, the U.S. government never compensated Zoltek for the use of its patented carbon-fiber method, according to the company.
The 2014 ruling was based on expert testimony that argued part of Zoltek’s method was already known to scientists in that field at the time, making the patent invalid.
But the appeals court overturned that decision this month, saying the 2014 expert testimony was flawed based on evidence found in a 1987 letter from an engineer at Northrop Grumman, which built the B-2 bomber.
In that letter, the engineer contradicted the expert testimony, saying he had never seen a material such as the one owned by Zoltek.
Describing Zoltek’s patented method of developing carbon fibers as a “quantum leap forward” in defense technology and “critical to the stealth capability” of the F-22 and B-2, Dean Monco, a Chicago lawyer who has been representing Zoltek since the beginning of the case, said his client hopes to be recognized for the significance of its invention compensated monetarily for revenue that was lost while the Pentagon has claimed ownership of this technology.
But despite this month’s favorable ruling, Monco and the rest of Zoltek’s legal team still face significant challenges in getting all the facts behind the case, as the U.S. government has invoked the military and state secrets privilege in an effort to prevent information about its aircraft and classified technology from being disclosed.
In a 2013 letter to the court, then-Air Force Secretary Michael Donley cited national security concerns while disputing one of Zoltek’s claims: that a fiber manufactured by defense contractor Lockheed Martin for the F-22 infringes on the patent.
“How stealth is achieved in the aircraft is considered one of the Air Force’s most valuable secrets,” Donley wrote, adding that providing the information Zoltek was seeking “would assist foreign governments to develop measures to counter the advantages of the F-22 stealth technology.”
The assertion of this privilege highlights the conflict between the government’s right to protect classified information and corporation’s constitutional right to be fully compensated.
“This is an issue that has to be addressed,” Monco said, addressing the secrets privilege, adding that he intends to persist even if the case requires further litigation before appellate courts, or even the Supreme Court.
When asked about the case, Nicole Navas, a spokeswoman for the Justice Department, declined to discuss specifics, noting only that “the Justice Department is reviewing the opinion in this pending litigation.” The Department of Justice serves as the legal representation for the U.S. government in this case.
And while the courts have yet to agree on a ruling that clarifies the extent to which the government is protected from sharing information related to secret defense programs, they have made several key smaller rulings since the initial suit was filed.
Among those decisions was one that determined that Lockheed Martin, the manufacturer of the F-22, would not be included in the legal proceedings.
Excluding Lockheed Martin from the case reaffirmed a U.S. statute that says the government is liable for any compensation if the court finds that a contractor used a patented invention.
Monco said the fact that Zoltek’s case, now in its third appeal, has bounced between a Federal Claims Court and an appeals court in Washington for so long is very unusual.
In fact, the case has gone on for so long that much of the evidence used in the 2014 hearing to determine the patent’s validity was from “witnesses who are either deceased, advanced in age, or who otherwise were unable to appear live at trial,” according to the judge’s opinion.
The inventor of Zoltek’s patented method, George Boyd, died in 2006, and the patent expired on March 1, 2005.
Zoltek was sold before a final verdict could be rendered on its complaint, bought in 2014 by Toray Industries in Japan.
But Monco, who was 45 when the case started and is now 65, said the length of the legal process does not deter him from seeking compensation for his client.
“We intend to complete the task,” he said.
