Tuesday, December 20, 2011

Digital Concealment Systems (A-TACS FG) v. Hyperstealth Biotechnology Corp.

The camouflage design industry is an interesting landscape with many characters and varied perspectives on how business should be conducted.

It is a world of secrecy in the sense that designers do not want their innovative concepts to be taken by the competition, but at the same time it is hard to market a product like camouflage unless you can show it to potential public or private buyers, and display its effectiveness.

A lawsuit filed Friday, December 16th in Georgia Middle District Court could influence how camouflage design companies conduct this balancing act in the future.

Digital Concealment Systems, LLC best known for their A-TACS Camouflage pattern has filed a complaint against HyperStealth Biotechnology Corp. seeking judicial declaration of their use of the A-TACS Camo pattern and would like the court to state that the new camouflage pattern does not infringe on HyperStealth's Patterns. Essentially DCS, LLC want free and clear use of their A-TACS FG pattern for licensing to their various partners. At the same time they want the court to issue a judgment in their favor for court costs, lawyer fees, and any other damages that they see fit. 

Going back in time a little more than a month ago explains the need for this recent action. As of November 15th A-TACS FG was introduced to the world through company channels as well as major industry publications. This gave the first true glimpse of the camouflage on actual uniforms, boots, rifles, and nylon tactical gear. 

Ten days later on November 25th, a cease and desist letter (ex.1) was sent from the legal counsel of HyperStealth asking DCS to stop offering products for sale that used the A-TACS FG pattern, effectively halting existing or future licensing of the camouflage. They stated that the new camouflage pattern is a virtual duplication of several of HyperStealth's patterns including Ghostex Alpha and Delta, SpecAM, SOPAT, Eurospec, and CAMOPAT. They also asked that the offending A-TACS FG be taken down from the company's website by December 5th or face legal judgement on the matter seeking compensation for any damages resulting from copying their patterns. 

Exhibit 1 Ghostex SpecAM

This cease and desist letter combined with all patterns referenced are included in the court exhibits in (ex. 1, 2, 3) as well as the A-TACS FG pattern (ex.3). We have provided all of these court documents here so that you can judge for yourself. Obviously there is a lot more to it than just a photo image of a camouflage pattern. However, a picture can be worth a thousand words, especially when it comes to a court case where the science of camouflage development may be lost on many. 

Exhibit 2 Camopat SOPAT

Exhibit 3 Camopat Pro a-TACS FG

If this case, DCS v. HyperStealth were to play out, which we hope is not the end result for the sake of both companies, it would be extremely interesting to see how HyperStealth explains that DCS copied their layering, fractals, fading, shadowing, coloring, three-dimensional effects, micro or macro patterns, or any other factor that plays into the overall design that was utilized in creating A-TACS FG. Not only do they have to show where their copyright was infringed, but how were they able to do so in respect to all of the patterns mentioned which works out to hundreds of variations. HyperStealth also has to show that they have a valid copyright for the patterns to begin any discussion on how they were infringed upon. 

The main point DCS makes is that no copying was done. The actual complaint states a few points regarding this notion including two key factors: 

1. The A-TACS FG Camo pattern was created through a different process than the HyperStealth Patterns and, therefore, cannot constitute a copy of the HyperStealth Patterns using DCS’s patent pending process which creates the optical illusion of foliage and vegetation and objects when viewed at a distance, whereas HyperStealth’s patterns create visual noise through static fractals. 

2. The A-TACS FG Camo pattern is visually different from any of the HyperStealth Patterns in that it contains rounded shapes rather than straight, rigid pixilated shapes, contains far different repeat patterns, AND was created using a different medium and different methodology than any of the HyperStealth patterns

Clearly Digital Concealment Systems was quick to react to these reactions in what may be a move to gain jurisdiction on any resulting court case. They are based out of Alabama which is much more convenient to the Georgia courts when compared to any proceedings that would presumably play out in British Columbia where HyperStealth calls home. More likely they are trying to get this matter resolved as quick as possible so that they can continue business as usual, especially considering the upcoming SHOT Show 2012 and the launch of many products from industry partners being offered in their A-TACS FG camouflage pattern. They certainly do not want any outstanding legal disputes to put a damper on sales. 

We provided the full complaint below. To be completely fair the exhibits and complaint only provide one side of the story in the sense that it has not been made public as to why HyperStealth felt DCS was copying their patterns in the creation of their own design. No comment was provided in a request for information from the company which is fair considering the circumstances and due process in presenting evidence. Of course feel free to look at all of the photos presented along with other information provided and you be the judge. At least in your own world. 

We must also take note that this case has no bearing on the US Army Camouflage Improvement Effort Solicitation. DCS submitted a completely different family of camouflage patterns, which have already been reported as dismissed from further consideration. HyperStealth could still be in the hunt although it is not public knowledge as to which patterns were submitted. Even if it is one of the mentioned patterns or variations thereof, this matter shouldn't effect any further selection process. 

In the end we hope this is quickly settled out of court. For one, we have a bias in the sense that we want to offer the A-TACS FG  as quickly as our partners can provide products utilizing the camouflage. We also want to see further development from each company as they change the camouflage world with their innovations. 

Digital Concealment Systems v. Hyper Stealth Biotechnology Corp.