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U.S. litigation arising from secrecy issues surrounding groundbreaking IP technology coveted by Shell

Screen Shot 2014-12-23 at 00.28.33Alleged industrial espionage by Shell Oil Company: A senior individual in the U.S. intelligence community was authorised by U.S. Dept. of Defense government attorneys to confirm to me that an investigation directed at Shell USA had been initiated by the US Department of the Navy, Naval Criminal Investigative Service (NCIS).

By John Donovan

In 2010, I published an article revealing that four years earlier, U.S. authorities had launched an investigation into alleged industrial espionage by Shell Oil Company.

When I approached the then Chief Ethics & Compliance Officer of Royal Dutch Shell Plc, Mr. Richard Wiseman, about the story, this was his initial response on 29 June 2010:

I have no comment to make on this. You should not take this as an indication of our accepting or denying the allegations.

and later the same day:

No comment, means no comment and as ever you should not draw any conclusions from my not commenting. Shell’s response to previous allegations is not relevant.

Michiel Brandjes, the Company Secretary & General Counsel Corporate was involved in the correspondence and was as forthcoming as Mr Wiseman.

At the time, a senior individual in the U.S. intelligence community was authorised by U.S. Dept. of Defense government attorneys to confirm to me that an investigation directed at Shell USA had been initiated by the US Department of the Navy, Naval Criminal Investigative Service (NCIS).

The allegations which led to the investigation were made by a former Shell Oil Company engineer/scientist, Mr. Frank Joseph Trunk III.

The status of the investigation is unknown and possibly classified information.

However, on 8 December 2014, a related complaint, not involving Shell at this time, was filed by Washington DC law firm MAYER BROWN LLP on behalf of their client, Mr. Trunk. There was a delay before I could put the document into the public domain with free access, while a decision on a related matter was decided by Chief Judge Richard W. Roberts of the Federal District Court for the District of Columbia.

The list of defendants and the extraordinary content of the Complaint (link at the foot of this article) provides some indication of the significance of the technology and those parties interested in it, including NASA.

The technology apparently also has immense potential value to Shell, including in regard to its deep water drilling activities.  Hence the alleged corporate espionage directed at its former employee, Mr Trunk.

The Defendants in the case are:

RAYMOND E. MABUS, SECRETARY OF THE UNITED STATES NAVY

DR. ERNEST J. MONIZ, U.S. SECRETARY OF ENERGY

CHARLES T. HAGEL, U.S. SECRETARY OF DEFENSE

MICHELLE K. LEE, DEPUTY UNDERSECRETARY OF COMMERCE FOR INTELLECTUAL PROPERTY AND DEPUTY DIRECTOR OF THE U.S. PATENT & TRADEMARK OFFICE

The Complaint seeks clarification about the security classification status of certain patents filed by Mr. Trunk.

Shell knew about the potential civil applications, and perhaps some military applications, but nothing specific about the technology which makes the applications viable. This made it impossible for Shell to claim ownership when it could not even explain how the technology worked.

Shell allegedly decided to get its hands on the technology by surreptitious means, rather than negotiating a commercial agreement/license with its inventor, Mr. Trunk.

I have been the subject of corporate espionage by Shell on a number of occasions over the past two decades. Shell has it own in-house spooks at Shell Global Security and also uses external spy firms such as Hakluyt.

Extracts from the Complaint

INTRODUCTION

Beginning in January 2000, the Office of Naval Research (“ONR”) submitted a request to place patent applications filed by Mr. Trunk under Secrecy Orders pursuant to 35 U.S.C. §§ 181- 188, because of the potential threat to national security if information in those applications were made public. Mr. Trunk’s work had been under technical and security reviews by ONR since September 1993. Those applications describe fundamental breakthroughs in physics and material science that according to one senior Navy scientist “are the sort of thing Nobel prizes are made of.”

From paragraph 38: In February 2010, Mr. Trunk gave a presentation in response to NASA’s invitation to approximately 50 NASA scientists and engineers at the Langley Research Center in Virginia. NASA was particularly interested in Mr. Trunk’s work in electromagnetic theory.

39. In late 2013, NASA again contacted Mr. Trunk with another invitation to speak on his work in electromagnetics at NASA’s Langley Research Center, as well as present his vision for a long term research program in electromagnetics. Mr. Trunk, however, advised NASA through their prime contractor for this project that he cannot discuss or disclose information in his patent applications, or information related to those applications, until the issues relating to classification have been resolved. As a result, Mr. Trunk has had to forego a possible consulting arrangement with NASA and/or their contractors.

57. As a result of the Defendants’ actions, Mr. Trunk does not know at this time whether or not his patent applications, and derivative or related technology, are still classified; whether they have been properly declassified; or what information concerning his ground-breaking discoveries can be published and discussed publicly. Mr. Trunk faces the risk of possible criminal liability for disclosure of classified information until these issues are resolved. Mr. Trunk’s numerous and diligent efforts to resolve these issues informally with the Defendants have been unsuccessful and have been met with hostility. Accordingly, Mr. Trunk is forced to seek declaratory relief from the Court.

IV. CLAIM FOR DECLARATORY RELIEF

58. Plaintiff incorporates by reference the allegations set forth above in paragraphs 1 through 57.

59. A case or controversy currently exists concerning the classification status of Mr. Trunk’s patent applications and material derived from the technology described in those applications. Despite diligent efforts, Mr. Trunk has been unable to obtain any resolution of those issues.

60. Accordingly, Mr. Trunk seeks a declaration as to whether or not his patent applications, and the information in those applications, and derivative works related to the information in those applications, are classified and whether proper declassification procedures have been followed; and if the information is still classified, the level of classification; who, including Mr. Trunk, is permitted to have access to the information; the names of the agencies that still consider the information to be classified; and to whom, and under what conditions, the information may be disclosed.

Because of the unusual nature of some of the information supplied to me from the USA during the course of my investigation in 2010, I deemed it appropriate to inform the British Secret Intelligence Service (SIS) of these matters as known to me at that time.

I will of course report on the litigation as it proceeds and expands, possibly to involve Shell.

The case is Trunk v. Mabus, 1:14-cv-02139, U.S. District Court, District of Columbia (Washington).

20 PAGE COMPLAINT FILED 8 DECEMBER 2014 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA: CASE 1:14-cv-221-KBJ

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