William F. Dudine, Jr., New York City, attorney of record, for plaintiff. Darby & Darby, New York City, of counsel.

Donald E. Townsend, Washington, D.C., with whom was Asst. Atty. Gen. Alice Daniel, Washington, D.C., for defendant. Richard J. Webber, Thomas J. Byrnes and Robert Marchick, Washington, D.C., of counsel.

Before COWEN, Senior Judge, and DAVIS and BENNETT, Judges.

OPINION

This case comes before the court on the parties' exceptions to the recommended decision of Trial Judge Francis C. Browne, filed April 12, 1979, pursuant to Rule 134(h), having been submitted on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge's recommended opinion and conclusion, as hereinafter set forth,[fn*] it hereby adopts the same as the basis for its decision in this case. It is therefore concluded as a matter of law that plaintiff is not entitled to recover and the petition is dismissed.

[fn*] The court does not adopt the trial judge's separate findings of fact but his adopted recommended opinion contains such facts as are necessary to the decision.

[fn1] There are two methods by which private companies obtain Government funds to support proposed research projects other than by competitive bidding. One is for the company or companies desiring support to submit "unsolicited" proposals to the agency concerned. The other is for the Government to request submission of proposals. In either case, if the agency decides to support the proposed research, a formal contract is then prepared and executed by the parties.

[fn2] Molecules of elemental uranium are composed of atoms which, in turn, are composed of a combination of protons, neutrons, and electrons. All uranium atoms have 92 protons; hence, uranium is identified by the atomic number "92." However, not all uranium atoms have the same number of neutrons. Some atoms have 143 neutrons, while others have 146 neutrons. The respective atoms are referred to as "isotopes." They are designated as U-235 and U-238, respectively (the number 235 being the sum of the 92 protons and 143 neutrons of the one atom, and the number 238 being the sum of the 92 protons and 146 neutrons of the other atom). Uranium, as it is found in nature, contains about 99.3 percent U-238, and about 0.7 percent U-235. The U-235 isotope is fissionable and thus useful in nuclear applications. The U-238 isotope, being nonfissionable, must be separated from the U-235 isotope if recovery of fissionable material is alone desired.

[fn3] Since the two isotopes are practically indistinguishable in most of their properties, separation and recovery of the isotopes is exceedingly difficult. The commonly used industrial process is the "gaseous diffusion" process. In that process, separation is based on minute differences in the masses (atomic or molecular weight) of the two uranium isotopes. However, the cost of operating this process is extremely high.

[fn4] 10 C.F.R. § 95, et seq. (1963) required security review and classification of all data concerning production of special nuclear material.

[fn5] It is undisputed that the security classification of P-103 was proper.

[fn6] H. London, Separation of Isotopes (1961).

[fn7] 32 Fed.Reg. 20868, et seq. (1967).

[fn8] 35 U.S.C. § 181.

[fn9] Based on the chronology of events, it may be reasonably inferred that the action was taken as a consequence of Radioptics' inquiry earlier that month.

[fn10] This court lacks jurisdiction of claims for breach of contracts implied at law. E. g., Jankowitz v. United States, 209 Ct.Cl. 489, 506 at n. 12, 533 F.2d 538, 548, at n. 12 (1976).

[fn11] See text of alleged terms at pp. 4-5, supra.

[fn12] Id.

[fn13] Id.

[fn14] Id.

[fn15] Id.

[fn16] Id.

[fn17] See 28 U.S.C. § 2501.

[fn18] § 2181 states: "Inventions relating to atomic weapons, and filing of reports - Denial of patent; revocation of prior patents

[fn19] Id.

[fn20] § 2187(b)(3) states: "Any person making any invention or discovery useful in the production or utilization of special nuclear material or atomic energy, who is not entitled to compensation or a royalty therefore under this chapter and who has complied with the provisions of section 2181(c) of this title may make application to the Commission for, and the Commission may grant, an award. The Commission may also, upon the recommendation of the General Advisory Committee, and with the approval of the President, grant an award for any especially meritorious contribution to the development, use, or control of atomic energy."

[fn21] Levy, et al. application serial No. 25,605, filed March 25, 1970, now patent No. 3,772,519.

[fn22] Even if, for example, Radioptics had filed an application for patent and both Levy, et al. and Radioptics sought declassification and only the Levy, et al. application was declassified, it is still doubtful if there could be said to have been a "taking" of the Radioptics' application.