Myers v. United States, 119-56.

• Citation: 147 Ct. Cl. 485,177 F. Supp. 952
• Decision Date: 04 November 1959
• Docket Number: No. 119-56.,119-56.
• Parties: Joseph C. MYERS v. UNITED STATES.
• Court: Court of Federal Claims

177 F. Supp. 952

147 Ct. Cl. 485

Joseph C. MYERS v. UNITED STATES.

No. 119-56.

United States Court of Claims.

November 4, 1959.

Scott P. Crampton, Washington, D. C., for the plaintiff. Robert F. Conrad and Watson, Cole, Grindle & Watson, Washington, D. C., were on the briefs.

G. M. Paddack, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for the defendant.

PER CURIAM.

This case was referred pursuant to Rule 45(a), 28 U.S.C.A., to Donald E. Lane, a trial commissioner of this court, with directions to make findings of fact and recommendations for conclusions of law which the commissioner has done in a report filed January 7, 1959. Exceptions to this report were taken by plaintiff and briefs were filed with the court by both parties. Argument by counsel was made before the court, and upon consideration thereof, together with the record made and the exceptions and briefs filed, the court being in agreement with the findings and conclusions made by the commissioner hereby adopts the same, as hereinafter set forth, as the basis for its judgment in this case. It is therefore concluded that under 28 U.S.C. § 1498 plaintiff has no right to maintain this suit against defendant with regard to plaintiff's patent 2,445,235, and plaintiff's petition will be dismissed.

It is so ordered.

Opinion of Commissioner.

This is a patent suit under the provisions of Title 28 U.S.C. § 1498, in which plaintiff seeks to recover reasonable and entire compensation for unauthorized use of his patented invention by defendant. The sole issue now before the court is whether or not plaintiff, an employee of defendant at the time he conceived and completed the invention, is entitled to bring suit under Section 1498.

The last paragraph of Section 1498, quoted in finding 3, provides that a Government employee shall have the right to bring suit against the Government except where he was in a position to order, influence, or induce use of his invention, and provides that the patentee shall have no right of action with respect to any invention made while employed, where the invention was related to the official functions of the employee, including research and development, or where, in the making of the invention, Government time, materials or facilities were used.

Prior to the revision of Section 1498, effective July 17, 1952, a patentee was not accorded a right of action against the Government with respect to any invention he made while in the employment or service of the Government.

The patent in suit, No. 2,445,235, issued to plaintiff on July 13, 1948, as the result of an application filed by plaintiff on February 15, 1944. The patent relates generally to aircraft installations and particularly to mechanisms for opening and closing a gun port or aperture in an exterior surface of an aircraft. The patent claims define plaintiff's alleged invention in terms of an aircraft including a gun and/or blast tube mounted inwardly of a surface opening, a movable closure for the opening, and various operating, control, or interlocking mechanisms for the closure.

Plaintiff was an employee of the Preliminary Aircraft Design section of the Navy Bureau of Aeronautics from December 1941, to June 1944, first as associate aeronautical engineer, professional grade P-3, and then as aeronautical design engineer, professional grade P-4. Plaintiff filed his application for patent while so employed.

The official functions of the Preliminary Aircraft Design section during the period of plaintiff's employment therein included analysis and preparation of preliminary or tentative aircraft designs for various offices of the Bureau of Aeronautics. The section prepared layout drawings, investigated armament developments, made mathematical analyses, and developed tentative aircraft profiles. This section was concerned with problems of designs for adapting existing aircraft for new missions and the problems of designs for the installation of various gear in aircraft. The functions included preliminary research and development. During the first few months of his employment in the section, plaintiff was "assigned certain detailed things to work out in the way of installations, and things of that nature." Plaintiff worked out these problems and made illustrative layout drawings of possible designs.

Plaintiff urges that no part of the work of the Preliminary Aircraft Design section included the investigation of new ideas, the development of new equipment, or the design of new features. Consideration of the evidence of record leads to an opposite conclusion. The objective of the section was to assist in the initial development of solutions to problems confronting other sections of the Bureau of Aeronautics, and to thus assist in the development of improved aircraft. In preparing preliminary aircraft design layout drawings showing possible solutions for problems presented, ingenuity and inventive ability may be necessary in combining old features into new combinations or into old combinations producing a new or unexpected result. It appears immaterial that the Preliminary Aircraft Design section did not prepare the final working and engineering drawings necessary to aircraft manufacturers.

Plaintiff apparently considered that his idea relating to a gun port closure was relevant to the work of the Preliminary Aircraft Design section. He urges that he attempted to interest his superiors and his co-workers in his idea. The record is not clear as to exactly what the plaintiff disclosed to his superiors in the section, nor as to the exact time of any such disclosure. Plaintiff's assertion that his superiors were not interested in his gun port closure idea does not warrant a finding that such an idea was not related to the official functions of the plaintiff in the Preliminary Aircraft Design section.

A reasonable interpretation of the evidence of record supports a conclusion that many, if not all, of the specific details of the mechanisms claimed in plaintiff's patent were developed by plaintiff after he began work in the Preliminary Aircraft Design section, and resulted generally from his professional engineering duties in that section. One general objective of plaintiff's official function and also of his patented invention was minimizing air drag of aircraft installations. Assuming that plaintiff's development of his invention was done entirely on his own time with his own materials and facilities, it is concluded that plaintiff's employment included at least preliminary research and development, and that plaintiff's invention was related at least generally to the official functions of his employment at the time.

It is not necessary to decide the actual date of the completion of plaintiff's invention. Stub v. United States, 119 F. Supp. 206, 127 Ct.Cl. 710, 713. Plaintiff admits that he worked on the idea while employed in the Preliminary Aircraft Design section, but outside of the section office, and the record shows that the invention was constructively reduced to practice by the filing of the patent application of February 15, 1944, while plaintiff was still employed in that section.

Plaintiff has described his grade P-4 work in the Preliminary Aircraft Design section as requiring ability to arrange components to secure efficient performance, and stated that ingenuity and inventive ability were of paramount importance. It would seem absurd to find that ingenuity and inventive ability were not expected or important during the few months plaintiff was employed as an associate aeronautical engineer in professional grade P-3. It is significant that plaintiff was employed as an aeronautical engineer and not as a mere draftsman.

Returning now to the language of the proviso contained in Title 28 U.S. C. § 1498, as amended, plaintiff was not in a position to order the use of his invention by defendant. However, plaintiff's efforts to interest his superiors in his idea may seem to be an attempt to influence or induce the use of his idea. It is not necessary to make a determination on this specific point in view of other language contained in the proviso. The second sentence of the proviso contains definite language denying a right of action to a patentee under specified conditions. The proviso bars a right of action to an employee-patentee with respect to any invention related to the official functions of the employee. This language does not require that the employee be specifically hired to make inventions or to make a specific invention, or even that he be hired as an inventor. The meaning is clear that if an invention is made by the employee, is related to the work of the employee, and the official functions of the employee include research and development, no right of action is conferred by the proviso. Plaintiff's official functions during the entire time he was employed in the Preliminary Aircraft Design section included research or investigation of what had already been done and included development or design of new aircraft and aircraft components.

It is concluded, therefore, that the proviso of Title 28 U.S.C. § 1498, stating that the section shall not confer a right of action with respect to any invention made by an employee where the invention was related to official functions of the employee, functions including research and development, applies to plaintiff. In reaching this conclusion, it is unnecessary to determine whether or not the defendant may possess a shop right or free license, or be entitled to any assignment of title in the invention, if any, defined in the claims of the patent in suit.

Findings of Fact.

1. This is a patent suit brought under the provisions of Title 28 U.S.C. § 1498, as amended. Plaintiff seeks to recover reasonable and entire compensation from defendant for unauthorized use and manufacture by or for the United States of a patented invention. United States Patent No. 2,445,235 was issued to plaintiff on...