Lemelson v. U.S.
| Decision Date | 04 January 1985 |
| Docket Number | No. 83-1403,83-1403 |
| Parties | , 224 U.S.P.Q. 526 Jerome H. LEMELSON, Appellant, v. The UNITED STATES, Appellee, The Bendix Corporation and Brown & Sharpe Manufacturing Company, Third-Party Appellees. Appeal |
| Court | U.S. Court of Appeals — Federal Circuit |
William D. Hall, Hall, Myers & Rose, Potomac, Md., argued, for appellant. With him on the brief were William E. Jackson, Arlington, Va. and Ronald R. Snider, Wegner & Bretschneider, Washington, D.C.
John E. Kidd, Pennie & Edmonds, New York City, argued, for appellee Bendix, Brown & Sharpe. With him on the brief were Charles E. Miller, and Stephen J. Harbulak, New York City, of counsel.
A. David Spevack, Dept. of Justice, Washington, D.C., argued, for appellee U.S. With him on the brief were Richard K. Willard, Acting Asst. Atty. Gen. and Vito J. DiPietro, Director, Washington, D.C.
Thomas J. Byrnes, Dept. of Justice, Washington, D.C., of counsel.
Before MARKEY, Chief Judge, and BALDWIN and MILLER, Circuit Judges.
This is an appeal from a July 26, 1983 judgment of the United States Claims Court dismissing Lemelson's complaint under 28 U.S.C. Sec. 1498 and finding non-infringement of claim 1 of U.S. Patent No. 3,481,042 (the '042 patent), claim 15 of U.S. Patent No. 3,226,833 (the '833 patent), and claim 12 of U.S. Patent No. 3,636,635 (the '635 patent) by the government's use of certain coordinate measuring machines (CMMs). We affirm in part, vacate in part, and remand.
The judgment issued as a result of a joint motion of defendant United States and third-party defendants Bendix Corporation (Bendix) and Brown & Sharpe Manufacturing Company (Brown & Sharpe) at the close of the 26-day presentation of Lemelson's case-in-chief. The motion was made under Claims Court Rule 41(b) solely on the ground that Lemelson had failed to establish infringement of the claims in suit. The Claims Court opinion, Lemelson v. United States, 3 Cl.Ct. 161 (1983), deals only with the infringement issue.
Description of the patent claims in suit
Only method claim 15 of Lemelson's '833 patent, entitled "Automatic Inspection Apparatus and Method," is at issue. The claim, directed to measuring the distance between two surfaces of a workpiece, states (paragraphing and labeling of claim steps supplied):
A method of automatically measuring dimensions between surfaces of a workpiece comprising the steps of:
(1) relatively prepositioning a workpiece and an automatic measurement device;
(2) detecting a first surface of said workpiece by means of surface positional indicating means;
(3) thereafter relatively moving said surface positional indicating means and said workpiece and automatically generating signals indicative of the degree of said movement;
(4) detecting a second surface of said workpiece with said surface position indicating means when said second surface is aligned therewith;
(5) integrating the signals generated during the movement of said workpiece and said surface detecting means between said first and second surfaces; and
(6) generating a further signal indicative of the distance between said first and second surfaces.
Operation of one embodiment of the claimed invention is illustrated with reference to Fig. 1 from the patent.
Apparatus 10 moves along an overhead track 11 and/or a floor mounted track 21 for prepositioning its measuring head probe assembly 31 relative to the workpiece W. Base 9 may be a fixed work table or a conveyor adapted to bring the work into alignment with the measuring apparatus. A programming controller CO controls servo motors (e.g., Mx, Mz, MA2 ) which preposition the measuring head over the workpiece prior to the beginning of the measuring steps. This description of prepositioning corresponds to step 1 of the claim. For step 2, a surface-sensing means such as contact probe SW1 on jaw 32 detects a first surface of the workpiece. The point at which the contact probe SW1 engages the surface of the workpiece is the reference point from which measurements are taken. In step 3, the second surface-sensing means (contact probe SW2 on jaw 33) is advanced toward the workpiece causing electrical pulses to be generated which represent incremental units of distance traveled by the probe SW2 . The pulses continue to be generated until the probe detects (e.g., contacts) the workpiece as in step 4. Meanwhile the pulses are being summed in a counter which sum will represent the total distance traveled by probe SW2 . The final step 6 requires that a further signal be generated representing the dimensionD --the distance between the first and second surface. This would be calculated by subtracting the distance traveled by probe SW2 from the original distance between the jaws prior to step 3.
Only method claim 12 of Lemelson's '635 patent, entitled "Automatic Measuring Apparatus," is at issue. The claim is directed to measuring dimensions and presenting the measurement obtained in a visually readable form. The '635 specification and drawings are substantially similar or identical to those of the '833 patent.
Claim 12 states (paragraphing and labeling of claim steps supplied):
A method for automatically measuring dimensions comprising:
(1) predeterminately locating a member containing dimensions to be measured and a surface-sensing probe;
(2) relatively moving said probe and said surface;
(3) generating pulse signals with said relative movement and feeding said pulsed signals to a summing means;
(4) summing said pulse signals derived from said relative movement;
(5) indicating when said probe senses the the [sic] surface by generating a control signal;
(6) applying said control signal to control the summing of said pulse signals whereby the pulse signals generated at the time said surface is sensed by said probe are presented in the form of digital information on the output of said summing means; and
(7) applying said digital information signals to activate a visual presentation means to visually indicate the distance travelled by said probe in intelligible form.
The first five steps are similar to the steps already described for claim 15 of the '833 patent. In step 6, the summing device outputs the sum in digital format. In step 7, the sum is visually presented to indicate the distance traveled by the probe.
The '042 patent is a continuation-in-part of, inter alia, the application which matured into the '833 patent. Only apparatus claim 1 of Lemelson's '042 patent, entitled "Surface Sensing Apparatus," is at issue:
Surface measuring apparatus comprising:
(1) means for sensing a surface to be measured;
(2) manipulation means for said sensing means;
(3) a variable program control means for controlling the operation of said manipulation means and positioning said sensing means adjacent a surface to be measured, said program control means including:
(a) a record member; and
(b) means for reproducing positional control signals from said record member;
(4) means for using said positional control signals to preposition said sensing means;
(5) means for relatively positioning said workpiece and said manipulation means;
(6) signal generating means associated with said manipulation means and said sensing means for obtaining signals representative of the location of a surface of said workpiece relative to said manipulation means; and
(7) recording means for recording said signals representative of the surface being measured on predetermined areas of said recording member.
Figures 1, 3, 4, and 5 are reproduced below:
The sensing means of element 1 is depicted in Fig. 1 by the probe sensor 23. Manipulation apparatus 11 (including 11A and 11B) of Fig. 4 or base 12 of Fig. 1 correspond to the manipulation means of element 2, although Lemelson disputes this see infra. The manipulation means prepositions the sensing means in alignment with the workpiece W. Element 3, a variable program control means, is depicted in Fig. 5 as a computer or positional controller 49. The means of element 4 which use the positional control signals include the digital positional controller 57 and servo motors 63, 18, and 43 of Fig. 5. The means of element 5 is described in Fig. 1 as work holding feature WP, which is capable of retaining and prepositioning the workpiece W. Once prepositioning is complete, measurement can begin. Element 6's signal generating means is shown in Fig. 5. Movement of arm 22 causes the pulse generator 55 to generate pulses representing the distance traveled by the probe 25 relative, for example, to the stationary base plate of Fig. 4. The pulses are summed by pulse counter 53. The recording means of element 7 records the signals from the pulse generator onto a channel of recording member 51 (e.g., magnetic tape).
Lemelson introduced evidence at trial relating to six CMMs: the IOTA 2204 P and IOTA 1205 DNC made by Digital Electronic Automation Inc. (DEA), the Validator 200 and Validator 300 made by Brown & Sharpe, and the Cordax 803 DCC and Cordax 5000 DCC made by Bendix. Some of the CMMs are "bridge"-type machines and others are of the "cantilever"-type as illustrated below:
Each of the accused CMMs has a worktable to support the workpiece. Mounted upon the worktable is either a bridge suspended by two struts or a cantilever beam, capable of moving the length (the x-axis) of the table. A carriage is mounted on the bridge or beam so that the carriage can move across the width (the y-axis) of the table. Mounted in the carriage is a verticle shaft designed to move vertically up and down (the...
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