Badowski v. United States
| Citation | 150 Ct. Cl. 482,278 F.2d 934 |
| Decision Date | 08 June 1960 |
| Docket Number | No. 497-53.,497-53. |
| Parties | Witold A. BADOWSKI v. UNITED STATES. |
| Court | Court of Federal Claims |
Albert R. Teare, Cleveland, Ohio, for plaintiff.
G. M. Paddack, Washington, D. C., with whom was Asst. Atty. Gen. George Cochran Doub, for defendant.
Plaintiff sues for damages caused by the defendant's infringement of Letters Patent No. 2,365,445. We have previously determined that plaintiff's patent was valid and that it was infringed. Badowski v. United States, 140 F.Supp. 544, 164 F.Supp. 252, 135 Ct.Cl. 93. The sole question now presented is the amount of "reasonable and entire" compensation to which plaintiff is entitled because of defendant's unauthorized use of the patented device.
The facts show that on two occasions plaintiff granted licenses to manufacturers to "make, use and sell" his patented device for commercial use. In 1946, plaintiff granted an exclusive license to Minnesota Tool & Manufacturing Corporation. The agreement provided for two payments of $1,000 each plus a royalty at the rate of five percent of the total gross receipts from sales. The agreement also specified certain minimum royalty payments. Some ten years after the cancellation of his agreement with Minnesota Tool & Manufacturing Corporation, plaintiff, in 1957, entered into a nonexclusive commercial licensing agreement with American Machine & Metal, Inc., which provided for a royalty payment of five percent of the selling price of the parachute release devices. This agreement was made after this court had held plaintiff's patent valid, but the agreement was also a release for prior infringement since it provided that the royalty would be paid for devices previously sold as well as those to be sold in the future. The parties contemplated under these agreements that the sales would be for commercial purposes only and the royalty agreed to did not include sales to the defendant. The number of commercial sales which were made were very small in number. The first licensing agreement was canceled because the minimum royalties prescribed were not paid; and, under the later agreement, the number of devices actually sold was below 2,000.
As a general rule, the best method of assessing damages for an infringement of a patent is to use the claimant's established royalties as a basis. Eg. Clark v. Wooster, 119 U.S. 322, 7 S.Ct. 217, 30 L.Ed. 392; Breese Burners, Inc. v. United States, 140 Ct.Cl. 9; United States National Bank of Portland v. Fabri-Valve Co., 9 Cir., 235 F.2d 565. However, this rule is only useful where the royalty has in fact become established. Here, the licensing agreements limited sales to nongovernmental users and it must have been contemplated by the parties that the civilian demand would be relatively small. A five percent royalty under those circumstances may well have been fair, but we do not believe it follows from that, that where the sales volume greatly exceeded the volume under the licensing agreements, the same royalty would be fair.
Defendant's accounting expert, Captain Robert A. Lavender, U.S.N. (Ret.), testified that in his opinion plaintiff's compensation should be computed at a royalty rate of two percent on the first quarter million dollars, one and one-half percent on the second quarter million, one percent on the amount between a half and one million, and one-half of one percent on the amount over one million. Captain Lavender's opinion was based on his belief "that little was given to the Government by the plaintiff either in the form of a basic invention or in drawings, because the Government had to design and build its own equipment and did not use any of the structure of the plaintiff." We believe this compensation is insufficient.
Between 1947 and 1958, defendant purchased 191,274 devices which infringed plaintiff's patent claim...
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Tektronix, Inc. v. United States
...$25,005,090, while defendant proposes a much more modest $91,590. Defendant's basic theory, premised on Badowski v. United States, 278 F.2d 934, 150 Ct.Cl. 482, 137 U.S.P.Q. 656 (1960), and Saulnier v. United States, 314 F.2d 950, 161 Ct.Cl. 223, 137 U.S.P.Q. 222 (1963), lumps all the infri......
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...Co. v. United States, 74 Ct.Cl. 682 (1932); Saulnier v. United States, 314 F.2d 950, 161 Ct. Cl. 223 (1963); Badowski v. United States, 278 F.2d 934, 150 Ct.Cl. 482 (1960). Here, the evidence shows that, starting in the 1940's Christensen licensed the patent throughout the industry at a roy......
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Pitcairn v. United States
...the court decided that interest would run from December 31 of each year involved until date of payment. In Badowski v. United States, 278 F.2d 934, 150 Ct.Cl. 482, 125 USPQ 656 (1960), the court held that reasonable and entire compensation should include interest to date of payment to compe......
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Coakwell v. United States
...available for the use of defendant's Air Force and Navy during the 1954-1962 recovery period is $6,981,192.14 as shown in finding 46. In the Badowski patent case, relating to an automatic parachute release device, this court in 1960 allowed compensation at the rate of 3 percent on the first......