Coakwell v. United States

• Decision Date: 17 February 1967
• Docket Number: 365-62.,No. 213-57,213-57
• Citation: 372 F.2d 508
• Parties: Charles A. COAKWELL v. The UNITED STATES.
• Court: U.S. Claims Court

372 F.2d 508 (1967)

Charles A. COAKWELL v. The UNITED STATES.

Nos. 213-57, 365-62.

United States Court of Claims.

February 17, 1967.

Vincent A. Greene, Cleveland, Ohio, attorney of record, for plaintiff, McCoy, Greene & TeGrotenhuis, Cleveland, Ohio, of counsel.

George M. Paddack, Washington, D. C., with whom was Asst. Atty. Gen. Barefoot Sanders, for defendant, Alfred B. Engelberg, Silver Spring, Md., of counsel.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS, COLLINS, SKELTON and NICHOLS, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner Donald E. Lane pursuant to Rule 38(c), now Rule 47(c), by the decision of this court entered on July 19, 1961, 292 F.2d 918, 155 Ct.Cl. 193 (1961), for determination of the amount of recovery to which plaintiff is entitled. Pursuant to the order of reference, the commissioner filed an opinion and report, including findings of fact, on April 11, 1966. Exceptions to the commissioner's opinion, findings and conclusion of law were filed by the parties and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court is in agreement with the opinion, findings and recommendation of the commissioner, with modifications, it hereby adopts the same, as modified, as the basis for its judgment in this case, as hereinafter set forth. Plaintiff is therefore entitled to recover $262,924.19 as reasonable and entire compensation in this case and judgment is entered for plaintiff in this amount.

Commissioner Lane's opinion, findings of fact and recommended conclusion of law, as modified by the court,^* are as follows:

This is a patent suit under Title 28 U.S.C. § 1498 for reasonable and entire compensation for the unauthorized use of plaintiff's patented invention relating to antiblackout equipment. In an earlier opinion, the court held that plaintiff's patent 2,676,586 was valid and infringed. (Opinion by Judge Whitaker, 292 F.2d 918, 155 Ct.Cl. 193 (1961).) Defendant has been unsuccessful in its efforts for rehearing and for reconsideration. This case is now before the court on the amount of reasonable and entire compensation to be recovered by plaintiff.

It has been difficult for plaintiff to ascertain the facts necessary for a determination of the compensation to which he is entitled. Delays have been encountered in estimating the number and costs of anti-G suits and anti-G valves procured prior to 1954 and available for use by defendant on and after April 27, 1954. The parties have stipulated as to the number and costs of suits and valves procured by the Air Force subsequent to said date. The parties are also in agreement concerning the number and costs of suits and valves procured by the Navy since said date. Plaintiff asserts that the Navy estimates for the suits and valves on hand as of April 27, 1954, are unreliable.

The recovery period in this case is from April 27, 1954, the issue date of plaintiff's patent, to November 19, 1962, the filing date of plaintiff's second petition, No. 365-62.

An important issue is whether or not plaintiff is entitled to recover compensation for defendant's unauthorized use during the recovery period of anti-G suits and valves which the defendant procured prior to the recovery period but had on hand for defendant's use at the commencement of the recovery period. A United States Letters Patent is a grant of the right to exclude others from making, using, or selling the patented invention for a limited period. Title 35 U.S.C. § 154. Congress has also specified that whoever without authority makes, uses, or sells any patented invention during the term of the patent infringes the patent. Title 35 U.S.C. § 271. The jurisdictional statute for this court specifies that whenever an invention described and covered by a patent of the United States is used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, the owner's remedy shall be by action against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture. Title 28 U.S.C. § 1498. Emphasis added. It is concluded that under the facts of the present case, plaintiff is entitled to recover compensation for defendant's use of anti-G suits and valves on hand at the commencement of the recovery period available for use during the recovery period.

This court held in 1938 that unassembled howitzers held in storage constituted use under the patent statutes. Olsson v. United States, 25 F.Supp. 495, 87 Ct.Cl. 642 (1938), cert. denied, 307 U.S. 621, 59 S.Ct. 792, 83 L.Ed. 1500 (1939). In the Olsson case, the earliest howitzers obtained by the Government were obtained from France less than 6 years prior to the date of the petition and well within the term of the patent grant. This court held in 1952 that pump-type fire extinguishers obtained by the Government prior to the start of the 6-year statute of limitations period and available for use by the defendant prior to said statutory period could not be a basis for compensation. Gage v. United States, 103 F.Supp. 1022, 122 Ct.Cl. 160, cert. denied, 344 U.S. 829, 73 S.Ct. 32, 97 L.Ed. 645 (1952). This court held in 1961 that the recovery period on aircraft jacks extended from the issue date of the patent in 1956 to the date of the petition in 1957. Regent Jack Mfg. Co., Inc. v. United States, 292 F.2d 868, 155 Ct.Cl. 222, (1961). In a later opinion in the consolidated Regent Jack cases, this court held that the recovery of compensation for the subsequent use of equipment obtained and used prior to the 6-year statute of limitations period was barred by the statute. Regent Jack Mfg. Co., Inc. v. United States, 337 F.2d 649, 167 Ct.Cl. 815 (1964). The 6-year statute of limitations period is not involved in the present case. Defendant's anti-G suits and valves on hand for use as of April 27, 1954, were available for use well within the 6-year period preceding the filing of plaintiff's first petition on May 1, 1957. Plaintiff had no right of action prior to the issuance of his patent in 1954. Plaintiff is not claiming infringement of his patent prior to its grant and could not since his application was not under the time extension provisions of Title 35 U.S.C. § 183 relating to patent applications under a secrecy order.

Liability attaches upon the making, the using, or the selling of a patented device. Liability ordinarily attaches when the device is delivered to the purchaser and hence is available for use. In Olsson v. United States, supra, this court recognized (25 F.Supp. 495, 87 Ct.Cl. page 655) the distinction between purchase and use when it found that equipments purchased within the statutory period were being used by the Government and thus the Government was liable for the use. If the incident to which liability attaches was the purchase of the equipment, then the court need not have struggled with whether or not the equipment being stored unassembled was being used within the meaning of Title 28 U.S.C. § 1498. It is clear that said section was enacted for the purpose of enabling the Government to purchase goods for the performance of its functions without the threat of having the supplier enjoined from selling patented goods to the...