Croll-Reynolds Co. v. Perini-Leavell-Jones-Vinell, 24346.

• Decision Date: 20 January 1969
• Docket Number: No. 24346.,24346.
• Citation: 399 F.2d 913
• Parties: CROLL-REYNOLDS CO., Inc., et al., Appellants, v. PERINI-LEAVELL-JONES-VINELL et al., Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

399 F.2d 913 (1968)

CROLL-REYNOLDS CO., Inc., et al., Appellants, v. PERINI-LEAVELL-JONES-VINELL et al., Appellees.

No. 24346.

United States Court of Appeals Fifth Circuit.

September 11, 1968.

Rehearing Denied October 18, 1968.

Certiorari Denied January 20, 1969.

Felix H. Lapeyre of Chaffe, McCall, Phillips, Burke, Toler & Hopkins, New Orleans, La., Nelson Littell, Jr., New York City, Jennings Bailey, Jr., of Bailey, Stephens & Heuttig, Washington, D. C., for appellants.

George M. Thurmond, Del Rio, Tex., Jarrett Ross Clark, Chicago, Ill., William A. Denny, Milwaukee, Wis., for appellees, F. Kristen Koepcke, Milwaukee, Wis., of counsel.

Before JONES and GODBOLD, Circuit Judges, and SCOTT, District Judge.

Certiorari Denied January 20, 1969. See 89 S.Ct. 688.

JONES, Circuit Judge:

The appellants are the owners of patents for methods and apparatus for the cooling of concrete ingredients and mixes. The appellees are contractors or subcontractors engaged in the construction of a portion of the Amistad Dam across the Rio Grande River for the United States. The construction contract required that concrete, when deposited in the forms, should have a temperature of not more than 50 and not less than 40 degrees Fahrenheit.¹ This required that concrete be cooled prior to pouring into the forms. The contract does not require that the cooling be done by any particular method or process. The contract does contain a provision covering the use of inventions.² The appellees installed cooling equipment, as contemplated by the terms of the contract,³ and the contracting officer of the Government, as provided by the contract,⁴ approved the cooling facility and equipment. The Government made payment for it to the appellees.

The appellants, asserting that the cooling done by the appellees was by the use of their patented methods and devices, brought an action alleging infringement and seeking an injunction and damages. Among their defenses the appellees asserted that the court did not have jurisdiction of the subject matter of the action under the provisions of 28 U.S.C.A. Sec. 1498(a).⁵ The jurisdictional issue was tried separately. The district court determined that the cooling equipment was used for the Government and with its authorization and consent, and hence the sole remedy of the appellants was by an action against the United States in the Court of Claims as is provided by Section 1498. A judgment dismissing the action for want of jurisdiction was entered. We agree with the decision of the district court and affirm its judgment.

The Government contract required that the concrete be cooled before being used in the construction. This required that equipment and facilities be constructed to carry out this part of the work. The Government approved the cooling equipment and facilities and, as its contract required, made payment for it. The absence of any designation or specification in the contract that would require the use of the appellant's invention does not preclude a finding that there has been a use for the Government with the authorization and consent of the Government. The cooling equipment was constructed by the contractor for use in the performance of its contract with the Government, and it was so used. Hence there was a use for the Government. The approval and payment evidences, conclusively, we think, the Government's authorization and consent. It does not matter that there may have been other cooling devices or systems that might have been used. If some other system had been installed, another claimant under another patent might be the appellant here. Under Section 1498 the appellants' remedy, if any they have, is against the United States in the Court of Claims. Stelma, Incorporated v. Bridge Electronics Co., Inc., 3rd Cir. 1962, 300 F.2d 761; Bereslavsky v. Esso Standard Oil Co., 4th Cir. 1949, 175 F.2d 148; Consolidated Vacuum Corporation v. Machine Dynamics, Inc., D.C.S.D.Calif. 1964, 230 F.Supp. 70.

The issues of patent validity and infringement were not considered or decided by the district court and, of course, are not considered or decided by this Court.

The judgment of the district court is affirmed.

GODBOLD, Circuit Judge (specially concurring):

I concur with the conclusion that under the facts of this case the patented device was used for the government with its authorization and consent. The record before us discloses that the equipment for cooling the concrete used in the construction of a government-owned dam was assembled especially for the project. The equipment was located on government property and the full output of concrete was used to construct the dam. A large portion of the mobilization payments made to the contractor under the contract was for the cooling apparatus. Notwithstanding the silence of the contract specifications on the particular method by which the concrete was to be cooled,¹ these facts support the conclusion that the device employed by the contractor was "used" for the government. That equipment is constructed by a contractor for use in the performance of a government contract, and is so used, do not alone constitute "use" for the government within the meaning of 28 U.S.C.A. § 1498.

1 "Concrete, when deposited in the forms, shall have a temperature of not more than 50 degrees F. and not less than 40 degrees F. Heating of the mixing water and/or aggregates will not be permitted until...