Decca Ltd. v. United States

• Decision Date: 19 November 1980
• Docket Number: No. 299-70.,299-70.
• Citation: 640 F.2d 1156
• Parties: DECCA LIMITED v. The UNITED STATES.
• Court: U.S. Claims Court

640 F.2d 1156

DECCA LIMITED v. The UNITED STATES.

No. 299-70.

United States Court of Claims.

November 19, 1980.

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Robert B. Russell, Boston, Mass., attorney of record, for plaintiff; Henry C. Nields and Russell & Nields, Boston, Mass., of counsel.

John J. Fargo, Washington, D. C., with whom was Asst. Atty. Gen., Alice Daniel, Washington, D. C., for defendant; B. Frederick Buchan, Jr., and Vito J. DiPietro, Washington, D. C., of counsel.

Before NICHOLS, KASHIWA and SMITH, Judges.

OPINION

SMITH, Judge:

In an earlier opinion in this case,¹ the court held that claims 1, 4, and 11 of U.S.Patent No. 2,844,816 (the '816), issued July 22, 1958, and owned by plaintiff, Decca Limited (Decca), were valid and infringed by the United States (the Government). The case was referred to Trial Judge Browne for a determination of the amount of "reasonable and entire compensation" to which Decca is entitled under 28 U.S.C. § 1498 (1976). The case is now before the court on the Government's exceptions to Trial Judge Browne's findings of fact, opinion, and recommended conclusion of law. Decca has not excepted to any finding of fact or to the recommended conclusion of law; in almost all respects, Decca concurs in the trial judge's opinion.

We do not adopt the trial judge's opinion or his recommended conclusion of law. Although we have not appended hereto his findings of fact, we adopt them except as stated hereinafter and by separate order. In the separate order, we indicate what findings we adopt without modification, what findings we adopt as corrected by us, and what findings we reject without replacement.

We make our own determination of the quantum of recovery. The facts giving rise to our determination are stated. Any fact statements not having counterparts in the findings are to be taken as additional findings of the court.

I.

A. The '816 claims a radio navigation system in which three very low frequencies emitted by each of two or more transmitters at fixed locations are received by a receiver capable of lane-resolving.² The receiver accomplishes lane-resolving through its phase-difference indicator. The phase-difference indicator is operated by means of a coarse control and a fine control. The coarse control frequency-differences the signals received from each transmitter and then phase-compares the difference-frequencies, derived from the signals from one transmitter, with the difference-frequencies derived from the signals from another transmitter. The fine control phase-compares the lowest-frequency signals received from one transmitter with the lowest-frequency signals received from another transmitter. The frequency-differencing and phase-comparing enable the receiver to lane-resolve and to determine (a) a single hyperbolic line of position (LOP) if signals from only two transmitters have been received, and (b) a position fix from two intersecting hyperbolic LOP's where signals from three transmitters have been received.

Claim 1 of the '816 is an "independent" claim. Claims 4 and 11 are each dependent on claim 1 and are, therefore, of narrower scope than claim 1.³ Specifically, claim 4 is limited to a system in which three frequencies radiated from each of two or more transmitters are radiated in sequence. Claim 11 relates to a system in which the signals are radiated from three transmitters and the timing of the transmission of the signals is coordinated.

B. (1) The infringing system in the case at bar is the Omega system. Omega is a worldwide, very-low-frequency (VLF) radio navigation system designed, developed, constructed, and operated by the Government. The fully established system contemplated that the signal-generating component of Omega would consist of eight permanent transmitting stations, each station transmitting a three-frequency format.

In June 1964, the Government published a report containing a complete technical layout for the establishment of Omega. The report defined Omega as a worldwide system consisting of eight transmitting stations. In June 1965, the Government authorized and announced its authorization of a project to establish and operate Omega. The project was a "CNM-Designated Project." This meant that the Government, utilizing supervision by the Chief of Naval Materiel, was assuming the role of prime contractor for the project.⁴

By October 24, 1967, four three-frequency transmitting stations had been constructed and had achieved interim operational capability (IOC). These IOC stations were located in Norway; Trinidad; Forrestport, New York; and Hawaii. On October 24, 1967, the Government officially declared the IOC stations to be "interim operational." By this declaration the Government guaranteed that the stations would continuously transmit the Omega three-frequency format for at least 1 year.⁵

In September 1968, the Government authorized the establishment of eight permanent Omega stations. The stations were to provide a system of worldwide radio navigation and were to be located in Norway, North Dakota, Hawaii, Japan, Liberia, La Reunion Island, Argentina, and Australia. As of July 22, 1975, the expiration date of the '816, the Government had established the permanent Omega system to the following extent: The permanent stations in Norway, North Dakota, Hawaii, and Japan had been constructed and were operational;⁶ substantial, though not complete, construction of the stations in Liberia, La Reunion Island, and Argentina had occurred. The Government was in possession of all necessary station electronics for the latter three stations. The three stations were not operational, however, because their helix coils had not been "tapped." Construction of the eighth station in Australia had not commenced, but contracts had been let for all essential material for construction of the station. The Government had either ordered or was in possession of all necessary station electronics for the station.

(2) A necessary component of the Omega system is a receiver capable of receiving and processing all three frequencies transmitted by Omega stations. A receiver can resolve lane ambiguity only if it has such capability and receives and processes all three Omega frequencies.⁷

The history of the Government's procurement of three-frequency receivers usable with Omega is as follows. The first use of the three-frequency Omega format occurred by June 1966. By that date, six companies had made and had tested three-frequency breadboards in anticipation of the Government's soliciting bids for a contract for three-frequency receivers. By September 30, 1967, the Government was operating a bank of three receivers, each having only single frequency capability. Although the bank was receiving the full Omega format, the bank itself was not capable of lane-resolving and, hence, of determining position. To determine position through use of the bank, it was necessary for a human being to process the data provided by the bank. Neither a phase-difference indicator operated by a fine control and a coarse control nor a mechanical equivalent thereof was a component of the bank.

The Government first used a single receiver capable of lane-resolving in the manner taught by the '816 in June 1969. At that time, it installed and tested in an aircraft an AN/ARN-99(XN-1) receiver. The AN/ARN-99(XN-1) was the first automatic three-frequency receiver manufactured for the Government. During the term of the '816, the Government installed and used two AN/ARN-99(XN-1)'s and two AN/ARN-99(XN-2)'s.

The Government converted the AN/ARN-99(XN-1) into a receiver usable with submarines.⁸ The converted receiver was an automatic three-frequency receiver labeled the BRN-7.⁹ During the term of the '816, the Government assembled and installed in submarines eighteen BRN-7's. In addition to the installed BRN-7's, seventy-seven BRN-7 receiver sets¹⁰ were delivered to the Government during the term of the '816.

Two other three-frequency receiver models were used by the Government during the term of the '816: the AN/ARN-99(V)1 and the AN/ARN-99(V)4. Although sixty-four AN/ARN-99(V)1 receiver sets were delivered to the Government during the term of the '816, the Government assembled and installed only 14 of these prior to the expiration of the '816.¹¹ Eighteen AN/ARN-99(V)4 receiver sets were delivered to the Government during the term of the '816. Of these, two were assembled and installed prior to the expiration of the '816.

The AN/ARN-99(V)4 and the BRN-7 each process Omega signals by means of a computer which is built into the receiver. The computer provides a hyperbolic LOP readout. The AN/ARN-99(V)1 lacks a built-in computer. It must be connected to a general-purpose computer which is part of the craft or vessel on which the AN/ARN-99(V)1 is installed. The general-purpose computer processes Omega signals received by the AN/ARN-99(V)1. One of the fourteen AN/ARN-99(V)1's installed during the term of the '816 was connected to a general-purpose computer which provided a hyperbolic LOP readout. The other thirteen AN/ARN-99(V)1's installed during the term of the '816 were connected to general-purpose computers which provided only latitude/longitude readouts.

(3) Decca did not participate in the establishment of Omega and incurred no expenses in connection with the Government's project. Decca did not design any transmitters or three-frequency receivers for use with Omega. It did not develop any of these or other Omega components. During the term of the '816, it did not manufacture any Omega components for the Government. However, throughout the term of the '816, it was free to bid on procurement contracts let by the Government for Omega components. Moreover, because of the '816, Decca was in a position to control the civilian market for three-frequency Omega receivers.

Although Decca did not...