Drexler v. Koza

• Decision Date: 05 January 1950
• Docket Number: Civ.A. No. 3009.
• Citation: 88 F. Supp. 298
• Parties: DREXLER et al. v. KOZA et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

88 F. Supp. 298

DREXLER et al. v. KOZA et al.

Civ.A. No. 3009.

United States District Court W. D. Pennsylvania.

January 5, 1950.

Lockwood, Goldsmith & Galt, Indianapolis, Ind., and Brown, Critchlow & Flick, Pittsburgh, Pa., for plaintiffs.

A. A. Bluestone, Pittsburgh, Pa., for Anderson.

Wm. J. Ruano, Pittsburgh, Pa., for Koza and Invincible Tool Co.

MARIS, Circuit Judge.

This is the final phase of a hard fought patent suit. The patent in suit was held valid and infringed by decree of this court entered November 5, 1945, 62 F.Supp. 473, and affirmed by the Circuit Court of Appeals. 3 Cir., 156 F.2d 370. Certiorari was denied 329 U.S. 771, 67 S.Ct. 189, 91 L.Ed 664. Rehearing was likewise denied 329 U.S. 831, 67 S.Ct. 367, 91 L.Ed 704. A reference was then made to a master to state an account of profits derived from the infringement. Exceptions by the defendant to the master's report are now before us for disposition.

The principal question raised by the exceptions and the only one having sufficient merit to call for discussion is whether certain of the infringing tools should have been eliminated from the accounting because they were manufactured for and used by the United States. The defendants assert that as to these tools the plaintiff's sole remedy is by a suit against the United States in the Court of Claims under 28 U.S.C.A., § 1498. That section as amended by the Act of May 24, 1949, § 87, 63 Stat. 89, 102, carried into Title 28 the provisions of the Act of June 25, 1910, as amended by the Act of July 1, 1918, without substantial modification, as follows:

"Whenever an invention described in 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."

This statute relieves the manufacturer for and vendor to the Government of all liability for patent infringement in a situation in which it is applicable. Richmond Screw Anchor Co. v. United States, 275 U.S. 331, 48 S.Ct. 194, 72 L.Ed 303.

The evidence before the master indicates that of the $79,587.18 of gross sales of the infringing tools during the period in question, (1) tools invoiced and shipped to the Government amounted to $11,171.20, (2) tools invoiced to civilians and shipped to the Government amounted to $23,207.84, (3) tools invoiced and shipped to civilians with priority rating amounted to $40,922.04, and (4) tools invoiced and shipped to civilians without rating amounted to $4,286.10. The defendants urge that the first three categories of sales should be eliminated from the accounting by virtue of the statute. We agree as to the first two categories but think that the master rightly included the third, since the defendants did not prove that these sales were in fact made to the Government or to Government contractors.

It appears from the evidence that the first two categories of sales, aggregating $34379.04, involved infringing tools actually delivered to the Government either on invoices to it or to others. Since all of these infringing tools were delivered to the Government their use by the Government is necessarily implied and they, therefore, come within the terms of 28 U.S.C.A. § 1498 as "an invention * * * used * * * by * * * the United States without license of the owner thereof or lawful right to use * * * the same", Bereslavsky v. Standard Oil Co. of New Jersey, D.C., 82 F.Supp. 939, and the fact that some of them were not invoiced directly to the Government is immaterial.

The plaintiff urges that the defendants fail to establish that the Government authorized or consented to the supplying of the infringing tools to fill its orders. Wood v. Atlantic Gulf &...