Farrell Marine Devices, Inc. v. United States

• Citation: 179 Ct. Cl. 790,377 F.2d 560
• Decision Date: 14 April 1967
• Docket Number: No. 322-60.,322-60.
• Parties: FARRELL MARINE DEVICES, INC. v. The UNITED STATES.
• Court: Court of Federal Claims

179 Ct. Cl. 790, 377 F.2d 560 (1967)

FARRELL MARINE DEVICES, INC. v. The UNITED STATES.

No. 322-60.

United States Court of Claims.

April 14, 1967.

Allen Kirkpatrick, Washington, D. C., attorney of record, for plaintiff. James L. Dooley, and Cushman, Darby & Cushman, Washington, D. C., of counsel.

Joseph V. Colaianni, Washington, D. C., with whom was Asst. Atty. Gen. Barefoot Sanders, for defendant.

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

OPINION

PER CURIAM:

This case was referred to Trial Commissioner George Willi with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in a report and opinion filed on December 30, 1966. On February 28, 1967, plaintiff filed a "notice of termination" stating that no exceptions to the commissioner's report or supporting brief will be filed by plaintiff and, on March 6, 1967, the defendant filed a motion that the court approve and adopt the commissioner's findings of fact and recommended conclusions of law. Since the court agrees with the commissioner's opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case without oral argument. Plaintiff is therefore not entitled to recover and the petition is dismissed.

OPINION OF COMMISSIONER^*

WILLI, Commissioner: This is a patent suit under 28 U.S.C. § 1498, in which plaintiff seeks reasonable and entire compensation¹ for the United States' unauthorized use of a patented invention. Plaintiff alleges infringement of claim 2 of U. S. Patent No. 2,707,928, entitled "Ship's Hatch And Cover," which issued to Valdemar C. Farrell, plaintiff's president and controlling shareholder, on May 10, 1955. The application had been filed by him on January 9, 1951. Plaintiff, a Delaware corporation, acquired full ownership of the patent in suit by a valid assignment from Valdemar Farrell made more than six years before institution of the present suit.

Applying controlling legal principles to the facts of this case, as detailed in the findings of fact accompanying this opinion, it is concluded that plaintiff is not entitled to recover. The claim in suit is invalid if accorded the breadth necessary to encompass either type of construction accused herein. If, on the other hand, the claim sued on is ascribed the more limited meaning essential to its validity in the light of relevant prior art, the accused constructions do not infringe.

Structural Evolution of Ships' Hatch Covers

An important aspect of the profitable operation of a cargo-carrying merchant ship is the minimization of time spent in port for loading and unloading, during which period no revenue is produced. Accordingly, the merchant shipping community has long been interested in means and methods of facilitating and expediting the performance of these functions. One facet of the problem to which considerable attention has been devoted is the matter of efficiency in the removal of the covers used to seal the hatch openings on the top, or so-called weather deck and on the interior or 'tween decks. This action is concerned only with the hatch covers used on the weather decks of certain dry cargo ships owned by or built for the Government.

Various maritime regulations have long required that all weather deck hatches be equipped with a raised steel coaming. A coaming is simply an upright rim, customarily extending nine inches above the surrounding deck surface, that forms a border around the entire hatch opening which is usually rectangular in form, running from fore to aft.

Prior to World War II the type of weather deck hatch cover in general usage consisted of a series of wooden beams spanning the hatch openings and seated in sockets provided on the inside of the coaming. Wooden planks were then laid across the beams and finally a canvas tarpaulin was stretched over the solid surface provided by the planks and made snug by a collar fitted over the outside of the coaming. Both the placement and removal of this type cover were extremely time-and-labor-consuming operations. Moreover, experience in the war demonstrated that ships so equipped were extremely vulnerable to torpedo damage.

Though United States and foreign patents had been periodically issued from the early 1900's for sectional steel hatch covers that were removable by various means, it was not until the era of newship construction following World War II that watertight weather deck covers of that general type became extensively employed.

Although differing in the means and methods for removal from the hatch opening, the new-type covers were all of the same basic configuration. The cover sections were fashioned in the manner of a series of steel bulkheads of sufficient width to span the hatch opening to be covered. On the underside of the outboard edges of the several sections, the number of sections depending upon the length of the hatch involved, was affixed a resilient gasket material that seated on the ridge or uppermost edge of the upright coaming bounding the perimeter of the hatch opening. A watertight seal was then obtained by manually bolting the outside edges of the cover sections to the coaming. This process is referred to as dogging.

Removal of the cover sections for cargo loading or unloading was typically achieved by a wheel and track arrangement. The track consisted of a horizontal ledge mounted on the upper portion of each of the two outboard sides of the coaming. These ledges ran the entire length of the hatch and parallel to both the deck surface and the ridge of the coaming. The cover sections were fitted with wheels mounted in a fixed downward position on the sections' outboard sides so as to rest on the coaming ledge and support the underside of the sections somewhat above the coaming ridge. In this position the cover sections, hinged together at their intermediate points of joinder across the hatchway, with the outside edge of one end section hinged to the coaming at the end of the hatch (the opposite end section being free), could be rolled clear of the hatch opening and folded together in an unright position at one end of the hatch. The pulling force required for this operation was supplied by the ship's cargo tackle and winches. If the length of the hatchway was such that more than three sections were required to cover it, the section located at each end of the hatch was hinged to the coaming so that half of the sections could be folded clear at one end of the hatch and the remaining half at the other. The free ends of the two groups of hinged sections met across the center of the hatchway.

With the cover sections extended in a horizontal plane over the hatch opening, their respective supporting wheels resting on the coaming ledges held the underside of the sections ajar of the coaming ridge, as previously noted. To permit the sections to descend until resting on the coaming ridge, a slot or opening was provided in the coaming ledges at a point directly under the position occupied by each cover wheel when the sections were fully extended in horizontal position. The number of cover wheels, and corresponding ledge openings, varied with the number of cover sections employed. In any event, the conventional method of supporting, lowering and elevating the cover wheels at the ledge-opening points involved the placement of a manually operated screw jack or similar mechanism, either mounted to the side of the coaming or upright on the deck surface, directly below each of the ledge openings.

Arrangements of the type described above were in relatively wide usage and well known to Valdemar Farrell when, in late 1948 or early 1949, he first turned his attentions to the development of mechanical means by which the manual dogging down of sectionalized steel hatch covers and the manual raising and lowering, called jacking, of individual cover wheels or sets of cover wheels could be altogether eliminated.

The Patent and Claim in Issue

The Farrell patent, applied for January 9, 1951 and issued May 10, 1955 after extensive prosecution before the Patent Office, contains a total of five claims, with only claim 2² involved in this suit.

Claim 2, construed in the light of the specification, as it must be,³ discloses a rectangular hatch bounded by a coaming (which the drawings depict as recessed into the deck rather than extending above it). A slotted ledge is mounted on at least two opposite sides of the coaming to receive the wheels attached to the outboard sides of the several cover sections that come to rest on the ridge of the coaming when the supporting wheels descend through the slots provided in the coaming ledges. Those features of the claim disclose nothing new and the plaintiff does not contend otherwise.

It is the ensuing language of the claim referring to a "unitary elevator means," located along the coaming and beneath the ledge, by which the cover wheels are "simultaneously" lifted or lowered through the slots in the ledge that describes the novelty of the alleged invention.

Notably, the claim itself in no way defines the "means" referred to. Examination of the accompanying specification discloses, however, that the "unitary elevator means" for jacking, raising or lowering, the cover wheels to seat or unseat the cover sections on the coaming ridge consists of four I beams placed alongside the four sides of the hatch coaming and interconnected at three of the four corners by cables or chains. At the fourth corner a cable or chain is connected to the end of each of the two I beams converging there and the free ends of these cables or chains are run to a nearby winch. An I-beam belt around the outside base of the coaming is thus formed. This belt-like assembly is referred to in the specification as a "unitary elevator member." The belt may be rotated in either direction about the coaming by running...