Lockheed Aircraft Corp. v. US

CourtCourt of Federal Claims
Citation553 F.2d 69
Docket NumberNo. 382-70.,382-70.
Decision Date23 March 1977


William D. Hall, Los Angeles, Cal., attorney of record, for plaintiff. Geoffrey R. Myers, Bethesda, Md., of counsel.

Steven Kreiss, Washington, D.C., with whom was Acting Asst. Atty. Gen., Irving Jaffe, New York City.

Before COWEN, Senior Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges, en banc.



This case comes before the court on defendant's exceptions to the recommended decision of Trial Judge Joseph V. Colaianni, filed April 20, 1976, pursuant to Rule 134(h), having been submitted on the briefs and oral argument of counsel. Upon consideration thereof, since the court agrees with the trial judge's recommended decision with a modification, as hereinafter set forth*, it hereby affirms and adopts the said decision, as modified, as the basis for its judgment in this case. It is, therefore, concluded that claims 1, 2, 4, 5 and 7 to 10 of United States Letters Patent No. 3,001,191 are valid and the inventions defined by claims 1, 2, 4, 5 and 8 to 10 have been used and/or manufactured by or for defendant without authorization or license from plaintiff, that plaintiff is entitled to recover reasonable and entire compensation therefor, and judgment is entered for plaintiff to that effect. The amount of recovery will be determined pursuant to Rule 131(c)(2).


COLAIANNI, Trial Judge:

Plaintiff seeks, pursuant to 28 U.S.C. § 1498, reasonable and entire compensation for the unauthorized manufacture and use by or for the Government of a radar for determining the altitude of remote objects. The patent in suit, United States Letters Patent No. 3,001,191 (hereinafter referred to as either the Richter or '191 patent), entitled "Height Finding Radio Detection and Ranging Device," issued to Elvin O. Richter on September 19, 1961, on an application filed in the United States Patent Office on March 28, 1955. Plaintiff, Lockheed Aircraft Corp., has been and continues to be the sole owner of the patent in suit. Infringement of claims 1, 2, 4, 5 and 7 to 10 is alleged.

Defendant has asserted a host of defenses to plaintiff's action, specifically: invalidity, noninfringement, license and misuse. Since no findings of fact have been proposed with respect to the misuse defense and defendant has not addressed misuse in its brief, defendant is deemed to have abandoned its assertion of misuse. Bendix Corp. v. United States, 186 USPQ 289 (Trial Div., Ct.Cl. 1975); Grover v. United States, 200 Ct.Cl. 337, 354 (1973).

The issue of accounting was, by order of the Trial Judge, deferred until after the issue of liability is finally adjudicated.

For the reasons stated hereinafter, it is concluded that claims 1, 2, 4, 5 and 7 to 10 are valid and the inventions covered by claims 1, 2, 4, 5 and 8 to 101 are found to have been used and/or manufactured by or for the defendant without authorization or license from plaintiff.

The Patent in Suit

The patent in suit relates to an airborne radar system for detecting the height, range and relative azimuth position of a target.

The system relies on the phenomena which occurs when a radar beam which has been radiated into space encounters a target. Specifically, what occurs is that the radiated energy reflected off the target within the beam will return to the radar by means of at least two paths, one directly from the target to the radar and the other indirectly from the target to the ground and ultimately to the radar. Since the ground-reflected return energy will travel a further distance than the direct energy, it will arrive at the radar a short time after the directly reflected energy.

By measuring the path length or time difference between the direct and indirect ground-reflected energy, Richter was able to determine target height according to the relationship

The patented device is designed to measure range and time or path length difference and, through the use of these parameters as well as own aircraft altitude, determine target height according to the above relationship. A correction for the earth's curvature can be inserted into the above relationship.

Generally speaking, the patented system includes a transmitter for generating electromagnetic energy pulses, which are conveyed through an amplifier and duplexer to an antenna having a narrow beam in the azimuth or horizontal direction relative to the earth's surface and a wide beam in the elevation or vertical direction. Energy reflected from a target within the radar beam will return via the two paths described above to the antenna. Appropriate circuitry operates on the return pulses to generate both range and time difference voltages.

The output voltages representing range and time difference are fed to a computer which also receives a voltage corresponding to radar altitude from an altimeter, and target height is computed as a function of these three parameters.

The system also contain elements for indicating target azimuth position and for correcting the target height computation for the earth's curvature.


Turning now to a consideration of each of defendant's defenses, attention is initially directed to its validity defense.

Claim 1, representative of the breadth of invention claimed, reads as follows:

1. A radar device for determining the altitude of a remote object comprising, antenna means, transmitting means for directing electromagnetic energy through said antenna means and toward the remote object, receiving means connecting with said antenna means and being responsive to the electromagnetic energy reflected by the remote object from two energy paths, one path being on a direct line of sight between the antenna means and the remote object and the other path being indirect from the object to the antenna means via a reflection off the surface of the earth, detector means coupled with said receiver means and measuring the time difference in receipt of the energy from the two paths, means responsive to both the transmitted and received energy and providing an output representing the range of the remote object, and means responsive to the output from said detector means and said last mentioned means for determining the height of the remote object.

Prior to plaintiff's invention, and stretching back at least to World War II, it was necessary to utilize a first radar device to search a large sector of space for aircraft and a second radar to determine the height of the aircraft within the sector searched. However, by the use of plaintiff's invention, a single radar is now capable of simultaneously searching a large sector of space and determining the height of an object within that sector.

The invention includes a height and range finding radar having an antenna through which a transmitter directs electromagnetic energy, a receiver responsive to the electromagnetic energy returning to the radar from a target via direct and ground-reflected paths, a detector for measuring the time difference between receipt by the receiver of the direct and ground-reflected energy, means providing for an output of target range in response to transmitted and received energy, and means determining target height in response to parameters such as target range (Rs) and time difference (? T).

The patent specification goes on to emphasize the necessity of own aircraft altitude in carrying out a height computation operation by the following language:

The ? T voltage, in combination with a voltage Rs representing the measured range (slant range) of the remote object, and a voltage h1 representing the altitude of the height finder radar platform 16, provides the necessary information for computing the altitude of the remote object. These three voltage inputs to the computer are operated on to provide a solution * * *

Defendant contends that the claims in issue are invalid under 35 U.S.C. §§ 102(a),2 102(g),3 and 103. Specifically, it is urged that a paper written by David E. Sunstein on UHF airborne height finding radar is prior public knowledge and anticipates the claimed invention under 35 U.S.C. § 102(a). In addition, defendant argues that work done by Messrs. Leopard and Hair on a Navy project, as well as a lobe counting technique developed at MIT Lincoln Laboratory, are both prior inventions and anticipate individually the claimed invention under 35 U.S.C. § 102(g). Finally, defendant contends that the prior art collectively renders the claimed invention obvious within the meaning of 35 U.S.C. § 103. For reasons which follow, each of these contentions is found to be unsound and accordingly rejected.

The Sunstein paper, which bears a date of November 15, 1954, was a classified document4 which disclosed a target height finding system based on the three parameters of target range, path length difference and own altitude. Defendant urges that, despite its classified status, the circumstances surrounding and the manner of distribution of the Sunstein paper render it "public" prior knowledge within the meaning of 35 U.S.C. § 102(a). On the other hand, plaintiff argues, inter alia, that the Richter invention was conceived prior to the effective date of the Sunstein paper, diligently reduced to practice and that the Sunstein paper accordingly is not a prior art teaching under the statute.

Addressing plaintiff's argument first, it is well established that the burden of proof of an inventor's alleged conception and reduction to practice is a heavy one requiring full corroboration by other than the inventor's own self-serving testimony or records. Potter Instrument Co. v. ODEC Computer Systems, Inc., 370 F.Supp. 198, 206, 181 USPQ 572, 577 (D.C.R.I.), aff'd, 499 F.2d 209, 182 USPQ 386 (1st Cir.1974). In fact, this court has held that oral recollections of long past events, unsupported by contemporaneous documentary...

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