Perry v. United States

• Decision Date: 01 March 1948
• Docket Number: No. 44608.,44608.
• Citation: 112 Ct. Cl. 1,76 F. Supp. 503
• Parties: PERRY v. UNITED STATES.
• Court: U.S. Claims Court

76 F. Supp. 503

112 Ct. Cl. 1

PERRY v. UNITED STATES.

No. 44608.

Court of Claims.

March 1, 1948.

Harry S. Hall, of Washington, D. C. (Josephus C. Trimble, of Washington, D. C., on the brief), for plaintiff.

H. L. Godfrey, of Washington, D. C., and Peyton Ford, Asst. Atty. Gen., for defendant.

Before JONES, Chief Justice, and HOWELL, MADDEN, WHITAKER and LITTLETON, Judges.

HOWELL, Judge.

The plaintiff in this case seeks to recover for the alleged infringement of a patent granted to him for an improvement in an "Adjustable Cover for Cockpits." The alleged charge of infringement is based upon the manufacture or use by the Government of some 49 different types of hood structures or cockpit covers for airplanes during the six-year period prior to the filing of the petition.

For convenience, during the presentation of evidence and for consideration by the court, these structures were classified into three basic groups referred to herein as types "A," "B," and "C." Differences in detail within these three classifications are contained in the findings.

Plaintiff in his reply brief states that the court need not burden itself with the consideration of the type "C" structures and concedes that none of the claims of plaintiff's patent are applicable thereto. Plaintiff's present contention is that claim 1 is valid and infringed by the type "B" Government structures and that claims 1 to 5 inclusive of his patent, and more especially claim 2, are valid and infringed by the type "A" Government structures.

The defendant contends lack of infringement by the Government structures and invalidity of certain of the claims of the patent in issue, and urges that the petition be dismissed.

The essential facts established by the record are set forth in the findings. Plaintiff took exception to many of the Commissioner's findings and has proposed changes in them. The defendant urges that the Commissioner's findings, with certain suggested amplifying amendments, be adopted and that the changes proposed by the plaintiff should be denied.

Upon consideration of the plaintiff's exceptions to the findings in the light of the entire record in this case, we are of the opinion that they are not sustained. Plaintiff formulates these exceptions in his brief into three general issues, which may be designated respectively as identity of the Government structures with the claims of the patent in issue; establishment of a date of invention earlier than cited prior art and knowledge, and validity of the claims.

Other than a discussion of these issues which we think answers plaintiff's exceptions, no useful purpose would be served by a detailed discussion of plaintiff's numerous exceptions.

The facts relating to the specification and claims of the patent in suit have been fully set forth in the findings. For the purposes of this opinion it is only necessary to refer briefly thereto. The patent describes and claims an adjustable cover for cockpits, the opening paragraph of the specification indicating that these covers are for cockpits of either land, water, or air vehicles. We emphasize this statement in the specification because it defines the scope of the patent in suit and the monopolies claimed therein, as covering all three classes of vehicles, and at the same time establishes to an equal extent the field of prior art and knowledge to be considered in testing the patentable novelty of the patentee's claims. None of the claims here in issue have phraseology which limits them to any particular kind of vehicle.

As disclosed in the specification, the patented structure comprises a hood or cover consisting of a series of arcuate transparent leaves which are provided with edge interlocking means so that they will interlock with each other when the front members are pulled forwardly into extended position. These arcuate members are pivotally mounted at their ends upon a pair of opposite disposed carriers, each carrier being mounted upon a guide fixed in the interior of and on each side of the cockpit. A pair of handles provides means for laterally changing the width at the bottom ends of the hood members so that their lower ends may be either laterally expanded or contracted with reference to the edge of the cockpit, thus enabling the bottom of the hood to either extend outside the cockpit or to be brought entirely within the cockpit enclosure for subsequent storage therein.

The guides upon which the arcuate leaves are mounted are longitudinally slidable laterally of the cockpit so that the collapsed hood members may either be carried or moved bodily as a unit in front of or to the rear of the pilot's seat.

The structure thus provided forms a cockpit cover which provides for three separate movements of the hood members. In the first movement the arcuate leaves are first collapsed or nested within each other; the second movement consists in laterally reducing the width at the bottom of the nested arcuate members and bringing them within the cockpit enclosure. The third movement then consists in bodily moving the entire nested hood structure to the rear of the pilot's seat inside the cockpit so that the hood disappears within and is stored inside the cockpit.

We refer to these three movements somewhat in detail as they explain the functions of the structures defined by the claims in issue, and thus aid in a comparison of the subject matter claimed with the Government structures.

Type "C" of the Government structures, which may be considered as the fundamental type, is fully described and illustrated in findings 10 to 13, inclusive. Our findings indicate, and, as we have already stated, plaintiff concedes, no infringement by this type of cockpit cover.

As type "A" here in issue however may be contemplated as a modification of type "C," type "C" may be briefly described as a cockpit cover comprising a series of inverted U-shaped members of transparent material mounted upon the fuselage and above the cockpit or cockpits of the airplane. One member is permanently fixed and the forward and rear members are constructed to slide on longitudinal guides adjacent to the top edge of the fuselage so that they may either be longitudinally extended over the entire cockpit or collapsed and nested with respect to the permanently fixed member. In such a type of structure we have present what we have referred to as the first of the three movements, that is to say, a nesting or collapsing of the various component members of the cockpit cover with reference to each other but there is not present a second movement laterally reducing the width at the bottom of the nested members or a third movement in bodily moving the nested canopy with reference to the pilot's seat. The location of the collapsed cover is fixed by the position of the permanently mounted member.

Type "A" differs from type "C" in that it adds one or more sections pivoted to the longitudinally slidable rear transparent U-shaped member. When it is desired to open the rear portion of this cockpit cover it is pushed forward on its tracks so that it is partially housed by the fixed U-shaped member in front of it and at the same time the rear pivoted portions of the cover are tilted upwardly about their pivotal points. In the "A" type cockpit cover there is therefore present the first movement in which the various transparent portions of the cockpit cover may be collapsed or nested within each other, but there is not present any second or lateral collapsing movement or any third movement such as the bodily transporting movement of the entire nested hood structure.

Infringement of a patent claim must first of all be predicated upon identity of the accused structure with that claimed by the patentee. Such identity must not only reside in the idea of the means expressed in the claim but also in the identity of the functions and modes of operation of the means so set forth and defined by the specification.

It is well settled law that a word by word correspondence of an alleged infringing device with plaintiff's claims is not enough to establish infringement; recourse must be had to the specifications to see how far the means there disclosed correspond with those used by the defendant. See Grubman Engineering & Mfg. Co. Inc. v. Goldberger, 2 Cir., 47 F.2d 151, and cases cited therein.

Claim 1, the broadest claim in issue, has been paraphrased in Finding 22 and its nonapplicability to type "A" of the Government structure as to structure and function is covered in Finding 23.

Plaintiff in his argument urges that the rear inverted U-shaped hood section of the Government structure, type "A," and the hood sections pivoted thereto be contemplated as segregated from the remainder of the hood structure. By thus divorcing this portion of the cockpit cover from the remainder, plaintiff urges that the inverted U-shaped portion forms a carrier for the pivoted sections of the hood which are mounted thereon and that he then has a collapsible hood, i. e., the pivoted portions, a hood carrier, the inverted U-shaped portion of the hood and guide means, i. e., the guides upon which this segregated portion of the hood moves longitudinally.

We fail to follow such argument. In the first place, and particularly from a functional standpoint, the rear inverted U-shaped member is just as much an element of the hood or cover as it was before such mental...