Roberts v. Herbert Cooper Co., Civ. A. No. 6354.

• Decision Date: 20 November 1959
• Docket Number: Civ. A. No. 6354.
• Citation: 236 F. Supp. 428
• Parties: Frederick T. ROBERTS and Robert Eldon Roberts, Plaintiffs, v. HERBERT COOPER CO., Inc., Defendant.
• Court: U.S. District Court — Middle District of Pennsylvania

236 F. Supp. 428

Frederick T. ROBERTS and Robert Eldon Roberts, Plaintiffs, v. HERBERT COOPER CO., Inc., Defendant.

Civ. A. No. 6354.

United States District Court M. D. Pennsylvania.

November 20, 1959.

Compton, Handler & Berman, Harrisburg, Pa., Pattison, Wright & Pattison, Washington, D. C., Rogers W. Roberts, Los Angeles, Cal., for plaintiffs.

Rhoads, Sinon & Reader, Harrisburg, Pa., Morton Amster, Amster & Levy, New York City, Bernard W. Wohlfert, Department of Justice, Washington, D. C., Daniel H. Jenkins, U. S. Atty., Scranton, Pa., for defendant.

FOLLMER, District Judge.

Plaintiffs on July 8, 1958, filed a "Complaint for Infringement of United States Letters Patents." It was alleged that the defendant, Herbert Cooper Co., Inc., (hereafter called "Cooper") in the manufacture of rubber tubing and hose under contracts with the Department of Defense was infringing certain "method" patents of plaintiffs. A restraining order was granted on July 8, 1958, with July 14, 1958 set for a hearing. On July 11, 1958, a motion to vacate the restraining order was filed and noticed for hearing on July 14, 1958. The restraining order was vacated on July 14, 1958, after a hearing on that date. At such hearing the United States intervened and after calling attention to 28 U.S.C. § 1498, the material portion of which is,

"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.

"For the purposes of this section, the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States."

introduced in evidence a letter of the Department of the Air Force to the Attorney General, dated July 11, 1958, which stated, inter alia:

"The two Air Force contracts contain the standard Authorization and Consent Clause prescribed by Section 9-102.1 of the Armed Services Procurement Regulation which is intended to invoke the provisions of 28 U.S.C. 1498 so as to preclude injunctive action against a Government contractor and give to a patentee as his exclusive remedy, a right of suit in the Court of Claims against the Government for compensation. Independent of this Authorization and Consent Clause, and to assure that contract performance will not be interrupted, the Air Force is today sending a letter to Herbert Cooper Company expressly authorizing and consenting under 28 U.S.C. 1498 to the methods of manufacture hereto used by that company in performance of the existing Air Force contracts, which methods are the subject of the plaintiffs' complaint."

It also introduced in evidence copy of the letter of July 11, 1958, from the Director, Procurement and Production HQ, USAF, to Herbert Cooper Company, Inc., (referred to in the testimony as a telegram) which stated, inter alia:

"For purposes of assuring that you are able to continue performance of your current Air Force contracts for oxygen hose assemblies without interruption in order that we may receive as

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