Strumskis v. United States

• Decision Date: 16 February 1973
• Docket Number: No. 232-68.,232-68.
• Citation: 200 Ct. Cl. 668,474 F.2d 623
• Parties: Louis STRUMSKIS v. The UNITED STATES.
• Court: U.S. Claims Court

200 Ct. Cl. 668, 474 F.2d 623 (1973)

Louis STRUMSKIS v. The UNITED STATES.

No. 232-68.

United States Court of Claims.

February 16, 1973.

Louis Strumskis, plaintiff, pro se.

B. Frederick Buchan, Jr., Greensboro, N.C., with whom was Asst. Atty. Gen. Harlington Wood, Jr., for defendant.

Before COWEN, Chief Judge, and DAVIS, SKELTON, NICHOLS, KASHIWA, KUNZIG and BENNETT, Judges.

OPINION

PER CURIAM:

This case was referred to Trial Commissioner Joseph V. Colaianni with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Rule 134(h). The commissioner has done so in an opinion and report filed on August 30, 1972. Exceptions to the commissioner's opinion, findings of fact and recommended conclusion of law were filed by plaintiff and the case has been submitted to the court on the briefs of the parties and oral argument of plaintiff, pro se, and the attorney for defendant. Since the court agrees with the commissioner's opinion, findings of fact^* and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, plaintiff is not entitled to recover and his petition is dismissed.

OPINION OF COMMISSIONER

COLAIANNI, Commissioner:

This is a patent suit under 28 U.S.C. § 1498. Plaintiff, Louis Strumskis, seeks "reasonable and entire compensation" for unauthorized use by the Government of plaintiff's patented invention. Only the broad issue of liability is before the court; accounting, if any, is deferred to later proceedings. The patent in suit is United States Letters Patent No. 3,155,065 (hereinafter the "Strumskis" patent), issued on November 3, 1964, to Louis Strumskis on an invention entitled "Ship Stabilizer." Plaintiff has continuously been the sole and exclusive owner of all rights, title and interest in said patent.

This litigation, as originally framed, included the usual issues of patent validity and infringement. However, at the trial defendant agreed, for purposes of this proceeding only, to rely solely upon the defense of noninfringement. While the Strumskis patent has five claims, plaintiff only urges that defendant has infringed claim 5.

Background

The patent in suit relates to a system which is capable of propelling and steering ships while at the same time stabilizing them from pitch and roll. The system, which is fully described in findings 4 and 5, includes a pair of water inlet ducts that extend from each side of the craft and terminate in water discharge ports at the craft's stern. In addition, a Y-shaped duct which spans the entire length of the craft is provided with a pair of inlet ports at the ship's bow and a single outlet port at the ship's stern. Each of the three intake ducts is equipped with separate multi-blade, open-center propeller mechanisms. Vertically mounted blades or fins are arranged relative to the outlet ports of the water intake tubes for steering of the ship. Stabilization is achieved by gyroscope-controlled hydraulic jacks which, in turn, operate individual arrays of fins that are positioned at the intake ends of the side ducts. Each of the tubes may be sealed by a gate mechanism at the inlet ports. Finally, manholes are provided for access to the water ducts.

The Patent Claim

Claim 5, the only claim which plaintiff alleges has been infringed by the United States, provides:

5. A ship stabilizer of the character described, comprising three water conducting tubes mounted within the hull of a ship, one of the said tubes being Y-shaped at the bow of the said ship and extending from the bow to the stern of the said ship, and each of the two remaining tubes mountd sic on each side of the said ship, and each tube having a mechanically controlled water inlet and a water outlet having a plurality of blades therein, the said outlet blades of said two removing tubes being mounted vertically, thereby providing an improved means of steering the said ship, and a propeller of the multi-blade type mounted on bearings and within each one of the said tubes, and a power unit operating each propeller, and the mechanical mechanism of each water inlet embodying a plurality of swingably mounted, horizontally disposed fins in equal vertical-spaced relation to each other, the said fins being mechanically connected to a hydraulic jack automatically operated by a gyrosope sic, thereby providing automatic stabilization of the said ship, and each said water inlet having a sliding door valve therein, thereby providing a means of preventing water from entering the water conducting tubes while they are being repaired or cleaned out, and a manhole in the upper and forward and rearward ends of each of the three water conducting tubes, the manholes also providing a means of maintenance of the inside of the said water conducting tubes.

Infringement

The trial record fails to support plaintiff's charge of infringement. Plaintiff has, for reasons which follow, failed to convincingly prove that defendant, during the six years immediately preceding the filing of this action, procured and/or used the invention covered by claim 5 of plaintiff's patent.

Defendant admits, see finding 9, to having procured and/or used six water jet-stream craft of standard commercial design during the relevant six-year period. Both plaintiff and defendant agree, as indicated by finding 10, that none of these six boats, as originally procured, infringed his patent. The parties further agree that repairs made to five of the craft during their Coast Guard service did not change their original configurations in such a way as to amount to infringement of claim 5 of plaintiff's patent. However, plaintiff continues to urge, see finding 13, that certain structural alterations and changes were made to the sole remaining craft, bearing Coast Guard identification CG-180075, such that a new configuration, which does infringe claim 5 of his patent, resulted.

Plaintiff contends that he has adequately demonstrated and proved that defendant has, without his authorization or consent, utilized his patented invention. Plaintiff has attempted to show that defendant has infringed claim 5 of his patent through a number of independent and unrelated theories. Each of plaintiff's theories will be discussed. Plaintiff's charge that defendant has by its actions admitted to having infringed claim 5 of plaintiff's patent will be initially dealt with.

Plaintiff, during trial and in his post-trial submissions, has stressed defendant's failure to execute a so-called March 21, 1969, stipulation of dismissal. Plaintiff's March 21, 1969, offer of dismissal was treated by the trial commissioner as a contingent motion to dismiss under what is now Rule 102(a)(1) (iii) of this court, see finding 14. Moreover, since it was not executed, as the conditions of the offer required, by the Commandant of the U.S. Coast Guard within the 10 days during which plaintiff's offer was to remain open, the motion was denied on April 2, 1969.

Plaintiff contends that an innocent party would have quickly accepted his offer of dismissal. Plaintiff thus reasons that the only explanation for defendant's failure to act is that defendant must have been using an open-center propeller on its water jet craft. Based on the above, plaintiff urges that defendant's failure to accept his offer should be interpreted by this court as an admission of infringement.

Defendant, on the other hand, contends, inter alia, that plaintiff's offer was not accepted because it should have been directed to the Department of Justice and not to the Commandant of the U.S. Coast Guard, and also because the offer was unclear and ambiguous. Defendant further contends that its failure to act on plaintiff's offer cannot be taken as an admission of infringement because such charges were formally and categorically denied by its answer to plaintiff's petition. Defendant also argues that plaintiff's offer was unacceptable because it would not have been dispositive of plaintiff's charges of infringement, and thus would have amounted to little more than a useless act.

Particularly, defendant points out that a careful reading of the alleged offer of dismissal, see finding 14(a), shows it to be premised solely on the Coast Guard's use or nonuse of an open-center propeller. Defendant correctly points out that the Coast Guard's use or nonuse of an open-center propeller would not be dispositive of the issue involved in this case because claim 5 of plaintiff's patent is directed to a ship stabilizer that calls for a number of other structural elements in addition to an open-center propeller.

Accordingly, it is concluded that defendant's explanation is reasonable and justifies its failure to act on plaintiff's offer of dismissal. It is further...