Veen v. United States

• Citation: 386 F.2d 462
• Decision Date: 15 December 1967
• Docket Number: No. 345-60.,345-60.
• Parties: Frederick J. P. van VEEN v. The UNITED STATES.
• Court: Court of Federal Claims

386 F.2d 462 (1967)

Frederick J. P. van VEEN v. The UNITED STATES.

No. 345-60.

United States Court of Claims.

December 15, 1967.

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

Louise O'Neil, Washington, D. C., with whom was Asst. Atty. Gen. Edwin L. Weisl, Jr., 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 Donald E. Lane with directions to make findings of fact and recommendation for conclusions of law. The commissioner has done so in an opinion and report filed on November 8, 1966. Exceptions to the commissioner's findings and recommended conclusion of law were filed by defendant and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the commissioner's findings, opinion, and recommended conclusion of law, with modifications, as hereinafter set forth, it hereby adopts the same as modified as the basis for its judgment in this case. The court concludes, therefore, that claim 1 of patent 2,730,721 is valid and has been used by defendant without license of the owner and that plaintiff is entitled to recover, and judgment is entered for plaintiff in the sum of $45,786.01, plus interest at 4 percent per annum as part of just compensation, from January 1, 1967, to the date of payment.

Commissioner LANE'S opinion,^* as modified by the court, is as follows:

This is a patent suit under the provisions of Title 28 U.S.C. § 1498, in which plaintiff seeks to recover reasonable and entire compensation for the unauthorized use or manufacture by or for the defendant of a patented invention. Plaintiff specifically alleges that certain sleeping bags used for aircrew survival by the Department of the Air Force embody an invention defined in United States Letters Patent 2,730,721, entitled "Sleeping Bag Structure," owned by the plaintiff. Said patent, referred to hereinafter as the patent in suit, issued to plaintiff January 17, 1956. The invention which is the subject of this suit is also the subject of Canadian Patent 486,108, owned by plaintiff.

The principal issues before the court are: (1) whether the subject invention defined in the patent in suit is patentable under the provisions of Title 35 of the United States Code, (2) whether the accused sleeping bags embody the subject invention, and (3) what would be reasonable and entire compensation under the circumstances.

It is found that the subject invention is patentable and the patent in suit is valid. In addition it is found that the accused sleeping bags embody the invention claimed in the patent in suit. It is concluded that the plaintiff is entitled to recover $45,786.01 for unauthorized use of plaintiff's invention.

Plaintiff, a citizen of Canada and a resident of Ottawa, in 1943 was an executive of a mattress manufacturing concern that also made down fillings for sleeping bag manufacturers. During 1943, plaintiff constructed a sleeping bag having a special insulated seam along the periphery of the bag so that the heat lost through the seam would be no greater than through the panels. Plaintiff used the sleeping bag while on hunting trips for the next several years.

In 1951, the Royal Canadian Air Force was interested in finding a very light-weight sleeping bag for use as part of the survival equipment to be carried aboard fighter aircraft that operated in the far north. The Royal Canadian Air Force contacted plaintiff for his advice. Plaintiff showed the Air Force consultant the bag that he had made in 1943 having the special insulated seam construction. The consultant requested plaintiff to make up another lightweight bag having the special construction for an Arctic equipment testing mission conducted above the Arctic Circle. It was found that the furnished sleeping bag was ideal for survival purposes. Using the van Veen bag as a prototype, the Royal Canadian Air Force promulgated a specification for survival-type sleeping bags and proceeded to purchase 1,920 survival-type sleeping bags from parties other than plaintiff. In May 1952, plaintiff filed an application for a Canadian patent covering the insulated seam sleeping bag. After the Canadian patent issued in August 1952, plaintiff entered into a non-exclusive license agreement with the Canadian Government whereby the Government agreed to pay plaintiff a royalty of $2.00 per bag on the bags already purchased and $1.50 per bag on subsequently purchased bags.

Plaintiff's survival-type sleeping bags were used by the 1953 English Expedition that successfully climbed Mount Everest. The leader of the expedition, Sir John Hunt, reported that they were the warmest sleeping bags that he had used.

Plaintiff filed an application for a United States patent in December 1952. The patent specification describes the sleeping bag as comprising an upper and/or lower panel or section with each panel having an outer and an inner fabric that are divided by transverse compartments or channels formed by partition walls. Each compartment is filled with insulating material, preferably duck down. The principal feature of plaintiff's invention resides in the seamclosing structures for joining the periphery of the panels together in such a manner as to reduce the heat loss through the joined portion. The peripheral edges of the inner fabrics of the panels are sewn together forming an inner seam, and the peripheral edges of the outer fabrics of the panels are sewn together forming an outer seam. Insulation is placed between the inner and outer seams to insulate the inner seam from the atmosphere.

One of the controversies of this case is whether the seam-closing compartment surrounding the inner seam includes peripheral partition walls between the inner and outer fabrics near the inner seam. Plaintiff terms the edge compartment as a seam-closing compartment which supports the position that the inner seam is enclosed and that there is no communication between the seam-closing compartment and the transverse compartments of the panels. When the entire patent specification, including Figs. 3, 5, and 6 is considered, it becomes clear that the seam-closing compartment includes peripheral partition walls blocking off communication between the transverse panel compartments and the seam-closing compartment.

In patent claim 1 of the patent in suit, plaintiff defines his invention in the following terms:

A sleeping bag comprising

upper and lower sections,

each said section having an upper and lower wall and insulating material therebetween,

the lower wall of said upper section and the upper wall of said lower section being brought together to contact each other and form a lateral seam extending substantially entirely about said sleeping bag,

means defining a seam insulating compartment extending substantially entirely about said sleeping bag including a wall outside of and spaced from said lateral seam a distance at least as great as the distance between said upper and lower walls of each said section, and

solid insulating material substantially filling said seam closing compartment.

Defendant contends that the subject invention was disclosed in a printed publication more than 1 year prior to the filing date of the patent in suit (Title 35 U.S.C. § 102(b)). Alternatively, defendant contends that the subject invention was obvious in...