Opinion — Brothers v. United States

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BROTHERS »v. UNITED STATES.

APPEAL FROM THE COURT OF CLAIMS.

No. 309. Argued March 28, 1919.—Decided May 19, 1919.

An unliquidated claim against the United States, under the Act of

June 25, 1910, c. 423, 36 Stat. 851, for the alleged infringement of

a patent is not assignable with the patent. Rev. Stats., § 3477.

P. 89.

The essential feature of patent No. 551,614, granted to Sarah FE.

Brothers et al. for “improvements in cable cranes with gravity

anchors,” is a non-yielding support or anchor at one end of the cable,

and a yielding, tilting, or rocking support at the opposite end, con-

sisting of outwardly inclined shears or some equivalent structure

held movably at the base, and a counterweight on the outer side.

Id.

This patent was not infringed by the use of cableways supported

by two towers both of which were intended and constructed to be

rigid, but both of which, upon the tightening of the cables, done for

the purpose of enabling the loads to clear the work as its height in-

creased, acquired a tendency to yield with the yielding of the rail-

road bed beneath them, under the increased stress. P. 93.

Findings of the Court of Claims are to be treated like the verdict of a

jury, and this court is not at liberty to refer to the evidence, any

more than to the opinion, for the purpose of eking out, controlling

or modifying their scope. Id.

52 Ct. Clms. 462, affirmed.

THE case is stated in the opinion.

BROTHERS »v. UNITED STATES. 89

88. Opinion of the Court.

Mr. William F. Brothers pro se.

Mr. Assistant Attorney General Frierson, for the United

States, submitted.

Mk. Justice Prrney delivered the opinion of the court.

Appellant brought this action in the Court of Claims

under the Act of June 25, 1910, c. 423, 36 Stat. 851, to

recover compensation for the unlicensed use by the

United States in the Panama Canal work of his patented

invention for ‘Improvements in cable cranes with grav-

ity anchors.” That court made findings of fact upon

which it concluded as matter of law that there was no

infringement of claimant’s patent, and thereupon dis-

missed his petition. 52 Ct. Clms. 462.

From the findings it appears that claimant filed ap-

plication for his patent July 18, 1895, and, upon such

application, letters patent No. 551,614 were granted and

issued, under date December 17, 1895, to his assignees

Sarah E. Brothers and Maria A. Brown, to whom he

had made assignment pending the application. Subse-

quently the letters patent were assigned to claimant,

under date October 2, 1912, two and one-half months

prior to their expiration by limitation on December 17,

1912. His claim to compensation is necessarily limited

to this brief period, since there could be no assignment

to him of any unliquidated claim against the Govern-

ment arising prior to the time he became the owner of

the patent. Rev. Stats., § 3477.

No question is made but that plaintiff’s invention was

broadly new, a pioneer in its line, and the patent en-

titled to a broad construction and the claims to a liberal

application of the doctrine of equivalents. (See Brothers

v. Lidgerwood Mfg. Co., 223 Fed. Rep. 359.) It relates

to the method of erecting and operating a suspension

90 OCTOBER TERM, 1918.

Opinion of the Court. 250 U.S.

cable adapted to carrying a traveling crane or the like.

Roughly speaking, the prior art consisted in supporting

such cables upon rigid and unyielding towers at each end,

so as to prevent an undue sagging of the cable under the

strain of its load. Claimant’s invention consisted in

employing a rigid support or abutment at one end of

the cable and what is called a “gravity anchor” at the

opposite end, consisting of outwardly inclined shears

with the cable attached thereto and a weight hung per-

manently from the shears on the opposite side, which

weight, together with the weight of the shears, puts

a tension upon the cable varying according to the weight

of the structure and counterweight, combined with the

degree of inclination of the structure; the operation of

the tension device being automatically to take up the

slack of the suspended cable when the load approaches

the supports, with the result of permitting the load, to

be moved closer to the supports, with a given exertton

of power, than before. There are other advantages not

necessary to be specified. The essential feature of the

patent is a non-yielding support or anchor at one end

of the cable, and a yielding, tilting, or rocking support at

the opposite end, consisting of outwardly inclined shears

or some equivalent structure held movably at the base,

and a counterweight on the outer side. It is to be ob-

served that rigidity of the head tower is a sine qua non,

necessary to produce tension of the cable; yielding sup-

ports at both ends would be a contradiction of terms,

since with such an arrangement there would be no sup-

port, and the entire structure would collapse under its

own weight. The importance of this will appear.

In the construction of the Panama Canal the Govern-

ment installed in the year 1909, and maintained and

used continuously thereafter until the expiration of the

Brothers patent, one single cableway and six duplex or

double cableways which are complained of in this case

BROTHERS v. UNITED STATES.

88. Opinion of the Court.

as infringements. As to the mode of construction, main-

tenance, and operation of these cableways, the findings

of the Court of Claims are as follows:

“The single and the duplex cableways were similar in

general design and construction except that the towers

of the former supported a single cable, while those of

the latter supported two cables, parallel to each other,

at a distance of 18 feet apart, and each operated inde-

pendently of the other, the length of the towers longi-

tudinally of the canal cut being of proportionate dimen-

sion for the accommodation of the two cables. The

towers were of structural steel construction; and taking

the duplex cableways for illustration, each tower in ver-

tical cross section from front to rear was in the shape of

a right-angle triangle, with a base of approximately

50 feet, a perpendicular or vertical height of about 85 feet,

and a hypothenus? of about 98 feet, with a length of

about 38 feet longitudinally of the canal. The two towers

of the cableway stood facing each other, on opposite banks

of the canal cut, with their hypothenuse faces toward

the cut. The cable span across the cut between the tops

of the towers was approximately 800 feet. The cables

used were 21-inch steel-wire cables having a rated break-

ing stress of 200 tons. The cables were supported by

headblocks or saddles at the tops of the towers, and

their ends were carried down and firmly anchored to the

counterweighted bases of the towers.

“Rigidity of the towers was desired; and in order to

secure this and hold the towers rigid against any tend-

ency to tip, tilt, or yield under the stress of the suspended

cables and their loads, the platform base at the rear side

of each tower—that is, the side farthest from the canal

cut—was counterweighted by a block of cement concrete

of over 150 tons weight, cast about the structural steel

members of the base of the tower and extending along

practically the entire length of the base. The entire

ae POLLO SLO LOE ES LO IEE LEIS TEE ILE TALL ODS OI RN

OCTOBER TERM, 1918.

Opinion of the Court. 250 U. 8.

weight of each tower, including the tower proper, the

trucks upon which it was mounted, and the concrete

counterweight, was upward of 500 tons.

“To facilitate the shifting or moving of the cableways

along the canal cut as the work progressed each tower

was mounted upon sets of trucks, similar to the trucks

of railway cars, on the front and rear sides of the base

of the tower, and the whole structure was mounted upon

two standard-gauge railway tracks located on the bank

of the canal cut at the proper distance from each other

and from the similar tower tracks on the opposite bank

of the cut.

“The cableways were operated by electrical power

from the machinery stations in the head tower of each

cableway.

“Subsequent to the construction and installation of

said cableways they were maintained and operated with-

out change in structural form or method of operation

other than that as the height of the walls and other work

of the canal increased, beginning about August, 1910,

it became necessary, in order to admit of the loads being

carried to pass clear of the works and men engaged thereon

as the height of the work increased, to take up the slack

or decrease the deflection of the cable. The cables were

accordingly drawn up for said purpose. This tightening

up of the cables or reduction of their deflection increased

the effect of the load and weight of the cables upon the

towers as regards their tendency to yield or tilt.

“It was the intent and purpose of the engineer officers

of the Canal Commission, by and under whom said cable-

ways were designed, constructed, and operated, that the

towers thereof should be rigid and nonyielding to the full

extent that rigidity in cable towers was possible; and

there was no tilting or yielding of said towers other than

such as resulted from a yielding of the roadbed of the

tracks supporting them, portions of which roadbed con-

BROTHERS v. UNITED STATES. 93

88. Opinion of the Court.

sisted of ‘fills’ of excavated materials upon swampy

ground. There is no satisfactory evidence that the towers

either yielded or tilted at any time during the period of

claimant’s ownership of said letters patent.”

Upon the argument here, appellant quoted somewhat

amply from the evidence taken before the Court of Claims.

For the purposes of our review the findings of that court

are to be treated like the verdict of a jury, and we are

not at liberty to refer to the evidence, any more than to

the opinion, for the purpose of eking out, controlling,

or modifying their scope. United States v. Smith, 94 U.S.

214, 218; Stone v. United Staies, 164 U. 8. 380, 382; Dis-

trict of Columbia v. Barnes, 197 U.S. 146, 150; Crocker v.

United States, 240 U. S. 74, 78, and cases cited.

We concur in the opinion of the Court of Claims that

no infringement of claimant’s patent is shown. In the

Act of June 25, 1910, under which this suit is brought

and under which alone it could be brought, it is expressly

provided that there shall be no such suit “based on the

use by the United States of any article heretofore owned,

leased, used by, or in the possession of the United States.”

In view of this and of the fact that the cableways com-

plained of were theretofore in the possession of and used by

the United States, claimant insists that after the passage

of the act the Government materially altered the cableways

in such a manner as to make them infringe his patent.

The contention is that the cables were tightened up in

order to decrease their deflection, and that this tighten-

ing, in view of the loads carried by the cables, caused

the supporting towers to yield or tilt, and thus to become

in essence movable towers like the gravity anchors cov-

ered by the claimant’s patent. But, as pointed out by

the Court of Claims, it is beyond question that, as con-

structed and used generally, and as intended to be used,

the Government cableways did not infringe claimant’s

device. The subsequent tightening of the cables was done

94 OCTOBER TERM, 1918.

Syllabus. 250 U. S.

tower under the stress of the load, it was an incidental

result, affecting or tending to affect the towers on both

sides, and not upon one side to the exclusion of the other.

It did not amount to a mechanical equivalent of the

claimant’s structure; there is no semblance of an outward

inclination of a yielding tower or yielding support, but

rather a tendency on the part of rigid towers to break

down or collapse inwardly under an undue stress. And,

as we have shown, the rigidity of one support is as essen-

tial to claimant’s structure as is the movability of the

other.

Inasmuch as the findings fully support the judgment

of the court below, its judgment must be and it is