Petition for Writ of Certiorari — United States v. Saulnier (No. 927)

Supreme Court brief1959

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Raymonp SaubnmeR .\,

PETITION FOR'A. WRIT OF CERTIORARI to THE UNITED STATES —

at or. CLAIMS

GEORGE COCHRAN DOUL.

: Assistant Attorney Gearerat,

MORTON HOLLANDER,

WILLIAM E. MULLIN,

Attorneys, -

: Deseriudint of Justice, Washington 25; D.C.

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Opinion Slow Ap en gree eh gs Win wines ae

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Statutes involved . ...--.----- Shae de iis gash AAT. wt 2

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Appendix A__._----.- Re ook. ERTL SO 14

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CITATIONS )

Cases: see ha 4

Atlantic W orks v. Brady, 107 U.S. 192......---:..-- 7

Badowski v. United States, 135 C. Cls. 93.---- weleres 11

Blish, Mize and Silliman Hardware Co. v. Time Saver ——-

__% _ ___: Tools,-236-F.-2d 913, certiorari denied, 352 U. S.

| ESS AR RS I eee ae eS |

Busell Trine? Co. v. Stevens, 137 U.S. 423 2._... 2... 10-

Carbice Corp. v. American Patents Co., 283 U.S. 420... 10

Concrete Appliances ‘Co. v. Gomery, 269 U.S. 177... - 11

Crest Spécialty v. Trager, 341 U.S. 912_-...--2-2---- ee

_ Cuno Engineering Corp. v. Autymatic Devices Pr 314. .

EE ERR TaRR Seg: 7k oR AR 8,11

Densmore v. Scofield, 102 U.S. | eee Re a ~% 11

S. ase -

"Fond Du Lac County v. May, 137 U.S. 395_....-.--- 10

. Great Atlantic & Pacific Tea Co. v. Supermarket Equip- .

fient Co.,. 340 US. 147...::...-.......-- ee . eS)

Grinnell Washing Machine ep: v. Johnson . e 0.5 247 *

Meter ako cngucaewss te Dated 10.

_ Heald v. Rice, 104 U.S. 737... eB Sa ie geo <2 ae.

_ . Hendy v. Miners’ Iron Works, 127 U.S. 370... ------- #2

; £ Hotchkiss y. Greenwood, 11 How. 248..----.------- |

3 549656—60——1 Se oe : .

—

. - ane |

‘Casee—Céntinived hd ps | 3 |

Lincoln Engineering Co. .. Stovart-Warner Corp. ., Page

EE Is bck cick aaa nncekek we esidduhannes 10

Lyon v. Bausch & Lomb Optical Co., 224 F. 2d 530, |

certiorari denied, 350 US. me: vate time wach 11

. Mantle Lamp Co. v. Altiminum dairotaaed Co., 301 U. 8. ‘

* SEER cash: dramactets b GAARA ceo SA oe 0 ao 0 Ree eb eben kee li

Marconi .Wireless. Telegraph Co. v. United, States, ; .

DORR Bi soie oe acidadkae anaes Sian ke ae 10.

Pickeringv.. MeCullough; 104 U.S. 310_..~--..--~--- . 10

BR. M., Palmér Co. v. Luden’s, Inc., 236 F.2d 496..... (11s 4

Reckendorfer v. Faber, 92 U.S. ~* AGEIRA ----- 7,10; ce

Rithards vy." Chase Flevator Co., 158 U.S.-299° 2 _--- zee Sa

te Staniey Works v: Rockwe 9. Co., 203 KF. a 846,

- * certiorari. denied, 346 U.S. _ a pie whd g “Hy

“Thatcher Heating Co: v. Burtis, 121 U.S. 286... /, 40

Toledo Pressed Steel Co. v. Standard Parts, Inc.,307 0

US. resets a Meaten we tade ot takes ween mag AS ae 10° |

Zonolite Co. v. United States, 138 ©. Cis. 114. .2..%:- ; 1]

. Statutes: \ ip

28 U.B.C. 1498... 22.22 PS es aS 2, 4,13

VR Os seca. REA eae te *

Wars Mk cvcnknennyee Prey Ba Saag ae

I a 5 Kacken oe vedas ona Nccegunenie ace |

35 U.S.C, . pata Eee te epee Pid ones eiempmacke

_ Miscellaneous: | . ° ee hoes :

_Couit of Claims Rule Bass iscccccginss- sca

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_— Usiyho States OF AMERICA A, EETITIONER? |

a r Supreme Gout of te ied Sines

Oc TOBER* xt PERM y-1959

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- PEVITION FOR. A WRIT OF CHRI4ORARI TO THE UNITED STATES

: pages 15-43, infra.’

ae grover ° OF CLAIMS

/ The Solicitor General, on behalf of the United

States, prays that a writ of certiorari isste to review

the judgment of the United States Court of Claims

enter di in this case on January 20,1960.

“p OPINION BELOW

‘The-wpinion of the Court of Claims is reported at :

180 F. Supp. 412, and is set forth in Appendix A,

J URISDICTION

‘The judgment of the Court of Claims was entered

on January 20, 1960 ( App. A, infra, p. au >»). By order

dated April, 18, 1960, the Chief Justice extended —

the time for petitioning for certiorari to cand: includ-

ing May. 10; 1960. The jurisdiction of this Court: is

inv éked under 28 U.S.C. 1255 (1).

QUESTION PRESENTED

"Whether the Court of Claims has improperly low-

ered the standard of invention in holding’ patentable

, (1)

Seat . —™ @-

a combination of two old evi ices, beth known to the : 7

prior art, even though, in the combination, each of the

two old devi ices achieves its distinct and independent :

result without coacting or coopérating with the-other

device. to. achieve any new result over and above the —

two results achieved by the old devices acting singly. |

4 ~ a.

_ STATUTES INVOLVED ee

Title 28 of the United States ‘Code provides in

pe rtinent part:

$1498. W henever an in¥ention. desrihed 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 Jawful 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. °.easonable -.

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 per-

son, firm, or corporation for the Government

and with the autherization or consent of the —

Government, shall ‘be construed ds use. or ©

manufacture far the United ‘States. —

Title 35 of - United States Code. provides in-

‘pertinent part: |

§ 101. Ww hoever invents. or discovers any new

~ and usefal process, machine, manufacture, or.

composition of matter, or any new and useful

g.- ; Res

improvement. ‘thereof, may obtain a patent

‘therefor, subject-to the conditions and seqente-.

. ments of this title.

$102. A: pore shall be entitled. to a patent

unless—

(a) the invention was known or: ‘used by .

- others in this country, or patented or described

ina printed. publication in this or, a foreign oe

equntry,- before the invention. thereot by: the

applicant for patent, ee

-(b) the invention was patented or inscrtned

ima printed public: ation in this or a foreign --

-eountry or in .public’ use or on: sale in this

. country, more than one year prior, to the date

- title, if the differences between. the subject

matter sought to he patented and-the prior

‘of the application for “cau in. - the nates

States, * * *

§ 103. A, pats nt. roay sat be obtained though.”

the invention is not identically ‘disclosed a

described ‘as: set forth in “seetion 102 ‘of. this

art are such. that the subject matter as a

whole. would have been © obvious at the time

othe invention .was made to a person having

RES ordinary skill in-the art to which said subject

matter pertains. Pate ntability shall not be

“negativ ed hy ‘the manner in which the inv ention

was made. | |

“nN . 6 ‘

ie | . .

* * : : * ‘. o ° 5 ae

§ 282. - patent shall ‘be pa valid.

The burden of: “establishing invalidity of a

‘patent shall rest on.a party asserting it.

‘The followitig shall be defeuses in any action |

ie involving the validity or infringement. of a

pate nt’ - shall he pleaded: -

of te. ae

(2)° invalidity of the patent or any: dni in

eae suit on any ground specified in part FT of

thi® title as a ‘condition. for patentability,

oy eee wire Sa aaa

BN ha, ; STATEMENT S aaeee

pclae ‘brought ‘this’ ak akon the United

States in the Court of Claims -under 28 U.S.C,

1498 ‘to recover for infringement ofzan allered inveh- °

tion covered ‘by. United States. Letters Patent No.

}+2,125,752 2, issuéd to respondent on August 2, 1938.

+The alleged: invention, entitled “Remov able Roof for’

the Cockpits of Airgraft, ’? is actually’ an assembly. of *

two devices.* The first de view enables the puot. of a

- covkpit-type airplane to slidé the’ canopy, or roof,’ of

the cockpit, backwards and forwards to-any. “desired

position, for egress and i ingress ‘to the cockpit. when the

- plane is on the ground, and for the intake and shutting’

Sout of - air in: normal: Hight. The device consists

of a pair of carriagts, which, as pertnanent © tts

of the. airplane, slide ajong tracl.s placed on- er

side of the fuselage. ft he cockpit’ eanopy is fitted

i over the cockpit and attached to the carriages. - The

carriages are connected by a series of gears and

“levers to a hand crank or. other meais of mechani-

cal. powér by which the pilot can slide the carriages,

and thas the’ eanopy, ,back and forth. The second

device enables the pilot to detach -the canopy from

the: carriages instantaneously 80 that, in. a flight *

a 7

en The claimsein suit and the specifications and drawings of re-

-. Spondent’s patent, are set out-in the, Court of Claims’ fading» of

, "fact ( APR infra, ‘pp. 20-4y.

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_ emergency, | he can. quickly. jettison: the: canopy and —

“ “bail: out”? without obstruction froin -the canopy.

| This, second. device consists of a handle ‘loc ‘ated - in

- the, roof. of the canopy “ald. connected: by cords,

levers, : and rods tv each of the clamps by which ~

the canopy. is . attached *to the -sliding carriages.

When the handle’ is- pulled, the cords, levers and

-rods operate to unlock all of the clamps simultane-

_ ously.» The pilot, oh the eangpy by lifting it

slightly upwards, so that the wind will pull 4t-from -

. the plane. ©! ¢-

fhe United States raised the. defense that the patent

- . was invalid for lack. of inv ention over the prior. art.

The case was! referred to a trial commissioner -who,

after hearing the evidence, found that the, two ele-.

ments covered by the patent in si had been disclosed -

in’ prior patents (App. B, infra ‘pp. 455 50)| and con-

. ‘cluded that, the claims in suitt were invalid. : The |

‘ @pmmissioner summarized his findings as follows:

* * * claims 1, 2, 3, 4, 6, and 7 of the’ *patéent-

in suit are found fo" be invalid over the dis-

} -. . elostires of prior patents (1) in. that these

; patent claims merely’ recite old combinations,

—@ .- ~. of old eléments producing no, new or, unexpected.

results, and (2) in that the differences between

the. terminology of these elaims .and that of

the. ive art patent are such that the. subject

matter aS a whole would have been obvious, at.

‘the time the Saulnier construction was devised, |

to a’ person having ordinary skill in the field ©

of removable roofs for the cockpits: of aircraft

[App. B, — p. 49}. a

a“

The Court of &. rejected those dudlings. While

the court found that th the sliding and detaching -

devices had been anticipated ‘by the prior art,’ it held

the ‘Saunier patent valid, since, in its view, the two

devices ir combination ‘constituted a patentable in-

- vention, even though each of the two devices operated

separately and independently and “did* not act con-

jointly” with the other (App. A, ifra; p. 16). ~ Hav.

ing also found that the patent was infringed by the

United States, the court entered judgment that re-

spondgnt was entitled te recover compensation for

the Government's “unlicensed use of [his] patented.

invention”’ (App. A, infra, p. 43). 1

REASONS FOR ‘GRANTING THE WRIT

The decision, below, if left. standing, will mean that

limitless numbers of combinations heretofore. thought

-unpatentable, are’ now to be, made the subjects of

*The court's findings indicate that the sliding device was -

disclosed in prior patents issyed to Sutton, Joyce, -Hathorn,

Alexander, Fivak, Petters, and Boulton (App. A, infra, pp.

28-31). In its ‘opinion, the.court indicated. its belief fthat the

‘Sutton, Joyce, Hathorn, . Petters, and Boulton patents con-

tained the sliding device (App. A, infra. pp. 16-17),*but. stated

-that the Alexander and Pivak patents, “obviously do not antici-

pate” the claims in suit. The court's findings indicate that the

‘ prior patents issued to Hicks, Hall and Helwig contain the

detac hing device (App. A, infra, pp. 27, 30, 31). However, the -

court’s apjnion mentions only the Hicks’ patent as containing the

detaching device (Ap. A, infra, p. 17).

*A determination o the pee of damages which may be

due the respondent {gr infrthgement has been reserved under

Court of Claims ‘Role 38(c) until the issue of the United :

States’ liability has been finally drm (see App. A, infra, ;

- p. 43). :

satent monopolies. ° Thus, even if correct, the decision

. ? , ;

js of such far-reaching importanee as to require ‘re-

view by this Court. Moreover, the decision below:

constitutes a clear ernor of ‘law (Crest “Specialty v.

*. Trager, ‘341 U.S . 912; Great Aflantic.& Pacific Tea -

-Co. v. Superiarkel Equipment Corp., 340 U.S. 147)

cin departing from, and ‘conflicting with, long standing’

principles worked out by this Court in defining -

standards of invention or patentability.

_1: The most serious error in the decision below—-

and the one with the most far-reaching conse-

quences—is the court’s pronouncement that the com- .

bination in‘ issue is patentable in spite of the court’s ee

conscious and expressed. awareness (see p. 6, supra) |

that the combination consisted solely of two old dévices

which do not coact or cooperate to achieve any new

result over and above the results achieved by the two

old devices acting ‘singly.

If anything is settled in our patent law, ‘it.is that

such combinations may not be rewarded with patent

monopolies. « A long line of decisions by this’ Court,

stretching back over. the past century, have firmly’ |

established this rule. Thus, in Reckendorfer v..

_ Faber, 92 U.S: 347, @he Court held invalid a patent

on a combination, in the same wooden holder, of a

lead pencil and an, eraser, both of which were old in

the art. In Atlantic Works v. Brady, 107 U.S. 192,

the Court held invalid a combination in a single boat

of a dredging device and a device for sinking the

boat to any desired level, both of the devices having

heen used before. .In Cuno Engineering Corp. V.

549856 —60-— 2 ae ath < oe _

8°

Automatic Devices Corp., 314 U.S. 84, the Court held.

unpatentable a combination,of an automatic cigarette

lighter and.a. -thermostatic control, Woth known to the

art. “And again reiterating the same rule, the Court,

- in Great Atlantic & Pacific Tea Co. Vv. Supermarket

Equipment Co., 340 U.S. 147, reversed the Sixth Cir-

counter and a rack for. moving the goods along the

counter, each of which werg kiiown to fhe pr ior art.

There, the Court said (340 U.S. 151-153) :

The negative rule accrued from many litiga-

tions was condensed about as precisely as the

subject’ permits in Lincoln Engineering Co. v.

Ntewart-Warner Corp., 303, U.S, 545, 549; **'The

mere aggregation of a number of old parts or

-euit and held unpatentable a combination of a store

elements which, in the aggregation, perform or |

produce no ney or different function or opera-

tion than that theretoforée performed or produced

by them, is not patentable invention.’”. To the

same end is Toledo Pressed Steel Co. ‘v. Stand-

ard Parts, Ine., 307 U.S, 350,,and Cuno, Engi-

neering Corp. v. Automatic Devices Corp., 314 —

U.S. 84. The « conjunction or concert of known

elements must contribute something; only when

the whole in. some way. exceeds the sum of its

‘ parts is-the accumulation of old devices patent-

_able.* Elements may, of ‘course, especially in

chemistry or electronics, take on some~ new

- quality or funetion from being brotaght into -

. concert, but this is not a usual result of uniting

elements old in mechanics. This. case is wanting

in any unusual or surprising consequences from

’ the unification of the elentants here concerned,

, *- and there is nothing to indicate that the lower

©)

Ft iit

‘

courts SC] rutinized the claims in the light of

this father. severe test. ,

Neither court below has made any finding

that -old ‘elements which made up this’ device

perform any additional or different*function

in the combination than they perform out of

it. This counter does what a store counter al-

ways has done—it supports merchandise at a

“convenient height while the customer. makes his

purchases’ and the merchant lis sales. The

three-sidéed rack will draw or, push goods put

within it from one place to another—just what

any such a rack would do on ‘any smooth sur-

face—and the gnide rails keep it from falling

or sliding -off from the counter, as, guide rails’

have ever done. Two and ‘two have’ been

added together, and still they maké. only four.

Courts should scrutinize combination patent

. claims with a care proportioned to the difficulty

Se]

and improbability of finding invention in an.

assembly of old elements. ‘The function of a

patent. is to add to’the sum of useful knowl-

edge,. Patents cannot be sustained when, on

the. contrary, their effect is to subtract from

former resourees freely available to skilled

artisans. & patent fora combination which only

unites old elements wth no change im their re-

spective functions, such as is prese nted here,

obviously withdraws. what alread) y ts known into —

the field of its monopoly and diminishes the re-

sources available. to skillful men. This patentee

has added nothing to the total stock of knowl-

edge, but has merely: brought together segments

of prter art and claims them in congregation

as a monopoly. [Emphasis added.]

See abso, CY, Hotchkiss vy. Greenwood, 11 How. 248;

Pickering Vv. McCullough, 104 U.S: 310; Thatcher

Heating Cow x. Burtis, 124 U.S. 286; Florsheim

Vv: Sehilling, 137 U.S. 64; Heatd x. Rice, 104 US. -

737; Fond Du Lag County v. May, 137 U.S. 395;

~ Busell Trimmer Co, vy. Stevens, 137 US. 4295 Rich-

ards Vv. Chase Elevator Co., 158 US. 299; Grinnell

Washing Machine Corpsv. Joh nson Co., 247 U.S, 426; |

Carbice Corp, v. American Patents Co., 283 U.S. 420;

‘Lincoln E ngineering Cozy. Stewart-Warner Corp., 303

eUS. 545; Taledo Pressed Steel-Co. v. Standard Parts,

Ine., 307 U.S. 350; Marconi Wireless wists Co. v.

‘ “United States, 320 U.S. 1. te

2. ‘Had the court below not ienored the. strict oe

tiye rule’ ’ emphasized in: the A. d P. case, supra, there is |

ne question that it would have had to declare the patent

‘invalid. Indeed, respondent’s assembly of old devi ices

could not be said to-constitute the exercise of the

inventive facultyno-matter how liberally that term is

interpreted. ‘For all resporident did here was make

a cockpit canopy detachable from an old sliding de- ‘

vice by using, in place ‘of permanent attachments, an. -

old detaching device. Or, .to express it conversely,

the respondent merely. shade a canopy which included

an old detaching device. slidable’ by- means of an old

sliding device. While this might be deseribed as a

‘*progressive idea” (Great Atlantic & Pacific Tea Co.

v. Supermarket Equipment Co., 340, U:S. 147, 153),

or an exercise of “mechanical skill’’ (Reckendorfer

v. Faber, 92 U.S. 347, 306), it takes more than a pro-.

gressive idea or the exercise of mechanical skill . to

”

| \ » ae ore eo

obtain ‘a valid patent (Great Atlantic d& Pactfic Tea

Co. v. Supermarket Equipment Co., supra; Recken- . -

dorfer Vv. Faber, supra). For it is fundamental that ~~

‘a patent mohopoly can only be given as a reward and

encouragement for tlie “exercise of the inventive -

faculty’? (Densmore v. Scofield, 102 U.S. 375, 378), >

or *‘inventive. genius’’ (Concrete A ppliances Co. v.

Gomery, 269 U.S. 177, 185; Mantle Lamp Co. v.

Aluminum Products Co., 301 U.S.°544), or a “Hash

of creative genius” (Cuno Engineering Corp. Vv. Auto-

matic Devices Corp., 314 U.S. 84,91).* ° *

~ * Congress, in: enacting 35° U.S.C. 103, supra, p. 3, appears

to have limited the application of the “flash of creative genius”

+) test, Cuno Engineering Corp. vy. Automatic, Devices Corp., 314

U.S. 84, 91, insofar as it could ever be applied to bring’ into

consideration the manner in which an invention was made.

» Lig Ro Me Palmer Co. v. Luden’s, Tne., 236 F. 2d 496 (CLA. 5). .

But no matter how far downward, if at all, Congress revised— rt eee

the standard of -invention m°vodifying the patent law in 35

~—~“TES.C. 103 (compare Lyon v. Bausch, & Lomb Optical Co., 224

F.2d 530 (C.A,. 2), certiorari denied, 350- U.S. 911, with, Coy

Stanley Works vs Rockwell Mfg. Co., 203 F. 2d 846° (CLA. 3), re

certiorari denied, $46 U-S. 818) it is clear that Congress did :

not lower the standard of invention to be ‘applied in patent-

abilify cases so far as to ‘award patent monopoly. protection to

the respondent’s combination, . which plainly; lacks, vention.

See,e.g., Blish, Mize and Silliman Hardware Co. v. Time Saver /

Tools, 236 F. 2d 913 (CLA. 10), certiorari denied, 352 U.S.° |

1004, There is a possibil’:y that the lowering of the standard ’

_ of invention by. the Court of Claims in this case resulted, at

_ least partially, from a belief ‘on its part that. Congress in 35

U.S.C 103 has revised the standard of invention downward. .

See Badowski v. United States, 135 C. Cis. 93, the only case Soe

_ cited in the court’s opinion in the instant case. .Badowski reiied — - ;

on Lyon v. Bausch & Lomb Optical Co., supra. See also, Zonolite

Co. v. United States, 138 C, Cls. 114. In any event, if 35 U.S.C.

103 is to be accorded any such effect, it should, we submif, be per- : 6

. mitted only after review and clarification by this Court. }

= e

It is » clean, under the cited cases, that the assembly

of respondent’s eombination did not require the exer-

cise of any inventive faculty. In this aspect, the case

is much the same as Hendy v. Miners* Iron Works,

127 U.S. 370, in which, the Court held invalid a patent

in which. the icivantiien. c laimed was the- ‘mounting of

an ore’ feeding cylinder, old in the art, on a timber

frai® made movable by: rollers. which were also old

in the art. . The Court said (127 U.S. at 375):

Mérely putting rollers under an article, $0 “as

to make it movable, when, without rollers, it

“would not ‘be movable, does not involve the in- —

ventive faculty, and is not patentable * * *.

Moreover, there is no patentable combination’ |

between the rollers which make the. timbers °

movable and ‘the feeding eylinder I, mounted

upon the timbers. The°union of parts is‘merely

an aggregation. The feeding eylinder, mounted:

upon ‘timbers which have rollers, operates no

differently from.what it does when mounted :

upon timbers which have no rollers.’.

3. It is, of course, impossible to predict the overall |

“elect of the- Court of @laims’ repudiation .of the

‘standard to be applied in determining the patentabil-

"The striking similarity between the instant ‘case and, the

Hendy case, supra, is shown by the testimony of the ré&pon-

dent's expi@rt witness, appearing at page. 140 of the transcript

of testimony, that the invention in the respondent's patent. con-

sisted’ of. nothing more than the “addition of the carriage or

support” between the cockpit £anopy. and the fuselage of the

airplane. . It is difficult to imagine how the respondent's intro-

duction of a carriage or support, mounted on an old sliding

device and carrying the old detaching device, ‘constituted the

exercise of the inventive faculty any moreyan the jmtroduction

by the patentee in Hendy of a frame mounted-6n an old mov- .

ing device and carrying ‘an old ore feeder device.

= — ~ we * p rian - ny o

——- rf .

ity, of awombination of olé devices. -But even ‘viewed

from the single perspective of the Governinent’s mili-

tary development and procurement hrograms, it'is be-

lieved that the decision below will have a far-reaching

effect. More-than one-half of the patents on which in- |

fringement claims have been’ made against the. mili- _~

tary-departments have involved combinations,® and .

under 28 Ug§.C. 1498 all infringement suits’ agains _

the United ‘States must be brought the Court of

Claims.. The stan “ot invention applied by that

Se is thus in itself of sub-

_ stantial public importance, - 2,

. A — cae CONCLUSION e |

/. For. the foregoing reasons, it is. respectfully ‘sub- |

mitted that this petition for a writ of certiorari

fo should be granted. | |

oe J. LEE RANKIN, «=

Solicitor General:

GrorGe Cocuran Dovs, —

Assistant Attorney General.

_ Morton HoLanper,

tint - Wittiam: E. Mvtiin,

: : — Atfrneys.

“May 1960. eae ae

“At the present tiple atone, 51 administrative claims for pa-

tent infringement are. being processed by the Department of

the Army. Of those, 40 involiée patents to mechanical, elevtri-

_ cal or electromechanical. devices based on combination claims.

The Department of the Air Force is processing 99 patent in-

fringement claims, 52 of which are based on: patents ‘which

‘ mvolve combinations of mechanical or electrical devices. The

Department. of: thet Navy has beffre it 57 claims for patent

> infringement, 22 of which are based’ qn patents inyolving a

combination of mechanical.or electrical devices, ,

a Mr. Albert K. Geer was on the brief.

ow « °

aa awa APPENDIX A

oe the ated States Cour ot eins

No. $r- 54

(Decided January 20, 1960) -

-. RAYMOND SAULNIER y. THE UNITED STATES

Mr. Maw C. Louis ‘for. plaintiff. Messrs. W. Saxton j

Seward, Brown and Seward, Samuel L. Davidson, Rickard

G. Kline; Cushman, Darby Cushman, Michael Gould, and:

Surrey, Karasik, Gould and Efron, were on the briefs. |

_ Mr. Francis H. Fassett, with whom was Mr. Assistant

Attorney General George € 'ochran Doub, for defendant.

t Ps :

OPINION ee

- Warranen,_Judge, delivered the opinion < the court :

- Plaintiff, a citizen of France, sues forean alleged infringe-

ment of, United States Letters Patent No. 2,125,782 issued,

to him on August 2, 1938, entitled. “Removal Roof for the

cockpits of aircraft.” The patent, is on a canopy or roof over

the top of the cockpit, which has the quality of being slid

+ back and forth, while the plane is on the ground or in the

air.to permit ordinary egréss and ingress, and the intake or

shutting out of the air, and one which also has the quality

of being completely and instantly disengaged from the air-

craft by pulling a handle in the cockpit, when the pilot

‘wishes to “bail out” in an emergency.

The evidence clearly shows that the defendant infringed. -

theepatent i in suit, and, since the trial.commissioner has so

‘found, and the parties have not excepted to. these findings,

we find this as a fact without further discussion.

_ sa9ese—oo— 3 - (158) ee 0

a @

The sole remaining question is its validity, the amount

of compensation, if any, for the infringement. having been

- deferred for later determination. The trial commissioner ~

found that it was invalid because anticipated by the prior art. |

He found that all ghe elements of plaintiff's patent were old

and that plaintiff's ‘combination of them 6 produce there

sult obtained was obvious to. anyone skilled in the art. -The \

case is not free from doubt, but, taking everything into .

- consideration, we think the combination was not obvious.

e Westart with the fact that the result obtained by plaintiff

had been sought ever since they started putting canopies over

tha cockpits of fighter planes, without success. This, of

itself, would seem _to refute the statement that the combina-

‘tion of these old elements was obvious to anyone skilled in

theart. ft is true, now that we look at the facts in retrospect,

- that’ plaintiff's invention seems simple enough. But it is,

> equally true that the mere fact that the patented idea was. :

simple, does not prove that it was invalid. We ure concerned |

here, énly, with whether plaintiffs claim was novel in the |

sense that the word is used in patent law.

As stated, the combination which plaintiff invented was |

a canopy or roof over a cockpit that was both slidable back

and forth and also was completely detachable when desired

by means of an instant release mechanism lovated within the

éockpit. Of coutse the two mechanisms, one for sliding tl. +

roof back and forth aind ge other for completely detaching

.. the roof, did not act conjointly. Whén one. resuit was de-

sired, one mechanism was used, and when another result was

desired, another mechanism was | The two did not ©

operate at the same time. But no Pie acanopy —

that was both susceptible of’ being back and forth and

also of being completely detached when desired. Plaintiff

invented such a canopy—something no one ad had been

able to do.

Prior to plaintiff's patent there had been petiatt granted _

on canopies which the pilot could completely detach from

~ the aircraft, that would fly off, when desired, as in the Hicks |

patent relied on by the defendant; but the Hicks patent did

not slide back and forth, for normal entry and. exit. Also, .

there had been slidable roofs or canopies, to permit normal

ard and exit, as in the Sutton patent, also relied on =

. , oa =

se “defendant, but this toot : and canopy could not be conmpletity 3

’ disengaged. It is true Sutton claimed.that his roof could be

slid completely out of the way, “whereby his egress from the |

: airplane i is not hazardous.” This may or may not have been -

so; but the roof was still there, adjacent to the cockpit the

pilot: wished to leave in a hurry, his plane riddled with -.

_imachinegun bullets, perhaps, and on fire, and it provided

many “catching-places” for the strap of a parachute or the

pilot’s clothing. Also, this device was not instantaneous.

' After the. enfergency occurred, the. pilot was still forced to

open the canopy in,order to get out. In plaintiff's device the

pilot need only to pull the releasing mechanism and the roof

was instantly biown completely away, leaving nothirig, in the _

way of a roof, to interfere with the pilot’s escape. * -

It is significant that the defendant sdopted plaintiff’ s

~ device instead of Sutton’s. .

The Joyce patent calls for a windshield that. was slidable

back atid: forth. . This, too, is but one part of plaintiff’s in-

vention, but the commissioner says the hold,down clamps of,

not the Joyce, but the Hicks patent, which was releasable but

- not slidable, might have been used to instantaneously detach ~

_ the cockpit cover: Unfortunately, for defendant, Joyce did

not do so, nor did anyone else until plaintiff came along.

The same may rightfully be said of the Hathorn patents.

A number of other patents are mentioned in Finding 16,

but these, obviously, do not anticipate plaintiff's: paterit.

The British patent to Petters, et al., has thie same vice, or .

. . Worse,.as the Sutton patent. In. it the roof is stidable back

_ and forth and, in case of an emergency, it can be opened in... ~

_.. the middle and each part folded back beyond. the cockpit. —

~ But the two sides are still attached to the airplane, and what |

the wind would do to them, flapping them back and forth, is

horriblé to contemplate. It may be, as the comanissioner

suggests, that the wind would tear these two halves off the.

airplane. ‘This seems to us uncertain, but, if it would, would

it do it immediately, before the pilot- attempted to escape

from the cockpit? Maybe so; maybe not.. But in plaintiff's

device the pilot, by merely pulling a cord released the means

that held the canopy in place, so that there was nothing to

keep the slip stream from blowing it away instantaneously.

“As mue . as we respect the opinion of our learned and able

. J

. . et seq., citing: cases in support

commissioner we cannot agree with him that this: patent

"anticipates plaintiff's: patent. Plaintiff’s Ss patent is a decided

_ ° Simprovement over t : British. patent, an improvement that

might mitke thie différence between life and death to the pilot

seeking to escape. Jn plaintiff's device there is no possi-

bility of the canopy’s interfering with the pilot's; escape, .

because the whole hing i is immediately blown away:

The British Boulton patent has the same vice as ot Sutton * :-

- patent: the roof is not detachable from the. airpfane, but:

remains attached to it at all times. ~

We agree with the’ commissioner that the ev idence i is in-

sufficient to show that the Lockheed Sirius dirplane, built

for-Colonel Charles A, Lindberg, «

sign 75, or the Deuglas: Aircraft

plaintiff's patent.

Ye O-46A._ antici ipate

There is no question that a combination of old dennis

cussed this in Badawski v. U States, 135 C. Cls. 93, 102,

to produce a new and Ces is patentable. We dis-

hergof. We voter to what

’ we Said there.

A canopy that would slide back and forth, even in flight, .

was old; a detachable canopy was old. But a canopy that

was both slidable Back and forth and completgly and in-

C ‘urtiss- Wright , De-

stantaneously detachable was new.. There can be no doubt |

that such a-canopy was useful. _Defendant’s long confinuec

use of it, to the exclusion of all others, i is eloquent t ti ata

of Sag fact. |

We think it is not amiss to say that France hei paid

* plaintiff for the use by the United States of his invention in

Certain aircraft canopies procured by the United States prior

~ toSeptember2, 1945. This was done under the Blum-Byrnes .

_. Agreements between the United States and France, under

which each government undertook to compensate its own

citizens for claims against the foreign government. _ It. also

might’ be said that the British Government has purchased

frpm plaintiff @ license te use his inverition on its aircraft.

Further, at the time of plaintiff's application in the United”

States Patent Office prior art was cited to show that plaintiff's

claim 1. was unpatentable. After argument, however, and

an amendment to state that the slidable canopy was “capable

of being operated when in flight,” the claim was allowed and —

cs ;

29 ale a

~ .% <.

a“patent was. granted. The bu@den is on the infri inger to

Show that the patent was improvidently ‘granted. It is

“presumed to be valid. We do not think deferidant has

ge Carried that burden. ~ /

. We approve the. findings of the’ trial commissioner as to

the patent claims ‘infringed by- ‘the several types of aircraft

used by the defendant, to wit, the Thunderbolt, the Thunder-

" jet, the Mustang, the Scor pion, the Fury, and the Sky Raider.

We have adopted these findings asthe findings of the-gourt.

Counsel for the parties have agreed tMat during the ac-

counting phase of this case, plaintiff shall have the right to

«present evidence as to other aircraft coe kpit canopy_construe-

. tions embodying structures allegedly falling w ithin the scope

.. of any claim held valid and infringed; and that deferidant

shall have not less than ninety (90) days’ notice of any and

all such structures upon which plaintiff intends to rely in-said

» accounting proceedings before being required to present evi-

dence on the further, issue of infRigement thug tendered: for °

trial for the first time durin the : 2ecounting phase of this

case, Plain tiff notified defendant by a letter dated Qctober

* 94, 1957, that ‘claims 1 and: 6 of the Saulnier patent are ‘also_

i, charged to be inffinged by constr. ‘uctions identified as fol- *.

lows: eb

° ANO1-85FGA-2 — * Model FOF-2:

ANOI-S5FG-2 0. Mode! F9F-4, -5, -5P .>

ANOI-85FQGD-2. °° : Model FOF -6, -6P, -1, -8

ANO1-245FBA-2. = «—*~«. ~— Model F2H-1. me,

ANOI-240PBB-2° 0” Model F2H-2, F2H-2N *

. ANOI-245FBB-2A-. Model F2H-2, -2P-"

ANO1-245PC0A-2. Model F2H-1N °

No evidence.was. presented at the initial trial of this case:

as to the constructién of tlie above-identified aircraft. |

* Plaintiff is entitled to recover‘and judgment will be entered

‘© to thet effect... The ease is remanded to the trial commis-

‘

sioner, pursyant to’ Rule.38(c), topdetermine reasonable and

entire compensation for defendant's unlicensed use of Plain-

tiff’s ‘patented i invention:

Barksnare, District Judge: sitting by nstarantio LaRA-

More, Judge; MapbEn, Jv dye, and JONES, Ghief J udge, con-

7 - cur. .

: @ Pie .

. -

° .

. ‘ . a ‘

° « . x . .

e? .

‘

\ | Pee ? _ 20 . | 0 .

-. . a”

FINDINGS OF FACT

The court, having considered the evidence, the report of

Trial Commissioner Donald E, Lane, and the briefs and »

: ‘wee of counsel, makes findings of facts follows: |

1. This is a paterft suit under Title 28 .C,, Section

1498, for reasanable and entire compensation for alleged un-

licénsed use or manufacture by or for the defendant of an

invention deseribed in a United States patent. Plaintiff's

petition alsa claims” under Title 28 U:S.C., Section 1491,

and under the patent ews of the United States, Title 35_

U.S.C. At pretrial, the parties agreed to a se ee of

issues for trial, and that.the questions. of valiffty and in-

fringement of the patent in suit by tlie United States be

‘first determined upon full proofs, findings of fact, and

argutne nt of coynsel, and that any accounting issue be de-

ferred until the entry of an oder sustaining the petition.

2. Plaintiff is a citggen of France residing in Paris, France.

On Angpst 2, 1958, U hited States Tetters Patent No.

225,752 was issued to the plaintiff on an application for

patent filed in the Unitéd States Patent Office on December

"ox, 1936. The patent ‘is entitled “Removable Roof for tlie

- Cockpits of Aireraft.” Said Saulnier patent 2,125,752 is

hereinafter referred to as the patent in suit. All right, title

“and interest in, to,.and under the patent in suit was vested

in the Alien’ Propérty Custodian on January 18, 1943, and

was returped to plaintiff? on September 4, 1947, pursuant to

the provisyons of the Trading With the Enemy Act, Title 50 -

.US.C. Appendix 1, and Executive Order No. 9095, as

amended. «Plaintiff notifigtl defendant ‘in November 1951

of- plainti iff's claim for esmpensation for the unauthorized

use by the defendant ofthe invention covered by the patent.

here in suit. € The defendant denied —— claim in May

por. .

cil . PATENT IN SUIT.

3% The subject matter in suit relates to the construction .

of a removable roof or canopy for covering the cockpit of

un aircraft, the canopy being hoth slidable from open to

closed positions and detachable from the aircraft. The

specification Of the patefit in suit reads as follows:

The present invention concerns improvements in re-

movable roofs covering the cockpit of an airplane pilot.

’ and can

. to immediately get rid of his roo

21 sare

The roof according to the present invention id intended

to be opened’ normally through a sliding displacement

if in ¢ase of accident or in case of

]

be wholly and immediately detached from the body o

the airplane. -

This arran nt enables the Po in case of danger,

, in order, for instance,

to be able to jump with his parachute.

The device according to the presept invention is es-’

sentially constituted by a frame connected in a detach-

able mahher with two carriages adapted to slide along

rails fixed to the sides of the fuselage, these carri

_ * being — to be operated froni the inside of the air-

splane by the p

two lateral panels. The whole normally slides along’. ’

ilot. This frame carries the roof and the

the rails through the carriages, The device is com-

‘ pleted by means for permitting the my by a mere “

Operation petformed from-the ‘inside o

| the airplane, to

release the frame from thé carriages by which it is

_ carried.

A preferred embodiment of the present invention

- will be hereinafter described, with reference to the ac-

companying drawings, given merely by way of example,

‘and in which:

Fig. 1 is a perspective view of the system, the remov-

able roof being detached from-the es dine cockpit;

Fig%2 is a similar view showing the roof fixed to, its.

carriages and partly moved in a backward diréction;

Figs. 3, 4, 5 and 6 are perspective views showing de-

> tails of the device serving to the fixation of the d

As shown by Fig. 1, the,detachable roof 1 is made.of a

frame, consisting of bent pieces 2 and 3, connected to-

gether by upper members 4 and.5 and the lower members

9 and 10. The roof proper is fixed to the upper mem-

ders 4 and 5, this rook being advant usly made of a

translucent material. The two lateral panels 7 and 8 are ©

made of a translucent or transparent material fixed to

bent pieces 2 and 3 and-to upper and lower members 4

and 5, and 9 and 10, respectively.

The lower members 9 and 10 carry fixation members

- 11, in the form of rings provided with a radial slot 22 — .

(Fig. 6), which serve to connect and secufe the detach- _

_ able roof to carriages 12 and. 13 through ‘spindles 14,

rigid with rods 15.

Under normal conditions, membdées 1! are in position

in-the space between lugs 16 rigid with the carriages,

and said members 11 are fixed in this position by spin-,

“dies 14.

When bell-crank lever 17 is operated by means of con- ~

tro! member ‘4, through cables 18, thé brarich 19 of this

Cc.

‘

lever moves in a forward direction and drives rods 15

in the same direction through the medium of pieces 20.

- In this movement, the whole of rods 15 moves in a for-

ward, direction and spindle 14 leayes the —_ between

lugs 16. Rod 21 is located now opposiie the slot 22 of

,member 11 and the removable roof can be soparated

* from the carriages-and got rid of when it iy pushed

upwardly. ; oe | ee

The whole of the mechanism is kept in this position

by finger 23. Said finger/has been acted upon by branch _

20-of lever 17 in the course of the forward movement of

rods 15. But as soon as it comes opposite notch 24,

said finger is moved back downwardly by its return. 2

spring 25 and drops‘ into the notch 24 of piece 20, thas ©

preventing the latter from moving backwardly and spin-

dle 14 from: coming back into the space located between

lugs 16. Thus, once the operation has been performed,,

the pilot can release control member 34 /withgut the

mechanism coming back to its initial position.

When the roof isdn the normal position, in ot the _

friime is secured to carriages*12, 13, rods 15 are/in their

rear positions and members 11 are locked on spindies 14, +

in such manner as to assemble all the elements together, | .

the whole being kept in the closed position by spring 26.

This position is shown -in Fig. 3, corresponding to the

fixation of the roof to the carriages.as shown by Fig. 2.

In this position, the roof is allowed to slide, as above ~

explained, while remaining assembled with carriages 12,

13, alorig rails 27, fixed to the longitudinal members of

the fuselage. a Se al) 6 Spies me

Carriages 12 are, for this purpose, provided with

rollers 28 which roll along rails 27. e@ movements

of the carriages are controlled thrangh racks 29, pro--

vided on the carriages, and toothed wheels 30 actin

on said racks and operated by the pilot through mak

31, acting through the medium of rod-32 on a.small |

rack 33 in mesh with a smal] pinion which is not visible

on the drawings. but which is. keyed on the spindle of

toothed wheel 30. oe

It will be readily understood that, with such an |

arrangement, when the pilot rotates crank 31, he pro-—

. duces ‘a sliding displacement of the whole and of the

movable roof along the rails and therefore along the

fuselage. : .

' The sliding displacement corresponds to the normal

opening and closing movements of the roof. .__.

When, in flight, the pilot wishes to get rid of his

_roof, for instance in order to jump with his parachute,

he Sqernten, in the manner above described, the control .

member 34 located at the upper front part of-the cock-

R. Saulnier

2,125,752

. 3 * Se

: Le

° . ¢ , F,

yt. °

, ;

} a

(Nah

i] a Nitin ~

(ion <

o ‘nl isey nt

“Thal

649856—60 ° (Face p. 23 of Appendix)

.23

pit. ‘This member acts, through cables 18; on bell-

crank Jever 17 the arm 19 of which drives piece 20 in.

a frontward direction, said piece 20 being rigid with

rods 14 In the course of this frontward movement,

finger 23 is rotated, ‘while pulling its return spring 25,

. Whereas spindle 14 leaves the space existing between

_ lugs 16 and therefore releases member 11, which ‘can °

escape owing to the provision of slot 22 therein, said slot’

‘being adapted to accommodate rod 21. |

- In. this: movement, after having moved away, finger

23, under the action of its return spring 25, drops into

notch 24 and keeps the system in the forward’ position.

' Fixation mieihete 11 carried by the roof structure

being thus released from reds 21 carried by the carriages,

the whole of the roof can now be lifted and driven

away by the action of the wind. ee |

Therefore, it will bé readily understood that, with

‘the device according’ to the present invention, the

’ sliding roof is so devised that the opening and ¢losing

displacements thereof are controlled by the pilot from

the inside through a’ mere crank. This arrangement

ensures the normal closing and opening of the roof. —

On. the other hand, when the pilot wants to quickly

pet rid of his roof, it suffices for him.to pull member $4.

his movement instantaneously and definitively de-

taches the roof from the carriages. Thus, during flight,

it suffices for the pilot to slightly lift the roof and the.

. latter is driven off by the action of the wind. |

~~ ~“ In 9féneral manner, while I have, in the above de-

’ seription, disclosed what I deem to be a practical and

efficient.embodiment of the present invention, it should

be well understood that I do not wish to be limited

thereto as there might’ be changes made in the arrange:

-ment, disposition and form of the parts without depart»

ing from the principle of: the present invention as —

comprehended within the scope of the appended claims.

- 4, The application which resulted in the patent in suit is

generally similar to application No. 394,405 for a French

- patent, filed in France on December 27, 1935, by Aeroplanes -

“Morane-Saulnier, Societe Anonyme de Constructions Aero-

nautiques. The oath accompanying plaintiff’s application’

' for the United States patent here in suit acknowledged this

earlier-filed application for patent in France. The patent

_ Claims relied: upon by- plaintiff here are supported by the

‘disclosure of said application for paterit in France.. Under

the provision of R. S. 4887, 35 U. S. C., 1946 Ed., 32,

plaintiff is entitled to the benefit of said filing date, Decem-

549356—60—>-4 : :

‘ber 27, 1935, in France,’ for his application in the United

States, filed twelve months thereafter under the provisions |

of 35 U.S. C., 1946 Ed., )

CLAIMS-IN SUTT’

_. 5. Plaintiff has restricted’ his charge-of patent ‘infringe-

ment to claims'1, 2, 3, 4, 6, and 7 of the patent in suit.

Claim 1 recites a combination’of structural elements, and is

reproduced with indentations and added emiphasis to facili-

_tate identity of the str structure récited.

eta

Vi > aa vf

In combination With an aircraft having a codinie

(1) a roof normally slidable above said coulie and

capable. of being operated when in flight,

(2) means operative from the i nn e of said cockpit

for displacing said roof,

(3) said roof being detachable instantaneously from

3 said airplane, and

. (4) means, operative from the inside of said aig,

‘for detaching said’ roof from said airplane.

6. Claim 2 of the patent in suit differs from claim 1 in

adding a support for the roof and in addir y means for de-

tachably securing the support and roof téfether. Claim 2

is reproduced | with indentations ‘and added —

Claim 2:

In combination with an airplane having a eockpit,

hi a roof for said cockpit,

2) a support for said ‘roof slidable with respect: ‘to

said cockpit, .

' (3) means operative from the inside of said cockpit

for controlling the movements of said support with

t to said cockpit,

Gy means for detachably securing said support and

said roof together, an

_ (5) means operative from the inside. of said cockpit

for instantaneously releasing said securing means.

7. Claim 3 in suit differs from claim 2 in that the roof sup-

port is defined as two carriages. Claim 4 differs from claim

3 in that it recites fro rails on the cockpit to carry the

_ carriages, and also recites annular elements and spindles to

lock the ‘roof to the carriages. Claim 6: is like claim 1, but

recites a closing element for a space for pilot or .?.

instead of uae ads a root for a cockpit. Claim 7 is gen-

A I A

aa eee :

erally similar to claim ¢. but adic 9 recitul of a slidable

support for'the closing element, and elds means for detach-

ably securing the support and closing element \ogether.

Claims 3, 4, 6 and 7 are reproduced in full: ” ;

Claim 3

- In combination with an airplane having a boily pre-

vided with a coekpit, a roof. for said cockpit, two cars .

these for supporting said roof slidable with- respect to >

said body ‘on either: side of said cockpit, means opera’

tive from the inside of said cockpit for controlling the

sliding .displacements of said carriages with respect to*

said cockpit, means for detachably securing said roof to

said carriages, and means operative front the iniside of

said cockpit for instantaneously bringing said securing‘

means out of action: “ ie

: Claim, ,

° : . . . . ; . *e : ~

In. combination with an airplane having a hody pro- -

vided with a cockpit, a roof for said cockpit, two rails

extending on either side, respectively, of said cockpii,

carried by said body in the fore and aft diredtion of

siid airplane, typ carriages for supporting said roof

slidable along eA rails, respectively, means operative

from the ‘inside of said cockpit for controlling the slid-_

ing displacements of said carriages with respect to.said —

rails, registering annular elements carried by said roof

and re carriages respectively, iri-coaxial relation, pins

adapted to engage in all of said annular elements for

securing said roof to said carriages, and means, opera-

tive from thie inside of said coekpit, for moving said pins

ouf from at least one of said cooperating annulat ele-

ments whereby said roof is detached froni said carriages. --

aft

Claim 6

In combination with an aircraft having. a space for

pilot or passengers, a closing element for. said space par-

mally slidable with respect to said space in a fore and

direct ion, capable of being operated, when in flight, °

means operative from the inside of said space, for dis-

lacing said closing element, said closing element being

etachable instantaneously from said aircraft, and

means, operative from the inside of said space, for de-

taching said closing element from said aircraft.

Claim 7.

In combination with-an aircraft having a space for

pilot or passengers, a closing element for said space, a

: 26

support for said closing element slidable with respiect —

‘to said space ip-a fore and aft direction, means operative

from the inside of said space for controlling the move-

nients of said support with respect to said space, means

for detachably securing said support and said closing’.

_ element roo: Bg and means operative from the inside

of said space for instantaneously releasing said securing

means. ae

8, Plaintiff stipulated that plaintiff “takes the position

herein that the patent in suit calls for some actual mechani-

cal (electric, hydraulic, etc.) means for moving the-canopy

_in its normal sliding operation; and consistent with this

position, does not charge infringement by canopiés of the

type used on certain trainers, for instance, where there,is .

nothing more than a fixed handle to be grasped and pulled

or: pushed.” Pn a ates

9, Defendant urged that ‘the Saulnier patent clainfein

suit are invalid and do not define a patentable invention in

disclosures of the sixteen prior patents * and

rior uses

United States Patents

SE enor 1.327.389 ° January. 1920

Vrederiburgh ----------*------ 1, 352, 106 September 7, 1920

CIID annnnnccgertaceee November’ 14, 1922

RS Creme 1. 527,263 - February 24, 1925

Joyce ..--..----------------- ~ 1,682,220 . August 28, 1928

Hall .....--.--*-------------- 1,720,041 July 9, 1929

_ Smith... .--------------- 1,779,388 October 21, 1930

+ Alexander, et al__----~--------- 1; 790,785 . . -February 3, 1931

Hicks .....-.------------------ 1, 808, 018 April 28, 1931

Pivak .....-----------<=-- ---- 1, 806, 366 _ May 19,1931

_ MeCune --------- a 1, 919, 448 July 25, 1933, ©

Hathorn ...------------- __... 1,989, 051 December 12, 1933

Helwig ----------------------- 2, 033, 768 ‘March 10, 1936

| Suttom ...----..---------—--- 2, 073, 325 Ma: *h 9, 1937

ay British Patents ;

Petters Limited, et al_--------- 412,717 July 5, 1984

Boulton & Paul Ltd. et al----— 426, 438 April 3,1

A Uses

h Curtiss-Wright Design 75..-------------- May 13, 1985

‘Dolagine Type O-46A_.-.-.-----.--------- Auaust 15, 1935

: Defendant's exhibit No. 10. 7 ee

Pee 19

rac

, wae

137

2 - gfe wed

Lr ng —

HICKS 1,803,018

47. zo 45 20% £6 /\|a7 cae — 2

* 1 9

& :

H49656— 40 (Fate p 27 of Appendix) :

;

a> ol ° oa *

Sa oe

10. During the prosec ution of the Saulnier applic ation

' for patent in the United States Patent Office the patent ex- ©

—aminer cited Hathern 1,939,051 and Ilelwig 2,033,768, and ;

rejected claim . as originally filed, mating: .

- < e . . * * -

~ Claim 1 is rejected as anpatentable over Hathorn.

-He has a hood over the cockpit and means to slide it

‘s back and forth. To provide means for instantaneous

_ the teaching of Helwig. ~~. ‘ o/s

se - See * *

7 ~~ After claim 1 was amended to specify that the slidable cock-

|" *. pit roof is “capable. of being operated when.in flight®, and. *

after phiintiff’s counsel argued that neither Hathorn nor

/ Helwig discloses the new combiriatjon ef a roof. slidable in

flight with. means for instantaneously detaching the roof, i

. ', patent examiner allowed the claims in suit.

.. °°. Ab. Defendant’s expert considered/the Hicks, Foyce, Sut-

ton, and Hathorn patents noted in finding 9 to be the most

importint of the numefous prior patents urged by defendant.

release of the hood is held not to involve invention‘ after.

12. ‘The Hicks patent discloses: n%n-slidable roof over

the cockpit of an airplane. Referring to the Hicks patent

illustrations, # roof consisting of windows 18 in a frame, 19

sis removably seeGred to the cabin: of the’ pilot’s top by

. six holddown clamps 26-27 spaced around the edge of frame

19 and coacting with the upper edge of the airplane fuselirge.

The clamps 26-27 are simuNanvously released by actuation

of a single handle 32 inside the cockpit. -The dise ‘losure of -

the Hicks patent is summavized in the following mnquege

of the Hicks patent claim: -*

In an airplane, a cabin type fuselage havin ng | it pilot’ 3

cockpit * * *, are latively ht weight roof disposed

over said cockpit, *.** a'plurality of quickly detach-.”

able’ clamps spaced around the periphery ‘of said’ roof

and secured/thereto in position te‘co-act ith the s

of the cockpit to thereby sécure the roof thereon, and

: | sécured to said roof, whereby the clamps may be in-

ae stently and simultaneously released*to quickly detach

the roof, said roof being so-shaped that the velocity of

the slip stream will.draw the roof upwardly away from

the fuselage when detached and the clamps and’¢ rat-"

ing cable. being secure? to the roof will likewise e

drawn free from the cabin to thereby’provide a free and,

clear ropening apere the pitot’s Coe ockpit.

+ : *%

‘ ° : \

Mh, a

an operating cable common for all of said clamps. ¢

ry,

Toe

y ;

. 28 3

13. The Sutton pgytent discloses a. ‘slidable “cabin top or

cockpit closure” for aircraft. Referring to the Sutton patent

illustrations, a cockpit clasure 18 consisting of a transparent

20 in a frame 19-is slidably secured to the airplane

fuselage: The lower edpe of the frame 19 carries rollers

which engage in tracks 17 adjacent the edges of the cockpit

14. The closure 18 in its rearward position extends rearward |

of the pildt’s headrest 16, and in its forward position par-

tially covers the cockpit 14 as shown in the lower illustration.

A handle inside the cockpit is connected. by a pulley and.

cable to enable the pilot to slide the closure 18 forward and

to lock it in any oue of a plurality of positions. Arn elastic

cord 25 is connected to the closure to urge the closure to

_ the extreme rearward position when the pilot releases the

operating handle from a -positioning ‘notch. -The at wed

patent specification states :

*** * The utility ofthis construction will be appre-

ciated by pointing out that, when in flight, the pilot will -

have closed the screen to protect his head and shoulders

rom the windstream. Shov td an emergency arise

wherely it is necessary for lim to leave the aircraft,

he simp os mu, ite han od upwardly, w n he is

left wi y opened cockpit wie "y his

rise, t

from the alec is not hazardous. Li

dle 34 and its assdciated Stiucture are so organized

that there is no chance of their becoming entangled with

the clothing or parachute of the _ [ Emphasis

7 Milded.]

* . ; an .

14. The Joyce -patent discloses, a” slidabie windshield

adapted to vary the size of thie cockpit opening. Referring

to the Joyce patent | illustrations, a windshield 16 com-

“prising a transparent panel 17 held in a frame 18 is sup-

ported for sliding movement in fore and aft directions,

The Joyce shecification states that the size of the wind-

shield is preferably such .that the forwardly extending

portion of the cockpit 14 is completely covered by said

shield when.in the position shown in figure 2. The wind- .

shield frame 18 is provided with supporting aprons 19, and

the latter are provided with rollers 20 operaWle in channel-.

shaped longitudinal rails 21 attached to the aircraft fuse-

dage. Rotation. of the handgrip 26caperates cams 25 to -

disengage latch bars 2: 2 and thos: allow free movement of the

le hs

. a Ps °

the han- |

HATHORN

- 1,939,051"

49656 -60 (Face p. 20 of Appendix) -No. 2

L eS

————

549656 60 (Face p. 20 0f Appendixni Nod

. . ,

4 een) peer ow sec >) mapmniie -

SUTTON

__ 2,073,325 —

windshield in either direction. The Joyce patent adjustable °

windshield is capable ot being operated from inside. the °.

cockpit when in flight, but only by pushing or pulling. No

mechanical means are provided.

15. The Hathorn patent, cited by the patent examiner,

discloses a slidable transparent cabin top for open cockpit

aircraft. . The Hathorn'cabin tops may be operated, during

flight, but only’ by pushing and pulling. No» mechanical

means: are provided. Referring to figures 2, 4, and 8 of the

Hathorn patent drawitgs, a cabin top.20, shown in the open

"30

. position. in figure 2, is supported for sliding movement on”

_ rails 21 to cover the forward cockpit: 17. The rear cabin top

"25, also shown in the open position, is is mounted for sliding

movement on rails 24 to cover the year cockpit 18. ‘A handle

28 is provided on’the inside of each cabin top to enable the oe-

cupants to adjust the position of the eabin top along the sup-

porting rails during flight: A locking mechanism 29 is

connected by cables 35 to operate a plurality of latches 36 for

‘securing the cabin top in adjustesl position. The cabin tops.

are carried-by supporting plates 42 which are provided with

rollers 44 and 46 engaging tlie rails 21 or 24.

16. The Logan patent discloses a protective hood for air- -

‘craft comprising a plurality of pivotally supported arcuate

segments adapted. té nest. together in the cockpit: The

Logan hood is neither'slidable nor jettisonable.. The Vred-

enburgh patent discloses a pivoted windshield for one side‘of,

the basket of a captive balloon. The Vredenburgh shield.is

instantaneously detachable but is not slidable. The Corne- ,

lius patent discloses an escape mechanism for cabin aircraft

comprising releasable doors in the cabin floor. This con-

struction enables the pilot to drop his passengers and their

seats downward. The Cornelius patent does not suggest a

slidable or a detachabie cockpit canopy. The Miller patent

* discloses spring-operated hinged doors covering a parachute

compartment rearward of an open cockpit. The Hall patent

discloses a cabin aircraft having a releasable roof hatch

abeve each passenger seat.. The several hatches are releas-

able simultaneously, but are not slidable. The Alexander,

’ et al. patent di’ loses a cockpit roof windgw slidable in fore

and aft directions hy means ef a crank-operated mechanism.

The Alexander roof window is not jettisonable. The Smith

patent ‘discloses another arrangement | of trapdoors in the

_ cabin’ fivor for dropping passengers and their seats down-

_ ward. The Pivak patent shows an adjustable cover for |

cockpits formed by a series/of arcuate segments, similar to

that disclosed in the Logan patent, but the Pivak cover is

slidable fore and aft to vyayious positions. This Pivak patent

was the subject of an eaylier suit in this court, Joll Perry,

formerly J. L.-Pivak, ¥. United States, 112 C. Cs. 1, decided.

March 1, 1948, wherein ¢laim 1 of the Pivak patent was held -

‘to be invalid over prior patents. The McCune patent re-

acaba . > Da |i

f Ap

se e

‘lates to power- y-operated vehicle exit doors. The Helwig pat-

ee ent, eited against the.Saulnier application by. the- patent

examiner, discloses a safety exit for an aircraft _gunner’s

$ compartment -or turret. The exit comprises an airtight

‘ tripdoor secured ‘in the bottom floor. of the gunner’s: com-

. partment’ by quick- release latches whic h allow the door to ba

jettisoned in an emergency. The Helwig trapdoor is pivot-*—

ally supported for non-emergency use, and is not slidable and

is not adjustable to various positions during flight. ,

17. The British Petters, et al. patent discloses the broad

combination of a cockpit canopy slidable in the fore and aft:

direction and also instantaneously openable in an emergency. ,

The conew canopy is ‘not. ‘detachable. Referring to

figures 1, 2, and 4 of the British. Petters patent draw- -

ings, the pilot’s cockpit a is provided with a fixed wind- -

+ shield s and a-slidable hood. The slidable‘hood or canopy is _

formed in ‘two parts, d and e, hinged about substantially -.

‘horizontal axes, g and h. The members to which the hinged '

parts are attached are mounted pon fixed guides j and &,

whereby the hood may be moved.forward so as to uncover the

— cockpit a and enable the pilot to enter or leave the same. In

order to secure quick release in an emergency, the two por-,

‘tions d and e of the pilot’s cockpit roof may be thrown open

by releasing a quick-release pin m at the inside top of the

canopy as shown in figure 2, the ‘open canopy being illus-

trated in dotted lines. The gunner’s cockpit } is provided

with a roof of the piyoted segment type disclosed in the

; _ Logan and Pivak patents discussed in finding.16. The Brit-

4 ‘ish Petters patent discloses a cockpit roof structure which is

| slidable in flight and also instantaneously openable in an”

emergency. The British patent does not disclose any details

of mechanisms. or handles. for moving the pilot;

slidable roof fore and aft on the fixed guide railg4 and *.

18. The British Boulton, et al. patent discl a slidable

cockpit canopy construction for aircraft. rring to

; figures 3 and 4 of the Boulton patent drawings, an aircraft

4 cockpit is provided with a fixed windshield 10, a slidable

+= cockpit roof 14, and a fixed rear roof section 13. The slid-

able roof 14 is mounted on rollers 20 positioned in channels

17 and 18, there being one channel on each side of the

cockpit. ;

Skt ee ee

Sia? Hi behets

Day

raf

’

;

PETTERS

| pier "+ Bratish *

1 412,717

rai

Al fig &.

BOULTON

British

426,438

| hig #

The Boulton patent specification suggests—

: . + * . *

> Means should be provided for enabling the pilot to

—' @ffect the movement. of the sliding component, such as

suitable handles affixed thereto, or alternatively a winch

and handle, or a quick thread screw. Further suitable

‘

ee ae a

a ?

- Be

locking gears should be provided for retaining the slid- -

ing com} “we in either the closed or the open position,

or, if desired) in intermediate positions as well. -

- Further the attachment of the slidable component of:

the cover to the-aircraft through the track mast be such

‘as to-ensure thab it will be securely held- and easily

operable under all xonditions of flight ind of the vary- -

ing air pressures ae the cover is thereby su

— FFs

* *

The British Boulton, paterit Vice loses a roof normally slid-

able above a pilot’s coc kpitigen a: capable of being operated

when in flight, and suggests mec anical nieans for displac-

ing the roof under all conditions of fight which would mean

that the displacing means must be operable from inside the

cockpit. The Boulton patent does n suggest means for

detachably ‘securing the reof 14 to the Supporting lugs 19,

figure 3, nor does Said patent suggest that the slidable root .

might be jettisonable.

19. As noted in this_court’s apecial findings? of fact in

the Jol! Perry case ‘cited above, a Lockheed Sirius airplane,

built for Col. Charles A. Lindbergh, flight tested in 1930,

and placed ot public exhibition about 1 WS, ine luded a slid-

able cockpit canopy. The transparent front canopy Section

was Mewnted at its lower sitle edges for sliding movement —

on track sections secured adjacent to the top edge of the

front cockpit and on the outside thereof. ‘The evidence in

the present case does not indicate whether or not the Lock-\

- heed Sirius slidable canopy was jettisonable, nor does it indi-

cate the specific means utilized for sliding the eanopy fore .

fa amd aft.

~ 20. The Curtiss-Wright Design 75 airplane canopy is de--

. Seribed in a series of affidavits and drawings. Curtiss-

Wright drawing 84256, entitled Cabin Assembly—Design

75, dated February 11,1935, shows aslidable cockpit canopy.

The design 75 canopy is ‘provided with rollers which engage

rails secured to the fuselage. The drawing shows no me- —

chanical means for moving the canop? fore and aft;.and

does not clearly show that the canopy is jettisonable. Affi-

davits made in 1952 by Curtiss-Wright employees state that

the design 75 airplane was equipped ir 1935 with a slidable

* Findings 35-36, 112 C. Cis. 1, #6.

* Defendant's exhibit 13.

|: . > ° ' - 35.

and sheddable cockpit canopy with crank means to operate,

the. ‘canopy and -with locking means to lock the canopy in ,

various positians.’ Said affiants also stated that the design 75

airplane was flight tested in 1936, that the canopy was jetti-

soned intentionally during a flight between August 7 and. — :

September 29, 1935, and that the canopy was provided with

Jock and release means similar to those used later on P40

type airplanes, This evidence is insufficient ‘to watrant a

finding that the design 75 airplane canopy included in 1935

each and all of the elements porns in the —- combina-

tions set forth in the claims in suit.

’ 21. The Douglas Aircraft Tre. O-46A airplane canopy

is described in affidavits, drawings, and photographs. Doug-..

las Aircraft Company layout drawing 5003684, dated May /

22, 1955, and production ‘drawing 5005 igated August 15,

1935, disclose alternative, locks to secure

; a cockpit. canopy to sliding frame support men

: O-46A .cockpit canopies are shown in a series of photo-

;

graphs* dated January 1936. Ninety airplanes of the

; O-46A type were deliveredto defendant’s agencies during

+. the period February 28, 1936, through March 1, 1937. The.

-O-46A canopy comprised four separate sections including

a slidable and releasable forward section, then a fixed sec-

tion, then two more slidable but non-releasable sections. The

‘evidence shows no mechanical

/ . was successfully operated and jettisoned prior to December

27, 1935, the filing-date to which piaintiff is entitled (finding

4). Also the evidence is insufficient to warrant a finding

that the O-46A canopy construction included prior to said

- date each and all ofthe elenents recited in. the: specific

a combinations set forth in the patent claims in suit.

22. The evidence as to the Lockheed, Curtiss-Wright, and

: Douglas airplane canopy constructions does not warrant a

_ \ ~~finding that the subject. matter of the plaintiff's patent

- claims in suit was known to or used by others in this coun-

‘\try, or was in public use or on sale in. this country, prior to

December 27, 1935.

‘ “* Defendant’ a exhibit 15 A-E inclusive.

“ 2 os 0

eans for moving the O-46A |

; _ canopies fore and aft. The evidence is insufficient to war- -

: rant a finding that the O-46A airplane canopy construction --

-—The—_-

INVALIDITY? OF CLAIMS

23. Claini 1 recites a three-element combination compris-

ing (1) a slidable detachable roof, (2) means for displacing

the. roof, and (3) meafs for detaching the roof. . This claim

is valid. : |

24. Claim 2 recites a five-element combination comprising

broadly (1) a roof,’(2) a slidable support. (3) means to con- |

trol the movement of’ said support, (4). means to secure the

‘ roof to the support, and (5) means to release said securing .

means. This claim is valid. |

- 25. Claim 8 in suit recites a five-element combination simi-

lar to that of claim 2, but gpecifies.the support for the slid-

able roof as ‘wo carriages on either side of the cockpit. 'This

claim is valid. ite ~o) ity

. - 26. Claim 4 in suit recites a five-element combination simi-

lar to that of claim 3, but specifies two rails carried by the: ° |

- airplane body aiong which the two carriages slide, and also

specifies registering annular elements carried by the roof

~and carriages together with pins engageable with the annu-

lar elements for securing the roof to the carriages. “Thus

in claim 4, the claim 2 support for the roof is defined as two

rails and two carriages, and the claim 2 means for detachably.

securifig the Support and the roof togéther js defined as gn-

nular elements engaged by pins. This claim is valid.

27. Claim 6 in suit recites a three-element combination

comprising (1) a slidable detachable closing element, (2)

means for displacing the closing element, and (3) means

for detaching the closing élement. Claim 6: is similar to

claim 1 except that it is-broader in that it is not limited to

a cockpit roof construction. When claim 6 was added by,

amendment to the Saulnier application for patent, counsel

‘for plaintiff wrote: ~*~

‘ * bd . w, ae.

This new claim, * * * differs from claim’1: (with

- which it corresponds, * * *) in that it dées not. specif-

ically state that the me, element is.a roof cooperat- .-

ing with a cockpit. It will be readily unde that

the device. according. to the invention could, without. . .

any change in the .principle- thereof, be = toa.

closing element.eonstituting, for instance, a lateral, or

even an under, panel. ies .

— eo ee; oie ion

. a a , See

This claim is valid.

. n

v:-R

@ Claim 7 in sulttrecites a five-elentent combination com-'

* ‘prising (1) a-closing element, (2) a slidable support, (3)

‘means for controlling the movement of said support, (4).

means derachably securing said support to said closing ele-

, ment, and (5) means to release the securing, means. Claim

7.is similar to claim 2 except that it is broader in that it

- is not limited to a cece eH roof construction. This claim is

valid. sear - ;

7 \.ANCRINGEMENT

29. Plaintiff ¢ ini infringement of the six patent claims

‘in suit by “specific aircraft made for, delivered to, and/or ‘

used by defendant in the period December ‘9, 1948, to De-

_~ cember 9 ; 1954. These aircraft, Mlustrated in plaintiff's ex-_

hibits 3 through 8, ancl the claims asserted there against

defendant are identified i in the foflowing table:

Name , : Maker : . Type’. Patent Clrime

Thenderbolt... Republic Aviation - e 47D. ae 133,467

/ : ' Corp. eee ‘ ae

Thunderjet_._.. Republic Aviation ee 1, 2, 3, 4, 6, .

hy Corp:

Mustang... ... North American vine P-51D:-.. -1, 2, 3; 6,7

ae ne tion. Tes

‘Scorpion. ..... ‘Northrop Aireraft.... F-89D__._ + 1,2,6,7

Fury..... ‘<<. ‘Grumman Aireraft.... FJ-2...... 1,6

Sky Raider.... - Douglas Aircraft Co.. AD-6/7... _1, 2,3,6,7

30. Defendant admits that the aircraft cockpit cover mech-

‘anisms illustrated and des¢ribed in material filed in response

to the call of the court dated February 29, 1956, represent.

structures of typical aircraft made for, delivered to, and/or’

used by defendant in the period stated in finding29. - .

31. The Thunderbolt aireraft’ has a- tratisparent bubble

canopy” “overs the-pilot's_cockpit. The canopy is supported

for fore and aft sliding movement on three rollers which are |

carried by. plates detachably secured to the cahopy. There

is one roller on either side of the cockpit and the third roller :

is at the rear central portion of the canopy. A charinel-type

track secured to the fuselage is-_provided for each of the three

rollers. An electric motor operating. threngh a clutch,

sprockets, and a driving chain “is connected to. the canopy

through the rear canopy support. for electrically mov ing the

canopy in’ fore-and aft directions. A jettison leyer is se*

cured inside the canopy and is connected through cables,

' 38

levers, ond rod assemblies to shanltancously release’all the

roller-earrying plates “from interlock with plates secured to

the canopy itself. The Thunderbolt sliding canopy con-

struction also includes. knobs secured to the, inside of the

. canopy for mariual movement of the canopy in fore and aft

directions by the pilot. Some of the details of the Thunder- |

bolt canopy jettison mechanisms are shown in U. S. patent |

"2,445,438 issued to Republic Aviation Corporation July 20,

1948. The Thunderbolt ca is illustrated on page 25.

32. The Thunderbolt sliding canopy construction includes

‘a combination of elements like ‘recited in claim 1 in |

suit and which function in the same manner to produce the -

same result. Claim 1 is found to be infringed by defendant’s

Thunderbolt aircraft. The additional elements recited in”

chims 2, 3, 4, 6, and 7 of the patent in suit are also found to -

be present in-the Thunderbolt aircraft. ‘Such additional

claims are also found te be infringed by the Thunderbolt

- aircraft, ——-

33. The Thunderjet, denied also’ bas a transparent bubble |

canopy over the pilot's cockpit. The canopy is supported

_for fore and aft sliding movement oh three roller devices

engaging tracks secured to the aircraft fuselage. The roller

devices are detachably secured to the ganopy frame by

jettison mechanisths employing explosive charges. The

Thunderjet canopy is slidable in fo ow and aft directions dur-

ing flight by means of an electric motor connected by a

pinion gesr and drive chain to the canopy frame. The

jettison mechanisms may be operated electrically by means.

_ of a jettison switch on the main instrument panel within the _

cockpit. , Closing the jettison switch fires atrexplosive charge .

- in each jettison mechanism to disconnect each roller device

'. fram the canopy frame. <The Thunderjet canopy, release

differs from the Thunderbolt canopy release iilustrated above

in that the jettison mechanism is ‘qperated by electrically-

’ fired explosive charges rather than by a lever, cables, ond

Pod assembl}

34, The

underjet sliding canopy construction edindlis

of elemetts equivalent to those recited in claim

which function in a similar manner to produce

lt. Claim 1 is found to be infringed by de-

fendant’s Thunderjet aircraft. ‘The additional elements re-

cited in claims 2, 3, 4, 6, and 7 of the patent in suit are also

= e

™

- 40a wt.ease

“39

THUS DERBOLT Pe4@47D

'O seTT S08

PULL MAROLE

TO oprware wanueccy —- .

PULL OF PUBH On «noes

THTERNAL Canorr. .

fourid to be present in the Thunderjet aircraft. Suck aildi-

tional claims are also found to be infringed by the Thunder-

jet aircraft. ‘

35. The Mustahg (P-31D) aircraft likewise has e trans.‘

parent, bubble canopy supported on three trucks which slide

in tracks installed within the fuselage contour lines. The

eatiopy is slidable in fore and aft directions by means of a

cable and crank assembly operated from within the canopy

by acrank at the right side of the cockpit. The slidable

canopy is locked to each of the three supporting trucks by

‘means Of pin and latch devices: An emergency release

handle is provided in the right forward side of the cockpit,

making it possible to jettison the sliding canopy at any posi-

tion between closed’ and full open. The reléase or jettison

handle is connécted-to the pin and latch devices by means

of cables, links and slides. ,

ba}

_ 36. The Mustang sliding canopy construction includes a

combination of elements like those recited: in, claim 1 -and

which function in a similar manner .to produce the same

result. Claim 1 is found,to be infringed by defendant's

Mustang aircraft. The additional elements recited in claims

2, 3, 6 and 7 of the.patent in suit are also present in the Mus-

tang aircraft. Such additional claims are also found to be

infringed by the Mustang aircraft canopy construction.

37: The Scorpion (F-89D) aircraft includes a cockpit

canopy supported by three trucks and moved fore and aft

on its tracks by an electric motor connected to the canopy

through. an endless*chain. Control switches for the motor

are proyided within the cockpit for both the pilot and an

observer. The canopy is slidable to various positions either

by the elec fric motor or by hand. In the Qrily closed posi-:

tion, the canopy is sealed to the fuselage by an inflatable

rubber canopy seal. ‘The Svorpion aircraft includes a ean-

epy jettison mechanism operated by compressed air. Pneu-

_mati¢! cylinders positioned on each side of the cockpit are

provided with upwardly extending piston rods adapted to

engage striker plates on the canopy frame. When com-

-pressed air from an air st. ‘age bottle is admitted to the

pneumatic cylinders, the rods engage the canopy frame, can-

opy fastening hooks are unlocked, arid the canopy is jetti-

soned from the aircraft. A canopy jettison *control valve —

is located within the cockpit. ‘The construction of the con-

nection between the trucks or carriage and the canopy-frame

itself is not clearly diselosed in the evidence received at the

trial. The Scorpion canopy is jettisonable only from the |

forward or closed position.

38. The Scorpion sliding canopy onstruction: biiaibea a

combination -of elements like those recited in ¢laim 1. in

suit. These elements function in a similar manner ‘and pro-

duce the same result as those disclosed and claimed in the

Saulnier patent. This claim is found to be infringed by de-

fendant’s Scorpion aircraft construction: The similar efe-

. ments recited in different language in claim 6 in suit are

also present in the Scorpion canopy construction. Claim 6

- is also found to be infringed by defendant. No finding is

made with regard to the possible infringement ‘of claims 2

and 7, also asserted by plaintiff, in view t the lack of evi-

struction for securing the canopy support and the canopy —

' _ together. ‘ el tec ;

i. *% | 39% The Fury aircraft includes a cockpit canopy slidable

| fore.and aft on'tubular tracks at the sides of the cockpit. .A

jackscrew operated by an electric motor is provided to

“mechanically move the canopy to various positions. A con-

trol switch for the motor.is located inside the cockpit for .

- operation of the canopy by the pilot. The canopy is secured »

to roller trucks which engage the tracks. The canopy is

provided with an emergency release system operated by an

explosive cartridge. Pressure. generated by. the explosive

charge is utitized in a cylinder and piston mechanism to slide

the cockpit canopy aft until it is disengagéd from the

‘supporting tracks and is jettisoned in the aft direction.

The construction by which the roller trucks become dis-

_ engaged froni the ‘tubular tracks during jettisoning of the

canopy is. not clearly disclosed in the evidence presented at

- the trial, . : :

—* 40. The Fury sliding canopy construction. includes a ‘com-

bination of elements like those recited in claims 1 and 6 of

the Saulnier patent in suit. ,These ‘elements in the Fury

construttion function in a similar. manner and produce a

- Similar result. as those recited in said patent claims, These _

. claims are found to ‘be infringed by defendant’s Fury -air-

craft construction. . .

-41. The Sky Raider (AD-6 and AD-7) aircraft includes

&. cockpit enclosure or canopy slidable fore and aft on

tubular tracks mounted inboard of the cockpit edges. The

forward end of the enclosure is detachably secured to roller ”

trucks which engage said tracks, The aft portion of the

enclosure is provided with rollers which engage a track aft

of the enclosure. The enclosure may be moved fore and

aft manually br means of handles thereon at the inner for-

ward end ofthe enclosure. The enclosure may be moved

fore and aft by a hydro-mechanical mechanism ‘including

a eylinder containing an oil-operated piston connected to

the enclosure. . This meeharrism is also operable by com-

. pressed air. The hydro-mechanical mechanism is controlled,

by a handle accessible insid® the cockpit and connected to‘

oil and air valves by cables, rods and levers.’ The cockpit

— enclosura may be jettisoned in an emergency by means of .

explosive charges installed in the’ connection between the

tae ee

LS Sa NN SAL SE EN sey P= prearrnee| Tore

‘

‘ F

Se ne ae eae Fee oleae fa)

al ttt te tis —

. et,

” be present in the Sky Raider construction. These addi-

supporting roiler trucks and the forward end of the en- .

closure frame. An electrical system. including a control

switch accessible to the pilot within the cockpit is provided .

to detonate the explosive charges and thereby shear pins .

allowing the enclosure and -its frame to separate from the.

supporting tracks. The force of the explesive charges gives

the forward end of the enclosure an upward thrust to jet-

tison the entire enclosure. .

42. The Sky Raider aircraft cockpit enclosure construc-

' tion includes a‘ combination of- elements like those’ recited

in claim 1 of the patent in suit. These elements in the Sky

Raider aircraft function in a similar manner and’ produce

a’ similar result te, those recited in said claim. Claim 1 is.

- found. to be ‘infringed by the Sky Raider construc-

tion. The similar elements and additional elements recited

in different language in claims 2, 3, 6, and 7 are also found

a! claims are also-found to be infringed by Gofendaats

: si Raider aircraft construction.

43. Counsel for the parties have agreed that, during the

- accounting phase of this case, if any, plaintiff shall have the

right to present evidence as to other aircraft cockpit can-

opy constructions embodying: structures ‘allegedly falling

within the scope of any claim previously held valid and in-

- fringed by the court; and that defendant shall have not less.

than ninety (90) days’ notice of any and all such structures

-upon which plaintiff intends to rely in said accounting pro-.

ceedings, if any, before being required to present evidence

on the further issue of infringement thus tendered for trial

for the first time during the accounting phase of this case.

Plaintiff notified defendant by a letter dated October 24,

- 1957, that claims 1 and 6 of the Saulnier patent are also

charged to be: intringpd by constructions identified as fol-

lows: .

a ; Model FOF-2

ANO1-85FG-2 ar Model F9F-4, -5, -5P

ANO1-85FGD-2 Model FOF-6, -6P, -7; -8

ANO1-245FBA-2 ; Modei F2H-1 ,

- ANO1-245FBB-2 Model F2H-2, F2H-2N

ANO1-245FBB-2A — . Model F2H-2, '-2P

ANO1-245FCA-2 ti. Model F2H-1N

Ce OE ER OS et Re re oy ee A

No evidence was presentéd at the initial trial of this case

as to the construction of the above-identified aircraft. |

44. Under certain Bluim-Byrnes Agreements between the

pensated plaintiff, a French citizen owning the United States

paterit' here in suit, for certain aircraft canopies procured

by the United States prior to September 2, 1945. Said ac-

tion of the French government in compensating the Brench -

owner of a United States patent was not based on judicial

“proceedings coneerned with the issues of patent validity and —

infringement now tendered’ in the subject case. Tlie trans-

mittal of information by defendant to French /officials con-

’ cerning the cost of some thirty-one thousand canopies pro-

cured by defendant during the World War II period does

not constitute an admission by defendant that the patent

here in suit was considered valid and infringed by such can-

opies. .There’is also evidence that the British government

. has purchased piaintiff’s British patent said to correspond

to plaintiff's French patent upon which the United States

patent here in suit is based. There is no evidence that such

purchase ofthe British patent was based on judicial proceed-

ings concerned with the issues of patent validity and in-

fringement now tendered in the subject case.

CONCLUSION OF LAW’

Upon the foregoing findings of fact, which-are made a

part of the judgment herein, the court concludes as a matter

of law that the plaintiff.is entitled to recover and judgment

will be entered to that effect. The ease is remianded. to the

trial commissioner, pursuant to Rule 38(c), to determine

reasonable and entire’ compensation for defendant’s. un-~ ~

licensed use of plaintiff's patented invention.

a ; |

"APPENDIX B +

, ee é

om the inited States ca i aims

No. ‘4T1- of

(Filed July 4, 1958)

. RAYMOND SAULNIER vy, THE UNITED STATES

REPORT “GF COMMISSIONER

’ To the ieee the Crier Jcpce AND Associate Jopars

OF THE UNIrep. STATES C OURT OF Cuatms :

Pursuant to. the order of reference in the above-entitled

case, the undersigned Commissioner makes the following

— of his findings of fact:

~22. | Findings 1-22 are substantial)’ identical to Find- .

ee 1-22 adopted by the Court of Clajms, supra, pp. 20-35. 1.

Sa ede * - *

yevaisigny OF CLAIMS

23. Claim 1 recites a’ three-element combination. compris-

ing (1) a slidable detachable roof, (2) means for displacing

the roof, and (3) means for detaching the roof. This broad ¢

three-element combitfation is disclosed, prior to Saulnier’s

first effective date, in the British Petters patent discussed

in finding 17. In this British patent construction, the

. .pilot’s cockpit toof is’ slidable-and is also instantineously -

openable for emergency exit by releasing a quick-release

pin m at the inside top of the roof. No new or different

result is secured by releasing a two-part hinged section roof, ~

which may be torn away by the slip stream} as areca ,

(45) °

eee:

from: releasing and lifting. 4 one-piece roof so that the slip

stream will carry it away. In either case the cockpit is

instantaneously opeped to allow the pilot ‘to escape or to be

. ejected from'the cockpit. Although the Petters patent does

‘not disclose a specific construction of means for displacing

the slidable roof structure, the disclosure that the roof is

slidablé includes and requires that there be a handle or:

.grip or. some other. conventional means by which the

slidable roof may be displaced fore and aft. ‘Tlie broad

- combination claimed by claim 1 lacks novelty. The in-

dividual elements of the claim 1 combinasion were all known.

‘in the prior art. Cockpit roofs normally slidable and cay -

able of being operated in flight are shown ‘in’ prior patents

such as Sutton, Joyce, Hathorn, Petters, and Boulton.

Plaintiff does not deny that slidable cockpit roofs are ofl.

Means operative from inside the cockpit for displacing |

the cockpit roof are also specifically slrown in prior patents

such as Joyce, Hathorn, and Boulton. “The Boulton patent

specification even teaches the equivalence of handles, a. winch

and handle, or a quick-thread screw for displacing a canopy.

Plaintiff's stipulated limitation of his patent claims, noted

in finding 87to mechanical means for moving the canopy, 8s

distinguished from fixed handles, is immaterial in view of -

the Boulton patent teaching of both types. A cockpit ‘roof *

detachable instantaneously is shown in prior patents such

as Hicks, and Hall, and is shown as openable instantaneously

in Petters. Jettisonable closures are also shown in the. Hel-

wig patent cited by the patent examiner. . C laim 1 of the

patent in suit js-itivalid in rec iting an ald combination of

—

old elemerits producing no. new or unexpected results. The

differences between the recitad of claim 1 and the prior art

- patents are such that the subject matter asa whole would —

have been obvidus, at the time the Saulnier consffuction °

wes devised, to a person having ordinary skill in the air- :

plane cockp*t closure field.

24. Claim 2 recites a five- element combination comprising

broadly (1) a roof, (2) ‘a slidable support, (3) means to con--

trol the movement of said support, (4) means to secure the

roof to the support, and (5) means to release snid sectring,

means. This combination is ‘broadly disclosed, prior to

Saulnier’s earliest effective date, in the patents to Joyce, Ha-

‘thorn, Petters. and Boulton. For example, referring to the

plane. cockpit canopy fi

ducing ‘no pew or unexpected results.

47 i . . .

Joyce patent constructian, finding 14, the Joyce pilot's shield |

16 ‘includes a transparent panel 17 mounted -in « frame ts,

~ the latter being secured to supporting plates 19 having

rollers 20 to facilitate-sliding movement of the shield fore

and aft. The Supporting: plates 19 are obviously secured to

the frame. 18 by securing means. Claim 2 here in suit does

hot specify any particular type of securing tieans other than

that said means detachably secure the elements together: for

-instantaneoys release. Such detachable sectiring means are _

old, as illustrated by the holddown clamps 26-27 of Hicks,

finding 12, which are instantaneously and simultaneously re- :

leasable to quickly detach a roof structure. It would have _

been obvious to a ay Piiep ordinary skill in the air-

ett to substitute the Nicks patent

releasable holddown clamps for the undescribed securing

means between the Joyce patent-roof frame 18 and slidable

“upporting plates 19. Likewise: it would have been obvious

to one having ordinary skill t@ utilize such releasable hold-

down clamps to secure the Hathorn supporting plates 42 ¢o

the Hathorn slidable cabin top illustrated hereitbefore.

Claim 2 of ‘the patent in suit is invalid in reciting an old

‘combination of old elements producing no new or unexpected

results. siete Ceaorey

25. Claim 3 in suit recites a five-element conibinstion simi-

lar to that of claim 2, but specifies the support for the slid.

' able roof as tive carriages on either side of the cockpit, Such.

“carriages are broadly disclosed in the prior patents of J) oyce, ~

_Hathorn, and Boulton, mentioned above. For example, re-

wiinology does not avoid the teaching of the prior patents

hoted against claim 2. _Claim 3 of the patent in suit is also:

invalid in -reciting.an’ old combination of old elements pro-

26. Claim 4 in-suit recites artive-element combination einri-

‘lar to that of claim 3, but specifies two rails carried by the

= ®

; siephans body oles which the two carriages slide, and abet

specifies registering annular elements ‘carried by, the roof

and carriages together with pins engageable with the anna-

lar elements for securing the roof to the carriages. Thus

in claim 4, the claim 2 support for the roof is détined as two

rails and two carriages, and the claim 2 means for detachably

securing the support and the roof together is defined as an--

nular elements engaged "by pias. Supporting carriages and

rails on which the carriages.are slidable are broadly dis-

-Dyglosed 3 in the prior patents of Joyce, Hathorn, and Boulton.

Jeyce shows .channel-shape rails 21. Hathorn, shows rails

21 “Rad 24. Boulton shows channels 17 and 18. The use of

_ pins slidable into and out of apertured lugs to provide a de-

tachable securing means is disclosed in the prior patents of |

Smith. and Hall, identified in. finding 9, Smith describes a

pin or bolt carried in a set of guides and provided with an

arm engageable with an apertured fiange to retain an air-

craft’ trapdoor in place. ‘Hall degeribes a slide boit secured

toa slide rod mounted in bearings, the bolt being engageable

with an apertured hasp to secure a cover above a pilot's seat.

No’ new result flows from making such securing means an-

nular. Claim 4-of the patent in suit is invalid in-reciting

an old combination of old elements ptoducing no new or

unexpected results. , The specific supporting means and the

specific securing means~defined in claim 4 involve simple

‘mechanical constructions equivalent structurally and fune-

tionally to those taught by prior patents and would have .

been obvious to a person having ordinary skill in the air-

plane cockpit closure field.

27. Claim 6 in’ snit recites a three- aiiecee combination ~

comprising (1) a slidable détachable closing element, (2)

méans ‘for displacing the closing element, and (3) means’

for detaching’ the closing element.. -Claim 6 is similar to

claim 1 eacept that it is broader in ghat it is not limited to

a cpckpit roof construction. When claim: 6 was added by

— amendment to the Saulnier application for patent, counsel

for plaintiff wrote :

- * Vig * ees * *

* This new claim, * * * differs from claim 1 (with e

. which it corresponds, * * *) in that it does not Ae aml

ically state that the closing element is a roof ¢ rat-

ing with a cockpit. It will. be rated understoo ‘that

49. pra? :

the device according to the’ invention could, without

any change in the principle thereof, be applied to a

closing element constituting, for instance a ateral, or

even an under, panel. 5 a

> . -— * ee; *

Claim 6 in suityecites a cditibination broadly old as disclosed .

in the British Petters patent. Detachable -closing elements,

as distinguished from cockpit roofs, are disclosed in the

prior patents to Cornelius, Hall, and Helwig, all identified

in finding 9 and discussed in finding ‘16. Claim 6 of the

patent. in suit ‘is’ invalid, for the saine reasons noted with

referetice to clainy 1, in recitiig an old combination of old

elements producing no new op unexpected results. The.

‘ differences between the recital of claim 6 and the prior art —

patents are such that the subject matter as a whole wouid

have been obvious, at the time the Saulnier construction

was devised, to a person having ordingry skill in the airplane’

| fuselage closure field, ; . ‘Sse er, wae

28. Claim 7 in suit recites a five-element combination com.

prising (1) a closing element, (2) a slidable. support, (3)

means for controling the. movement of said support, (4)

means, detachably Securing said support to said closing ele-

meht, and (5) means to release thie securing means. Claim

7 is similar to claim 2 except that it is broader in that jt

is not limited to a cockpit roof construction, Claim 7 recites

& combination broadly old as disclosed in the patents to

Joyce, Hathorn, Petters, and Boulton. Statements made in

finding 24 with reference to claim 2 also apply to claim 7.

Claim, 7 of the patent in suit is invalid ini reciting an old

combination of old élements producing no new or tinex pected

“results. + ee wes ; ome :

29. "Summarizing, claims 1, 2,°3, 4, 6, aml 7 of the patent

in suit are found to be invalid over the diselosures of prior

patents (1) in that these patent claitns merely recite old

combinations of. old elements“producing no new or un-

expected results, and (2) in tliat the differences between °

the terininology of these claims and’ that of the ‘prior art

patent are such that the subject matter as a whole would

have been obvious, at the time the Saulnier, construction

was devised, to'a person having ordinary skill in the field

of removable roofs for the cockpits of aircraft. -

am oe. : ‘

z _ aor

30.45. [F lading». 30-45 are wedi identical | to

Findings 20-44 Adopted by the Court of Claims, supra, PP. °

-BT-43. ar.

ee e a ene es , 7 - i

16. Sumniarizing, patent claims 1, 2, 3,4, 6; and: 7 of the

Saulnier patent have been found to be invalid as stated. in

- finding 29. In the event that the court alters said finding of

patent invalidity, then the accused a raft ‘identified in -,

* finding 30 are found to infringe such bf said claims as the

court holds valid, as particularly set fo i findings 83, 35,

37; 39, 41, and 43. ° : 2 ‘

‘Respectfully submitted. * ,

‘ Donatp E. Lanz, Commissioner,

is e

” é

e.. is

—

U.S. GOVERNMENT PRINTING OFFICE: 1960

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.