Opinion
Benjamin Hinman, Shipman & Goodwin, Hartford, Conn., for plaintiffs.
Simon S. Cohen, U.S. Atty., Hartford, Conn., David A. Wilson, Jr., Sp. Asst. to the Atty. Gen., for defendant.
SMITH, Chief Judge.
This action for income tax refund by plaintiff Guy E. Beardsley, Jr., inventor of an air flow operated economizer for aircraft power plant carburetors, and his wife Katherine, is based on a claim of work performed on the invention covering a period of thirty-six months or more in accordance with Sec. 107(b) of the Internal Revenue Code of 1939, computed according to Sec. 107(c), 26 U.S.C.A. § 107(b, c).
The critical date is February 23, 1936, thirty-five and one-half calendar months prior to the completion of work on the invention by the filing of a patent application with the United States Patent Office on February 10, 1939. Plaintiff was a project engineer for carburetion at Pratt & Whitney Aircraft in 1935 and 1936. The earliest date as to which there is any testimony of any reduction to writing or drawings of plaintiff's idea which culminated in the patent is in April, 1936.
It is plaintiff's present recollection that he had recognized and in a paper prepared and delivered in the spring of 1935 first pointed out the need for a fuel economizer, since the fuel air mixture became richer in the thin air of higher altitudes and manual adjustment of mixture control resulted in wide variations in fuel consumption under similar conditions.
A Thorp Hiscock device creating an artificial altitude in effect in a carburetor was satisfactory for a given altitude, but flight at heights above the given altitude gave a recurrence of the problems. A device developed by Bendix for carburetors was seen by the plaintiff for the first time in the Fall of 1935. This device made possible for the first time measurement of the air flow into the engine by weight-- essentially equivalent to a measurement of horsepower output.
Bendix built an economizer geared to manifold pressure.
It occurred to plaintiff in November 1935 that an automatic economizer might be built in the light of the Bendix air flow measurement device which would operate by horsepower output regardless of altitude. He thought over his idea (later embodied in his invention and the basis of the patents) and kept on eye out for data already available, or which came to his attention in his regular work which would tend to show whether his idea of using airflow as the basis of economizer action would be practical. He now recalls being interested in a test, taken for other purposes, of an exhaust gas analyzer in January, 1936 and of a conversation also in January 1936 with an English engineer, Yoxall, for what bearing they might have on the idea of the invention in his mind.
Between April 22, 1936 and April 29, 1936, plaintiff first made a rough sketch of his idea on a copy of a Bendix blue-print of a carburetor with a manifold pressure operated economizer, and at that time first disclosed the idea to anyone, showing it to Arthur E. Smith, one of his assistants.
In an interference proceeding in the patent office plaintiff on June 14, 1944 certified under oath that he began actively exercising reasonable diligence in adapting and perfecting the invention in April, 1936. Plaintiff's testimony, at best, establishes no more than the carrying of the idea of the invention in the back of his mind from November 1935 to April 1936, with a recollection that data was looked at, and ordinary daily work for other purposes taken note of for what bearing there might be on the feasibility of the idea of the invention. This is far too vague, particularly in the face of the certification eleven years ago when events must have been fresher in recollection, for a finding that plaintiff's work on the invention commenced as early as February, 1936. 'Work' in the meaning of the statute must connote something more than the germinating of the idea and mental notice taking of passing data prior to the demonstrable decision to take affirmative action to perfect the idea. The Tax Court in the Richardsoncase, 14 T.C. 547 chose the date of writing down the first notes for the book as the starting point, and cf. De Marco, 9 T.C. 1188.
Defendant is entitled to judgment dismissing the action.