37 F. Supp. 415 (Fed. Cl. 1941)

From Casetext: Smarter Legal Research

Fauber v. United States, (1941)

United States Court of Federal Claims

Mar 3, 1941

37 F. Supp. 415 (Fed. Cl. 1941)

Opinion

No. 41941.

March 3, 1941.

Gorham F. Freer, of Washington, D.C., for plaintiff.

C.P. Goepel, of New York City, and Francis M. Shea, Asst. Atty. Gen. (Frank H. Harmon, of New York City, on the brief), for defendant.

Before WHALEY, Chief Justice, and LITTLETON, and GREEN, Judges.

Action by Hazel L. Fauber, administratrix cum testamento annexo of the estate of William H. Fauber, deceased, against the United States to recover for the alleged unauthorized use by the defendant of two United States patents.

Judgment for plaintiff in accordance with opinion.

In this case plaintiff claims $2,000,000 as compensation for the alleged unauthorized use by the defendant of two United States patents issued to William H. Fauber, now deceased, in 1910 and 1912, for a "Hydroplane Boat" and for "Construction of Boats and Ships", respectively. It is contended that certain inventions described and claimed in these patents were embodied and used by the defendant in the construction of certain hydroaeroplanes. Defendant contends, first, that the claims of both patents in suit are invalid because anticipated by the prior art; and, second, that none of the claims in suit has been infringed by any of the defendant's structures.

Special Findings of Fact.

1. This is a suit for alleged infringement of United States Letters Patent #971,029 issued September 27, 1910, for "Hydroplane Boat," and United States Letters Patent #1,024,682 issued April 30, 1912, for "Construction of Boats and Ships." These patents are hereinafter referred to as the first and second patents in suit, respectively.

The patents were issued to the inventor, William Henry Harrison Fauber, a citizen of the United States, who died July 29, 1928, and the plaintiff in this case is Hazel L. Fauber, duly appointed administratrix of the estate of William Henry Harrison Fauber. Copies of the patents in suit, plaintiff's exhibits 1 and 2, respectively, are by reference made a part of this finding.

2. The patents in suit having expired on September 27, 1927, and April 30, 1929, respectively, prior to the filing of the original petition on April 26, 1932, and the amended petition on March 24, 1937, this Court is vested with jurisdiction to determine the issues under the said patents in suit, notwithstanding the lapse of time or the statute of limitations, by virtue of a special act of Congress entitled "An Act conferring jurisdiction upon the Court of Claims of the United States to hear, adjudicate, and render judgment on the claim of Hazel L. Fauber, as Administratrix, C.T.A., under the Last Will and Testament of William Harrison Fauber, Deceased, against the United States for the use, or manufacture of inventions of William Harrison Fauber, Deceased," duly enacted by the 71st Congress and approved by the President on March 3, 1931, 46 Stat. 2134 (Part 2), which reads as follows:

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That jurisdiction is hereby conferred upon the Court of Claims of the United States, notwithstanding the lapse of time or the statute of limitations to hear, examine, adjudicate, and render judgment under the Act of June 25, 1910 (Thirty-sixth Statutes at Large, chapter 423, page 851), as amended July 1, 1918 (Fortieth Statutes at Large, chapter 114, pages 704, 705; United States Code, title 35, section 68), on the claim of Hazel L. Fauber, as administratrix, C.T.A., under the last will and testament of William Harrison Fauber, deceased, or her successor, as the legal representative of the estate of said decedent, for the use of or the manufacture by or for the United States without license of the owner thereof or the lawful right to use or manufacture the same, of certain inventions of said William Harrison Fauber, deceased, described in or covered by Letters Patent Numbers 971029, 1024682, and 1121006, issued by the Patent Office of the United States on September 27, 1910, April 30, 1912, and December 15, 1914, respectively.

"Sec. 2. That from any decision in any suit prosecuted under the authority of this Act an appeal may be taken by either party as is provided for by law in other cases.

"Approved, March 3, 1931."

A copy of the report of the Committee on Claims and which relates to the above-quoted act, plaintiff's exhibit 11, is by reference made a part of this finding.

3. The question of the amount of recovery, if any, is reserved until after the determination by this Court of the questions of validity and infringement.

4. Both of the patents in suit relate to the hull construction of what is known as "hydroplane boats."

A hydroplane boat may be defined as one which is so constructed as to receive support when in motion from the dynamic reaction of the water upon surfaces, technically referred to as "hydroplanes," the dynamic reaction of the water acting upon these surfaces to raise the hull partly out of the water, thereby lessening the submerged area of the hull with a consequent reduction of skin resistance, thus causing the boat more or less to plane or travel on the surface of the water and thereby permitting a relative high speed in proportion to the propulsive effort.

5. The alleged infringing structures comprise and are limited to various forms of hull construction utilized in seaplanes and flying boats, the various types of which are included in the generic term of "hydroairplane."

A hydroairplane consists of a hull or pontoon member or members associated with an airplane, and is capable of maneuvering on the surface of the water, taking off, flying or maneuvering in the air and subsequently alighting on the surface of the water.

While maneuvering on the water the hull possesses all the characteristics and functions of a boat. These characteristics and functions exist irrespective of the fact that propulsive effort is obtained by means of an air propeller instead of a water propeller.

In order to keep the length of the take-off run to a minimum, one of the essential features of the hull construction is that of readily and quickly obtaining a high speed in the water in proportion to the propulsive effort, and the hull construction must therefore be of an efficient type.

6. The principles of hydroplane construction disclosed in and forming the basis of the two Fauber patents in suit have been generally recognized by those skilled in the art as of considerable practical value in speedboat construction and have been widely used in boat hull construction, and licenses have been granted under the patents.

Under date of June 27, 1923, Fauber entered into an agreement with Gar Wood, Inc., conveying to the Gar Wood corporation certain rights in connection with the patents in suit. This agreement reads as follows:

"Assignment of Interests in Patents.

"For and in consideration of One Dollar and other valuable considerations in hand paid, receipt of which is hereby acknowledged and confessed.

"I, William Henry Fauber, of Brooklyn, New York, sole owner of the following described Letters Patent of the United States and of all rights thereunder, to wit:

"Patent No. 920,849, Hydroplane Boat, dated May 4, 1909.

"Patent No. 956,487, Hydroplane Boat, dated Apr. 26, 1910.

"Patent No. 971,029, Hydroplane Boat, dated Sept. 27, 1910.

"Patent No. 1,121,006, Hydroplane Boat, dated Dec. 15, 1914.

"Patent No. 1,024,682, Construction, Boats and Ships, dated Apr. 30, 1912.

do hereby sell, assign, and transfer unto Gar Wood Inc., a corporation existing under and by virtue of the laws of the State of Michigan, and doing business at Detroit, Michigan, its successors or assigns, the exclusive right in and to each of said patents, and all rights thereunder and any improvements thereon or relating thereto which I may in the future make, patent or acquire, insofar as they relate to the exclusive use thereof in connection with the manufacture, use and sale of hydroplane boats or the like, primarily designed not to leave the surface of the water and not including toy and model boats too small to carry one person, together with the right to sue for and recover profits and damages for past or future infringement of any one or all of said patents; the same to be held and enjoyed by the said Gar Wood Inc., its successors or assigns, as fully and entirely as the same would have been held and enjoyed by me had this assignment, sale, and transfer not been made.

"Witness my hand and seal this 27th day of June, 1923, at Detroit, Michigan.

"(Signed) William Henry Fauber. "Witnesses "(Signed) Horace G. Seitz, "(Signed) Otto F. Barthel. "State of Michigan, County of Wayne, ss:

"On this 27th day of June in the year of one thousand nine hundred and twenty-three, before me, a notary public in and for said county, personally appeared William Henry Fauber, to me known to be the same person described in and who executed the within instrument, acknowledging the same to be his free act and deed.

"[Seal] (Signed) Karl H. Butler, "Notary Public.

"My commission expires Oct. 10, 1924."

Fauber retained all rights with respect to hydroplane boats primarily designed to leave the water (hulls or pontoons of hydroaeroplanes) and only boats of this type are here involved. Therefore Hazel L. Fauber, as administratrix, is properly sole plaintiff in this suit.

7. The structure to which the first patent in suit #971,029 is directed (plaintiff's exhibit 1) is a hydroplane boat provided with a bottom formed of a plurality or a series of surfaces or members located at each side of the central or keel line. These members possess the dual function of forming the flotation surface of the bottom and acting as hydroplanes and are arranged in stepped relation with each other.

The rear of each hydroplane member or surface forms a setback shoulder or step with respect to the adjacent forward end of the next succeeding member. These hydroplane surfaces are inclined laterally and downwardly from the chine or margins of the boat to the keel thereof so that in cross-sectional form the hydroplane members form a V-shaped section from chine to chine (side to side) of the boat.

The patent discloses two forms. Figs. 1 to 5 of the patent are reproduced herewith:

The hydroplane members are progressively deeper in the water from the bow to the stern, as measured from the waterline when the hull is at rest and supported by flotation, and they are of concave V form in cross-section from chine to chine.

In Figs. 6 to 9 in the patent in suit the forward hydroplane members measured from the rest waterline are progressively deeper in the water from the bow to a point approximately just aft of the midsection of the boat, the aftermembers being substantially all of the same depth. In the form disclosed in Figs. 6 to 9, all hydroplane members form a straight V-section from chine to chine of the boat.

In both forms the boat has a pointed bow so that the width of the hydroplane members gradually increases from the bow to the widest part of the boat.

When the boat starts from rest and its speed is gradually increased by means of the propeller at the stern the hydroplane members function to divide and deflect the water against the next succeeding hydroplane member to the rear, causing the boat to rise in the water and thus lessening its displacement. As the speed increases the displacement decreases and the boat automatically regulates its own depth or degree of displacement in accordance with the speed.

8. The specification sets forth the advantages of what may be termed the straight V type and the concave V type of hydroplane surfaces.

The introductory clause to this discussion reads as follows: "While this concave construction or concave form in the hydroplane members, is preferred by reasons hereinafter stated, yet so far as general results are concerned the same may be flat, as illustrated in Figs. 6 to 9, inclusive, and hereinafter described."

Page 2, lines 73 to 115, inclusive, of the patent sets forth the advantages of the straight V construction as follows:

"The advantages gained by the construction described in the hull of the boat may be understood from the following: I have found that flat, transverse hydroplane surfaces have greater sustaining power at the center than at the sides thereof for the reason that the water escapes more quickly near the outer lateral edges of such hydroplane surfaces. The result is that a boat having flat hydroplane surfaces rides in effect on a ridge of water and is therefore lacking in stability. Such lack of stability is especially manifest in rough or disturbed water. Moreover, a boat provided with hydroplane members of transversely flat form are found not to respond promptly and accurately to the steering mechanism. By making the hull of the boat with its bottom of V-shape, as described, the objections stated are largely avoided and a hydroplane boat is produced which is capable of successful use under conditions of high winds and in seas more or less rough or disturbed, while at the same time greater stability and increased carrying power is given and the boat will respond more promptly to the steering mechanism. Moreover, the making of the V-shaped bottom with its side portions at greater inclination at the stern than at the bow of the boat, affords the advantage of enabling the boat at high speed to carry a part of the load by displacement.

"The greater stability afforded by making the hydroplane members of transversely V shape, is due to the increased area of displacement at the low side of the hull when the boat is laterally inclined, which affords a self-righting action, due to the fact that the hydroplane surfaces at the low side of the hull will be deeper in the water and have thereon a greater sustaining pressure than that exerted on the surfaces of greater inclination at the high side of the hull."

Page 3, lines 57 to 85, inclusive, sets forth the advantages of the concave V form as follows:

"The making of the lateral parts of the hydroplane members of concave shape has the advantage of affording greater sustaining power than is obtained by the use of V-shaped members having flat lateral surfaces. A hull of convex shape tends to displace the water radially, and is suitable for displacement boats, but the object of the hydroplane member is to lift the boat above the water and this result is better attained by a concave surface, because the pressure of all parts of such concave surface is exerted on the water in lines at right angles to the surface, and as these lines are, generally speaking, radial to the center point of a circular arc corresponding with the curvature of the concave surface, it follows that the pressure of the inner and outer parts of the concave hydroplane members on the water will tend to prevent outward displacement of the water, and thereby afford a more solid body of water to sustain the boat.

"The concave form of the hydroplane member also promotes stability, because giving a self-righting action due to the greater sustaining pressure of the water confined beneath the concave lateral part of the hydroplane member which is deepest in the water at the low side of the boat."

9. The claims in suit are as follows:

"1. A hydroplane boat provided at each side of the center line of the bottom of its hull with a series of hydroplane members which form the flotation surface of the said bottom and are arranged in stepped relation and inclined laterally and downwardly toward the keel line of the boat.

"2. A hydroplane boat having a pointed bow and provided at each side of the center line of the bottom of its hull with a series of hydroplane members which form the flotation surface of said bottom and which are arranged in stepped relation, are inclined laterally and downwardly toward the keel line and are of gradually increasing width from the bow toward the widest part of the boat.

* * * * * *

"5. A hydroplane boat, provided at each side of its bottom with a series of hydroplane members which are arranged in stepped relation, are inclined laterally and downwardly toward the keel line and the downwardly facing surfaces of which are transversely concaved.

"6. A hydroplane boat having a pointed bow and provided at each side of its bottom with a series of hydroplane members which are arranged in stepped relation, are inclined laterally and downwardly toward the keel line and are transversely concaved."

10. The claims in suit are directed to the lateral or crosswise inclination and the stepped relation of a plurality of hydroplane surfaces, and are not limited solely to a boat construction as shown in the first embodiment of the patent (Figs. 1 to 5) which has the descending keel line throughout the entire length of the boat in contradistinction to the second embodiment (Figs. 6 to 9) in which the keel line only descends to a point somewhat aft of the center section of the hull.

Claim 3, not here in issue, is quoted by way of comparison: "3. A hydroplane boat having a pointed bow and provided at each side of the center line of the bottom of its hull with a series of hydroplane members which form the flotation surface of said bottom, which are arranged in stepped relation, are inclined laterally and downwardly toward the keel line and are of gradually increasing width from the bow toward the widest part, and are, at said keel line, at gradually increasing distances below the side margins of the bottom from the bow toward the stern of the boat."

11. A certified copy of the file wrapper showing the history of the patent application which materialized into the first Fauber patent in suit (#971,029), plaintiff's exhibit 5, is by reference made a part of this finding.

Of the list of prior art patents introduced in evidence by the defendant (see finding 17), the file wrapper shows that the following were cited by, considered by, or called to the attention of the Patent Office during the prosecution of the application:

U.S. Patent to Mills, #514,835 (defendant's exhibit 3c).

U.S. Patent to O'Brien, #509,672 (defendant's exhibit 3d).

U.S. Patent to Miller, #850,034 (defendant's exhibit 3e).

U.S. Patent to Hickey, #761,835 (defendant's exhibit 9).

U.S. Patent to Thompson, #904,464 (defendant's exhibit 10).

12. The second patent in suit #1,024,682 relates in general to a hydroplane boat with a bottom formed of a plurality or a series of hydroplane surfaces or members located at each side of the central or keel line. The said surfaces are inclined laterally down toward the keel and form a concave or hollow V-shaped cross section from chine to chine. The surfaces from fore to aft are arranged in stepped relationship.

In general, this patent relates to the same type of hull as is set forth and disclosed in the first patent in suit, which patent is specifically referred to by application number in the second patent.

The structure of the second patent differentiates from that of the first patent in two distinctive features. These features are —

(2) With respect to any two hydroplane surfaces arranged one to the rear of the other, the hydroplane members of the rear hydroplane surface have a less degree of lateral or transverse inclination than the hydroplane members of the forward hydroplane surface; that is to say, each rear hydroplane surface has a flatter V form than the forward hydroplane surface.

Figures 1, 5 and 5a of the patent in suit, which disclose these features, are reproduced below:

13. With respect to the steps, the patent suggests several forms of step or shoulder. The patentee describes these modifications in the following phraseology, beginning on page 1, line 97, to page 2, line 33:

"However, I consider it preferable to have a certain depth of shoulder at the keel line adjacent to the rear end of each hydroplane member, to permit the entrance of air, and thereby to reduce the area subject to friction. It is further obvious that the height or depth of the shoulder at the rear end of each hydroplane member may be the same from its outer margin n inward toward the keel, or instead of gradually decreasing the depth of said shoulder from n toward the keel line, the depth of the shoulder may be uniform from n inwardly to a

certain point, and from the latter be decreased toward the keel line. The said hydroplane members are, moreover, constructed so that, as can be seen from Fig. 5, the forward or front hydroplane presents in cross section oblique lateral faces arranged at an acute angle to each other and meeting at a sharp angle, so as to have a V-form; the apex pointing downwardly and the sides being concave.

"I construct the shoulders at the rear ends of the several hydroplane members of substantially uniform height or vertical width and as the lateral margins of the hydroplane members are, as usual, flush with the sides of the hull, the width of said hydroplane members gradually increase from the bow toward the widest part of the boat. By reason of the tapered form of the forward part of the hull, the angle of lateral inclination of the bottom surfaces of the hydroplane members gradually decreases from the bow toward the stern so that the V-shape of the same, in cross section (as seen in Fig. 5), is gradually widened or flattened, whereby the advantages of a gradual displacement, as set forth in my above-cited application, are obtained, together with the additional advantage that, by reason of the front or forward hydroplane member or members being made of a sharp V-shape in cross-section, the pounding action on the water, particularly where rough water is encountered, is greatly diminished."

14. The claims in suit are as follows:

"1. A hydroplane boat provided with a plurality of hydroplanes arranged in stepped relation and forming the flotation surface of its bottom, at least one of said hydroplanes consisting of two hydroplane members arranged at opposite sides of the center line of the bottom and inclined laterally and downwardly toward said center line; said hydroplane members having their angle of rearward inclination at said center line less than their angle of rearward inclination at their outward lateral margins.

"2. A hydroplane boat provided with a plurality of hydroplanes arranged in stepped relation and forming the flotation surface of its bottom, at least one of said hydroplanes consisting of two hydroplane members arranged at opposite sides of the center line of the bottom and inclined laterally and downwardly toward said center line; said hydroplane members being transversely concaved and having their angle of rearward inclination at the center line less than their angle of rearward inclination at their outer lateral margins.

* * * * *

"4. A hydroplane boat provided with two hydroplanes arranged one at the rear of the other, and in stepped relation and having their bottom surfaces at their forward ends continuous with the flotation surface of the hull, said hydroplanes each consisting of two hydroplane members arranged at opposite sides of the center line of the bottom and inclined laterally and downwardly toward said center line; the said hydroplane members of the rearmost hydroplane having a less degree of lateral inclination than the hydroplane members of the forward hydroplane.

"5. A hydroplane boat provided with two hydroplanes arranged one at the rear of the other and in stepped relation, and having their bottom surfaces at their forward ends continuous with the flotation surface of the hull; said hydroplanes each consisting of two hydroplane members, which are arranged at opposite sides of the center line of the bottom, are inclined laterally and downwardly toward said center line and are transversely concaved, and the said hydroplane members of the rearmost hydroplane having a less degree of lateral inclination than the hydroplane members of the forward hydroplane.

* * * * *

"29. A hydroplane boat provided with at least two hydroplanes arranged in stepped relation and having their bottom surfaces at their forward ends continuous with the flotation surface of the portion of the hull forward of the same, at least one of said hydroplanes consisting of two hydroplane members arranged at opposite sides of the center line of the bottom and inclined laterally and downwardly toward said center line; said hydroplane members having their angle of rearward inclination at said center line less than their angle of rearward inclination at their outer lateral margins."

15. A certified copy of the file wrapper showing the history of the patent application which materialized into the second Fauber patent in suit (#1,024,682), plaintiff's exhibit 6, is by reference made a part of this finding.

U.S. Patent to Miller, #850,034 (defendant's exhibit 3e).

British Patent to Dickie, #4868 of 1881 (defendant's exhibit 5a).

French Patent to Mouniee, #360,067 of 1906 (defendant's exhibit 5e).

French Patent to Fauber, #381,246 of 1907 (defendant's exhibit 13).

16. The filing date of the first patent in suit (#971,029) is September 10, 1908, and the filing date of the second patent in suit (#1,024,682) is September 13, 1909.

There is no satisfactory evidence to place the date of the Fauber inventions prior to the above-enumerated filing dates.

17. The prior art is exemplified by the following prior art patents and publications:

UNITED STATES PATENTS

No. 1,088,226 to Hewitt, defendant's exhibit 3a.

No. 5,644 to Stevens, defendant's exhibit 3b.

No. 514,835 to Mills, defendant's exhibit 3c.

No. 509,672 to O'Brien, defendant's exhibit 3d.

No. 850,034 to Miller, defendant's exhibit 3e.

No. 857,317 to Timby, defendant's exhibit 3f.

No. 272,621 to Bainbridge, defendant's exhibit 3g.

No. 761,835 to Hickey, defendant's exhibit 9.

No. 904,464 to Thompson, defendant's exhibit 10.

No. 917,935 to Elniff, defendant's exhibit 11.

FOREIGN PATENTS British

No. 4,868 of 1881 to Dickie, defendant's exhibit 5a.

No. 28,622 of 1897 to Baxter, defendant's exhibit 5b.

No. 5,923 of 1904 to Thompson, defendant's exhibit 5c.

No. 11,863 of 1905 to Bates, defendant's exhibit 5d.

French

No. 360,067 to Mouniee, defendant's exhibit 5e (translation thereof defendant's exhibit 5e-1).

No. 4,895 add. to no. 344,484 to de Lambert, defendant's exhibit 5f (translation thereof defendant's exhibit 5f-1).

No. 369,550 to de Lambert, defendant's exhibit 5g (translation thereof defendant's exhibit 5g-1).

No. 377,390 to Société Antoinette, defendant's exhibit 5h (translation thereof defendant's exhibit 5h-1).

No. 377,070 to Bonnemaison, defendant's exhibit 5i (translation thereof defendant's exhibit 5i-1).

No. 381,246 to Fauber, defendant's exhibit 13 (translation thereof defendant's exhibit 13a).

Swiss

No. 37,839 to Borgel-Court, defendant's exhibit 15 (translation thereof defendant's exhibit 15a).

PUBLICATIONS

"Naval Science," Vol. 4, January, 1875, pages 37 to 51, incl., and pages 262 to 264, incl., defendant's exhibit 6a.

Several sheets taken from the "Transactions Society Naval Architects and Marine Engineers," Vol. 11, 1903, pages 44 and 45, and plates 12, 13, 21, and 22, defendant's exhibit 6b.

The publication "The Rudder," December, 1905, pages 647 to 650, incl., defendant's exhibit 6c.

The publication "The Motor Boat," September 25, 1906, Vol. 3, No. 18, pages 26 and 27, defendant's exhibit 6d.

The publication "The Rudder" of May, 1907, pages 500 to 505, incl., defendant's exhibit 6e.

The publication "The Rudder" of June, 1907, pages 553 to 558, incl., defendant's exhibit 6f.

The publication "The Motor Boat," May 25, 1907, Vol. 4, No. 19, page 24, defendant's exhibit 6g.

The publication "Scientific American Supplement No. 1595," July 28, 1906, pages 25552 to 25555, incl., defendant's exhibit 6h.

The publication "Scientific American," February 23, 1907, page 165, defendant's exhibit 6i.

The publication "Scientific American," June 15, 1907, page 495, defendant's exhibit 6j.

The publication "Scientific American Supplement No. 1641," June 15, 1907, pages 26289 and 26290, defendant's exhibit 6k.

These exhibits are by reference, as indicated, made a part of this finding.

For the purpose of consideration, the above prior art may be considered as broadly classifiable into (1) hydroplane hulls, and (2) hulls of the displacement type.

Hydroplane Hulls

18. (a) United States Patent to Miller, #850,034 (defendant's exhibit 3e), discloses a boat hull having a bottom provided with a flat forward portion and a plurality of flat horizontal inclined planes and steps extending rearwardly. The boat hull is provided

with a keel to give stability, and the patent specification describes as the essential feature of this hull the tendency to ride out of the water when moving at high speed, thereby decreasing the draft and causing the boat to ride upon the surface of the water instead of crowding its way through the water.

This disclosure is typical of the early art of transversely flat hydroplane boats with flat hydroplane surfaces on the bottom, and this patent was considered by the Patent Office in connection with the Fauber applications which matured into the two patents in suit.

(b) British Patent to Dickie, #4868 of 1881 (defendant's exhibit 5a).

This patent discloses a boat of oblong or barge-shaped form having a bottom which is more or less flat in general contour, the purpose of this general design being to enable the boat to skim over the surface of the water. The bottom is formed of a series of inclined planes disposed longitudinally one behind the other which may present to the water either a flat or a slightly convex curved surface rising toward a scow-shaped bow. In one form, i, e., Fig. 5, the forward planes on either side of the keel are made slightly concave or hollow.

United States Patent to Thompson #904,464 (defendant's exhibit 10).

These patents disclose a series of thin metal plates or fins independent from the hull of the vessel and supported by means of struts and which do not form a portion of the flotation surface.

These plates are so mounted or attached to the hull as to form a series of rearwardly and downwardly inclined surfaces which function as hydroplane surfaces. As shown in Figs. 1 and 2 of the United States Patent, illustrated below, these plates are also laterally and downwardly inclined toward the keel.

Figure 6 of the British patent is the same as, Figure 2 of the United States patent, and Figure 1 of the United States patent is the same as Figure 1 of the British patent. The disclosures of the British patent and the United States patent are similar, and the United States patent was considered by the Patent Office during the prosecution of the application which materialized into the first patent in suit.

(d) United States Patent to Hewitt, #1,088,266 (defendant's exhibits 3a and 4).

This patent discloses in Figure 1 a form of hull with a front section and a rear section placed at an angle. The bottom hull intended for water contact is flat and is intended to plane over the surface of the water. The specification in this respect refers to "the skipping of a flat stone skillfully thrown over the surface of the water." This patent also discloses flat planing surfaces independent of the hull and located in the water beneath the same.

There is no disclosure of either the step formation or types of V-bottom present in either of the Fauber patents.

19. The following patents and publications are also directed to hydroplane hull construction, and are merely cumulative to flat stepped hydroplane construction as exemplified in the United States Patent to Miller, supra, which was considered by the Patent Office.

(a) U.S. Publication "The Rudder," May, 1907 (defendant's exhibit 6e).

This publication discloses a hydroplane boat provided with three flat rearwardly inclined hydroplane surfaces. The forward surface is predominantly flat except where it curves at the bow, and the two rear surfaces are flat throughout. In the drawings of the "Ricochet Nautilus" hydroplane boat, also disclosed in this publication, this disclosure differs from the one just described, only in that the two flat hydroplane surfaces are disclosed instead of three.

(b) U.S. Publication "The Motor Boat," 1906 (defendant's exhibit 6d).

This publication also discloses and refers to the Ricochet Nautilus. It further states that "the forward part is that of the ordinary boat or rather scow with a very blunt bow."

This publication mentions certain tests relative to rocket rams and shows a hull having a series of transversely flat rearwardly inclined hydroplane members with steps.

(d) French Patent to Mouniee, #360,067 (defendant's exhibit 5e).

This patent discloses a boat having a series of flat hydroplane surfaces rearwardly and downwardly inclined.

(e) Additional #4895 to French Patent to de Lambert (defendant's exhibit 5f).

French Patent to de Lambert, #369,550 (defendant's exhibit 5g).

The construction disclosed in these two patents shows a series of flat hydroplane members rearwardly and downwardly inclined, which hydroplane members form a part of the flotation surfaces of the boat.

(f) French Patent to Bonnemaison, #377,070 (defendant's exhibit 5i).

This patent discloses the same type of flat hydroplane stepped hull with a single step, as is shown in the Ricochet Nautilus.

(g) U.S. Publication, "The Rudder," 1907 (defendant's exhibit 6f).

This article discloses a hydroplane boat having two hydroplane surfaces separated by an amidships step. The bow is of rounded scow shape and the forward surface where it turns up toward the bow is somewhat rounded or of a convex shape. The forward surface is predominantly flat and the after surface wholly so.

20. (a) French Patent to Société Antoinette, #377,390, September 5, 1907 (defendant's exhibit 5h).

This patent discloses the type of hull referred to in the specification as "a planing boat on the surface of the water without sensible penetration."

This hull, which is best shown in Figure 1 reproduced on this page, comprises a forward portion having the form of an ordinary hull. This forward portion has a winding V-form from the pointed vertical bow to the rear portion thereof which is provided with a more or less expanded horizontal planing surface. The patent specification states that the parts a d c and b d c may be in the form of a helix (screw).

A second planing surface is provided in the rear and is connected with the forward planing surface by means of a rigid triangular frame.

This patent discloses a hydroplane hull, the forward planing surface of which is a winding V-type and is constituted by two hydroplane members arranged in opposite sides of the center line and inclined laterally and downwardly toward said center line.

(b) U.S. Publication. "Scientific American Supplement," February 1907 (defendant's exhibit 6i).

This article illustrates and describes the same construction as that disclosed in the previous finding. The description in this article is as follows: "The `Antoinette' speed boat is built on somewhat different lines. In front it carries a flat-bottomed boat of somewhat the usual form, while in the rear is attached a float forming a tail-piece which aids in obtaining the gliding action. The front boat carries the motor and passengers. From the motor a shaft runs to a propeller carried in the rear of the tail-piece. The latter (see diagram) has at the end a box-shaped piece whose under surface forms a plane, and the whole device gives a constant angle for the front boat in order to secure the gliding action. By using the front boat, the craft can stand bad weather and run even upon rough water, although its speed will be slower in this case. It will run on the hydroplane principle in smooth water."

21. British Patent to Bates, #11,863 of 1905 (defendant's exhibit 5d).

The disclosure of this patent relates to what is termed shallow-draft or flat-bottom boats.

The three figures of this patent are reproduced on page 426.

The bottom of the boat comprises two separate portions, which are indicated in the figures as being curved both laterally and longitudinally. The forward portion of the boat which is curved longitudinally downward from A to B is of laterally concave curved section on each side of the keel as indicated by the stations 1, 2, 3, and 4 in the body plan of the boat shown in Figure 3. This forward portion terminates at the rear in a V-shaped riser or counter A4. The second bottom surface begins at this riser and extends to the stern, this latter portion being curved downwardly.

This patent discloses a hull structure which is intended to be partially supported on the surface of the water when underway by the reaction of the water on the curved bottom surfaces and has its forward supporting surface transversely concaved at each side of the center line of the boat.

22. The publication "Scientific American Supplement" of June 15, 1907 (defendant's exhibit 6k), contains an illustrated article entitled "How To Build A Hydroplane Gliding Boat." The two illustrations accompanying the article are reproduced on this page:

The hydroplane boat herein described consists of two hydroplanes (a front one and a rear one) arranged in stepped relation. The rear hydroplane is flat and approximately six feet in length. The forward hydroplane is flat at the step. Four feet forward of the step the bottom of the forward hydroplane has a slight V-inclination as indicated by Mold No. 1, and six feet forward of the step is a sharper V-inclination as indicated by Mold No. 2, which merges upwardly into a pointed bow nine feet forward of the step.

The forward hydroplane surface therefore consists of two hydroplane members arranged at opposite sides of the center line of the bottom inclined laterally and downwardly toward the center line. These hydroplane members are of increasing width from the bow toward the widest part of the boat.

The forward hydroplane surface may also be described as comprising a V-type hydroplane surface consisting of two hydroplane members each having a winding or twisted surface which extends from the pointed bow and terminates rearwardly in a flat bottom at the step.

From the chine lines illustrated in this article these hydroplane members have their angle of inclination at the center or keel line less than their angle rearward inclination at their outer lateral margin.

Hulls of the Displacement Type

23. (a) United States Patent to O'Brien, #509,672 (defendant's exhibit 3d).

This patent discloses a boat hull of the pure displacement type having a sharpedged bilge and keel, the hull being of transverse concave form between the bilge section and the keel. The degree of concavity preferably increases from the bow to the stern, the purpose as stated in the patent to render the craft less liable to upset and to prevent the boat from shipping water to any great extent; also to prevent drifting to leeward.

That the concave V-bottom is intended to contribute stability to power-driven hulls is evident from the following excerpt from the specification: "It may be here remarked that when the hulls of steamers are constructed as above described they will roll but little even in a heavy sea."

This patent was considered by the Patent Office in connection with the application which matured into the first patent in suit.

Figures 1, 4, 5, 6, 7, and 8 of this patent are reproduced herewith:

(b) United States Patent to Stevens, #56-44 (defendant's exhibit 3b).

This patent discloses a boat which is purely of the displacement type and has the form of usual displacement hull with the usual rounded bottom.

The bottom surface of the hull is covered with plates which the specification states are applied "somewhat resembling the scales of a fish or the shingles on the roof of a house — that is, a series of inclined planes forming a slight angle with the plane of the vessel's surface, and arranged in the direction of the length of the vessel, so that the summit of all the planes will be toward the stern."

Air is introduced through a series of tubes terminating at the surfaces so as to reduce frictional contact with the water.

This patent discloses a boat hull of the displacement type having a single offset on the hull which is termed wave impact receiving surface. The function of this offset is stated to be for the purpose of forcing the vessel ahead when the waves move in a forward direction and impinge on this receiving surface.

The patent does not teach those skilled in the art anything with reference to hydroplane surfaces or their actions or functionings.

(d) U.S. Publication, "The Scientific American Supplement," 1906 (defendant's exhibit 6h).

This article describes a racing motor launch of a sharp V-bow and a flat stern. The hull appears to be of the displacement type.

(e) U.S. Publication Transactions Society Naval Architects Marine Engineers, 1903 (defendant's exhibit 6b).

This article refers to two launches, the Dolphin and the Express.

These boats are of the displacement type with no step, showing a winding V-bottom, starting at the bow, from where the sections wind from a substantially vertical position to a horizontal position at the rear of the hull.

(f) British Patent to Baxter, #28,662 of 1897 (defendant's exhibit 5b).

This patent discloses a displacement hull, having various air discharge openings at various points under the waterline.

These air vents are provided with plates which function merely as shields or deflectors to direct the air rearwardly.

24. The aeroplane structures upon which the charge of infringement is predicated in this case, are as follows:

Loening Air Yacht S1 (War Department).

Leoning Amphibian COA-1 (War Department).

Aeromarine Model 40 (Navy Department).

Models H-16 and H-16A Hull (Navy Department).

Type HS Hull (Navy Department).

Model F-5L Hull (Navy Department).

Model NB-1 Float (Navy Department).

HDNW (Navy Wright) Pontoon (Navy Department).

The structural details of the above aeroplanes of interest in connection with these proceedings are plaintiff's exhibits 9, 10, 12, 14 and 31 to 38, inclusive, which are by reference made a part of this finding.

They are also shown in the set of drawings numbered from 1 to 18, inclusive, and which form a part of a stipulation entered into by the parties filed under date of April 22, 1939.

For convenience, typical illustrations of these aeroplane structures are shown herewith:

25. Of the structures identified in the preceding finding —

(a) At least one each of the Loening Air Yacht S1 and the Loening Amphibian COA-1 was manufactured for or by and used by defendant without license or permission from the patentee, and such manufacture and/or use occurred between the dates April 30, 1912, and November 9, 1926, and between October 1921 and September 27, 1927.

(b) At least one of the structures identified as the Aeromarine Model 40 was manufactured for or by and used by defendant without license or permission from the patentee, and such manufacture and/or use occurred between the dates April 30, 1912, and September 27, 1927.

(c) At least one of the structures identified as Models H-16 and H-16A Hull was manufactured for or by and used by defendant without license or permission from the patentee, and such manufacture and/or use occurred between the dates of April 30, 1912, and September 27, 1927.

(d) At least one of the structures identified as Type HS Hull was manufactured for or by and used by defendant without license or permission from the patentee, and such manufacture and/or use occurred between the dates April 30, 1912, and September 27, 1927, and between April 30, 1921, and September 27, 1927.

(e) At least one of the structures identified as Model F-5L Hull was manufactured for or by and used by defendant without license or permission from the patentee, and such manufacture and/or use occurred between the dates April 30, 1912, and September 27, 1927.

(f) At least one of the structures identified as Model NB-1 Float was manufactured for or by and used by defendant without license or permission from the patentee, and such manufacture and/or use occurred between the dates April 30, 1912, and September 27, 1927.

(g) At least one of the structures identified as HDNW (Navy Wright) Pontoon was manufactured for or by and used by defendant without license or permission from the patentee, and such manufacture and/or use occurred between the dates April 30, 1912, and September 27, 1927.

26. The petition in this case was filed April 26, 1932.

The first patent in suit (#971,029) expired September 27, 1927.

The second patent in suit (#1,024,682) expired April 30, 1929.

There is no satisfactory evidence of either use or manufacture of the structures referred to in findings 24 and 25 within the period beginning April 26, 1926 (six years prior to the filing of the petition) and ending April 30, 1929, but in view of the waiver by the Special Act of the defenses of lapse of time or the statute of limitations, the period of possible recovery under each patent is the term of the patent.

27. In the normal take-off of a seaplane with the conventional stepped hull, three characteristic attitudes are present. For convenience these attitudes may be referred to as (a) the idling position; (b) the nose-up position, and (c) running on the step.

Starting with the idling position in which the hull acts as a pure displacement boat or vessel, the normal procedure of the pilot is to open the engine throttle and to pull the controls back so that the elevators are turned up. As the ship begins to move the force of water on the forward portion of the float or hull tends to raise the nose of the aeroplane and the air reaction on the up-elevators tends to lower the stern.

As the speed of the ship increases there is a hydroplane action on the bottom of the hull which tends to raise the after-portion of the ship. As the aeroplane increases its speed through the water the controls are returned to nearly neutral with a slight back pressure so that the elevators are slightly up. The combined air and water reaction then causes the ship to rise so that it runs on the step. When in this position the aft end of the hull is out of the water and the water friction is reduced to a minimum and the aeroplane speed then increases to a point where aerodynamic reaction on the wings is obtained sufficient to lift the aeroplane into the air. These three positions are shown in the set of illustrations of a conventional seaplane reproduced herewith:

28. During the take-off run and prior to running on the step, the attitude or nose-up position of the plane is under the control of the pilot by means of the elevators, and therefore the extent of the hydroplaning action and this attitude of the hull bottom depends somewhat upon the manipulation of the controls by the pilot. However, a conventional seaplane will go through the nose-up position without any manipulation of the elevators by the pilot. A seaplane may be placed on the step without the nose rising to such a degree that the rear portion of the hull has a positive angle to the planing of the water. In such a procedure hydroplane action on the rear portion of the hull aft of the step still occurs due to an inverted waterfall from the forward portion of the hull which impinges on that portion of the hull aft of the step. However, a positive angle is invariably attained by the rear portion of the hull in the normal operation of a conventional seaplane.

Conventional procedure demands a minimum length of take-off travel and to obtain this it is necessary and essential that a maximum hydroplaning action be obtained in order to lift the hull onto the step. This is obtained by the natural action of the hull, which may be assisted by the controls, whereby the hull assumes a maximum nose-up position.

29. In each of the defendant's structures, illustrations of which are set forth in finding 24, prior to going on the step there exists the capability of a dynamic lifting reaction or hydroplaning effect of the water upon the lower surfaces of the hull. The extent to which this effect may be utilized during the take-off operation is under the control of the pilot, although the seaplane when in proper aerodynamic trim will take-off of itself without any manipulation of the elevators by the pilot.

30. The hulls of the Loening COA-1 and the Air Yacht are substantially the same, the air yacht being a seaplane and the COA-1 an amphibian.

In each instance the hull has a pointed bow and a bottom of V cross section, the bottom surfaces inclining laterally and downwardly toward the keel line. The bottom consists of a bow surface, an intermediate surface, and a stern surface, each of these surfaces being separated by a step.

With a normal load at rest in the water, the bow surface has a positive or downward angle toward the stern and is downwardly and rearwardly inclined; the intermediate surface has a negative angle and is upwardly and rearwardly inclined, the after portion of this surface being eased off somewhat toward the horizontal, and the stern surface has a more pronounced negative angle than the intermediate surface.

The transverse angles of Vs of the bow and intermediate surfaces are all substantially similar and are illustrated in drawing #3 forming a part of the stipulation filed April 22, 1939. As herein shown, they are straight and are not transversely concaved.

The terminology of claims 1 and 2 of the first patent in suit (see finding 9) is applicable to this structure.

31. The hull of the Aeromarine Model 40 has a pointed bow and a bottom of a V cross section, the bottom consisting of a bow surface and an after surface separated by a step. With a normal load and at rest in the water, the bow surface has a positive angle to the horizontal, and the aft surface has a negative angle, a longitudinal dihedral being present.

The V of the forward surface gradually becomes flatter aft toward the step and the V of the after surface is of a uniform angle throughout, being somewhat flatter than the V of the forward surface. As to the forward surface, there is a greater fore and aft angle at the outer margins than that at the keel or center line.

No concavity is present in the V surfaces.

The terminology of claims 1 and 2 of the first patent in suit (see finding 9) is applicable to this structure.

The terminology of claims 1, 4, and 29 of the second patent in suit (see finding 14) is applicable to this structure.

32. The hulls of the Models H-16, H-16A, and F-5L are substantially identical. These hulls have a broad but pointed bow and a bottom of V cross section with longitudinal dihedral, the bottom consisting of a bow surface, an intermediate surface, and a stern surface, each separated by steps. The steps are formed by applied plates forming the after portions of the bow and the intermediate surfaces. These applied plates are open at the rear, and the surfaces formed thereby therefore do not form a part of the flotation surface.

The transverse angles or V's of the bow and intermediate surfaces are illustrated in drawing #10, forming a part of the stipulation filed April 22, 1939. As shown, with the exception of the forward section of the bow surface, the V's are straight and are approximately at the same angle throughout the hull bottom. The forward portion of the bow is slightly concave.

As to the forward section, the angles at the outer margins and at the center or keel line are practically the same.

Inasmuch as claims 1 and 2 of the first patent in suit are limited to a series of hydroplane members which "form the flotation surface of the said bottom" the terminology of these claims does not apply to these structures.

Claims 5 and 6 of the first patent in suit are limited to a " series of hydroplane members * * * which are transversely concave," and the terminology of these claims does not apply to these structures.

Claims 4 and 5 are limited to hydroplane surfaces with the rearmost hydroplane having a less degree of longitudinal inclination than the forward hydroplane, and the terminology thereof therefore does not apply to these structures.

Claim 29 of the second patent in suit is limited to hydroplane members having their angle of rearward inclination at the center line less than their angle of rearward inclination at their latter outer margins, and the terminology of this claim is therefore not applicable to these structures.

None of the claims in issue is applicable to these structures.

33. The hull of the HS Type has a pointed bow and a bottom consisting of forward and after surfaces separated by a step and having a longitudinal dihedral. The forward surface has a concave V, while the rear or after surface is a flat or straight V.

In the forward surface which is concave, as shown in drawing #12 forming a part of the stipulation filed April 22, 1939, the V flattens toward the step so that the forward surface has a greater angularity in the fore and aft direction at the margins than at the keel. The V of the after surface is flatter than the V in the forward surface.

The terminology of claims 1 and 2 of the first patent in suit is applicable to this structure.

Claims 5 and 6 of the first patent in suit do not apply as they specify a series of hydroplane members, the downwardly facing surfaces of which are transversely concave, and such a series of concave surfaces is not present in this structure.

The terminology of claims 1, 2, 4, and 29 of the second patent in suit is applicable to this structure.

The terminology of claim 5 of the second patent in suit does not apply, in that it is directed to two hydroplane surfaces, each of which consists of two hydroplane members which are transversely concaved.

34. The hull of the NB-1 Float has a pointed bow and a bottom of V section, the bottom consisting of a forward surface and an after surface separated by a step and having a longitudinal dihedral. The V section of both the fore and aft surfaces is straight, as indicated in drawing #16 forming a part of the stipulation filed April 22, 1939.

The V section of the forward surface is more pronounced than the V section of the after surface and flattens toward the step.

The terminology of claims 1 and 2 of the first patent in suit is applicable to this structure.

The terminology of claims 1, 4, and 29 of the second patent in suit is applicable to this structure.

35. The hull of the HDNW (Navy Wright) Pontoon has a broad or pointed bow and a bottom of V section, the bottom consisting of forward and after surfaces separated by a step and having a longitudinal dihedral. The transverse angles or Vs of the two surfaces are the same and the Vs are straight, no concavity existing.

The body section of this pontoon is shown in drawing #18 forming a part of the stipulation filed April 22, 1939.

The terminology of claims 1 and 2 of the first patent in suit is applicable to this structure.

36. The prior art considered in findings 18-25, supra, shows that those skilled in the art of boat and hull construction were familiar with and had knowledge of the following at the time the Fauber inventions, as expressed by the claims in suit, were made —

(a) Hydroplane hulls comprising a series of or a plurality of transversely flat hydroplane surfaces rearwardly and downwardly inclined in conjunction with a series of steps, i.e., the conventional flat-stepped hydroplane hull (findings 18 and 19).

(b) Hydroplane hulls comprising a series of or a plurality of hydroplane surfaces arranged in stepped relation and inclined laterally and downwardly toward the keel line of the boat (finding 18c).

(c) Hydroplane boats having a pointed bow with a series of hydroplane members arranged in stepped relation and forming the flotation surface of its bottom with one of said hydroplanes (the forward one) consisting of two hydroplane members arranged at opposite sides of the center line of the bottom and inclined laterally and downwardly toward the center line, these hydroplane members having their angle of rearward inclination at the center line or keel line less than their angle of rearward inclination at their outer lateral margins, the hydroplane members being of gradual increasing width from the bow toward the widest part of the boat (finding 22).

(d) A hydroplane boat with a pointed bow, the forward planing surface of which is of a winding V type (finding 20).

(e) The construction of a hull having a transversely concaved form between the bilge section and the keel. This is exemplified in connection with hulls of the displacement type in finding 23a, and in connection with hydroplane surfaces in finding 21.

37. The most pertinent prior art disclosure is that contained in the Scientific American Supplement of June 15, 1907, set forth in finding 22 (see also finding 36c).

The construction of the hydroplane boat therein described is of such a character that claims 1 and 29 of the second patent in suit are readable thereon and these claims are therefore invalid.

38. Claim 2 of the second patent in suit is directed to the same subject matter as claim 1 thereof, with the exception that it defines the hydroplane members as " being transversely concaved."

Such transverse concavity was known to those skilled in the art, both in connection with hulls of the displacement type and with hydroplane surfaces (finding 36e), and it would merely involve the use of mechanical skill to use a concave V surface in the hydroplane boat described in the Scientific American Supplement article, supra (finding 22), instead of the straight V surface therein disclosed. This claim is invalid.

39. Claims 4 and 5 of the second patent in suit are limited or detail claims directed to two hydroplanes in step formation, the hydroplanes each comprising two members arranged in opposite sides of the center line at the bottom and inclined laterally and downwardly toward said center line.

The detail limitation set forth in these claims has reference to the angular relationship existing between the hydroplane surfaces and the claims specify that the hydroplane members of the rearmost hydroplane have a less degree of lateral inclination than the forward hydroplane.

Claim 5 is still further limited in that it specifies that the hydroplane members are transversely concave.

No suggestion is found in any of the prior art of a V-type bottom surface stepped hydroplane construction in which the angular inclination of the rear V-shaped hydroplane is less than that of the forward hydroplane. These claims are therefore valid.

Claim 4 is readable upon the following Government structures: Aeromarine Model 40 (finding 31); HS Type (finding 33), and NB-1 Float (finding 34).

40. The disclosure in the Scientific American Supplement article (finding 22) is directed to a hydroplane hull having a plurality of hydroplane surfaces, the forward hydroplane surface of which is inclined laterally and downwardly toward the keel line, forming what may be termed a V-shaped surface, and the second or rear surface of which is flat.

The use of a V-shaped hydroplane surface forming a portion of the flotation surface of the bottom is also disclosed in the French patent to Société Antoinette (finding 20a).

A plurality of V-shaped hydroplane surfaces separate from the flotation surface of the hull is shown in the British and United States patents to Thompson (finding 18c).

In view of these prior disclosures, it would require but mechanical skill to substitute for the flat after hydroplane surface in the Scientific American Supplement article a V-shaped surface.

Claims 1 and 2 of the first patent in suit differ from the disclosure in the Scientific American Supplement article only in that they specify a series of V-shaped hydroplane members. To provide a series or a plurality of V-shaped hydroplane members instead of one would require only the use of mechanical skill, and these claims are therefore invalid.

41. A hydroplane boat having a plurality or series of hydroplane members, which are arranged in stepped relationship and are inclined laterally and downwardly toward the keel line, is shown in the British and United States patents to Thompson (finding 18c).

Claims 5 and 6 of the first patent in suit differ from this disclosure only in that they specify that the downwardly facing surfaces or the V-shaped surfaces are transversely concave.

Concaved hydroplane surfaces are old in the art as shown in Fig. 3 of the British patent to Bates (finding 21).

To make the V-shaped surfaces of the British and United States patents to Thompson concave instead of straight would require but mechanical skill, and claims 5 and 6 of the first patent in suit are therefore invalid.

42. Claims 1, 2, 5, and 6 of the first Fauber patent in suit, #971,029, are invalid.

Claims 4 and 5 of the second patent in suit are valid. The terminology of claim 4 thereof is applicable to the Government structures known as the Aeromarine Model 40, HS Type Hull, and NB-1 Float, and this claim has been infringed by the defendant by the manufacture and use of those structures. The terminology of claim 5 is not applicable to any of the Government structures alleged to infringe, and this claim has not been infringed.

LITTLETON, Judge.

By certain amended petitions and a supplemental bill of particulars filed subsequent to the filing of the original petition there is placed in issue claims 1, 2, 5, and 6 of patent 971029, hereinafter sometimes referred to as the first patent, and claims 1, 2, 4, 5, and 29 of patent 1024682, hereinafter sometimes referred to as the second patent. The first patent was for a "Hydroplane Boat" and the second patent for "Construction of Boats and Ships". The inventor, William H. Fauber, to whom the patents were issued, died July 29, 1928, and the plaintiff, his widow, is the duly appointed and acting administratrix of his estate. The patents in suit expired September 27, 1927, and April 30, 1929, respectively, less than six years prior to the filing of the original petition on April 26, 1932. The main questions now before the court for consideration are (1) whether all or any of the claims of the patents in suit are valid and, if so, whether those that are valid have been infringed by the defendant's structures which plaintiff alleges embody the inventions. Certain other questions raised by the defendant relating to the right of plaintiff to maintain this suit are (1) that the estate of Fauber has no right, title, or interest in any of the claims of the patents in suit because of a prior transfer and assignment of both patents by the decedent; (2) that the patents are for hydroplane boats constantly immersed in water, and that the manufacture and use of a hull for alighting upon and ascending from the water may not be included in the invention of the patentee; and (3) that the statute of limitation bars recovery and requires that the petition be dismissed for the reason that the evidence submitted does not establish any manufacture or use by the defendant of any of the alleged infringement structures within a period of six years prior to the filing of the original petition. The last three questions will be disposed of first.

The assignment executed by patentee Fauber on June 27, 1923, of certain interests in the patents in suit to Gar Wood, Inc., upon which counsel for defendant rely in support of their contention that the estate is not entitled to maintain this suit is set forth in finding 6. Under this instrument patentee Fauber, on June 27, 1923, made a limited transfer of interest in the patents here in issue to Gar Wood, Inc., of Detroit, but counsel for defendant contend that under the language of this assignment Fauber divested himself of this entire right, title, and interest in and to each of the patents in suit and all rights thereunder, together with the right to sue for and recover profits and damages for past or future infringement of any or all of the claims of said patents; that every right granted to Fauber by the Patent Office, including the right to prohibit others, passed under the assignment to Gar Wood and that the effect of the assignment was to vest full title in Gar Wood necessitating the bringing of this suit in the name of that corporation as the holder of title to the two patents in suit. We cannot agree. The language of the instrument and the evidence of record with reference to the circumstances and conditions under which the assignment was made show that Fauber gave to Gar Wood all rights under the patents only "insofar as they relate to the exclusive use thereof in connection with the manufacture, use, and sale of hydroplane boats or the like, primarily designed not to leave the surface of the water and not including toy and model boats too small to carry one person, together with the right to sue for and recover profits and damages for past or future infringement of any one or all of said patents." The rights to exclusive use thus granted were clearly limited and by the plain language of the instrument there was reserved to Fauber all rights under the patents pertaining to hydroplane boats or the like, primarily designed to leave the surface of the water — such boats, of course, being the hulls or floats of the hydroaeroplanes. Fauber thus gave Gar Wood exclusive rights in a limited field and did not part with title to the patents. Gamewell Fire-Alarm Telegraph Co. v. City of Brooklyn, C.C., 14 F. 255, 256. In that case the court said: "The right transferred was not an undivided part of an entire patent, or an undivided part of the entire interest of the patentee in specified territory, but was a segregated right for a particular employment of the invention. The complainant was, therefore, merely a licensee, within the rule established in Gayler v. Wilder, 10 How. 477, [ 13 L.Ed. 504]; the right transferred to him being less than that of the entire and unqualified monopoly."

While an exclusive licensee as to one field of use, the assignee Gar Wood was a nonexclusive licensee under the patents, and, as such, was not even a necessary party plaintiff since its interests are not affected by the claim made in the present suit which involves only hydroplane boats primarily designed to leave the water. As was said by the court in Mallory Co., Inc., v. Automotive Manufacturers' Outlet, Inc., D.C., 45 F.2d 810, 813: "Even though one be an exclusive licensee if the license is limited to a particular field, territorially or commercially, and is not claimed to be invaded, such licensee is not affected and no good purpose would be served by forcing it to become a party plaintiff."

Inasmuch as the present claim relates only to the defendant's use of Fauber's invention on the hulls and pontoons of hydroaeroplanes, it follows that suit upon the claim presented was properly brought in the name of the administratrix of the estate of Fauber.

We can find no merit in defendant's next contention that the pontoons or hulls of the alleged infringing structures are not hydroplane boats because they are provided with wings. When defendant's seaplanes are on the water, their pontoons or hulls, having hydroplaning surfaces, are, we think, undeniably hydroplane boats and are within the inventions specified in the claims of the patent in suit; as such hydroplane boats, they are subject to all the laws pertaining to boats, and, when in the air, the pontoons, or hulls, are still boats although not functioning as such. The date, at which the inventor Fauber first knew of the utility of his hydroplane boats as parts of a hydroaeroplane is unknown, but the evidence clearly shows that he had this knowledge as early as 1912; but whether he knew of it at all is immaterial for he was entitled to all the uses of his invention. Diamond Rubber Company of New York v. Consolidated Rubber Tire Company, 220 U.S. 428, 435, 31 S.Ct. 444, 447, 55 L.Ed. 527. In that case the court said: "A patentee may be baldly empirical seeing nothing beyond his experiments and the result; yet if he has added a new and valuable article to the world's utilities, he is entitled to the rank and protection of an inventor. And how can it take from his merit that he may not know all of the forces which he has brought into operation?"

In view of the facts and circumstances disclosed by the record, we cannot sustain the next contention of the defendant that the petition should be dismissed for failure of plaintiff to make out a prima facie case by showing manufacture or use of one or more of the defendant's alleged infringing structures within a period of six years from April 26, 1926, to April 26, 1932, the last date being the date on which the original petition was filed. Section 156 of the Judicial Code, 28 U.S.C.A. § 262, provided in part that "Every claim against the United States cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court * * *, as provided by law, within six years after the claim first accrues. * * *"

Standing alone, the provisions of this section, being a part of the Act of March 3, 1911, 36 Stat. 1135, 1139, would limit plaintiff's right to recover as to the first patent to a period of one year and five months from April 26, 1926, to September 27, 1927, the last date being the date of expiration of this patent; and as to the second patent, the right of recovery would be limited to a period of three years from April 26, 1926, to April 30, 1929, the last date being the expiration date of this patent. We are of opinion, however, that the provisions of the special jurisdictional act of March 3, 1931, quoted in finding 2, effectively waived any statute of limitation or lapse of time which might otherwise be a bar to the right of the administratrix of the estate of Fauber to maintain suit and recover compensation, or either, for the unauthorized use at any time by the defendant of either of the Fauber patents. This interpretation of the jurisdictional act is based upon the reasons for its enactment as disclosed by the facts before the Congressional Committees, and of record here, and the facts and reasons set forth by those committees recommending the enactment of the statute. Identical bills from which S. 3230 became the jurisdictional act of March 3, 1931, 46 Stat. 2134 (Part 2), were introduced in the House and Senate prior to January 23, 1930. At the time these bills were introduced, and on March 3, 1931, when the jurisdictional act in question was approved, plaintiff had a right without any special act to institute suit in this court under the act of June 25, 1910, as amended by the act of June 1, 1918, U.S. Code, Title 28, § 68, 28 U.S.C.A. § 68, for the recovery of compensation for the manufacture or use, or either manufacture or use, by the defendant of any structures infringing all or any of the claims of either, or both, of the patents within a period of six years prior to the filing of such petition. At that time the limitation period specified in section 156 of the Judicial Code, supra, would have reached back to March, 1925, which was a date two years and six months prior to the expiration date of the first patent on September 27, 1927, and four years and nearly two months prior to the expiration date of the second patent on April 30, 1929. In the report of the committee of the judiciary, House Report No. 2450, 71st Congress, 3d Sess., which was adopted by the Senate Committee on Claims recommending the passage of the jurisdictional act which was subsequently enacted and approved on March 3, 1931, it was stated in part as follows:

"The following facts appear to be conceded: * * * 2. That the Navy Department, some time prior to the late war, adopted and made use, on their hydroplanes, of the hull covered by these inventions. 3. That they have continued to use this patented hull ever since, are still using the same, and in letters dating back as far as 1917, the Navy Department admitted the use thereof, suggested to him [Fauber] that he had a claim and that he should press the same in the Court of Claims. 4. That the Government never made settlement with Mr. Fauber, nor with his estate, for the use of this patented article. 5. That for some reason Mr. Fauber neglected to present his claim to the Court of Claims and it is now barred by the statute of limitations and can not be presented without the adoption of legislation as embodied in this bill.

"It is the opinion of your committee that the late Mr. Fauber, being the owner of this patented article and it being conceded that the Government has appropriated and is using the same, his heirs should be permitted to bring this claim before the Court of Claims for adjudication, notwithstanding the bar by the statutes."

The committee then proceeded to set forth in the reports the following:

A letter of August 8, 1917, to the decedent, Fauber, from the Naval Consulting Board, in which Fauber was advised in part that "The law provides that when the Government so uses any patents, the owner may make claim upon the Government for royalty in the Court of Claims, but that does not debar the Government from making arrangements in advance with the owners of the patents if the Government considers it expedient."

A letter of August 22, 1917, from the chairman of the Primary Examiners' Advisory Committee of the Patent Office advising Fauber that "Your remedy is by suit in the United States Court of Claims on your patents unless you have made, or enter into, an agreement with the War or Navy Departments."

A letter of March 27, 1930, from the Acting Secretary of the Navy to the Chairman of the Senate Committee on Claims stating in part that:

"The records of the Navy Department show that Mr. Fauber first presented his claim to the Navy Department on August 1, 1917; that from that date until March, 1928, Mr. Fauber frequently advanced his claim to the Navy Department or to various bureaus thereof.

"With regard to the Fauber claim, the Navy Department, from the outset, has been of the opinion that the questions of infringement and validity of the Fauber patents were so controversial in nature as to require an adjudication by a court of competent jurisdiction before an expenditure of Government funds on the basis of such patents could be justified. As a result of this position on the part of the Navy Department, Mr. Fauber was repeatedly given to understand that he could not look to the Secretary of the Navy for a settlement of his claim.

"It is noted that the proposed legislation does not go to the merits of the claim but merely to the removal of the Statute of Limitations as a bar to an action in the Court of Claims.

"Nothing in the records of the Navy Department is pertinent to the question as to whether or not Mr. Fauber's delay in resorting to the Court of Claims was excusable."

Also, a letter of February 15, 1940, from the Secretary of War to the Chairman of the Senate Committee on Claims stating in part as follows:

"The existing law that may be said to be affected by the enactment of the foregoing bill is section 156 of the Judicial Code of the United States, which requires action to be commenced in the Court of Claims within six years after the claim first accrues. The purpose of the foregoing bill is clearly to waive the operation of this statute of limitations with respect to the instant claim.

"Undoubtedly the merit of a bill, such as the foregoing, is primarily to be determined by a study of the facts at hand, showing the degree of diligence with which the claimant has endeavored to protect his interest since the claim first arose. As has already been stated, the statute of limitations gives every claimant six years in which to bring a suit against the United States in the Court of Claims. This must be taken to be ample time, and in the ordinary case a claimant would not be entitled to an extension thereof unless the facts show that he has been prevented from bringing his suit within the period prescribed by the statute, for reasons beyond his control. In other words, the facts should show the claimant to be free from laches.

* * * * * *

"Mr. William H. Fauber first presented his claim to the War Department in a letter dated April 26, 1926, and it is believed that he addressed a similar letter to the Secretary of the Navy on the same date. The claim was carefully studied in the office of the Judge Advocate General and in the office of the Chief of Air Corps, and was formerly denied by the War Department in a letter to Mr. Fauber under date of December 2, 1926. The specific ground for denial was that the War Department was without legal authority to make a settlement of the claim for unliquidated damages, and Mr. Fauber was advised that his remedy, if any, was by action in the Court of Claims.

"It would seem from the above facts that there was laches on the part of Mr. Fauber in waiting until 1926 to make his formal claims against the Government. It can be said in his favor, however, that from the time he made his formal claim Mr. Fauber showed due diligence at all times in his efforts to accomplish a settlement by negotiation. He also submitted his inventions to the Patents and Design Board, created by section 10(r) of the act of July 2, 1926. His application for an award from this board, however, was denied.

"Another question which seems to present itself is whether or not the enactment of the proposed bill is necessary in order to permit the claimant to bring an action in the Court of Claims. I am advised that the claimant could bring such a suit without the aid of Congress and could recover damages for any infringements of the patents concerned that may have occurred within the past six years. Of course, two of these patents expired in 1927 and 1929, respectively, and no recovery as to them could be had for uses occurring after their expiration dates. It is realized that the recovery in such a suit, assuming that infringement could be proved, would be relatively small, as it would not extend to the war-time procurements. This no doubt is the reason why the claimant has appealed to Congress for the enactment of the proposed bill.

"Although the history of this case, as outlined above, does not seem to show any reasons for extending the period established by the statute of limitations, I am mindful of the fact that the present claimant, in whose interest the bill has been introduced, has not been guilty of laches. I also feel that any departmental recommendation which might serve as a guide to your committee in its deliberations upon the bill should, in the instant case, come from the Navy Department. For these reasons, I feel constrained to express no opinion as to the enactment of the proposed legislation."

In view of these and other similar facts which were before the committees and were included in their reports recommending the passage of the bill in the form in which it was finally enacted, we are of opinion that the intent and purpose of Congress when conferring jurisdiction upon this court to hear, examine, and adjudicate and render judgment on the claim of plaintiff "notwithstanding the lapse of time or the statute of limitations" was to waive and remove any bar under section 156 of the Judicial Code which would otherwise operate as a limitation during the period for which plaintiff could recover compensation. The period of limitation specified in section 156 of the Judicial Code is a limitation both on the right to institute suit and on the period prior to suit during which recovery may be had. In these circumstances and in view of the facts disclosed by the record, we would not be justified in assuming, in the absence of language clearly indicating such intent, that Congress intended only to waive the limitation on the right to institute a suit upon the patents and not to waive the limitation on the period for which recovery might be had. As shown above, the attention of the Congressional Committees which considered and recommended the passage of the jurisdictional act was called to the fact that Fauber had presented his claim for alleged unauthorized use of the patents as early as August 1917 and that the special jurisdictional act was not necessary in order to enable the administratrix to institute a suit in this court upon the patents since such patents did not expire until 1927 and 1929, respectively, but that any recovery on them could be had for uses occurring within a period of six years prior to the filing of the petition, and without a waiver of limitation any period for recovery would be relatively small. We are therefore of opinion, and so hold, that under the provisions of the jurisdictional act plaintiff is not limited in the right of recovery for such infringement as may be established to a period of six years prior to the filing of the original petition, and that she may recover any compensation to which she shows herself to be entitled for any use by the defendant of the Fauber inventions at any time during the life of the patents.

The next two questions, which will be considered together, are whether any or all of the four claims of the first patent in suit (finding 9) and the five claims of the second patent in suit (finding 14) are valid and, if so, whether any or all of such claims have been infringed by any or all of the alleged infringing structures of the defendant which are described and illustrated in findings 24 to 35. The question of accounting as to the amount of recovery, if any, is reserved until after the determination of the question of validity and infringement.

Both patents relate to the hull construction of what is known as "Hydroplane Boats". A hydroplane boat is defined as one which is so constructed as to receive support when in motion from the dynamic reaction of the water upon surfaces, technically referred to as "hydroplanes," the dynamic reaction of the water acting upon these surfaces to raise the hull partly out of the water, thereby lessening the submerged area of the hull with a consequent reduction of skin resistance, thus causing the boat, more or less, to plane or travel on the surface of the water, thereby permitting a relative high speed in proportion to the propulsive effort. The principles of hydroplane construction disclosed in and forming the basis of the two Fauber patents in suit have been generally recognized by those skilled in the art as of considerable practical value in speedboat construction and have been widely used in boat hull construction, and licenses have been granted under the patents.

The alleged infringing structures of the defendant described and illustrated in the findings above mentioned comprise and are limited to various forms of hull or pontoon construction utilized in seaplanes and flying boats, the various types of which alleged infringing structures are included in the generic term of "hydroairplane." A hydroplane consists of a hull or pontoon member or members associated with an airplane, and capable of maneuvering on the surface of water, taking off, flying, or maneuvering in the air and, subsequently, alighting on the surface of the water. While so maneuvering on the water the hull possesses all the characteristics and functions of a boat, and these characteristics and functions exist irrespective of the fact that the propulsive effort is obtained by means of an air propeller instead of a water propeller. In order to keep the length of the take-off run of a hydroplane to a minimum, one of the essential features of the hull construction thereof is that of readily and quickly obtaining a high speed in the water in proportion to the propulsive effort, and the hull construction must therefore be of an efficient type.

The first patent in suit, #971029, is described and illustrated in findings 7 to 11, inclusive. The structure to which this patent is directed is a hydroplane boat provided with a bottom formed of a plurality or a series of surfaces, or members, located at each side of the central or keel line. These members possess the dual function of forming the flotation surface of the bottom and act as hydroplanes, and they are arranged in stepped relation with each other. The rear of each hydroplane member or surface forms a set-back shoulder or step with respect to the adjacent forward end of the next succeeding member, and these hydroplane surfaces are inclined laterally and downwardly from the chine, or margins of the boat to the keel thereof so that in cross-sectional form the hydroplane members form a V-shaped section from chine to chine (side to side) of the boat. See illustrations, Figs. 1 to 5, finding 7. The hydroplane members are progressively deeper in the water from the bow to the stern, as measured at the water line when the hull is at rest and supported by flotation, and they are of concave V form in cross-section from chine to chine.

In Figs. 6 to 9 of this patent, the forward hydroplane members measured from the rest water line are shown as being progressively deeper in the water from the bow to a point just aft of the midsection of the boat, the after members being substantially all of the same depth. In the form disclosed in Figs. 6 to 9, all hydroplane members form a straight V-section from chine to chine of the boat. In both forms disclosed in Figs. 1 to 5 and 6 to 9, the boat has a pointed bow so that the width of the hydroplane members gradually increases from the bow to the widest part of the boat. When the boat starts from rest and its speed is gradually increased by means of the propeller at the stern, the hydroplane members function to divide and deflect the water against the next succeeding hydroplane member to the rear causing the boat to rise in the water, thus lessening its displacement. As the speed increases the displacement decreases and the boat automatically regulates its own depth to a degree of displacement according to the speed.

The claims of this patent which are in suit are directed to the lateral or crosswise inclination and the stepped relationship of a plurality of hydroplane surfaces, and such claims are not limited solely to boat construction as shown in the first embodiment of the patent (Figs. 1 to 5), which construction has the descending keel line throughout the entire length of the boat in contradistinction to the second embodiment (Figs. 6 to 9) in which the keel line only descends to a point somewhat aft of the center section of the hull.

The second patent, #1024682, relates in general to a hydroplane boat with a bottom formed of a plurality or a series of hydroplane surfaces or members located at each side of the central or keel line, which hydroplane surfaces are inclined latterally down toward the keel and form a concave or hollow V-shaped cross-section from chine to chine, the surfaces from fore to aft being arranged in stepped relationship. In general, this patent relates to the same type of hull as is above set forth and disclosed in the first patent, which patent is specifically referred to by application in the second patent. The structure of the second patent differs from that of the first patent in two distinctive features which are —

(1) Each of the two hydroplane members is arranged at opposite sides of the center line of the bottom and inclines laterally and downwardly toward the center line, each of the hydroplane members having its angle of rearward inclination at said center line less than angle of rearward inclination at its outer lateral margin. In other words, the V-shape of each of the hydroplane surfaces is warped or twisted so that an individual hydroplane surface becomes flatter fore to aft; (2) with respect to any two hydroplane surfaces arranged one to the rear of the other, the hydroplane members of the rear hydroplane surface have a less degree of lateral or transverse inclination than the hydroplane members of the forward hydroplane surface; that is to say, each rear hydroplane surface has a flatter V form than the forward hydroplane surface. Figs. 1, 5 and 5a of this patent, which disclose these features, are reproduced in finding 13.

Prior patents in the art covered by the two Fauber patents in suit, considered by or called to the attention of the Patent Office during the progress of Fauber's applications, are set forth as to the first patent in suit in finding 11, and as to the second patent in suit in finding 15. The prior art pertinent to the claims of the patents in suit is exemplified by the prior art patents and publications set forth in finding 17 and the disclosures of those prior patents and publications and the facts which are established by a consideration and study thereof in the light of the testimony of record are set forth in findings 18 to 23, inclusive, and no useful purpose would be served by a restatement here of the facts so established. These disclosures and the facts so found show that those skilled in the art of boat and hull construction were familiar with and had knowledge of hydroplane hull and boat construction as found in the ultimate facts stated in finding 36. Upon these evidentiary and ultimate facts, we have found the further necessary ultimate facts as set forth in findings 37 to 42, inclusive, which, for reasons stated therein, establish that claims 1, 2, 5, and 6 of the first patent, #971029, in suit and claims 1, 2, and 29 of the second patent in suit, #1024682, are invalid; that claim 4 of the second patent is valid; that the terminology of this claim is applicable to the Government structures known as the Aeromarine Model 40, the HS Type Hull, and the NB-1 Float mentioned in finding 24; and that in the manufacture and use of those structures the defendant has infringed this claim of the patent; that claim 5 of the second patent is also valid but, by reason of the limitations therein, the terminology of this claim is not applicable to any of the alleged infringing structures of the defendant and the claim has not, therefore, been infringed.

The essential evidentiary facts established by the record, which we think establish infringement of claim 4 of the second patent, are shown by the typical illustrations in finding 24 of the HS Hull (Fig. 5), the Aeromarine Model 40 (Fig. 2) and the NB-1 float-form plane, #3863, and the facts found in findings 27 to 29, inclusive, and findings 31 to 33, and 34.

On the matter of infringement, counsel for defendant contend that each of defendant's structures has a straight athwartship shoulder located substantially in vertical line with the center of gravity to form a pivotal point for longitudinal oscillation of the airplane in respect thereto, and has its forebody extending forwardly and upwardly therefrom to the stern, the foreafterbody extending rearwardly and upwardly therefrom the the stern, the forebody and the adjacent afterbody forming a longitudinal dihedral relationship; that this is an entirely different structure from the structure covered by any of the claims in suit; that it is the antithesis of a stepped-down descending keel-line relationship; that no matter what position the defendant's hulls may take in the water, the dihedral relationship remains between the forward body and its adjacent afterbody; that at no time does the afterbody form a stepped-down relationship with its forebody; that instead of gradually displacing or lessening the submerged area, under constant immersion of the stern, a sharp and abrupt separation of the afterbody, and also of the forebody, from the water is the dominant factor of defendant's hulls; that at no time can the structures covered by any of the claims of the patents in suit assume a position corresponding to the abovementioned dihedral relationship, since the patentee's structure requires immersion of the stern at all times, which stern at no time is ever disposed upwardly with respect to the horizontal; that since the step-down descending keel is essential to all the claims in suit, the complete absence of it in defendant's structures makes infringement impossible; that from the divergence in shape, resulting from the removal of the step-down descending keel relation, and the provision of the afterbody of defendant's hulls with an upward inclination with respect to the forebody preceding it, totally different modes of operation result; and that the individual functions of the patentee's paramount factor finds no counterpart or equivalent in any of defendant's hulls.

The defendant further contends that claim 4 of the second patent has other details of having two hydroplanes, of which the rearward hydroplane member is of less lateral inclination than the forward hydroplane member; that this relationship necessitates that the lower part of the rearward hydroplane is deeper in the water than the lower part of the forward hydroplane, otherwise the variation in angularity is meaningless; that the only disclosure in the patents is a series of nine hydroplanes in which each succeeding hydroplane has its rear end deeper in the water and blunter than the hydroplane preceding; that as none of the defendant's structures has the successive blunting of the angular sections working deeper in the water in the same manner as in the second patent, the defendant's structure in which a blunting of the succeeding angularity accidentally appears, but which inclines upwards and tapers in cross-sections to the stern, is totally different in substance from any claim of the second patent; that in those of defendant's structures in which the after portion of the hull has a slightly blunter transverse angularity than that of the forebody, this difference is so slight that no essential different action results therefrom; that the blunter angularity of the afterbody is offset from the forebody by the straight cross shoulder and the offset afterbody is inclined rearward upwardly from the straight cross notch to the stern, and its afterbody has its cross-sectional sections constantly decreasing towards the stern, the smallest section being at the stern; that the mere incident in the slight variation of transverse bluntness in certain of defendant's structures is of no consequence; that the blunter portion does not perform the same work as the blunter portion of the patented structure; that neither the means nor the result is the same, and that there is, in consequence, a total absence of infringement of claim 4 by these structures of the defendant. The substance and effect of defendant's contentions are that the afterbody of defendant's structures, hereinafter more fully discussed, is not a hydroplane surface so that consequently, there is not a plurality of hydroplane surfaces, and that the terms of any claim must be limited to the structure referred to in the illustrated disclosures and can cover nothing but what is specifically shown. We think these contentions misinterpret the patents and also overlook certain other important considerations.

Claim 4 of the second patent now under consideration is as follows: "A hydroplane boat provided with two hydroplanes arranged one at the rear of the other, and in stepped relation and having their bottom surfaces at their forward ends continuous with the flotation surface of the hull, said hydroplanes each consisting of two hydroplane members arranged at opposite sides of the center line of the bottom and inclined laterally and downwardly toward said center line; the said hydroplane members of the rearmost hydroplane having a less degree of lateral inclination than the hydroplane members of the forward hydroplane."

The definition of the term "hydroplane boat" used in the patent is not to be determined solely from the illustrated disclosures of the patents, which show no wings — but do not exclude them. It is well understood that hydroplane boats may, or may not, be provided with wings. When on the water, a hydroplane boat with or without wings necessarily has some part immersed and the extent of this part can be determined, if desired, by the use of a horizontal water rudder or by an air elevator. In Smith v. Snow, et al., 294 U.S. 1, 11, 55 S.Ct. 279, 283, 79 L.Ed. 721, the court said: "We may take it that, as the statute requires, the specifications just detailed show a way of using the inventor's method, and that he conceived that particular way described was the best one. But he is not confined to that particular mode of use, since the claims of the patent, not its specifications, measure the invention. Paper Bag Patent Case, 210 U.S. 405, 419, 28 S.Ct. 748, 52 L.Ed. 1122; McCarty v. Lehigh Valley R. Co., 160 U.S. 110, 116, 16 S.Ct. 240, 40 L.Ed. 358; Winans v. Denmead, 15 How. 330, 343, 14 L.Ed. 717."

The patent shows stepped hydroplane members which are downwardly inclined toward the keel line, and which are downwardly inclined from front to rear. Claim 4, now under consideration, specifically recites the downward inclination toward the keel line, but contains no limitation at all as to fore and aft disposition. All that the claim requires is that there be two or more hydroplane surfaces of the V section in stepped relation. The record conclusively shows that the defendant's structures which we have found to infringe this claim have the required plurality of hydroplane surfaces, and that the after-surface during taxiing has a hydroplaning action even when this after-surface is at a negative angle and that during the take-off run of the hydroairplane, when this after-surface assumes a positive angle, as it necessarily does, it is downwardly and rearwardly inclined. See findings 27, 28, and 29 and the illustrations, in finding 27, showing the three positions described therein of a conventional seaplane during the take-off run. In addition to the facts stated in the findings mentioned, and the illustrations there shown, there is produced below for the purpose of further discussion two illustrations designated exhibit 7 and exhibit 24 which will hereinafter be referred to as the ABC form.

The three illustrations reproduced in finding 27 show a seaplane with a hull of the type of the ABC form found to infringe Claim 4. When the speed of an engine is increased preparatory to taking off, the airplane goes through what is known as the taxiing stage, which brings the machine from "the idling position," shown in the first illustration (finding 27) to the position of "running on the step" shown in the third illustration of finding 27. During taxiing the after-portion of the float, designated C in exhibits 7 and 24 above, goes down to the position shown in the second illustration (finding 27) termed "maximum nose-up" position. As the speed is increased, several factors, including the hydroplaning action on the after-surface C, hereinafter more fully discussed, cause the float to come up until it eventually attains the "running on the step" position wherein only the after-portion of the forward hydroplaning surface A is actually in the water. When this position has been attained, the operator ordinarily manipulates the longitudinal controls of the airplane in a manner to increase the angle of incidence of the wings, without, however, again submerging the after-surface C, and the airplane then takes off. It will be noted from the "maximum nose-up" position shown in the second illustration (finding 27) that the after-surface C is downwardly and rearwardly inclined at what the evidence shows, without dispute, is a positive angle. While the testimony of both parties is in agreement that the after-surface C of the hydroairplane hull is a "hydroplaning surface" when it is in this positive angle, there is a conflict in the testimony with reference to whether this after-surface C is in a hydroplaning attitude and acts as a hydroplaning surface when the plane is in the "running on the step" position, as shown in the third illustration (finding 27), but we are of opinion from a study of the entire record that the greater weight of evidence establishes that even with the after-surface C at a negative angle, i.e., upwardly and rearwardly during taxiing, it, nevertheless, acts during that time as a hydroplaning surface.

The ABC illustration, exhibit 24 above, demonstrates the correctness of this view, that the after-surface C, being in contact with the surface of the water and receiving hydrodynamic action therefrom, is a hydroplane surface, and the evidence establishes the fact that during taxiing the after-surface C acts as a hydroplaning surface even when it is at a negative angle to the horizontal, as shown by the illustration ABC — exhibit 24. The flow of the water leaving the step strikes surface C with a lift component, as designated by arrows at "W". This is admitted by defendant's expert who termed this action of the water as an "inverted waterfall." He said: "In the meantime, the step-action is coming into play and the water no longer flows close around the step, but flows as an inverted waterfall, making contact on the after bottom, further and further aft as planing is developed."

This expert further admitted that this flow of water and its action on the after-surface C, even while that surface was at a negative angle, would have a lifting effect.

In view of the facts set forth in the findings and for the reasons above stated, we think defendant's infringement of claim 4 is clear for the reason that the after-surface C of the defendant's hulls is a hydroplaning surface and falls within claim 4 of the patent which is of a scope sufficient to cover a construction in which is found two hydroplane surfaces in tandem and in stepped relation to one another. The fact that the forward surface A of the defendant's hull construction is a hydroplane surface has not been controverted and the testimony establishes that the after-surface of defendant's hull construction contributes a hydroplaning action. Whether or not Fauber recognized that his hydroplane boat was utilizable as an adjunct to the flying machine is of no moment. In Kennicott Co. v. Holt Ice Cold Storage Co., 7 Cir., 230 F. 157, 160, the court said: "Some utility is to be presumed from the grant; other uses and advantages need not be enumerated; even if unknown to the inventor the additional and the new uses are within the patent; and they may properly be considered in determining the status of the invention in the art."

In Larson v. Crowther, 8 Cir., 26 F.2d 780, 787, the court held that "An inventor is entitled to all the uses to which his invention may be put, even if he is not aware of such uses when he secures his patent."

In this case the court, 26 F.2d at page 788, quoted from Minneapolis, St. P. S.S.M.R. Co. et al. v. Barnett Record Co., 8 Cir., 257 F. 302, 312, as follows: Moreover, even if this want of perception of the benefits of his invention existed, it would not be fatal to his patent, for, when one has plainly described and claimed his improvements or combinations, and secured a patent for them, he has the right to every use to which they can be applied, and to every way in which they can be utilized to perform their function, whether or not he was aware of all these uses and methods of use when he claimed and secured his monopoly."

In B.G. Corporation v. Walter Kidde Co., Inc., 2 Cir., 79 F.2d 20, 22, the court said: "It is true that Paulson did not foresee the particular adaptability of his plug to the airplane; indeed, we may assume that he did not even know the especial needs of its engine. * * * he is not charged with a prophetic understanding of the entire field of its usefulness."

The defendant may have made modifications as to specific form of the hull, but since it has retained the Fauber principle in its hull designs infringement is present for the reason stated by the court in Norton et al. v. Jensen et al., 9 Cir., 49 F. 859, 866: "* * * If the patentee's ideas are found in the construction and arrangement of the subsequent device, no matter what may be its form, shape, or appearance, the parties making or using it are deemed appropriators of the patented invention, and are infringers."

The addition by the defendant to the hydroplane boat covered by the patent of the aeroplane superstructure does not affect the ultimate question of infringement, for, as was held by the court in Cimiotti Unhairing Co. et al. v. American Unhairing Mach. Co., 2 Cir., 115 F. 498, 504: "* * * The mere fact that there is an addition, or the mere fact that there is an omission, does not enable you to take the substance of the plaintiff's patent. The question is not whether the addition is material or whether the omission is material, but whether what has been taken is the substance of the invention."

While it may be that in taxiing to the take-off, efficient operation of the hydroplane requires that the defendant's hulls rock forward to the "on the step" position, this is merely a matter of mode of operation and, as was said in Auditorium Ventilating Corp. v. Greater Rochester Properties, Inc., D.C., 59 F.2d 450, 457: "The claims in controversy are not specifically limited to details of operation."

In Wright Co. v. Herring-Curtiss Co. et al., 2 Cir., 211 F. 654, 655, the court pointed out that "* * * a machine that infringes part of the time is an infringement, although it may at other times be so operated as not to infringe."

The judgment of the court is that claim 4 of the second patent is valid and that it has been infringed, and that plaintiff is entitled to recover, but entry of judgment will be withheld until the taking of evidence on accounting, showing the amount of compensation due, has been completed. It is so ordered.

WHALEY, Chief Justice, and GREEN, Judge, concur.

WHITAKER, Judge, took no part in the decision of this case.

Fauber v. United States, (1941)

Opinion

Special Findings of Fact.

"Assignment of Interests in Patents.

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UNITED STATES PATENTS

FOREIGN PATENTS British

French

Swiss

PUBLICATIONS

Hydroplane Hulls

Hulls of the Displacement Type

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Fauber v. United States, (1941)

Fauber v. United States, (1941)

Case Details

Citations

Citing Cases

Fauber v. United States, (1941)

Opinion

Special Findings of Fact.

"Assignment of Interests in Patents.

* * * * * *

* * * * *

* * * * *

UNITED STATES PATENTS

FOREIGN PATENTS British

French

Swiss

PUBLICATIONS

Hydroplane Hulls

Hulls of the Displacement Type

* * * * * *

Fauber v. United States, (1941)

Fauber v. United States, (1941)

Case Details

CitationsCopy Citation

Citing Cases

Citations