Syllabus 93 C. Cls. in the instant suit, which involves only hydroplane boats primarily designed to leave the water. Mallory & Co. Inc. v. Automotive Manufacturers' Outlet, Inc., 45 Fed. (2d) 810, cited. Same; patentee's knowledge of his invention's utility.-Whether or not the patentee knew of the utility of his invention for other purposes than set forth in his patent is held to be immaterial, since he was entitled to all the uses of his invention. Diamond Rubber Tire Company of New York v. Consolidated Rubber Same. When defendant's seaplanes are on the water, their pontoons or hulls, having hydroplane surfaces, are hydroplane boats and are within the inventions specified in the claims of the patents in suit; and when in the air the pontoons or hulls are still boats, though not functioning as such. Same; intention of Congress; statute of limitation.-The intent and purpose of Congress in enacting the special jurisdictional act conferring jurisdiction upon the Court of Claims 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. Same. Congress intended not only to waive the limitation on the right to institute a suit upon the patents in suit but also to waive the limitation on the period for which recovery might be had. Same; validity; infringement.-Upon the evidentiary and ultimate facts, it is held: (1) That claims 1, 2, 5, and 6 of the first patent in suit No. 971029, and claims 1, 2, and 29 of the second patent in suit No. 1024682, are invalid; and that claims 4 and 5 of the second patent are valid. (2) That the terminology of claim 4 of the second patent, No. 1024682, is applicable to the Government structures known as the Aeromarine Model 40, the H. S. type hull, and the NB-1 float, and in the manufacture and use of these structures the defendant has infringed said claim 4 of the second patent in suit. (3) That the terminology of claim 5 of the second patent, No. 1024682, by reason of the limitations therein, is not applicable to any of the alleged infringing structures of the defendant, and claim 5 has not, therefore, been infringed. Same; determination of definition.--The definition of the term "hydroplane boat" used in the patents is not to be determined solely from the illustrated disclosures of the patents, 11 Reporter's Statement of the Case which show no wings, but do not exclude wings; hydroplane boats may or may not be provided with wings. Smith v. Snow et al., 294 U. S. 1, 11, cited. Same; patentee's recognition of applicability.-Whether or not the patentee in the patents in suit recognized that his hydroplane boat was utilizable as an adjunct to the flying machine is of no moment. Kennicott Co. v. Holt Iee & Storage Co., 230 Fed. 157, 160, and similar cases cited. Same; infringement not affected by addition to patented structure.The addition by the defendant to the hydroplane boat covered by the patents in suit of the aeroplane superstructure does not affect the ultimate question of infringement. Cimiotti Unhairing Co. et al. v. American Unhairing Machine Co., 115 Fed. 498, 504, and similar cases cited. The Reporter's statement of the case: Mr. Gorham F. Freer for the plaintiff. Mr. C. P. Goepel, with whom was Mr. Assistant Attorney General Francis M. Shea, for the defendant. Mr. Frank H. Harmon was on the brief. 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. The court, having made the foregoing introductory statement, entered special findings of fact as follows: 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. Reporter's Statement of the Case 93 C. Cls. 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, 11 Reporter's Statement of the Case 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. Reporter's Statement of the Case 93 C. Cls. 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 |