
    WITOLD A. BADOWSKI v. THE UNITED STATES
    [No. 497-53.
    Decided May 1, 1956]
    
      
      Mr. Albert B. Teare for plaintiff.
    
      Mr. G. M. PaddacJc, with whom was Mr. Assistant Attorney General Warren E. Burger, for defendant.
   Whitaker, Judge,

delivered the opinion of the court:

Plaintiff sues defendant for the infringement of his patent on an “Automatic Means for Opening Parachutes,” being United States Letters Patent, No. 2,365,445. The issue now presented is the question of infringement and validity. The amount of recovery is reserved for later determination in case the court finds that the patent is valid and has been infringed.

Defendant says, first, its structure did not infringe plaintiff’s patent; and, second, that the patent is invalid anyway, because anticipated by the prior art. We shall discuss these questions in the order discussed in the briefs.

1. First, is the issue of infringement. The device on which the plaintiff’s patent was issued is intended to be attached to a parachute and is designed to cause the falling parachute to open automatically when it reaches a preselected altitude. It also discloses means for the opening of the parachute manually, without the use of the automatic features of the alleged invention.

The basic principle of the alleged invention is the use of increasing atmospheric pressure, which is encountered as an object falls toward the ground, to cause the mechanism to operate which opens the parachute. Plaintiff’s structure contains an element that expands and contracts with the variation in atmospheric pressure. As an object falls and encounters increased atmospheric pressure, the contraction of this element sets in motion other elements which release the binding around the parachute and permits it to spring open. Means are provided to set the mechanism to operate at varying degrees of atmospheric pressure. Thus the parachute can be made to open at any desired altitude above thb ground, since atmospheric pressure depends upon the altitude.

The element which expands and contracts is described in claim 1 of the patent as “a chambered gas-tight device capable of expansion and contraction responsive to variations in atmospheric pressure.” We will call this a bellows. When the airplane leaves the ground this bellows contains air at ground level pressure. As the airplane gains altitude, the outside pressure on this bellows decreases, which permits the bellows to expand. When an object is dropped from the airplane and encounters increased atmospheric pressure, the bellows contracts, and this contraction causes other parts to move to a point where a spring is released, which forces down a part of the device, which releases the cord binding the parachute, and thus permits the parachute to spring open.

In the illustrated embodiment of the invention, the expansion of the bellows causes one of the movable members of the mechanism to rise upward. One end of a spring is attached to this movable member and the other end to an immovable element of the device. When increased atmospheric pressure is encountered the bellows contracts and allows the spring to pull the movable member down until a recess in a connected member comes opposite a ball which has been holding back another movable member, at the top of which are powerful springs under compression. The ball is then pushed into the recess, thus releasing the springs which thrust down the movable member which pushes the end of the parachute binding cord off of a stud to which it had been attached; thus releasing the parachute.

In the above description one essential element has been omitted, which is a calibrated device for adjusting the position of the movable member which contains the recess for the escape of the ball, so that the ball will be forced into the recess and the binding cord on the parachute released at any-desired altitude.

Connected with all these movable parts, of course, are fixed supports in relation to which the movable parts move.

Claims 1 and 2, which set forth the above invention, are substantially identical, but claim 4 adds the feature of permitting manual release of the parachute, independent of the automatic release.

We are of opinion that defendant’s structure infringes the claims of plaintiff’s patent.

The appearance of defendant’s structure is entirely different from plaintiff’s; however, the essential elements in defendant’s structure come within the terms of plaintiff’s claims, with one exception, which is the timer. This element we shall discuss later.

The plaintiff’s claims call for a support. They next call for a chambered gas-tight device, which we have called a bellows, capable of expansion and contraction according to atmospheric pressure, and for a member that moves in accordance with the expansion and contraction of the chambered gas-tight device. Defendant’s structure contains both these elements.

Plaintiff’s claims also call for “means” for preadjusting the movable member to regulate the height at which the mechanism is designed to operate, and provide for “means” for actuating the parachute release at the predetermined height. Defendant’s structure has such means.

Plaintiff’s claims specify the elements of his invention in general terms. No particular means are specified. And so, notwithstanding the fact that defendant’s structure differs in the particular means employed to accomplish the object of plaintiff’s invention, it infringes plaintiff’s patent because it employs means designated in plaintiff’s claims. Plaintiff’s patent was not limited to the particular structure illustrated, but was broad enough to cover other means designed to accomplish the specified purpose.

The doctrine of equivalence is a recognized principle of the law of patents. This doctrine was thus stated in Machine Co. v. Murphy, 97 U. S. 120, 125:

* * * If two devices do the same work in substantially the same way, and accomplish substantially the same result, they are the same, even though they differ in name, form, or shape.”

The above quoted language was quoted in the opinion of the Supreme Court in Graver Mfg. Co. v. Linde Co., 339 U. S. 605, 608, and the principle was therein applied.

We have no doubt that the elements of defendant’s mechanism performed the function of the elements called for in the claims of plaintiff’s patent. They certainly perform the same function to obtain the same result, to wit, the opening of a parachute. The only difference in the two structures is that one winds a wire on a drum which pulls a cord attached to the parachute, whereas the other releases a cord attached to the parachute, but both operations are designed to produce the same result, to wit, to permit the parachute to open.

Defendant says that its structure does not infringe plaintiff’s because of this fact, that its structure pulls the cord whereas plaintiff’s structure releases the cord. However, we think this is a distinction without a difference. Both the pulling of the cord and the releasing of the cord are intended to permit the parachute to spring open.

The parachute used by defendant is enclosed by fastening two flaps with eyelets at their ends over two cones on the parachute covering, and by running pins through the holes in the cones, thus holding the parachute secure. Defendant’s device pulls the cord to which these pins are attached and thus permits the parachute to spring open. Plaintiff’s device, on the other hand, releases a cord, which permits the parachute to spring open. But this is immaterial, it seems to us, because the flaps might be held down just as well, not by pins, but by a cord or cords, which, when pushed off these studs, would release the flaps and permit the parachute to fly open. The cords and the pins perform exactly the same function.

It, therefore, seems to us that defendant’s device is designed to accomplish the same result accomplished by plaintiff’s device and in substantially the same way.

It seems pertinent to quote at this point an excellent statement, regarding the use of equivalence, contained in the opinion of Graver Mfg. Co. v. Linde Co., supra:

But courts have also recognized that to permit imitation of a patented invention which does not copy every literal detail would be to convert the protection of the patent grant into a hollow and useless thing. Such a limitation would leave room for — indeed encourage— the unscrupulous copyist to make unimportant and insubstantial changes and substitutions in the patent which, though adding nothing, would be enough to take the copied matter outside the claim, and hence outside the reach of law. One who seeks to pirate an invention, like one who seeks to pirate a copyrighted book or play, may be expected to introduce minor variations to conceal and shelter the piracy. Outright and forthright duplication is a dull and very rare type of infringement. To prohibit no other would place the inventor at the mercy of verbalism and would be subordinating substance to form. It would deprive him of the benefit of his invention and would foster concealment rather than disclosure of inventions, which is one of the primary purposes of the patent system.

Now, there is one difference between plaintiff’s structure and defendant’s. Defendant employed a timing device which delayed operation of the release mechanism for the number of seconds at which, it was set, if set above zero. However, if this timing device was set at zero, the release mechanism operated just as the mechanism described in plaintiff’s patent.

Plaintiff does not claim that defendant’s structure infringed his patent because it employed the timing device, but because it employed the other elements which he had described in his claims and specifications. The defendant’s timing device was merely an addition to plaintiff’s patent. But the rest of its device did infringe plaintiff’s patent.

Plaintiff in the fourth claim of his patent, in addition to the automatic devices, provides also for a means of releasing the parachute manually. The defendant’s device also has such means.

Plaintiff filed his application for patent on March 19,1942. A week later, on March 26, 1942, he advised the Army Air Force that he had perfected such an invention. On April 10,1942 they replied, stating that “no satisfactory automatic parachute opening device has been developed,” and stating that if plaintiff had a full-sized working model which he cared to submit, they would conduct the necessary examination and tests of it. Later, on December 22,1944, the Army Air Force wrote plaintiff relative to his invention, stating, “the method of operation appears to be feasible and the principle sound,” and that they “will be pleased to test a sample of your device in comparison with one or more delayed opening devices which are being designed and fabricated by other sources.”

We are of opinion that the information plaintiff furnished probably aided the Army Air Force to construct its F-l release, which it had been unable to construct or to perfect prior to the disclosure in plaintiff’s patent application.

2. Secondly, defendant says that plaintiff’s claim is invalid because anticipated by the prior art. It relies chiefly on the British patent issued to Galli and Briquet in 1928. The device is thus described in the specifications (page 1, line 9) :

This invention relates to apparatus capable of being fitted to parachutes for automatically controlling the opening of the same, in which the releasing means which produce the opening of the parachutes are so constructed and arranged as to effect the release after a definite height of free fall, said height being capable of adjustment and being fixed in advance.

It will be noted that this device differs from plaintiff’s patent in that it provides for the opening of the parachute “after a definite height of free fall,” whereas plaintiff’s device provides for the opening of the parachute at a certain altitude or height above the ground, irrespective of the height of the previous fall. The aim and the results accomplished by the two devices are therefore different.

The preferred structure taught by the Galli patent was a timing device that regulated the height of the fall before the parachute opened. Of course this embodiment is entirely different from plaintiff’s patent, which depended on atmospheric pressure to open the parachute.

However, the Galli patent also showed diagrammatically in figure 7 a device for opening a parachute in response to a change in atmospheric pressure. So far as it depended on atmospheric pressure to open the parachute, it employed the same principle employed by plaintiff. The other elements of this Galli device differ quite substantially from the illustrated embodiment of plaintiff’s patent, even though designed to obtain the same general result.

The Galli patent provides for a bellows, to which is attached a horizontal bar pivoted on a perpendicular bar in such way as to permit the horizontal bar to oscillate as the bellows expands and contracts. At the other end of the horizontal bar is an electrical contact, which, when brought into contact with another electrical contact suspended above it, causes an electrical current to flow into an electrical magnet which attracts a steel plate. The plate was provided with some sort of projection, which hooked on to a horizontal bar beneath, on which there was a spring with a knife at the end of the spring. When the electrical magnet attracted the steel plate beneath it, this disengaged the hook, and the spring thrust forward the knife on the end of the bar. The knife cut the cords binding the parachute, and thereby permitted the parachute to open. The electrical current was generated by a dry battery carried by the parachute.

The Galli patent differs from the illustrated embodiment of plaintiff’s patent, in that it depends on an electrical current to operate the release, .whereas the illustrated embodiment of plaintiff’s patent depends on mechanical means, but the claims of plaintiff’s patent may be broad enough to embrace electrical means as well.

It is doubtful whether or not the alternative Galli device would accomplish the purpose for which it was designed. It, apparently, was never put into successful practice. The disclosure is crude, but it does embody all the functions of plaintiff’s patent, if modified to include a device for regulating the altitude at which the two electrical points make contact to operate the parachute release.

According to figure 7 of the Galli patent, contact would always be made at approximately the same altitude. No provision was shown for adjusting the making of contact according to varying altitudes. Plaintiff’s patent did make such provision. It could be set so that the parachute would open at any desired altitude. This missing means in the Galli patent was supplied by plaintiff. It was an essential element to accomplish the desired result. Under some conditions, it is probably desirable to have the parachute open at 15,000 feet; under others, at 1,500 feet, etc.

It may be that the Galli patent suggested to plaintiff the idea of opening a parachute by increased atmospheric pressure, which it seems to us is the basic principle upon which plaintiff’s patent is based. But, Galli’s patent did not adequately disclose how the opening of the parachute could be regulated according to the desired height, and this was also essential.

Looking at it in retrospect, it may appear fairly simple to have modified Galli’s device so as to provide for the release of the parachute at varying altitudes, but it is significant that no one did so for 14 years, not until plaintiff filed his application for a patent. During at least part of this time the Army and Navy had been undertaking to develop a device that would do what plaintiff claimed for his invention.

Judge Learned Hand, in Lyon v. Bausch & Lomb Optical Co., 224 F. 2d 530, 535, had this to say about the apparent ease of modifying a prior patent to accomplish the results achieved by a later patent:

The most competent workers in the field had for at least ten years been seeking a hardy, tenacious coating to prevent reflection; there had been a number of attempts, none satisfactory; meanwhile nothing in the implemen-tary arts had been lacking to put the advance into operation ; when it appeared, it supplanted the existing practice and occupied substantially the whole field. We do not see how any combination of evidence could more completely demonstrate that, simple as it was, the change had not been “obvious * * * to a person having ordinary skill in the art” — Sec. 103.

So, notwithstanding the fact that, as we look back at the Galli patent in the light of plaintiff’s invention and the Government’s device, it seems fairly simple to have modified it to provide for the opening of the parachute at varying altitudes, nevertheless, nobody was able to work this out until plaintiff did so — 14. years later.

Of course the means employed by plaintiff to adjust his device to cause the opening of the parachute at varying altitudes was quite simple and had long been known. However, plaintiff’s patent is not based on just one element, but upon the combination of all of its elements, in order to accomplish the result in mind. Every element called for in plaintiff’s claims had long been known, but nobody had ever disclosed how these elements might be combined to produce the desired result of releasing a parachute at varying altitudes.

The law is well settled that a combination of old elements which accomplish a new and beneficial result is patentable. This was first decided, so far as we know, in Seymour v. Osborne, 11 Wall. 516, and has been reaffirmed many times since. Just recently Judge Parker, speaking for the Fourth Circuit Court of Appeals in Colgate-Palmolive Co., et al., v. Carter Products Inc., decided March 8, 1956, and published in 230 F. 2d 855, 862, 108 USPQ, 383, 388, quoted with approval from 20 R. C. L. 1125-1126 the following:

A combination is a composition of elements, some of which may be old and others new, or all old or all new. It is, however, the combination that is the invention, and is as much a unit in contemplation of law as a single or noncomposite instrument. The authorities establish the following propositions respecting the patentability of devices or processes of this character: (1) That a combination is patentable. * * * Wlien the several elements of which it is composed produce by their joint action either a Hew and useful result, or an old result in a cheaper or otherwise more advantageous way.

In Jeoffroy Mfg. Inc., v. Graham, 219 F. 2d 511, 519, 104 USPQ 267, it was said:

* * * an improvement combination is patentable even though its constituent elements are singly revealed by the prior art, where, as here, it produces an old result in a cheaper and otherwise more advantageous way; * * *

Even though the Galli patent had been issued by the United States Patent Office, we do not think it would have anticipated plaintiff’s patent, because it lacked the essential element mentioned above; but it is a foreign patent, and the decisions hold that a foreign patent will not be found to be anticipatory unless it clearly discloses all of the elements essential to the later patent. Seymour v. Osborne, supra; Hanifen v. Armitage (CC) 117 Fed. 845; Permutit Co. v. Harvey Laundry Company (CA 2) 279 Fed. 713; General Electric Company v. Hoskins Mfg. Co., 224 Fed. 464 (CA 7). This is because the foreign patent is not set out in detail, as are domestic patents.

The defendant also says that the plaintiff’s patent is anticipated by the device used by the Weather Bureau for releasing from a balloon a parachute to which instruments have been attached. This device, which operates during ascent, also depends for its operation upon atmospheric pressure. However, this device was plainly not designed to apply the force necessary to release the instrumentality employed to hold a parachute together. The parachute which the pilot carries on his back, or which is attached to an object to be dropped, is contained in a case held tight against the action of a closely packed parachute, which springs open as soon as the enclosing case is opened. It takes a good deal of force to release the fasteners that restrain the opening of the parachute. The weather device was evidently not designed to accomplish any such purpose. We are of opinion that this device does not teach the combination of things embodied in plaintiff’s patent.

The defendant relies upon the Brewer patent, which was originally cited by the Patent Office as being anticipatory of plaintiff’s patent. The Patent Office later held, however, that the Brewer patent did not anticipate plaintiff’s patent. The presumption, of course, is in favor of the validity of the patent attacked, and we are of the opinion that the Brewer patent does not so clearly anticipate plaintiff’s patent as to rebut this presumption.

We are of opinion plaintiff’s patent is not anticipated by the prior art and, therefore, valid, and, further, that defendant’s F-l parachute release infringes plaintiff’s patent.

Plaintiff is entitled to recover and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Buie 38 (c).

It is so ordered.

Labakoee, Judge; LittletoN, Judge; and JAnes, Chief Judge, concur.

Madden, Judge,

dissenting:

I am not able to agree with the court’s decision. The device of using “a chambered gas-tight device capable of expansion and contraction responsive to variations in atmospheric pressure” was not new. It was used in the Galli patent and in the Weather Bureau device, both of which anticipated the plaintiff’s patent.

The use of the force generated by the expansion or contraction of a chamber filled with air or gas to release a trigger and thus set in motion other intermediate forces to accomplish an ultimate purpose was not new. Such use was embodied in both the Galli and the Weather Bureau structures.

The intermediate devices, springs, etc., used in the Government’s structure were not copied from the plaintiff’s patent. Of course they accomplished the same ultimate purpose, the untying of the package containing the packed parachute. But even a casual look at the figures shown in the findings discloses that the mechanical steps between the trigger and the opening of the parachute were entirely different in the plaintiff’s and the Government’s structures. Besides, looking at these intermediate devices alone, there was no invention in either of the structures. No two skilled mechanical engineers would design the same structures for these intermediate steps, but no one could claim invention for any of the steps involved in either structure with which we are here concerned. Besides, as I have said, the Government did not use the plaintiff’s intermediate devices.

What, then, is the basis of the plaintiff’s patent. It cannot be the expansible chamber triggering other mechanical devices to exert force on the fastenings of the parachute. That idea was old. It cannot be the intermediate mechanical devices themselves. They are not claimed to be patentable, and at any rate they were not used in the Government’s structure. It must, then, be the combination of the expansible chamber, the trigger, and the intermediate devices for the purpose of releasing a parachute.

But the combination too was old. It was exactly what had been actually done in the. Weather Bureau device and what had been described in the Galli patent. In the Weather Bureau device the trigger was set so that when the expansible chamber expanded because the outside air pressure diminished as the balloon carrying the device rose, when that expansion reached the point which it would reach at a predetermined height, the trigger would be released and, by intermediate devices, the parachute would be detached from the balloon. It was exactly the combination of mechanisms and forces involved in the plaintiff’s conception and the Government’s structure. In the Weather Bureau device the expansion of the chamber released the trigger; in the plaintiff’s and the Government’s devices the contraction of the chamber released the trigger. Surely that difference is immaterial. If a device for releasing a parachute by the use of air pressure when the parachute is being carried up is in the public domain, surely one cannot get a patent monopoly on the same device used to release a parachute when it is being carried down.

The court speaks of the fact that the plaintiff, shortly after filing his application for a patent, disclosed his conception to tbe Air Fores which wrote him that “no satisfactory automatic parachute opening device has been developed” and that his method appeared to be feasible. The court then says:

We are of opinion that the information plaintiff furnished probably aided the Army Air Force to construct its F-l release, which it had been unable to construct or to perfect prior to the disclosure in plaintiff’s patent application.

This judicial surmise would seem to me to be “probably” inaccurate. I find it hard to believe that the Air Force would not have known that air pressure acting on an expansible chamber could trigger the release of a wound-up spring and thereby pull a cord. The ingenious, whether workable or not, intermediate devices disclosed by the plaintiff could not have helped the Air Force much, for they did not come anywhere near to copying them. But the observation quoted above seems to me to be irrelevant. If the things which the plaintiff’s application disclosed were already in the public domain, the fact that the Air Force did not know them, or had forgotten them, and only began to think of them seriously after seeing the plaintiff’s application would neither help nor hurt the validity of the plaintiff’s patent. One might have a guilty intent to infringe upon another’s patent, but if it turns out that the patent had been anticipated, no legal consequences flow from his guilty state of mind.

When many persons, including the Air Force itself, were working feverishly to bring to mechanically workable perfection a device so essential as the one here involved, it is not remarkable that the Air Force’s workable device should have followed closely, in point of time, the disclosure of the plaintiff’s intellectual concept. But it is no proper case for the application of the maxim post hoc ergo propter hoe. And if it were, it would not prove anything about the validity of the plaintiff’s patent.

FINDINGS OF FACT

The court, having considered the evidence, the report of Commissioner Donald E. Lane, and the briefs and argument of counsel, makes findings of fact as follows:

1. This is a suit arising under the patent laws of the United States for alleged infringement of plaintiff’s patent by the defendant. United States Letters Patent No. 2,365,445, issued December 19, 1944, to the plaintiff, Witold A. Badowski, and is entitled “Automatic Means for Opening Parachutes.” Since said date of issue, the plaintiff has been the owner of legal title in and to said patent. The plaintiff is a citizen of the United States.

2. The subject matter involved relates to apparatus for automatically causing a parachute to open at a predetermined safe altitude. Where a flier is obliged to leave an aircraft at a relatively high altitude, and particularly in conditions under which he might be unable to manually operate a parachute release, it is important that the parachute be automatically released to open at a definite altitude above the ground. Automatic release apparatus is particularly necessary where the flier may be incapacitated by high altitude pressure or temperature conditions, by shock, or by wounds. Where supplies are delivered by parachute from-high altitude aircraft, it is important that the parachute be automatically released to open at a desired altitude above the ground. Such delayed release permits the free fall of supplies from high altitudes to a relatively low preselected altitude at which the parachute is automatically released to open, thereby facilitating spot placement of the supplies. Accuracy in spot placement is particularly important where the delivering aircraft must fly at high altitudes to avoid attack, and where wind conditions might materially deflect the supporting parachute during any relatively long downward movements. The subject matter also is concerned with automatic release apparatus which may be manually adjusted in advance to operate at a particular release altitude and which also permits manual release of the parachute at any time, and particularly in special cases where automatic release is found not necessary or desirable.

3. The Badowski patent in suit states that the objects of the invention are to provide an automatic device operative at a predetermined height for opening a parachute being used to lower objects from aircraft, to provide such a device which may be set for operation at a particular height before leaving the aircraft, and to provide such a device which is equipped with a manual control whereby a jumper may cause his parachute to open at any desired point in his fall prior to his arrival at the elevation at which the automatic release was preset to operate. The patent in suit describes and illustrates apparatus embodying the invention. Figures 2 and 5 of the patent drawing are reproduced herewith to facilitate understanding the invention claimed.

4. The device shown in Figure 2 includes a supporting bracket 25 for attachment to a parachute pack. The bracket 25 carries a tubular member 26 having an inturned flange 27 at the upper end. Another tubular member 29 extends above and also downward within the member 26, and is secured to the flange 27. The lower end. of member 29 is closed by plug 33. The bracket 25 and members 26 and 29 form a fixed support for the several movable components next to be described. A plunger 37 is slidable on the upper portion of tubular member 29, and includes a hollow inner member 38 and an outer sleeve 39 secured to the inner member 38. The lower end of hollow member 38 is provided with a nipple 40, and the upper end of member 38 is provided with a valve 42 and a dust cap 42a. A tubular member 43 of resilient material is attached to the plug 33 and is also attached to the nipple 40. A coil tension spring 44 is connected to the member 38 and to the plug 33, and tends to pull the member 38 downward in the tubular member 29 A sleeve 48 is adjustably secured to the member 39 of plunger 37, and carries a lower sleeve 51 surrounding the tubular member 26. An ejector 60 is slidable in the lower portion of member 26, and a relatively strong compression spring 64 is positioned between the ejector 60 and a flanged portion of member 29 bearing against the flange 27 of fixed member 26. The lower end of ejector 60 is held against an ejector extension 65, the latter being adapted to slide upon a pair of studs 67 carried by bracket 25. The latch or trigger mechanism includes a ball 62 positioned in a perforation 61 in the wall of fixed member 29, and includes an annular recess 71 in member 51 and an annular recess in ejector member 60. Parachute binding cords 20, under tension when the parachute is closed, are provided with end eyelets 21, and the eyelets 21 are normally engaged over and held on the fixed studs 67. The dust cap 42a may be removed and the valve 42 may be opened before the aircraft takes off in order to equalize the pressure within the tube 48 with the atmospheric pressure at ground level.

The operation of the device shown and described is such that an increase in surrounding air pressure as the unreleased parachute falls, allows the tube 43 to be compressed and thereby allows the spring 44 to move the movable elements 37 and 51 downward from the cocked position of Figure 2. Such a movement eventually causes the recess 71 to become aligned with the ball 62 which then moves outwardly in the perforation 61, and said movement serves as a trigger to release the ejector 60. When it is thus released from being latched to member 26, the ejector is moved downward by the energy of compression spring 64. Downward movement of the ejector 60 moves the ejector extension 65 on the studs 67, and causes the retaining brackets 69 to push the release cord eyelets 21 off from the fixed studs 67. The release position is illustrated in Figure 5. The device includes a pull cord 80 attached to the ejector extension 65 to provide for manual release of the parachute cords 20 from the fixed studs 67. The threaded connection between sleeve 48 and the sleeve 39 provides for adjustment of the position of annular recess 71 relative to the fixed member 26. The sleeve 48 is marked with graduations of the micrometer type for each thousand feet of altitude, and a set screw 48a is provided to secure the sleeves 48 and 39 in an adjusted position. The patent in suit also discloses modified constructions such as the use of a metal sylphon-type bellows in place of the resilient tube 43 and spring 44 of the Figure 2 construction.

5. More briefly stated, the apparatus disclosed in the patent in suit utilizes a closed flexible chamber which changes in shape in accordance with changes in atmospheric pressure. A change in the shape of the chamber due to an increase in atmospheric pressure actuates a trigger. The trigger operates to release a loaded spring which, in turn, furnishes power to control a parachute release mechanism. The apparatus includes an adjustment for presetting the pressure value, and hence the altitude, at which the trigger is released. The apparatus also includes a manual control to permit actuation of the parachute release mechanism independently of the automatic release mechanism.

6. The claims alleged to be infringed are tabulated as follows:

Olaim 1
Automatic means for causing a parachute to open in a predetermined elevation zone, comprising
a support,
a chambered gas-tight device capable of expansion and contraction responsive to variations in atmospheric pressure, said device having
a part movable with relation to said support,
means for preadjusting the position of the movable part independently of atmospheric pressure,
a parachute,
movable parachute release means carried by said support, and
means operatively associated with the movable part of said device for automatically actuating said release means within said predetermined elevation zone.
Olaim 2
Automatic means for causing a parachute to open in a predetermined elevation zone, comprising
a support,
a chambered gas-tight device capable of expansion and contraction responsive to variations in atmospheric pressure, said device having
one part fixed and
one part movable with relation to said support,
means for adjusting the position of said movable part with respect to said fixed part independently of atmospheric pressure,
a parachute,
parachute release means detachably carried by said support, and
means operatively associated with the movable part of said device for automatically actuating said release means within said predetermined elevation zone.
O laim 4
Automatic means for causing a parachute to open in a predetermined elevation zone, comprising
a support,
a chambered gas-tight device capable of expansion and contraction responsive to variations in atmospheric pressure, said device having
a part movable with relation to said support,
means for preadjusting the position of the movable part independently of atmospheric pressure,
a parachute,
movable parachute release means carried by said support,
means operatively associated with the movable part of said device for automatically actuating said release means within said predetermined elevation zone, and
additional means, operatively associated with said release means, for manually actuating said release means at any desired elevation.

7. Claim 1 of the patent in suit may be read upon the apparatus disclosed in Figure 2 of the patent drawings by designating the bracket 25 and members 26 and 29 as the support. The chambered gas-tight device is the flexible tube 43 and its end closures 33 and 42. A part movable with respect to the support is the outer sleeve 48 and sleeve 51 carried thereby. The means for preadjusting the position of said part independently of atmospheric pressure are the threads 49 between the sleeve 48 and part 39 of plunger 37. The apparatus disclosed in Figure 2 is associated with a parachute 24 as illustrated in Figuro 1 of the patent drawings. The movable parachute release means carried by the support include the restraining brackets 69. The means associated with the movable part 48-51 for automatically actuating the release means 69 is the ball latch or trigger 62 which moves into the groove 71 of movable part 51 and thereby allows the spring 64 to move the ejector 60 and its extension 65 with brackets 69 downward to push the parachute binding cord eyelets 21 from the fixed studs 67. Claim 2 is similar to claim 1, but adds a recital that the chambered device has one part fixed in addition to one part movable with relation to the support. Such a fixed part is the lower surface of plug 33 secured against the internal flange near the lower end of support member 29 by nut 34. The sleeve 51 is adjustable with respect to said fixed part. Claim 4 is similar to claim 1 but adds a recital of means associated with the release means for manually actuating the release means at any desired elevation. Such a manual actuating means is the pull cord 80 attached to the ejector extension 65 as shown in Figure 2. The cord 80 may be pulled manually at any time to release the parachute binding cords 20.

8. In securing the allowance of claims 1, 2, and 4, plaintiff contended as follows:

The present application has provided means, independent of atmospheric pressure, for simply and rapidly presetting the device to open at any altitude zone, and such setting need not be made before the flight commences, or as a desired level is passed during the ascent. The presetting, in fact, can be made at the best possible time, namely when the conditions to be encountered are best apparent, just before the jump. This feature of applicant’s device is described at the bottom of page 10 and the top of page 11, and it takes but a moment to set the device, aided by the micrometer graduations, for operation at any point below the plane and above ground level. The adjustment is independent of the movement of the chamber wall responsive to atmospheric pressure, being, in effect, a lengthening or shortening of the linkage between the chamber and the ball valve or “trigger”, as effected by relative motion of threaded parts 48 and 39 (Fig. 2).

At the time of presenting the above argument, the plaintiff amended said claims by adding the recital directed to means for preadjusting the position of the movable part independently of atmospheric pressure. Said recital is a material limitation on the scope of the invention covered by the claims in suit.

9. The alleged infringing apparatus is identified as .Release, Parachute Ripcord, Automatic, Type F-l, and is illustrated and described in a handbook entitled Automatic Parachute Ripcord Release, Model P21A, USAF Type F-l (Schwein). The handbook is plaintiff’s exhibit 6, and Figure 2-2 thereof showing an exploded view of the accused release is reproduced bere to facilitate understanding the structure thereof. Actual F-l type releases are in evidence, defendant’s exhibit 3 being an assembled release device, and plaintiff’s exhibit 16 being a disassembled release device.

10. In use, the assembled F-l automatic release is secured to a parachute pack, and a flexible cable extending from the F-l device is connected to the conventional parachute ripcord mechanism. Any time prior to the jump of a flier or the dumping of packaged supplies from the aircraft, the F-l release device is manually set for the altitude at which it is to automatically release or open the parachute to which it is secured. Prior to the actual drop, an arming pin is manually moved in the F-l device to place the mechanism in condition to operate at the preselected altitude. When the drop, a flier or supplies, reaches the preselected altitude, the F-l release operates automatically to apply a firm pull on the parachute ripcord mechanism which thereby releases the parachute. The F-l release includes a timing mechanism to interpose, where desired, a selected time interval between arrival at the preselected altitude and the automatic release of the parachute. The F-l automatic release mechanism is also constructed so that a parachute wearer may manually pull the parachute ripcord at any time if circumstances so require.

11. Referring now to the Fig. 2-2 illustration, the type F-l Automatic Release includes a pressure-responsive bellows 57, sometimes designated an aneroid or an aneroid assembly. The bellows 57 carries a circular cam at one end, not shown in the reproduced illustration, the cam being provided for cooperation with the trigger 42 to set the device in operation at a desired elevation. An arming pin operated by the knob assembly 2 is withdrawn from contact with the trigger mechanism when it is desired to place the mechanism in condition for automatic operation. Prior to use of the F-l mechanism, a spring 92 is wound by a hand key to provide a source of energy. The interval timer includes an escapement assembly 83 and escapement wheel 85, the timer being energized by the spring 92. The timer has a control knob 61 on a scale graduated from zero to 26 seconds. A spool 69 turned by the spring 92 is adapted when released by the timer to wind thereon a flexible cable extending through the cable housing 67 to the parachute ripcord mechanism. The F-l release is adapted to apply a pull of not less than 36 pounds on said cable. A pointer 55 on an altitude scale graduated from 5,000 to 20,000 feet is connected to adjust the bellows 57 and the cam carried thereby. Adjustment of the cam in a rotary sense to a position at which the pointer 55 indicates a given altitude, results in release of the trigger assembly 42 by said cam when the bellows device contracts a particular amount due to the increase in surrounding air pressure as the device moves downward through the preselected release altitude. Adjustment of the cam is, in effect, a lengthening or shortening of the linkage between the bellows 57 and the trigger 42.

12. The support of the F-l type release mechanism includes its housing 26, plate assembly 76, plate 106, housing assembly 27, and the plate of the parachute pack to which the housing 26 is fastened. The support of the F-l mechanism is the equivalent of the supports 25, 26 and 29 provided in the Badowski patent construction.

13. The sylphon bellows 57 of the F-l mechanism is a chambered gas-tight device and is the equivalent of the chambered tube 43 of the patent in suit. The patent specification teaches that a sylphon bellows 88 may be used in place of the tube 43, as illustrated in Figure 7 of the patent in suit.

14. The inclined cam secured to the bellows device 57 of the F-l release mechanism is the equivalent of the movable element 51 of the patent in suit. In the patent, tubular member 51 is movable with relation to the supporting member 26 which it encloses, and hence movable with respect to the fixed end of the flexible chamber 43.

15. The pointer arm 55 and its connection with the cam carried by bellows device 57 of the F-l release mechanism is the equivalent of the threaded adjustment 49-50 of the patent in suit. After set screw 48a of the patent construction is loosened, the movable part 51 may be adjusted independently of atmospheric pressure. Pointer arm 55 of the F-l release is utilized to adjust the position of the cam independently of atmospheric pressure.

16. Both the F-l type release and the release disclosed in the patent in suit are adapted to be supported on and to be used for automatically releasing a conventional parachute.

17. The release of a parachute by pulling a ripcord to withdraw pins from fixed cones over which metal fasteners on the end flaps of the parachute cover are removably secured is equivalent to the release of a parachute by the release of the ends of tension-binding cords extending over and normally holding closed the end flaps of the parachute cover.

18. The parachute release means carried by the F-l type release mechanism includes the cable extending from the wind-up spool 69 through the cable support 67 to the parachute ripcord. The F-l release cable and ripcord assembly is the equivalent of the retaining brackets 69 provided in the patent construction for releasing the parachute release cords 20 from the fixed studs 67.

19. The trigger 42 and the spring 92 for operating the cable winding spool 69 of the F-l type release mechanism is a means operatively associated with the adjustable cam carried by bellows 57 for automatically actuating the release cable within a predetermined elevation zone. The F-l trigger assembly arid the spring 92 are the equivalent of the ball latch trigger 62 and spring 64 provided in the patent construction.

20. In the F-l type mechanism, the bellows device 57 has one end fixed by being held against the support plate 64, and has one part movable with relation to the support plate. The movable part is the inclined cam carried on the free end of the bellows 57. The cam is moved with respect to the support plate by utilizing pointer 55 to turn the bellows and the cam. In the patent construction, the fixed part is the fixed plug 33 and the movable part is the movable member 48-51. The said parts of the F-l type mechanism are the equivalent of the corresponding parts of the Badowsld patent construction.

21. In the F-l type mechanism, the conventional parachute ripcord to which the cable extending from spool 69 is attached is an additional means operatively associated with the release means for manually actuating the release means at any desired elevation. In the patent construction, the pull cord 80 attached to the ejector extension 65 is an additional means for manually actuating the release means 69 at any desired elevation. The F-l manual release is the equivalent of the Badowski patent construction manual release.

22. Claim 1 of the patent in suit reads in terms upon the F-l type automatic release, element for element, the equivalent elements being set forth in findings 12-19 inclusive.

23. Claim 2 of the patent in suit reads in terms upon the F-l type automatic release, element for element, as set forth in findings 12-20 inclusive.

24. Claim 4 of the patent in suit reads in terms upon the F-l type automatic release, element for element, as set forth in findings 12-21 inclusive.

25. The F-l type automatic release mechanism contains elements which are the equivalent of the elements recited in the patent claims relied upon by the plaintiff, and also contains a timing mechanism and an arming pin assembly. The presence of said timing mechanism and arming pin assembly does not prevent the accused F-l type release mechanism from functioning in a manner similar to the operation of the apparatus recited in claims 1, 2, and 4 of the Badowski patent in suit.

26. At the trial, the defendant contended that the patent claims in suit are invalid because anticipated by the prior disclosures of British patent 278,695, issued to Galli, et al., dated April 5, 1928, and United States patent 1,944,795, issued to Lafayette, dated January 23, 1934. The foreign Galli patent, defendant’s exhibit 5, discloses devices for effecting the release of a parachute after a definite height of free fall. Figures 1-4 disclose a clock-controlled device. Figures 5-6 disclose a modification in the form of a hydraulic device.' The device illustrated only in Figure 7 of the Galli patent has some pertinence to the present case. Figure 7 illustrates diagrammatically a third modification of the Galli invention in the form of an electro-aneroid device. The apparatus of Galli Figure 7 includes a vacuum chamber 46 responsive to changes in atmospheric pressures. Movements of the chamber 46 actuate a lever 47 pivoted at 48 and having an electrical contact 49 at the free end of the lever. When the contacts 49 and 50 close, a source of electrical energy shown as a battery is connected to the electromagnet 51 which then attracts the plate 52 to disengage the stud 53 from the hook 54 on rod 55. The rod 55 carries a knife 56, so that when the stud 53 releases the hook 54, a spring 57 moves the rod 55 and thus causes the knife 56 to cut parachute retaining cords 58. The Galli specification suggests that the distance between the electrical contacts 49 and 50 may be adjusted. The Galli foreign patent construction does not provide for manual release of a parachute, and does not disclose a device fully responsive to the terms of any of the three Badowski patent claims in suit.

27. The Lafayette patent, defendant’s exhibit 6, discloses a parachute ripcord apparatus provided with a timing mechanism. The Lafayette timing mechanism 32, shown generally in Figure 6 of the Lafayette patent, may be preset to a desired time interval of one to nine seconds, and may be tripped or set in operation at the time of jump by a static or break cord 211 secured to the aircraft. When a jump or a dump is made, the break cord starts the timing mechanism which automatically pulls the parachute release ripcord 27 after the preset time interval has elapsed. Where the Lafayette parachute ripcord apparatus is carried by a person, the parachute may also be released independently of the timing mechanism by means of the manual ripcord pull handle 31. No means are provided in the Lafayette patent apparatus for automatically releasing a parachute at a preselected altitude, and the Lafayette apparatus does not include any means responsive to changes in atmospheric pressures.

28. There is no suggestion in the foreign Galli patent that or how the Figure 7 embodiment could be modified to provide for independent manual release. The diagrammatic disclosure of this foreign patent apparatus, involving electrical contacts, battery, and an electromagnet, is not adapted for combination with the Lafayette patent disclosure to provide the automatic parachute release disclosed and claimed in the Badowski patent in suit, nor does the schematic disclosure of this foreign patent teach the construction of the accused F-l type release mechanism. Prior patents cited in the answer, other than Galli and Lafayette, were waived by the defendant during the trial.

29. At the trial, the defendant contended that the patent claims in suit are invalid because anticipated by prior public use of certain devices for reporting weather conditions of the upper atmosphere. Automatic devices for releasing atmospheric-condition reporting apparatus from supporting balloons at desired altitudes above the earth .were known prior to the date of the Badowski invention. One of such devices is illustrated in a 1929 publication of the Boyal Meteorological Society, entitled “The Baker Automatic Belease for Dropping the Meteorograph from a Begistering Balloon at a Pre-determined Height,” defendant’s exhibit 14, at page 118 thereof. The Baker Automatic Belease and similar devices are designed to release at a preselected altitude the supporting balloons, and permit a parachute or the like to lower the reporting apparatus to the ground. The Baker Belease operates during the upward movement of the apparatus. At any altitude above the selected release altitude the Baker Automatic Belease, and devices similar thereto, would be normally open, and would be unsuitable to automatically release a downwardly moving parachute at a preselected altitude. Such devices as the Baker Automatic Belease and the trigger devices used by the Navy in radio meteorography, used by the Weather Bureau, and used with the Friez Bay Sonde devices for releasing meteorographic apparatus during upward movement, do not teach the automatic parachute release disclosed and claimed in the Badow-ski patent in suit, nor do they teach the construction of the accused F-l type release, nor do they suggest how they could be redesigned and rebuilt to release during earthward movement.

30. The Badowski application for letters patent was filed on March 19,1942, and was the subject of a Secrecy Order issued by the Commissioner of Patents on January 29, 1943. The Badowski invention was tendered to the Government on February 20, 1943. The Secrecy Order was rescinded May 16, 1944. The plaintiff on April 12, 1951, filed a formal claim with the Army Air Force for an administrative award based upon a charge that devices, such as the F-l automatic ripcord release, used by the Government constitute an infringement of the Badowski patent here in suit. The plaintiff’s claim for an administrative award was denied by the armed services by replies dated January 11, 1952, March 31, 1952, and June 11, 1953, by the Department of the Army, Department of the Navy, and Department of the Air Force, respectively.

31. The trial in this case was confined to the issues of infringement and validity of the patent in suit.

32. Claims 1, 2, and 4 of Badowski patent 2,365,445 are infringed by the Belease, Parachute, Bipcord, Automatic Type F-l (Schwein), and said claims are valid.

CONCLUSION OF LAW

Upon the foregoing findings of fact, which are made a part of the judgment herein, the Court concludes as a matter of law that plaintiff is entitled to recover and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Buie 38(c). 
      
       Title 28, U. S. C., Sec. 1498, provides jurisdiction to render judgment for the recovery of reasonable and entire compensation for the use or manufacture of an invention covered by a patent of the united States which has been used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same.
     
      
       Page 3, column 2, lines 20-51, of printed patent.
     
      
       Act of October 6, 1917, as amended July 1, 1940, August 21, 1941, and June 16, 1942, Title 36 U. S. C., Sec. 42 (1946 Edition).
     