
    406 F. 2d 1066
    BURRELL H. TRIPP v. THE UNITED STATES
    [No. 337-63.
    Decided February 14, 1969]
    
      
      Casper C. Schneider, Jr., attorney of record, for plaintiff. James W. Bock and Davis, Hoxie, Faithfull & Hapgood, of counsel.
    
      Louise O’Neil, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before CoweN, Chief Judge, Laramore, Dureee, Davis, ColliNs, SkeltoN and Nichols, Judges.
    
   PeR Curiam :

This case was referred to Trial Commissioner Donald E. Lane with directions to make findings of fact and recommendation for conclusions of law under the order of reference and Buie 57(a). The commissioner has done so in an opinion and report filed on February 27,1968. Exceptions to the commissioner’s opinion, findings of fact and recommended conclusion of law were filed by defendant and the case has been submitted to the court on oral argument of counsel and the briefs of the parties. Since the court agrees with the commissioner’s opinion, findings and recommended conclusion of law, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Therefore, the court concludes that claims 1,2 and 3 of patent 2,666,962, are valid and have been infringed by the defendant’s unauthorized use thereof in hangar No. 7000 at Westover Air Force Base, that claims 1 and 2 of said patent have been infringed by at least one or more other multipurpose wing hangars at Westover Air Force Base, and that plaintiff is entitled to recover reasonable and entire compensation therefor. Judgment is entered for plaintiff to that effect with the amount of recovery to be determined pursuant to Buie 47(c)(2).

OPINION OK COMMISSIONER

Lane, Commissioner:

This is a patent suit under Title 28 U.S.C. § 1498, for reasonable and entire compensation for the unauthorized use of plaintiff’s patented invention. Plaintiff alleges infringement of claims 1,2, and 3 of U.S. Patent No. 2,666,962, issued on January 26,1954, to the plaintiff, Burrell H. Tripp. The parties have agreed to defer trial of any accounting issues until the issues of patent validity, patent infringement, and license are decided by the court. It is found that claims 1, 2, and 3 of the plaintiff’s patent are valid and have been infringed by the defendant.

The patent in suit describes and claims door closures for aircraft wing hangars. A wing hangar is a building designed to house the forward portion of an aircraft for maintenance work. By enclosing only the forward portion of the plane from the nose to a point rearward of the wings, leaving the tail assembly exposed, the size and cost of a hangar are reduced. The patented invention provides an efficient door closure about the fuselage of an aircraft projecting from a wing hangar.

Patent claim 1 is reproduced below with indentation added to aid in identification of the separate elements of the claim:

Patent Claim 1
Closure for wing hangars for aircraft having fuselages, said closure comprising
a pair of doors, each of said doors having a section cut out to admit one-half of an aircraft fuselage, each door being arranged to meet the other at the center line of the fuselage, and
means compressible in the plane of the doors for insertion between said doors and an aircraft fuselage in combination with
a removable insert in each door, said cut-out section being located in that insert, whereby cut-out sections of various shapes can be put in said doors to suit different aircraft and a weathertight cushion seal is provided about the fuselage of the aircraft.

The means compressible in the plane of the door seals the door about the fuselage of an aircraft. Also this compressible means provides a cushion which prevents damage to the aircraft fuselage due to slight movement of the aircraft which may result from wind gusts acting on the exposed tail portion of the aircraft. The removable insert in each door in combination with the means compressible allows a single wing hangar to accommodate different aircraft having different fuselage dimensions. The patent disclosure and patent claims are described in detail in the accompanying findings of fact.

The principal defenses raised by the defendant are that the claims of the Tripp patent are invalid, that the asserted patent claims have not been infringed by defendant, and that the Government is entitled to a comprehensive license under said patent. Estoppel and laches defenses are coupled with the license defense. Defendant also has asserted that Tripp was not the inventor of the subject matter claimed in said patent. The latter assertion is not supported by evidence of record.

In support of its defense of invalidity of claims 1 and 3 in view of the prior art, defendant primarily relies on the references cited in the application file of the Tripp patent, and a photograph in the corporate newsletter Convairieby.. In regard to asserted patent claim 2, defendant has cited patents to Boyden 198,186, Stow 1,303,984, and Balch 880,350. The above three patents have also been asserted by defendant against claims 1 and 3. The teachings of these prior patents are so remotely related to claims 1 and 3 that no extended discussion is required.

The Tripp invention defined in claims 1, 2, and 3 is novel and useful. To be patentable, the subject matter as a whole must also have been unobvious to one having ordinary shill in the art at the time the invention was made. (Title 35 U.S.C. § 103.) In determining the question of obviousness, the factual inquiries suggested by the Supreme Court in Graham v. John, Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966), have been followed. Findings 9-17 reflect the scope and content of the prior art. The only relevant item of prior art cited by defendant which was not of record during Patent Office proceedings is a hangar door construction which existed in San Diego, California, and was illustrated in the Oonvairiety publication in 1950. The trial testimony established that this door construction was a slight variation of admittedly old canvas flap closures and was not a significantly more pertinent reference than the application file citations. The differences between the prior art and the claims in issue are set forth in the findings. Other than the patent application file, the prior patents and the Oomvairiety publication introduced by the defendant and the testimony relating thereto, there is no probative evidence of record in this case which shows the average level of skill in the art of designing closures as of the time the Tripp invention was made. The prior patents and the Oonmairiety publication and the testimony of defendant’s witnesses relating to these patents and the publication do not tend to show a level of skill superior to that taught in the application file cita/tions. As a result of the above factual inquiries, it is concluded that the Tripp invention was unobvious at the time the invention was made. The differences which exist between the patented invention and the prior art are not suggested by the prior art.

Defendant attacks the validity of claims 2 and 3 on the ground that they are not adequately supported by the specification as required by Title 35 U.'S.'C. § 112. It is found that the patent specification discloses to one skilled in the art how to make and use the invention. The specification and claims comply with the statutory requirement.

By stipulation of the parties, the infringement issues for initial determination have been limited to aircraft hangar No. 7000 and the multipurpose wing hangars at defendant’s Westover Air Force Base, Massachusetts. The question of infringement by each of the several other hangar constructions identified in the petition has been deferred until an accounting trial.

Hangar No. 7000 as discussed below infringes the asserted patent claims. Plaintiff has also made out a prima facie case of infringement in relation to the multipurpose wing hangars at defendant’s Westover Air Force Base. Plaintiff has proved that multipurpose wing hangars constructed in accordance with drawings and specifications supplied by defendant infringe claims 1 and 2 of the patent in suit. Uncontradicted testimony correlates the drawings and specifications with the multipurpose wing hangars constructed at Westover.

A review of the specification and the application file of the patent in suit shows that the patent claims must be construed broadly enough to cover the closures of hangar No. 7000. The recitation in patent claim 1 of “means compressible in the plane of the doors for insertion between said doors and an aircraft fuselage” covers means such as inflatable tube cushioning disclosed in the patent specification and equivalents thereof. It is found that the corresponding element of the accused structure, a foam rubber cushion, is the equivalent of the illustrated inflatable tube in the environment of a door closure for a wing hangar and that it functions in substantially the same manner to obtain substantially the same result. Defendant has urged that the application file limits the scope of the above-quoted claim terminology. There is no basis in the application file for urging that the terminology used to describe the elements of the allowed claims was narrowed by amendment or cancellation of claims pending before the Patent Office. The examiner allowed claims with broad terminology as soon as the claims included the means compressible and the removable inserts having a cutout section and excluded a recitation of the building as an element. Specifically, the claim 1 term “for insertion” was not critical to patentability as can be seen from comparing original claims 7 and issued claim 3.

The patent claims require an insert cut to the shape of one-half an aircraft fuselage. In hangar No. 7000 there are two-segment inserts for each door; each segment is cut out to accommodate approximately one-quarter of the fuselage. Defendant’s hangar drawings refer to the two segments, taken together, as the “insert.” The two-segment inserts in the accused structure amount to an insignificant variation of the disclosed embodiment of the Tripp patent and are encompassed by the claim language.

With regard to claim 8 of the patent, defendant argues there is no resilient “ring cushion” as required in this claim. However, the foam rubber padding forms a ring when sealing an aircraft fuselage as can be seen in the photographs comprising plaintiff’s exhibits 3-5.

An element-by-element comparison of claims 1-3 with the door closures in hangar No. 7000 at Westover is set forth in the findings of fact. A similar comparison has been made relating claims 1 and 2 to multipurpose wing hangars constructed at Westover in accordance with the plans and specifications which comprise plaintiff’s exhibits 12-16. It is concluded that hangar No. 7000 infringes asserted patent claims 1, 2, and 3 and that at least one multipurpose wing hangar at Westover infringes claims 1 and 2.

Defendant has asserted that it is entitled to a comprehensive implied license under the patent in suit by virtue of two contracts between defendant and the Luria Engineering Company, plaintiff’s employer, hereinafter Luria, and also by virtue of plaintiff’s role in negotiating these contracts. Contract AE 33 (038) -18824, hereafter referred to as the B-36 contract, called for the design, fabrication, and erection of B-36 maintenance docks. Contract DA 49-129-Eng-215, hereafter referred to as the Corps of Engineers contract, called for sale of working drawings for multipurpose wing hangars.

The license defendant claims is a comprehensive license covering closures for ah wing hangars built by or for defendant to house all types of aircraft. The claimed license asserted is far broader than any implied license from Tripp to defendant which would be required to effect the purpose of the B-36 contract. A license of the scope asserted by defendant cannot be implied on the theory it is necessary for the Government’s use of the B-36 hangars constructed by Luria. Plaintiff does not seek compensation for B-36 hangars sold by Luria to the Government. Neither the B-36 contract nor the Corps of Engineers contract gave defendant an express license. Under the B-36 contract, defendant was entitled to a license if the invention was a “Subject Invention” made by an inventor who could be classed as “Technical Personnel.” If a “Subject Invention” was made by other than “Technical Personnel,” the license was to 'be granted only to the extent that the contractor could do so without incurring royalty payments. The contract definitions of the above terms are reproduced in finding 40. Plaintiff contends (a) that the invention is not a “Subject Invention,” (b) that Tripp cannot be classified as “Technical Personnel,” and (c) that Luria could not sublicense defendant for other than hangars constructed by Luria without incurring monetary liability. The merit of the last two positions disposes of the express license issue under the B-36 contract. The plaintiff did not have an engineering background or technical experience. His employment by Luria was not for the purpose of making inventions. No express contract existed between Luria and Tripp to assign inventions to Luria. Tripp could not be reasonably expected to make inventions. He was not “Technical Personnel.”

Litigation between employers and employees involving-ownership of a patented invention made by the employee usually turns on the specific facts of the employment relationship. See Neumeyer, Employees’ Rights in Their Inventions, 44 JPOS 674 (1962). In the absence of an express contract to assign inventions, courts have usually required an employee to assign an invention to his employer only if he had been hired to make inventions or if he had been given a task Which would require making inventions. See U.S. v. Dubilier Condenser Corp., 289 U.S. 178 (1933), Dalzell v. Dueber Watch Case Mfg. Co., 149 U.S. 315 (1893). Defendant recognizes the decisional trend of state court decisions following the above Supreme Court cases, but contends that plaintiff’s fiduciary status as an officer and director of Luria requires assignment of the Tripp invention to the corporation. New York law governs the status of Luria and plaintiff, both New York residents. See Dill Mfg. Co. v. Goff, 125 F. 2d 676 (6th Cir. 1942), cert. denied, 317 U.S. 672 (1942). Decisions by New York courts do not require assignments of inventions made by an employee in a fiduciary relationship with a corporation in the absence of an express agreement or employment for the purpose of making inventions. See Cahill v. Regan, 121 USPQ 58 (N.Y. Ct. App. 1959), where the employee was hired to manage and supervise a manufacturing operation. It follows that Luria could not, without the consent of the owner, license an invention to which it held no legal or equitable claim of ownership. The patent provi' sions of the B-36 contract recognize this rule of property law by not attempting to extract a license for an invention made by other than “Technical Personnel.” Assuming, without deciding, that Luria was entitled to a shop-right, such would not empower Luria to license defendant. Ushakoff v. United States, 164 Ct. Cl. 455, 462, 327 F. 2d 669, 673, 140 USPQ 341, 344 (1964).

Defendant also claims an express comprehensive license under the provisions of the Corps of Engineers contract. Article 6 of this contract, reproduced in finding 51, calls for transfer of notes, designs, drawings, memoranda, and other technical data, etc., to the Government with the Government acquiring the right to use this material for any public purpose without further compensation. The contract does not call for transfer of patent rights. It is found that the Government was put on reasonable notice of the existence of Tripp’s patent and his intention to assert a claim for compensation prior to execution of the Corps of Engineers contract. With this background of negotiations, it is not reasonable to assume that the parties intended the contract to pass a license to the asserted patent without any specific language calling for such a license. It is concluded that defendant is not entitled to a comprehensive license under the patent in suit.

Factually related to the alleged license defense are defendant’s assertions that plaintiff should be barred from recovering for infringement of his invention because of (a) laches and (b) his role in negotiating the B-36 and Corps of Engineers contracts. Ihe evidence does not support the laches defense. The issuance of plaintiff’s patent on January 26, 1954, first gave plaintiff enforceable rights to exclude others. Prior to the issuance of the patent, plaintiff gave oral notice of his patent application and intent to demand compensation to the Government agent having responsibility for negotiating all architect-engineer contracts for the Corps of Engineers at that time. On March 9,1954, as a result of the license negotiations with Luria, the Air Force considered investigating the extent of Government procurement which incorporated devices covered by the Tripp patent. The issue of defendant’s claim to a confirmatory comprehensive license was not settled until March 18, 1955. Plaintiff’s written notice of infringement to defendant was sent 8 years and 8 months after defendant terminated its license negotiations with Luria, and 4 years and 10 months after the patent issued. Defendant was not prejudiced by the timing of plaintiff’s suit as it had, from the date of issue of the patent, notice of plaintiff’s intent to demand compensation, an intent which was consistently expressed. Plaintiff, an individual, could reasonably delay bringing suit until he could determine that the extent of possible infringement made litigation monetarily ripe.

The acts of plaintiff in consenting to the use of his invention in hangars built under the B-36 contract do not provide a basis for estoppel in this action. Plaintiff does not seek compensation for the Government use of hangars built by Luria under the B-36 contract. He has consistently demanded compensation for unauthorized usage by the Government of his patented invention. It is concluded that plaintiff is not estopped by his actions from recovering compensation.

FxndiNgs or Fact

1. Plaintiff, Burrell H. Tripp, seeks recovery of reasonable and entire compensation under 28 XJ.S.C. § 1498 for the unauthorized use and manufacture of the invention described and claimed in United States Patent No. 2,666,962, entitled doos CLOSURE FOR wing hangars, issued to him January 26, 1954, on an application for patent filed October 6,1951. Said patent is owned by plaintiff.

2. The parties agreed that trial on the merits with respect to patent infringement would be limited to plaintiff’s contention that double cantilever hangar No. TOGO and the multipurpose wing hangars at defendant’s Westover Air Force Base constitute infringements of all three claims of the patent. The parties agreed that trial of any accounting issues would be deferred until after the court had ruled on liability, and that the issue of infringement by each of the several other hangar constructions identified in the petition, would be deferred until such time as there might be an accounting trial.

3. The Tripp patent in suit relates to door closures for aircraft wing hangars. A wing hangar is a building designed to house only a portion of an aircraft, normally the forward portion extending from the nose to a point behind the trailing edge of the wing. The forward portion of an aircraft requires the major part of the servicing necessary for aircraft maintenance. By enclosing only the forward portion of aircraft, leaving the tail assembly exposed, the size and cost of a hangar are greatly reduced with minimal reduction in its utility.

4. The patented invention is concerned with providing an efficient closure for such a hangar. In the practice of the invention, the abutting edges of a pair of sliding door sections are provided with openings through which the aircraft fuselage may extend. The openings are provided with removable inserts having cutout portions which provide an aperture conforming to the shape of the fuselage of a particular aircraft. Interposed between the edges of the cutout portions of the removable inserts and the aircraft is a compressible cushion which engages the surface of the aircraft to form a weafchertight seal. Closure panels are provided to cover the door aperture when an aircraft is not present.

5. The invention of the Tripp patent is most easily understood'by reference to the patent drawings reproduced herein. Fig. 1 is a plan view of a wing hangar showing in dotted lines two different medium-size planes in the hangar. Fig. 5 is a front elevation view of a portion of the same hangar. Fig. 6 shows the doors for the left portion of the hangar shown in Fig. .5. Figs 9 and 10 are elevation views of interchangeable inserts for the doors 6a and 6b of Fig! 6.

6. In the drawings, the entire front of the hangar is composed of doors which slide laterally on rails. The invention will be described with respect to one set of fuselage doors, 6a and 6b shown in Fig. 6 which slide on the same rail. The doors 6a and 6b have openings 20 in which inserts such as illustrated in Figs. 9 and 10 by the reference characters 21 and 22 can be placed. Separate inserts may be furnished for each different shape of plane fuselage to be accommodated

at the door. The Tripp patent specification teaches that an inflated tube 8 (illustrated in Fig. 12 of the patent drawings) may be held firmly between the insert and the fuselage. The disclosed purposes of the inflatable tube include protection of the fuselage against damage from movement caused by wind blowing against the exposed tail of the aircraft and provision of a weathertight seal about the fuselage.

7. Patent claim 1, reproduced in the foregoing opinion, is an apparatus claim reciting a combination of three specifically interrelated elements, (a) a pair of doors, (b) means compressible in the plane of the doors, and (c) a removable insert in each door. Claim 2 recites in addition a movable panel for each door and means enabling said panel to be moved across a cutout section of the door to completely close the door when no fuselage is located in a pair of doors. Patent claim 3 recites the three elements of claim 1 with variations in terminology. For example, the “means compressible” in claim 1 is a “resilient ring cushion” in claim 3. A fourth element recited in claim 3 is means for attaching the ring cushion to the cutout portion of an insert.

8. The apparatus defined in the Tripp patent claims is new and useful.

9. Defendant has urged that the Tripp patent is invalid under 35 U.S.C. § 103 because the claimed subject matter would have been obvious to one skilled in the art at the time the invention was made. In support of this contention, defendant cites the following domestic patents considered in the application file of the Tripp patent:

Patent No. Patentee Date of patent
2,104,144__Zand.. January 4, 1938.
2,420,186..Miller et al. May 6,1947.
2,630,160..... Finley_ November 14,1950.
2,651,760_Liskey, Jr. May 8,1951.

Defendant also cited a publication, Oonvairiety, by Consolidated Vultee Aircraft Corporation, dated October 11, 1950, and the following additional domestic patents to support its allegation of invalidity:

Patent No. Patentee Date oí patent
196,186_Boyden et al_October 16, 1877.
880,350_Baleh_February 25,1908;
1,303,984__Stow et al___May 20,1919;

10. Zand patent 2,10.4,144, plaintiff’s exhibit IT, discloses a hinged 'airplane door. It discloses a pneumatic tube which partly fits into a circumferential channel in the doorframe. A matching channel is provided in the door. On the ground, with the tube inflated to atmospheric pressure, the door, may be opened with ease. When the aircraft is at operating altitude, the increased pressure differential between the inside of the tube and its surroundings causes it to swell. The tube then engages the channel in the door more firmly, and effectively prevents the door from being opened without first deflating the tube.

11. The Zand patent structure was designed to meet a different problem from that faced by Tripp. It is directed to the problem of sealing, by pneumatic means, a hinged door to a doorframe. The problems faced by Tripp were to seal the space between an aircraft fuselage and a pair of opposed wing hangar doors, to prevent the aircraft from being damaged 'by contact with the doors, to provide means for accommodating the hangar to various aircraft, and to provide a full closure when no aircraft is in the hangar. The Zand patent does not teach or suggest a solution to these problems.

12. Miller patent 2,420,186, plaintiff’s exhibit 18, discloses a Y-shaped aircraft hangar. The sliding doors shown in the Miller patent are fitted with a canvas curtain or 'drop which is adapted to surround a portion of an aircraft fuselage. The specification of the Tripp patent acknowledged this old expedient in column 1, lines 10-17. The Miller patent discloses closures conventionally employed in wing hangars prior to the Tripp invention.

13. Finley patent 2,530,160, plaintiff’s exhibit 19, like the Zand patent, discloses a pneumatic inflatable tube mounted in the doorframe of an airplane and adapted to be inflated when the aircraft door is closed to establish a seal. The Finley patent is no more pertinent to the Tripp invention than the Zand patent.

14. Liskey patent 2,5'51,750, plaintiff’s exhibit 20, relates to a hatch cover for a ship. It discloses a pneumatic tube which is inflated to constitute an effective seal. It has no more relevance than the Zand and Finley patents.

15. The Convairiety publication of Consolidated Vultee Aircraft Corporation, dated October 11, 1950, defendant’s exhibit 14, includes a photograph which shows B-36 aircraft tails protruding through the doors of an aircraft hangar. The 'doors of the hangar are cut out to the specific shape of one-half of a B-36' fuselage. It is not possible to ascertain from the illustration the nature of the material contacting the aircraft fuselage.

16. An aircraft electronics inspector who worked in the hangar shown in the Convairiety publication testified that the material contacting the surface of the aircraft fuselage was a strip of rubberized material affixed to the door. He testified that the strip was deflected inwardly or outwardly normal to the plane of the door by the presence of a fuselage in the door aperture. Such a rubber strip does not comprise a means compressible in the plane of the doors as called for in claim 1 of the Tripp patent.

17. Boyden patent 196,186, defendant’s exhibit 2, discloses a double window which is provided with shutters and screens movable across the window when desired. Stow patent 1,303,-984, defendant’s exhibit 3, discloses sliding doors for cabinets and the like. The doors are mounted on rollers which slide in tracks at the bottom of the cabinet. Balch patent 880,350, defendant’s exhibit 4, shows 'a sliding door or sash. The only relevance of the Balch patent resides in the provision of means for permitting the sliding of a door across an opening when it is desired to close the cabinet. The ’above-described prior patents have no bearing on the validity of Tripp patent claims 1 and 3. In relation to claim 2, they show sliding members for closing openings in structures, including buildings.

18. In summary, it is concluded that the prior patents, publication, and testimony relied upon by defendant do not anticipate the invention claimed by Tripp, and do not show that the Tripp invention would have been obvious to one skilled in the 'art at the time the invention was made. Two basic differences exist between the prior disclosures and the patented invention. Not one of the disclosures suggests the use of a means compressible in the plane of hangar doors to cushion an aircraft fuselage and to provide a weathertight seal. Neither do the disclosures suggest the use of removable inserts for adapting the doors for use with aircraft having various fuselage configurations. The combination of these two novel features, as specifically defined in each of the Tripp patent claims, is not suggested to one skilled in the art by the evidence of record in this case.

19. Plaintiff, Burrell H. Tripp, made the invention which is defined by the patent claims in suit. Defendant in support of its contention that Tripp was not the sole inventor had pointed to a memorandum, defendant’s exhibit 13, which recites as a design requirement that wing hangars be provided with sliding doors contoured to fit the fuselage of a B-36 and also that the contours of the doors be adjustable to fit smaller aircraft. This memorandum discloses a requirement which is satisfied by doors with canvas flaps and which does not teach the Tripp invention. Defendant also has alleged that Peter A. Strobel, a design engineer engaged by Tripp’s employer, Luria Engineering Corporation, was a joint inventor. An affidavit by Strobel, plaintiff’s exhibit 46, shows that the plaintiff Tripp conveyed the ideas comprising the invention to Strobel.

20. Defendant has asserted that Tripp patent claims 2 and 3 are invalid because vague and indefinite. Claim 2 of the patent in suit recites “ * * * a movable panel for each door and means enabling said panel to be moved across the cut-out section of the door to close the cut-out when no fuselage is located in a particular pair of doors.” This recitation is supported in the patent specification in column 4, lines 54 — 57, which adequately describes two means for enabling the panel to be moved. Claim 3 of the patent recites “a ring cushion * * * and means for attaching said ring cushion to the cutout portions of an insert * * Defendant has charged that the above portion of claim 3 is not supported in the patent specification. Column 3 of the patent specification read with the patent drawings discloses that in the preferred embodiment of the invention, attachment of the ring cushion to the insert is frictional and that positioning elements such as ropes are a means for securing this frictional attachment. The claim does not require that the attachment means provide a specific degree of permanence for the proximate relationship of the resilient ring and the insert. The patent claims are definite and are supported by the specification.

21. Hangar No. 7000 at Westover Air Force Base, Massachusetts, was erected for and used by defendant prior to the commencement of this action. The construction of the closures for this hangar, as originally built’, is illustrated in plaintiff’s exhibits 6 and 7. A subsequent modification, made prior to the filing of this suit, is shown .in plaintiff’s exhibit 10. The construction of hangar No. 7000 is also shown in the photographs which comprise plaintiff’s exhibits 2 through 5.

22. The Tripp patent claims may be given the following construction in view of the application file of the patent. The recitation in claim 1 of “means compressible in the plane of the doors” covers an inflatable tube, disclosed in the specification and equivalents thereof. In the environment of closures for wing hangars, a foam rubber cushion is the equivalent of an inflatable tube for sealing and cushioning an aircraft fuselage. Foam rubber containing air spaces which can be compressed is a “means compressible” and when on door inserts is compressed in the plane of the doors. The amendments to and cancellation of certain claims during the prosecution of the Tripp patent application did not involve this particular element. Plaintiff is entitled to a range of equivalents for the above recitation of means. This range of equivalents is limited by the term “compressible in the plane of the doors.” The phrase “compressible in the plane of the doors” is a limitation that distinguishes claim 1 from the prior art which taught the use of a noncompressible canvas flap which was deflected from the plane of the doors. The recitation in claim 1 of “means compressible * * * for insertion between said doors and an aircraft fuselage” does not require a limitation as to separability of the means compressible from the doors. Neither the application file nor the prior art shows that the scope of the Tripp patent claims must 'be limited to separable means compressible and inserts. The allowance of claim 3 without the recitation “for insertion” shows that this phrase was not considered critical to patentability by the Patent Office examiner. The element recited as “a removable insert in each door” is clearly described in the specification and precisely claimed. Plaintiff’s claims are all limited to closures with doors containing- removable inserts. This is an important feature of the invention which was argued by the applicant before the Patent Office examiner to secure claim allowance. Claims 1 and 2 do not recite that sets of inserts for accommodation of different types of airplanes shall always be present in the structure. The patent claims require that the door closures be capable of accommodating such inserts. Claim 3 is limited to a construction having a set of removable inserts, but does not require that more than one size insert be present at any given time.

23. Plaintiff’s exhibits 2 through 10 show that hangar No. 7000 is a wing hangar adapted to house the nose and wings of an airplane, leaving the tail and rear portion of the fuselage exposed. The hangar has closures, each comprising a pair of doors, each of said doors having a section cut out to receive one-half of an aircraft fuselage. Each hangar door has a recessed section for receiving movable panels. These movable panels are L-shaped frame members which are independently vertically movable by an operator. Inserts are bolted to the movable panels. The inserts are made in two segments, one segment being bolted to each of the movable panels. Each two-segment insert has a section cut out to the approximate shape of one-half an aircraft fuselage. Along the edge of each insert is a foam rubber cushion. When an aircraft is in the hangar, the cushion is positioned between the fuselage and the metallic parts of the door. It is a “means compressible in the plane of the doors for insertion between said doors and an aircraft fuselage” as defined by claim 1. The cutout section will admit one-half of an aircraft fuselage and is located in the insert. The fact that the inserts are removable enables cutout sections of various shapes to be placed in the doors to suit different aircraft. The foam rubber cushion provides a weathertight cushion seal about the fuselage of the aircraft. It is concluded that the accused hangar doors contain each of the elements of claim 1 performing in the same manner to obtain the same results disclosed by the patent in suit.

24. Hangar No. 7000 has four sets of doors. Two of these originally had inserts made to accommodate B-52 aircraft, and two had inserts for KC-97 aircraft. After the K’C-97 aircraft were phased out, the EC-97 inserts were replaced with inserts for the EC-135. Since EC-135 inserts were not available, they were fabricated by contract. Except for the shape of the fuselage cut out, they are identical with the insert shown in plaintiff’s exhibits 8 and 9. Doors containing these EC-135 inserts are within the terms of patent claim 1.

25. All of the structure defined in patent claim 2 is found in hangar No. 7000. The closures of hangar No. 7000 are provided with a movable panel for each door and means enabling the panel to be moved across the cutout section of the doors to close tire cutout section when no fuselage is located in a particular pair of doors.

26. Defendant’s hangar No. 7000 contains all the structure defined in claim 3 of the Tripp patent. Claim 3 recites a pair of doors, each door being a mirror image of the other. Plaintiff’s exhibit 8 discloses one of the doors, and there is another door which is a mirror image of that door as shown in the photographs of the hangar. A resilient ring cushion is attached to the cutout portions of the inserts. The ring is formed by foam rubber on the edges of the inserts. For each door there is a set of inserts comprising two segments. Each of the two-segment inserts has a section cut out to the approximate shape of one-half an aircraft fuselage. Different inserts of the set are shaped to different fuselages. The No. 7000 hangar as built contained doors with inserts contoured to fit B-52’s and doors with inserts contoured to fit EC-97’s. Plaintiff’s exhibit 10 shows a removable insert contoured to accommodate a KC-135 aircraft.

27. Plaintiff’s exhibit 11 is a copy of a specification for a double cantilever hangar at Westover Air Force Base. Hangar No. 7000 is the only such hangar at Westover. This specification in paragraph 18-10 reads, in part, as follows:

a. Inserts: In each main hangar door provide openings with interchangeable vertically adjustable inserts for sealing around the portion of the airplane fuselage which extends out of the hangar. The number and type of interchangeable inserts to be provided for each hangar door opening to fit the different fuselages of airplanes as shown on the drawings will be required by the Contracting Officer.

28. The B-52, KC-135, and KC-97 inserts for hangar No. 7000 are interchangeable. There is for each pair of doors a set of removable inserts comprising a plurality of inserts (one B-52 and one KC-135 or KC-97) each having a section cut out to the approximate shape of one-half an aircraft fuselage, with clearance, different inserts of the set being shaped to different fuselages, as required by patent claim 3. The clearance referred to is the gap between the metal insert and the fuselage, into which the cushion fits. The inserts are removable from the doors by means of bolts securing them to the movable panels as described in connection with patent claim 1. The inserts adapt the closure for a variety of aircraft as required by the patent claims.

29. The means for attaching the ring cushion to the cutout portions of the insert recited in claim 3 appear in the structure of hangar No. 7000, as self-tapping screws. The intent and purpose of the cushion structure is to provide a weather-tight seal about an aircraft fuselage.

30. Summarizing findings 21-29, Tripp patent claims 1, 2, and 3 are found to have been infringed by the door closures of double cantilever hangar No. 7000 at Westover Air Force Base.

31. Plaintiff has proved, as discussed in detail in subsequent findings, that door closures for other multipurpose wing hangars were built in accordance with drawings comprising plaintiff’s exhibits 12 and 13, and specifications comprising plaintiff’s exhibit 16, and infringe patent claims 1 and 2. These additional drawings and the specifications were supplied by defendant to plaintiff.

32. Plaintiff and witness Stadden both testified that they saw buildings at Westover Air Force Base, other than hangar No. 7000, with closures similar to those depicted in plaintiff’s exhibits 12 and 13. The record evidence does not correlate these drawings and specifications with any identified structures at Westover Air Force Base. Defendant’s agents prevented plaintiff and Stadden from closely inspecting all multipurpose wing hangars during their visit to Westover. Defendant entered no contradictory evidence to show that the as-built multipurpose wing hangars observed do not correspond to the drawings and specifications which comprise plaintiff’s exhibits 12-16. There is at Westover Air Force Base at least one multipurpose hangar other than hangar No. 7000 which infringes patent claims 1 and 2.

33. Plaintiff’s exhibits 12-16 show a central set of doors and two sets of side doors. Each of these sets includes two doors. Each door has a recessed portion, and in this recessed portion are located four L-shaped frame members similar to those members called movable panels in connection with the double cantilever hangar No. 7000 previously considered. The L-shaped frames or panels are adapted to receive removable inserts. The removable insert is made in two segments which are bolted to the movable panels. Along the outer edge of the insert sections, there are foam rubber cushions which are attached to the sections by self-tapping screws. The insert itself has a section cut out to receive an aircraft fuselage.

34. Applying claim 1 of the Tripp patent to multipurpose hangars represented by plaintiff’s exhibits 12-16, it is clear that inserts are to he placed in the doors. When that is done, the closure will comprise a pair of doors each having a section cut out to admit one-half of an aircraft fuselage, each door being arranged to meet the other at the center line of the fuselage. The foam rubber cushion provides means compressible in the plane of the doors. There is a removable insert for each door. The insert is removable by means of its attachment to the L-shapad frame by bolts and by the provision of hand holes for each bolt. The cutout section is in the insert. The structure permits cutout sections of various shapes to be put into the doors to suit different aircraft. The foam rubber cushion provides a weathertight cushion seal about the fuselage. Claim 1 is found to be infringed by the multipurpose wing hangars depicted in plaintiff’s exhibits 12 and 13.

35. With reference to claim 2 of the Tripp patent, plaintiff’s exhibit 13 shows a movable panel for e'ac'h of the aircraft doors and means including an overhead trolley enabling the panel to be moved across the cutout section of each door to close the cutout when no fuselage is located in a particular pair of doors. Claim 2 is also found to be infringed.

36. The elements of claim 3 are also present in multipurpose hangars constructed according to plaintiff’s exhibits 12 and 13. There is an exact correlation of the elements in function and result. One factual issue deserves an extended discussion. Claim 3 recites sets of inserts, different inserts of the set being shaped to different fuselages. Plaintiff’s exhibit 13 shows that inserts were contemplated for a B-52 and a B-36 for the center door and that four different shapes of inserts were contemplated for the side doors of the multipurpose hangars.

37. Defendant has asserted that it is entitled1 to a license under the patent in suit because of the contractual relationships which existed between plaintiff’s employer, the Luria Engineering Corporation, and defendant, and because of representations made directly by plaintiff to defendant. In support of its theory of a license resulting from contracts with plaintiff’s employer, defendant has relied upon two contracts between defendant and Luria, AF 33 (038)-18824, defendant’s exhibit 5, and DA 49-129-Eng-215, defendant’s exhibit 8.

38. Defendant on January 2, 1951, entered into contract AF 33 (038)-18824, referred to as the B-36 contract, with Luria for the “Design, Fabrication and Erection of B-36 Maintenance Docks, Reports and Data.” In 1950-1951, plaintiff was executive vice president of Lnria. In that capacity plaintiff took part in the contract negotiations and executed the contract on behalf of Luria.

39. The B-86 contract was awarded on the basis of a proposal specifying a conventional canvas closure. The drawing incorporated into the contract illustrated a rubber closure, but showed no details of the closure. After the contract had been awarded, torus tube closures were supplied, and removable inserts and closure panels were also added. Plaintiff stated that these elements were supplied to defendant for use in the B-36 hangars as a bonus. It is found that the Tripp invention was not used to induce the defendant to issue the B-36 contract. Plaintiff has waived any right to be compensated for the use of his patented invention in the specific hangars erected under the B-36 contract.

40. The B-36 contract contains a “Patent Rights” paragraph. The terms “Subject Invention” and “Technical Personnel” are there defined as follows:

(i) The term “Subject Invention” means any invention, improvement or discovery (whether or not patentable) conceived or first actually reduced to practice either (A) in the performance of the experimental, developmental or research work called for under this contract, or (B) in the performance of any experimental, developmental or research, work relating to the subject matter of this contract which was done upon the understanding that a contract would be awarded.
(ii) The term “Technical Personnel” means any person employed by or working under contract with the Contractor (other than a subcontractor whose responsibilities with respect to rights accruing to the Government in inventions arising under subcontracts are set forth in paragraphs (f), (g) and (h) of this clause), provided that such person, by reason of the nature of his duties in connection with the performance of this contract, would reasonably be expected to make inventions.

41. In subparagraph (b) of the patent rights section of the B-36 contract, the contractor grants to the defendant a comprehensive nonexclusive license for ¡governmental purposes under each Subject Invention; provided, inter alia, that with respect to tbe Subject Inventions made by other than Technical Personnel, the license shall be to the extent of the contractor’s right to grant it without being liable for royalties. No license is transferred by the contract with respect to inventions other than Subject Inventions.

42. The B-36 contract specifically calls for design of a maintenance dock for B-36 aircraft. Total price for the design work is $16,296.18. The design work was directed specifically to a maintenance dock for a B-36 aircraft, not for a dock capable of accommodating various aircraft. The plaintiff’s patented invention was not a part of the design work directly required by the contract. The Tripp patented invention was first reduced to practice during the term of the B-36 contract.

43. Plaintiff’s duties as executive vice president of Luria involved sales and administration. Plaintiff was not an engineer, architect, or scientist. Plaintiff’s employment contract with Luria did not require assignment of patented inventions to Luria. Tripp would not normally have been expected, as part of his job, to make inventions. He was not “Technical Personnel” within the terms of the B-36 contract.

44. Luria’s obligation under the B-36 contract to license a “Subject Invention” was only to the extent it could do so without itself being liable for royalties. Luria could not sub-license the Tripp patent. The B-36 contract placed no obligation on Luria to grant defendant a license to the Tripp patented invention.

45. Defendant has urged that the following facts support a comprehensive implied license running directly from Tripp to defendant. The defendant’s witness Hodgdon stated that Tripp visited his office several times “to say hello.” On one occasion, he came in “to, as we say, pay his respects,” at which time he disclosed to Hodgdon the idea of an inflated tube to seal the closure on the B-36 hangar. Mr. Hodgdon was uncertain about the date of such disclosure. Tripp took part with other Luria personnel in the negotiations leading up to the B-36 contract. Tripp executed the B-36 contract on behalf of Luria. Tripp permitted closures utilizing his patented invention to be installed in the B-36 hangars erected under the B-86 contract. The above facts do not make out an implied license of the comprehensive scope urged by defendant. Plaintiff’s contact with Hodgdon was casual. There is no indication that Hodgdon thought the Government was being licensed by Tripp. Tripp’s actions in the contract negotiations and execution of the contract were consistent with his administrative responsibilities as Luria vice president. Tripp’s consent to the use of his patented invention in the B-36 hangars made under the contract implies a license for that specific use. Tripp does not claim compensation for such use. His consent to this specific use does not give rise to the comprehensive license demanded by defendant.

46. Subsequent to the January 1951 B-36 contract, Luria learned that the Government was interested in wing hangars useful for a variety of aircraft. With the aid of an engineering consultant, Strobel & Salzman, Luria prepared a design proposal for a “Multi-purpose wing hangar” and submitted drawings to defendant’s Air Force as part of its solicitation for a further construction contract. The Air Force would not circulate drawings bearing a Luria title block. At the request of the Air Force, Luria had its engineering consultants furnish the Air Force with a drawing, dated August 13, 1951, bearing a “Department of the Air Force” title block. The rubber torus concept shown in the drawing was designed by the plaintiff. Several drawings dated August 15, 1951, were prepared by Luria as a further part of the effort to secure the construction contract for multipurpose wing hangars. These drawings include a Luria Engineering Corporation title block and a copyright notice. On October 6, 1951, plaintiff applied for the patent here in suit. The legend “Patent Applied For” was provided on the original tracings of the several drawings after the patent application was filed.

47. Pursuant to the provisions of the patent rights paragraph in the B-36 contract, on April 20,1952, Luria reported in writing to the Government that an invention forming a part of the Tripp application for patent was first actually reduced to practice in the performance of the work called for under the contract. The disclosure letter does not report that the invention was made by technical personnel. An invention report was required by the literal language of the patent rights clause irrespective of the status of the inventor and his rights in the invention.

48. On October 18,1952, the Air Force sent to Luria forms for a confirmatory license to the Government under the Tripp invention. On January 12, 1954, Luria informed the Air Force that the rights to the Tripp patent were not owned or controlled by Luria. After a series of inquiries by the Air Force and responses by Luria, the Air Force on March 18, 1955, notified Luria that it was discontinuing the claim to a confirmatory license.

49. On or about April 29,1952, authority for the procurement of multipurpose wing hangars was transferred from the Air Force to the Corps of Engineers. Subsequent to April 29, 1952, and prior to June 10, 1952, prints of the several drawings were sent directly to the 'Corps of Engineers. Although the Air Force had been negotiating with Luria for the construction of hangars, the Corps of Engineers desired to purchase the plans from Luria to use in soliciting construction bids. Luria did not wish to sell its drawings, but complied to protect a substantial engineering investment. The prints of the several drawings were in the possession of the Corps of Engineers during negotiations and would have been copied with or without Luria’s permission.

50. On July 11, 1952, the Corps of Engineers authorized Luria to proceed with the preparation of the plans, specifications, and models for the standard all-purpose wing hangar, and indicated that its contract for services, DA 49-129-Eng-215, would have an effective date of July 8, 1952. On July 24, 1952, Luria’s Washington representative wrote to the Corps of Engineers pointing out that final agreement had not been reached on several issues. This letter included the following paragraph:

In accordance with paragraph 8 of the draft Schedule A, Luria Engineering Corporation does not hold any patents and does, however, agree to release all copyrights and reproducible restrictions of any drawings furnished when we have control over these restrictions; however, any patent or patent application items that are used in the design of the structure that Luria Engineering Corporation does not control, we cannot waive the rights of others.

51. Contract DA 49-129-Eng-215, referred to herein as the Corps of Engineers contract, as executed, contained no specific provisions regarding patents except a requirement that no reference to patents appears on the drawings furnished. Article 6 provided:

Data To Become Property Of The Government.— All notes, designs, drawings, memoranda and other technical data, etc., if any, furnished by the contractor pursuant to or developed in connection with the provisions of this contract shall become and remain the property of the Government and it shall have the right to use them for any public purpose without any additional compensation to the contractor and any such data, etc., in the possession of the contractor shall be delivered to the Government whenever requested by the Contracting Officer.

52. During the negotiations leading to the Corps of Engineers contract, plaintiff gave the Government, specifically the officer negotiating the contract, verbal notice of the existence of Ms patent application and of Ms intent to demand compensation. Defendant had received the several drawings which are plaintiff’s exMbits 42,43,44, and 45, directly from Luria at a time when the “Patent Applied For” legend was affixed to the drawings. When defendant received the drawings from Luria, defendant had notice that a pending patent application was involved. On July 24,1952, prior to the execution of the Corps of Engineers contract and prior to final agreement on the terms thereof, defendant had notice that Luria had no patent rights.

53. Summarizing findings 37-52, defendant has not shown a factual basis for an implied license arising out of plaintiff’s actions or the express language of either the B-36 contract or the Corps of Engineers contract. Compensation for the B-36 hangars built by Luria under the B-36 contract is not claimed by plaintiff in tMs suit.

CoNCLtrsioN op Law

Upon tbe foregoing findings of fact, wbicb are made a part of tbe judgment herein, tbe court concludes as a matter of law that claims 1, 2, and 3 of patent 2,666,962 are valid and have been infringed by tbe defendant’s unauthorized use thereof in hangar No. 7000 at Westover Air Force Base, that claims 1 and 2 of said patent have been infringed by at least one or more other multipurpose wing hangars at West-over Air Force Base, that plaintiff is entitled to recover reasonable and entire compensation therefor, and judgment is entered to that effect. The amount of recovery will be determined pursuant to Rule 47 (c) (2).  