
    THE BERDAN FIREARMS MANUFACTURING COMPANY v. THE UNITED STATES.
    [25 C. Cls. R., 355; 26 Id., 48; 156 U. S. R., 552.]
    
      On both parties’ Appeals.
    
    The claimants submit a breech-loading gun to the Hancock board, 1866. It is recommended by the hoard and approved by the War Department, hut no guns are manufactured which are copies of it, and it contains elements of invention not covered by the patent. The present suit involves claims under different patents which relate to the breechblock, cartridge extractor, and ejector of the Berdan gun; also a claim founded in part upon an assignment of the Roberts patent for an element of an ejecting device.
    Tbe court below decides:
    1. The Berdan tendered to the Hancock hoard in 1866 was a better gun than those then manufactured by the Government, but a liability did not arise from the recommendation of the board, or the non-patonted suggestions which the gun afforded the ordnance officers.
    2. A square recoil shoulder at right angles to the axis of the bore with a breechblock swinging up and forward is an advantage in breech-loading arms, and the combination of these two elements in one device was first obtained by Berdan in his jointed swinging breechblock, but the combination is not patented.
    3. In the Springfield gun the cam latch may be the mechanical equivalent of the Berdan brace (the rearward part of his jointed breech-block), but it is not forced into or held in position during the explosion by the hammer, and there is no impact upon it by the hammer. In the Berdan patent the claim is for a strictly defined combination, viz, a jointed swinging breech piece when (and only when) the detached end is forced into or held in position during the explosion by the hammer or other suitable projection. The purpose and operation of the two devices are different, and the defendants is not an infringement of the claimant's.
    4. In the Springfield gun the system is that of loose-jointed mechanism; the hinges of the breech lock and cam latch are purposely loose to allow recoil, the screws having elongated holes; the cam acts as a brace, transmitting the recoil without strain upon its axis; the bearing of the cam is above the center of the breech screw, and the force of explosion consequently tends to press down the rear end of the breechblock. The Berdan patent is not for a loose-jointed gun; when the breechblock is down there is no play, and the purpose of elongated holes in the plate fastening of his breechblock as described in his patent is not to give looseness of construction, but only to take up the slight wear produced by friction in firing.
    
      5. Iii the Spring-field gun the cam latch, though operating as a shaft for the ji imposes of recoil, nevertheless remains a cam latch for all looting purposes, and is the device found in the Allin gun, 1865, except the third or safety notch, which is not new. The purpose of the device is to prevent the breechblock from opening accidentally should the gun be held barrel down. The Berdan patent is for a coinbination of the brace, the swinging breech piece, the hammer, the third or safety notch, §o arranged that the hammer while held back from the firing pin prevents the detached end of the brace from rising above a posu.ion in which it locks the breech piece. The purpose is to prevent danger from explosion of gas under the breechblock and premature firing.
    6. The introduction of a third or safety notch in the Allin gun, 1865, by a mechanic knowing of the three-notch tumbler, which is old, would not have involved an exercise of the inventive faculty.
    7. The Berdan patent, 1866, for a cartridge ejector is made up of these elements: A spur, a hook, a spring, and two inclined ways whereby the cartridge is shot over the square recoil shoulder. In the Springfield gun, 1866, the ejector device is like tbe Berdan, except that the inclined-plane action is by means of one deflecting stud instead of two ways. But the claim for this is barred by tbe statute of limitations.
    8. ,Tn the Russian-Berdau gun, 1869, tbe ejector spring acts alternately above and below the center of motion, and thereby restrains the action of the ejector so that it is absolutely at rest until the breech-block is up and the way olear, when it operates with a full effect by a sudden snap. In the Springfield gun now manufactured the ejector operates on the same principle, the only difference being a spiral spring instead of a flat spring. The one spring is the mechanical equivalent of the other, and the device used is tbe prior invention of Berdan.
    9. An assignment limited to the right to make, use, and vend a retraction hook “in connection with any arm invented or patented by said Berdan” does not extend to arms manufactured by the Government not covered by Berdan’s patents.
    At a further hearing of the ease the court below decides:
    1. The court reiterates the decision previously made (25 C. Cls. R., 355) that the particular method for attaining tbe desired result iu ejecting the shell of a cartridge which is covered by tbe Berdan patent was not anticipated by the broad and general specifications of the Smoot patent.
    2. The differences between the various devices for ejecting a cartridge produced in the years just succeeding the war were minute; but the number of patents issued indicate that the successful result attained by the Berdan and Adams inventions was due to inventive genius.
    
      3. The policy of the War Department of late years toward inventors has been one of neutrality, neither denying nor admitting legal rights, hut taking inventions to perfect the Government’s arms, leaving inventors free to seek redress without prejudice before other tribunals than an executive department.
    4. Where an inventor is in constant communication with the ordnance ■ officers, exhibiting his inventions and urging their adoption, and they, without accepting or rejecting his propositions, use a device covered by his patent, a contract will be implied, and an action thereon will be within the jurisdiction of this court.
    5. The value of an invention taken and used by the Government in the absence of an express contract must be determined as of the time when it was taken, and in view of all the legal and practical uncertainties which then environed it.
    6. Where there is no actual market value by which the court can determine the amount of royalty which an inventor should recover, it will deduce a result from all the elements of value which the case presents. Ex. gr., in the present case the royalty is fixed at 5 per cent of the minimum cost of the gun to which the device was applied.
    The decision of the court below is affirmed on the same grounds.
   Mr. Justice Brewer

delivered the opinion of the Supreme Court, March 4, 1895.  