
    WILLIAM W. HUBBELL v. THE UNITED STATES.
    [20 C. Cls. E. 354; 179 U. S. E. 77.]
    
      On the clavmantfs appeal..
    
    The claimant seeks to recover royalty for cartridges manufactured by the Government of a device covered by his patent. He alleges an implied contract under the decision in McKeever’s case. The Government shows that the Ordnance Department manufactured the same kind of cartridges anterior to the patent. The claimant, to show that he was the first inventor, puts in evidence a number of applications for patents'previously filed by him.
    The court below decides:
    1. In an action to recover royalty upon implied contract, if the question of priority be raised, the patentee may go into such history of his efforts and achievements in the art as tend to show that he was the first inventor of the thing afterwards patented.
    2. The claimant’s patent of 1879 for a breech loader cartridge, consisting of a combination of a circular base containing the fulminate, of the anvil over it, and of apertures or vents so arranged that their inner edges nearly coincide with' the wall of the fulminate chamber, is not infringed by the “reloading cartridge” or by the “curp-anvil cartridge" of the Ordnance Department, used in the United States service.
    3. Where an inventor of a cartridge aimed in 1865 at quick ignition through concentrated fire — i. e., through a central vent in his anvil; and in 1878 sought the same result through diffusion of the fulminate flame — i. e., through two vents at the extreme outer edges of the fulminate chamber, it must be held that the devices are different, and that the earlier one can not be used-to establish priority of invention for the later.
    
      4. If in the Hubbell cartridge patent, 1879, the relative jjosition of the vents and the wall of the fulminate chamber is a material part of the invention, the Government cartridges (in which this feature does riot appear) constitute no infringement; and, conversely, if this feature of relative position is not a material part of the invention, the patented device is reduced to a chamber of fulminate in the center of the base, with an anvil over it, having two or more openings; and this device was anticipated by the ordnance officers in cartridges made in 1864.
   The decision of the court below is affirmed on the same .■grounds. The court at the same time denied the claimant’s petition for a rehearing in his case (No, 1.3793 in the Court of ■Claims) reported in 31 C. Cls. R. 454; 171 U. S. R. 203.

Mr. Justice Sidras

delivered the opinion of the Supreme Court, October 22, 1900.  