
    386 F. 2d 462
    FREDERICK J. P. van VEEN v. THE UNITED STATES
    [No. 345-60.
    Decided December 15, 1967]
    
      
      James L. Dooley, attorney of record, for plaintiff. Gush-man, Darby & Cushman, of counsel.
    
      Louise O'Neil, with whom was Assistant Attorney General Edwin L. Weisl, Jr., for defendant.
    Before Cowen, Chief Judge, Laramore, Durfee, 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. The commissioner has done so in an opinion and report filed on November 8, 1966. Exceptions to the commissioner’s findings 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 findings, opinion, and recommended conclusion of law, with modifications, as hereinafter set forth, it hereby adopts the same as modified as the basis for its judgment in this case. The court concludes, therefore, that claim 1 of patent 2,730,721 is valid and has been used by defendant without license of the owner and that plaintiff is entitled to recover, and judgment is entered for plaintiff in the sum of $45,786.01, plus interest at 4 percent per annum as part of just compensation, from January 1, 1967, to the date of payment.

Commissioner Lane’s opinion, as modified by the court, is as follows:

This is a patent suit under the provisions of Title 28 U.S.C. § 1498, in which plaintiff seeks to recover reasonable and entire compensation for the unauthorized use or manufacture by or for the defendant of a patented invention. Plaintiff specifically alleges that certain sleeping bags used for aircrew survival by the Department of the Air Force embody an invention defined in United States Letters Patent 2,730,721, entitled “Sleeping Bag Structure,” owned by the plaintiff. Said patent, referred to hereinafter as the patent in suit, issued to plaintiff January 17,1956. The invention which is the subject of this suit is also the subject of Canadian Patent 486,108, owned by plaintiff.

The principal issues before the court are: (1) whether the subject invention defined in the patent in suit is patentable under the provisions of Title 35 of the United States Code, (2) whether the accused sleeping bags embody the subject invention, and (3) what would be reasonable and entire compensation under the circumstances.

It is found that the subject invention is patentable and the patent in suit is valid. In addition it is found that the accused sleeping bags embody the invention claimed in the patent in suit. It is concluded that the plaintiff is entitled to recover $45,786.01 for unauthorized use of plaintiff’s invention.

Plaintiff, a citizen of Canada and a resident of Ottawa, in 1943 was an executive of a mattress manufacturing concern that also made down fillings for sleeping bag manufacturers. During 1943, plaintiff constructed a sleeping bag having a special insulated seam along the periphery of the bag so that the heat lost through the seam would be no greater than through the panels. Plaintiff used the sleeping bag while on hunting trips for the next several years.

In 1951, the Eoyal Canadian Air Force was interested in finding a very lightweight sleeping bag for use as part of the survival equipment to be carried aboard fighter aircraft that operated in the far north. The Eoyal Canadian Air Force contacted plaintiff for his advice. Plaintiff showed the Air Force consultant the bag that he had made in 1943 having the special insulated seam construction. The consultant requested plaintiff to make up another lightweight bag having the special construction for an Arctic equipment testing mission conducted above the Arctic Circle. It was found that the furnished sleeping bag was ideal for survival purposes. Using the van Yeen bag as a prototype, the Eoyal Canadian Air Force promulgated a specification for survival-type sleeping bags and proceeded to purchase 1,920 survival-type sleeping bags from parties other than plaintiff. In May 1952, plaintiff filed an application for a Canadian patent covering the insulated seam sleeping bag. After the Canadian patent issued in August 1952, plaintiff entered into a nonexclusive license agreement with the Canadian Government whereby the Government agreed to pay plaintiff a royalty of $2.00 per bag on the bags already purchased and $1.50 per bag on subsequently purchased bags.

Plaintiff’s survival-type sleeping bags were used by the 1953 English Expedition that successfully climbed Mount Everest. The leader of the expedition, Sir John Hunt, reported that they were the warmest sleeping bags that he had used.

Plaintiff filed an application for a United States patent in December 1952. The patent specification describes the sleeping bag as comprising an upper and/or lower panel or section with each panel having an outer and an inner fabric that are divided 'by transverse compartments or channels formed by partition walls. Each compartment is filled with insulating material, preferably duck down. The principal feature of plaintiff’s invention resides in the seam-closing structures for joining the periphery of the panels together in such a manner as to reduce the heat loss through the joined portion. The peripheral edges of the inner fabrics of the panels are sewn together forming an inner seam, and the peripheral edges of the outer fabrics of the panels are sewn together forming an outer seam. Insulation is placed between the inner and outer seams to insulate the inner seam from the atmosphere.

One of the controversies of this case is whether the seam-closing compartment surrounding the inner seam includes peripheral partition walls between the inner and outer fabrics near the inner seam. Plaintiff terms the edge compartment as a seam-closing compartment which supports the position that the inner seam is enclosed and that there is no communication between the seam-closing compartment and the transverse compartments of the panels. When the entire patent specification, including Figs. 8, 5, and 6 is considered, it becomes clear that the seam-closing compartment includes peripheral partition walls blocking off communication between the transverse panel compartments and the seam-closing compartment.

In patent claim 1 of the patent in suit, plaintiff defines his invention in the following terms:

A sleeping bag comprising upper and lower sections,
each said section having an upper and lower wall and insulating material therebetween,
the lower wall of said upper section and the upper wall of said lower section being brought together to contact each other and form a lateral seam extending substantially entirely about said sleeping bag, _
_ means defining a seam insulating compartment extending substantially entirely about said sleeping bag including a wall outside of and spaced from said lateral seam a distance at least as great 'as the distance between said upper and lower walls of each said section, and
solid insulating material substantially filling said seam closing compartment.

Defendant contends that the subject invention was disclosed in a printed publication more than 1 year prior to the filing date of the patent in suit (Title 35 U.S.C. § 102(b)). Alternatively, defendant contends that the subject invention was obvious in view of the prior art at the time that the patent application was filed in the United States Patent Office (Title 35 U.S.C. §103).

The printed publication which defendant refers to is a Military Specification MIL-B-830, entitled “Bags, Sleeping, M-1949,” dated July 25, 1949. The Military Specification is concerned with the construction of M-1949 sleeping bags for foot soldiers. For Arctic usage it is suggested that one bag be placed inside another to provide sufficient warmth. The construction of the seams of the sleeping bag is not entirely clear. The two front panels are joined to the back panel along a 30-inch section in such a manner as to constitute an insulated seam-closing compartment. However, the major portion of the seam is an uninsulated seam structure in which each of the several fabric layers is sewn together forming one border seam. The specification does not show or suggest “a seam insulating compartment extending substantially entirely about said sleeping bag.” The M-1949 configuration does not lend itself to such an insulated closing compartment about its periphery. Moreover, there is no reason to believe that the Military Specification envisaged or recognized prevention of heat loss as a characteristic, quality, or result of the insulated seam there depicted. It is concluded that the Military Specification does not anticipate the subject invention.

Alternatively, defendant contends that the subject invention is anticipated because it was obvious in 1952 to adapt the seam structure of the M-1949 sleeping bag to the sleeping bag shown in Daiber patent 2,464,380 (Title 35 U.S.C. § 103). As previously mentioned the M-1949 sleeping bag does not have an insulated seam-closing compartment substantially about its periphery; thus the composite structure of the M-1949 seam structure with the Daiber sleeping bag would not show the subject invention. This is true even presupposing that it was obvious to make the suggested combination in 1952.

The Supreme Court in the recent decision of Graham v. John Deere Co., 383 U.S. 1, 17, 148 USPQ 459, 467 (1966), reaffirmed the objective standard of patentability stating:

* * * Under § 103, the scope and content of the prior art are to be determined; differences between the prior art and the claims at issue are to be ascertained; and the level of ordinary skill in the pertinent art resolved. Against this background, the obviousness or nonobviousness of the subject matter is determined. Such secondary considerations as commercial success, long felt but unsolved needs, failure of others, etc., might be utilized to give light to the circumstances surrounding the origin of the subject matter sought to be patented. * * *

It is incorrect to hold that an invention was obvious when made, simply because the invention is simple in nature and is easily understood when described in a patent specification. Experience has shown that some of the simplest advances have been the most nonobvious. The prior art, in addition to the Daiber '380 patent mentioned above, cited by the defendant, provides a prior art base which renders the distinctions between the prior art and the subject invention even more significant. None of the prior ait cited by defendant copes with the problem of heat loss through the peripheral seams of the sleeping bag.

Defendant says that under the rule of General Electric Co. v. Jewel Incandescent Lamp Co., 326 U.S. 242, 247-49 (1945), it is of no moment that the prior art (particularly MIL-B-830) failed to recognize that seams of this type would prevent or diminish heat loss. But the Supreme Court has also indicated that “accidental results, not intended and not appreciated, do not constitute anticipation.” Eibel Process Co. v. Minnesota & Ontario Paper Co., 261 U.S. 45, 66 (1923); See also Tilghman v. Proctor, 102 U.S. 707, 711 (1880). In the General Electric case, the court found that the new use, advantage, or quality was apparent in view of the prior art (see 326 U.S. at 248). In the present case, it was not obvious to convert the special 30-inch seam of the Military Specification, even though it happened to be insulated, into the overall peripheral sleeping bag seams of the plaintiff’s patent. In that respect the unrecognized quality (i.e., heat-loss prevention) inhering in the short seam of the Military Specification was merely “accidental” and no bar.

It is concluded after considering the history of the sleeping bag art and the subject invention, the state of the prior art presented by defendant, the differences between the prior art and the subject invention, the recognition of patentable invention by the Canadian Government, and by the United States Patent Office proceeding, that it was unobvious in 1952 to construct a sleeping bag as described and claimed in the patent in suit. The patent in suit is valid.

In 1953 the United States Air Force, acting through the Canadian Commercial Corporation, purchased 10 sleeping bags including drawings from the plaintiff that contained the insulated seam structure. After testing the sleeping bag, defendant promulgated a specification directed to survival sleeping bags designated as “Sleeping Bags, Aircrew Survival Type MC-1.” The defendant has purchased 11,291 of the accused sleeping bags constructed in accordance with the specification. As more fully explained in the accompanying findings, the accused sleeping bags embody the subject invention disclosed and claimed in the patent in suit. Defendant was not licensed to use said invention.

Plaintiff contends that reasonable and entire compensation for such infringement should be based upon a royalty rate of 6 percent of the purchase price plus 4 percent annual interest for delay damages. Such a suggested royalty rate is based upon the proposition that since plaintiff is a citizen of Canada he would be expected to license the Canadian Government at a royalty rate lower than that for a foreign government such as the United States, and considering that the Canadian license was the first license which normally is issued at a lower rate, plaintiff should be entitled to compensation based upon a royalty rate greater than the approximate 4-percent royalty rate paid by the Canadian Government. Defendant contends that recovery based upon a 6-percent royalty rate is unreasonable, asserting that the subject invention was a minor contribution to the art. Defendant’s position is inconsistent with the actions taken by the Canadian Government, the English 1953 Mount Everest Expedition, and the United States Air Force that attest to the contribution made by the subject invention.

In considering the merits of the subject invention, the benefits derived by the defendant by virtue of the subject invention, the low level of procurement of survival sleeping bags, the nonexclusive license granted to the Canadian Government, and the position of the parties, it is concluded that reasonable and entire compensation should be based upon a royalty rate of 5 percent.

It is concluded that plaintiff is entitled to recover as reasonable and entire compensation the sum of $45,186.01 which sum includes $11,413.16 for delay damages through December 1966. Plaintiff is also entitled to recover interest at 4 percent per annum as part of just compensation, from January 1, 1961, to the date of payment.

Collins, Judge, took no part in the decision of this case.

Findings oe Fact

1. This is a patent suit arising under the provisions of Title 28 U.S.C. § 1498 in which plaintiff seeks to recover reasonable and entire compensation for the alleged unauthorized use by the defendant of 17,291 survival-type sleeping bags embodying an invention covered by U.S". Letters Patent 2,730,721, entitled “Sleeping Bag Structure” granted to plaintiff January 17, 1956, based upon his application filed December 31, 1952. Said invention, hereinafter referred to as the subject invention, is likewise the subject of Canadian Patent 486,108, dated August 26, 1952. Plaintiff filed his petition in this court September 6,1960.

2. Plaintiff, Frederick J. P. van Veen, is a Canadian citizen living in Ottawa, Ontario, Canada. During the relevant period until 1958, van Veen was an executive of the Howard’s Bedding Limited, a mattress manufacturer that also made down fillings for sleeping bag manufacturers. In 1958 van Veen formed Chinook Sleeping Bags Limited to manufacture sleeping bags embodying the subject invention. Plaintiff is the owner of the entire right, title, and interest of the patent in suit.

3. The principal issues before the court are: (1) whether the subject invention is patentable under the provisions of Title 35 U.S.C. § 102 and § 103, (2) whether the accused sleeping bags embody the subject invention, and (3) what would be reasonable and entire compensation under the circumstances.

4. One of the principal purposes of a sleeping bag is to conserve the body heat of the occupant by retarding the heat transfer from inside the bag to the atmosphere. The efficiency of a particular sleeping bag is determined by the amount of heat that is transferred through the sleeping bag during a given period of time at various atmospheric temperatures. If the heat transfer or heat loss rate is greater than the generated heat rate of the body, then the occupant will become cold. The capacity of the sleeping bag to conserve the body heat becomes extremely important when the bag is used in subzero climates. For example, it is recommended that fliers downed in the Arctic region get inside a survival-type sleeping bag within 15 minutes, otherwise their chances of survival are greatly reduced. It has been estimated that a downed airman by using a survival-type sleeping bag may survive for as long as 3 weeks in the subzero climate. The weight and storage size of a sleeping bag are also important, particularly if it is being carried 'in a pack or comprises part of the survival equipment in aircraft. Consequently there has been a need for sleeping bags that are lightweight, that can be stored in compact bundles, and that have low heat loss rates.

5. Generally, sleeping bags are constructed of an upper and a lower panel with each panel having an outer and inner fabric layer separated by insulating material. Each panel is generally quilted to hold the insulation in place to prevent “cold spots.” A more expensive construction which results in a warmer panel is made by sewing webbing walls between the fabric layers to form elongated channels or compartments which are filled with insulation (Daiber patent 2,474,380). Probably the most effective heat insulating material used in sleeping bags is duck down. However, since duck down is quite expensive, less costly materials such as feathers and various fibrous materials are frequently used. A common technique for joining the two panels together to comprise a sleeping bag is to sew the peripheral edges of the four panel fabric layers to form a composite 15- to 18-foot border seam leaving a sufficient opening for getting in and out.

6. Although van Veen was not directly involved in the manufacture of sleeping bags in 1943, he had a familiarity with the sleeping-bag arts. He became interested in developing a sleeping bag which had greater warmth with less bulk and weight. He discovered that at low temperatures a major source of heat loss in a sleeping bag was through the 15- to 18-foot length of border seam. To remedy this situation van Veen developed a type of seam construction that reduced the heat loss through said seam so that it was no greater than through the panels of the sleeping bag.

7. In 1943, using his wife’s sewing machine, van Veen constructed a sleeping bag that embodied an insulated border seam construction that is the subject of the patent in suit. He used the sleeping bag on several hunting trips in northern Ontario during the fall of 1943. Thereafter, van Veen used the sleeping bag for a number of years on hunting trips in Canada.

8. In early 1951 the Arctic Consultant for the Royal Canadian Air Force contacted van Veen to find a lighter sleeping bag for use in survival kits to be carried aboard fighter aircraft that operated in the far north. In reply, van Veen showed the consultant the sleeping bag that he had made in 1943 and was immediately requested to prepare a sample made of nylon fabric layers which could be used on an Arctic equipment testing mission to be conducted in February 1951 at Cambridge Bay on Victoria Island located approximately 200 miles above the Arctic Circle. The Royal Canadian Air Force found that the van Veen sleeping bag embodying the subject invention was ideal for survival purposes. The Royal Canadian Air Force drew up a specification for a survival bag using the bag submitted by van Veen as an example and proceeded to purchase 1,920 survival bags from parties other than van Veen.

9. In May 1952 van Veen filed an application for a Canadian patent covering his insulated edge seam sleeping bag. After the patent was granted in August 1952 van Veen entered into negotiations with the Canadian Government which culminated in a nonexclusive patent agreement under which the Canadian Government paid van Veen a royalty of $2.00 per bag for the 1,920 bags that it had purchased and agreed to pay a royalty of $1.50 per bag on all further procurement of such survival bags. Since 1952 the Canadian Government has purchased 3,420 such survival sleeping bags.

10. In the summer of 1951 van Veen supplied sleeping bags embodying his edge seam construction to the 1951 Reconnaissance Expedition to Mount Everest. A few more bags were also supplied to the 1952 Eoyal Geographic Society Mount Everest Reconnaissance Expedition. In 1953 a total of 12 sleeping bags was supplied to the English expedition that successfully climbed Mount Everest.

11. Shortly prior to March 1953, the United States Air Force, acting through the Canadian Commercial Corporation, invited van Veen to submit a proposal for the construction of 10 sample lightweight survival sleeping bags with specified warmth, size, and weight characteristics. The van Veen proposal which was accepted by the United States Air Force provided that the proposed sleeping bags were to be constructed with the patented insulated seam and that the price of $1,458.20 included a royalty of $5.00 per bag. It was stated that the regular royalty rate under the Canadian patent was 5 percent of the net selling price. The proposal notified the Air Force that patent application had been filed in the United States covering the insulated seam construction and that van Veen would be willing to grant the United States Government a nonexclusive license at a “moderate” royalty rate. The 10 van Veen bags were delivered to the United States Air Force a long with blueprints and specifications detailing the construction and materials used. The Air Force thereafter promulgated a specification for an Arctic survival sleeping bag designated as “Aircrew Survival Type MC-1.”

Plaintiff alleges tbat survival bags made in accordance with said Air Force Specification infringe his patent here in suit.

12. The sleeping bag disclosed in the patent in suit is comprised of two spaced elongated panels or body sections — an upper section 17 and a lower section 18 — for accommodating an occupant therebetween. Each section is composed of spaced upper and lower main walls 19-20 and 21-22, as illustrated in Fig. 2 of the patent drawings. The sections are divided into transverse compartments or channels 26 by partition walls 23. The compartments 26 are filled with insulating material 27 such as duck down. The principal feature of plaintiff’s invention resides in the structure for joining the peripheral edges of the bag sections in such a manner that the heat loss through the joined edges is minimal. The edges of the inner walls 20 and 21 are secured together forming an inner seam 30, and the edges of the outer walls 19 and 22 are also secured together forming an outer seam 31. Insulation material is placed between the inner and outer seams so that the inner seam is insulated from the atmosphere. One of the issues is whether there are peripheral partition walls between the inner and outer walls near the inner seam 30 forming a component of the seam-closing compartment 32. In the sectional view of Fig. 2 it appears that there are peripheral partition walls near the inner seam 30. The patent specification and claims refer to compartment 32 as a seam-closing compartment indicating that there is no communication with the transverse compartments 28. It is clear that the seam-closing compartment 32 includes peripheral partition walls blocking communication between the transverse compartments 26 and the seam compartment 32.

13. Plaintiff has defined his invention as follows:

Patent Olaim 1
A sleeping bag comprising upper and lower sections,
each said section having an upper and lower wall and insulating material therebetween, the lower wall of said upper section and the upper wall of said lower section being brought together to contact each other and form a lateral seam extending substantially entirely about said sleeping bag,
means defining a seam insulating compartment extending substantially entirely about said sleeping bag including a wall outside of and spaced from said lateral seam a distance at least as great as the distance between said upper and lower walls of each said section, and
solid insulating material substantially filling said seam closing compartment.

14. Defendant contends that the subject invention is un-patentable, alleging that the invention was described in a printed publication more than 1 year prior to the date of application for patent in the United States (Title 35 U.S.C. § 102(b)). Specifically, defendant claims that the Military Specification MIL-B-830 entitled “Bags, Sleeping, M-1949,” dated July 25,1949, discloses the subject invention. Alternatively, defendant contends that the subject invention was obvious in view of the prior art that existed at the time the invention was made (Title 35 U.S.C. § 103). To support the latter contention defendant, in addition to the said Military Specification, cites the following patents:

Name Patent No. Date
Scatcbard. 669,621 1896.
Winters_ 613,645 1898.
Abrams. 1,421,131 1922.
Kamrath. 1,808,233 1931.
Daiber. 2,121,788 1938.
Phillips, et al.. 2,179,424 1939-
Bailey. 2,260,426 1941.
O’Hara_ 2,374,299 1945.
Daiber_ 2,464,380 1949.
Clark. 2,379,416 1946.
Padgett. 2,429,168 1947.
Peterson. 2,562,061 1951.
J. S. Nicholson 2,626,695 1953 (filed June 1950).
Klein_ 2,667,198 1954 (filed Jan. 1951).

15. The Military Specification MIL-B-830, entitled “Bags, Sleeping, M-1949,” defendant’s exhibit 16, relates to the construction of special sleeping bags for use by the foot soldiers often referred to as mummy bags because of their appearance. As illustrated in the specification, the bag is constructed of a back panel and two front panels. Each panel is comprised of an inner and an outer ply with a cheesecloth diaphragm therebetween. Each panel is quilted to form longitudinal channels by stitching the diaphragm alternately to the inner and outer plies as shown in Fig. 6 so that no stitch extends through the entire panel at any one place. The channels are filled with an insulation material of 40 percent duck down and 60 percent feathers. As a step in the construction of the sleeping bag, a short border section (27-30 inches) of both front panels is joined to the back panel by sewing the edges of the inner plies and diaphragms of the front and back panels together and sewing the edges of the outer plies of the front and back panels together to form an insulated seam-closing structure. The Military Specification does not specifically state how the remaining border of the front panels is joined to the back panel. In order to complete the construction it is clear that the edges of the inner plies, diaphragms, and outer plies of the front and back panel are sewn together to form an uninsulated seam. The sleeping bag described in said Military Specification does not have or suggest “a seam insulating compartment extending substantially entirely about said sleeping bag.” The configuration of the described sleeping bag does not lend itself to such an insulated seam construction about its entire periphery. There is no reason to believe that the Military Specification envisaged or recognized prevention of heat loss as a characteristic, quality, or result of the insulated seam there depicted. In order for the M-1949 sleeping bag to be used in the Arctic, an additional M-1949 sleeping bag must be inserted in it. It is found that the Military Specification does not anticipate the subject invention.

16. Defendant contends that the subject invention was obvious when considering the structure of the M-1949 sleeping bag in combination with the structure of the sleeping bag described in the Daiber '380 patent, defendant’s exhibit 6. The Daiber '380 patent was cited by the patent examiner during prosecution of the van Veen application for patent and discloses an insulated structure for clothing or sleeping bags. Figs. 1 and 7 of the '380 patent show insulated panel structures for a sleeping bag. The panels are constructed with an inner fabric ply or membrane 1 and an outer fabric ply or membrane 2 separated by spaced perpendicular strips of webbing 3, 4, 5, 6, 7, and 8 that form channels for containing heat insulating material. The '380 patent does not show or describe a seam structure for joining the panels. Even if it is assumed that it would have been obvious to combine the Military Specification and '380 patent structures, the composite does not have “a seam insulating compartment extending about said sleeping bag.”

17. The 13 other prior patents relied upon by defendant are less pertinent than any attempted combination of the M-1949 and '380 patent sleeping bag constructions. The patents do provide a historical portrayal of the structural development of the sleeping-bag and insulated-clothing arts. Such a portrayal serves to emphasize the structural novelty of the subject invention, for none of the prior patents relates to the problem of heat loss through the peripheral seam of the sleeping bag.

18. It is found after considering the subject invention, the state of the prior art, the differences between the prior art and the subject invention, the recognition of patentable invention by the Canadian Government, and the United States Patent Office proceedings, that it would have been unobvious to a person skilled in the sleeping-bag art at the time that the van Yeen patent application was filed in the United States to construct a sleeping bag as described and claimed in the van Yeen patent. It is found that claim 1 of the van Veen patent is valid.

19. The accused sleeping bags purchased by the defendant and designated “Sleeping Bag Aircrew Survival Type MC-1” have an insulated peripheral seam in which the outer fabric layers of .the panels are sewn together forming an outer seam similar to seam 31 of the patent in suit. Such a sleeping bag is in evidence marked plaintiff’s exhibit 2. The two inner fabric layers of the panels are likewise sewn together to form a seam in a similar manner as to seam 30 shown in Fig. 2 of the patent in suit. Peripheral walls run along the inner seam forming a seam-closing compartment so that there is no communication between the transverse quilted compartments and the peripheral seam-closing compartment. The accused sleeping bag contains every element and limitation recited in claim 1 of the van Yeen patent. The accused sleeping bag embodies the subject invention and infringes the patent in suit. Defendant was not licensed to use the subject invention.

20. With respect to reasonable and entire compensation for defendant’s unauthorized use, plaintiff contends that reasonable and entire compensation during the recovery period should be based upon a royalty of 6 percent of the purchase price plus 4 percent per annum for delay in payment. Defendant does not suggest what reasonable and entire compensation should be, but contends that compensation based upon a 6-percent royalty rate is unreasonable. Defendant contends that the subject invention was a minor contribution to the art. It is found, upon considering the merits of the invention, the benefits derived by the defendant by virtue of the subject invention, the low volume of Government procurement of the infringing sleeping bags, the nonexclusive license to the Canadian Government, and the position of the parties, that reasonable compensation would be a royalty-rate of 5 percent plus delay compensation calculated at a rate of 4 percent annually from the purchase dates through 1966.

21. The defendant procured 13,259 sleeping bags in J anu-ary 1958 at a cost of $522,344.12. Compensation on this procurement at 5 percent amounts to $26,117.21, and delay compensation on this sum from J anuary 1958 through December 1966 at 4 percent per annum is $9,316.01. Defendant procured 4,032 additional sleeping bags in May 1960 at a cost of $163,900.80. Compensation on this second procurement computed at 5 percent amounts to $8,195.04, and delay compensation on this sum from May 1960 through December 1966 at 4 percent per annum is $2,157.75. Total reasonable and entire compensation amounts to $45,786.01 plus interest at 4 percent per annum, as part of just compensation, from January 1,1967, to the date of payment.

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 claim 1 of patent 2,730,721 is valid and has been used by defendant without license of the owner, and that plaintiff is entitled to recover from the United States forty-five thousand seven hundred eighty-six dollars and one cent ($45,786.01) plus interest at 4 percent per annum, as part of just compensation, from J anuary 1,1967, to the date of payment. Judgment is entered accordingly. 
      
      The opinion, findings of fact, and recommended conclusion of law are submitted under the order of reference and Rule 57(a).
     
      
       Defendant cites this passage from the General Electric opinion: “Where there has been use of an article or where the method of its manufacture is known, more than a new advantage of the product must be discovered in order to claim invention, [case citation] It is not invention to perceive that the product which others had discovered had qualities they failed to detect.”
     