
    JOHN L. BRODIE v. THE UNITED STATES
    [No. 34726.
    Decided April 5, 1926]
    
      On the Proofs
    
    
      Jurisdiction; see. 155, Judicial Code. — A citizen of a foreign country which gives American citizens the same right of suit against it as its own citizens have, may maintain the same kind of action in the Court of Claims as is permitted to an American citizen, notwithstanding neither the American citizen nor the said alien could maintain that sort of suit against the foreign government.
    
      Patent; helmet; validity. — The Brodie patent for helmet or head shield held invalid for want of novelty or invention.
    
      Same; infringement. — No invention defined by claims 1, 3, 5, 7, 12, 13, and 14 of plaintiff’s patent for helmet or head shield was present in the helmet made for and used by the United States Army in the World War.
    
      
      The Reporter's statement of the case:
    
      Mr. Melville Church for the plaintiff.
    
      Mr. Clifton V. Edwards, with whom was Mr. Assistant Attorney General Merman J. Galloway, for the defendant. Messrs. Marry E. Knight and Melville D. Church were on the brief.
    The court made special findings of fact, as follows:
    I. The plaintiff, John L. Brodie, was at the time of the commencement of this action, on November 4, 1920, a subject of the King of Great Britain. On December 2, 1919, he had declared his intention to become a citizen of the United States.
    II. It is stipulated by the parties and therefore so found by the court,
    That section 29 of patents and designs act, 1907, of Great Britain (7 Edw. VII, c. 29), which repeats in terms the provisions of the patents, designs, and trade-marks act of 1883, reads as follows:
    “ CROWN
    “(29) A patent shall have to all intents the like effect as against His Majesty the King as it has against a subject :
    “Provided, That any Government department may, by themselves, their agents, contractors, or others, at any time after the application, use the invention for the services of the Crown on such terms as may, either before or after the use thereof, be agreed on, with the approval of the treasury, between the department and the patentee, or, in default of agreement, as may be settled by the treasury after .hearing all parties interested.”
    That the above section 29 of the act of 1907 was repealed by section 8 of the act of Parliament of Great Britain of 1919 (9 and 10, Geo. V, ch. 80), which took effect on April 23,1920, and the following substituted therefor by said later act:
    “ 29. (1) A patent shall have to all intents the like effect as against His Majesty the Kang as it has against a subject:
    “ Provided, That any Government department may, by themselves or by such of their agents, contractors, or others as may be authorized in writing by them at any time after the application, make, use, or exercise the invention for the services of the Crown on such terms as may, either before or after the use thereof, be agreed on, with the approval of the treasury, between the department and the patentee, or, in default of agreement, as may be settled in the manner hereinafter provided. And the terms of any agreement or license concluded between the inventor or patentee or any person other than a Government department shall be inoperative so far as concerns the making, use, or exercise of the invention for the service of the Crown:
    “ Provided further, That where an invention which is the subject of any patent has, before the date of the patent, been duly recorded in a document by, or tried by or on behalf of, any Government department (such invention not having been communicated directly or indirectly by the applicant for the patent or the patentee), any Government department, or such of their agents, contractors, or others as may be authorized in writing by them, may make, use, and exercise the invention so recorded or tried for the service of the Crown, free of any royalty or other payment to the patentee,-'notwithstanding the existence of the patent. If, in the opinion of the department the disclosure to the applicant or the patentee, as the case may be, of the document recording the invention, or the evidence of the trial thereof, if required, would be detrimental to the public interest, it may be made confidentially to counsel on. behalf of the applicant or patentee or to any independent expert mutually agreed upon.
    “ (2) In the case of any dispute as to the making, use, or exercise of the invention under this section, or the terms therefor, or as to the existence or scope of any record or trial as aforesaid, the matter shall be referred to the court for decision, who shall have power to refer the whole matter or any question or issue of fact arising thereon to be tried before a special or official referee or an arbitrator upon such terms as it may direct. The court, referee, or arbitrator, as the case may be, may, with the consent of the parties, take into consideration the validity of the patent for the purposes only of the reference and for the determination of the issues between the applicant and such Government department. The court, referee, or arbitrator further in settling the terms as aforesaid shall be entitled to take into' consideration any benefit or compensation which the pat-entee, or any other person interested in the patent, may have received directly or indirectly from the Crown or from any Government department in respect of such patent.
    “ (3) The right to use an invention for the services of the Crown under the provisions of this section or any provisions for which this section is substituted shall include, and shall be deemed always to have included, the power to sell any ■ articles made in pursuance of such right which are no longer required for the services of the Crown.
    “ (4) Nothing in this section shall affect the right of the • Crown or of any person deriving title directly or indirectly from the Crown to sell or use any articles forfeited under the laws relating to the customs or excise.”
    III. On June 27, 1916, the plaintiff, then a British subject and residing in London, England, filed in the United States Patent Office an application for letters patent for an improved helmet or head shield, with specifications, claims, and drawings. The claims as then stated were as follows:
    1. A helmet, or head shield consisting of a metal shell, a loose buffer lining and detachable means holding the crown of said lining to the crown of said shell.
    2. A helmet or head shield consisting of a metal shell, a loose buffer lining containing absorbent material and detachable means holding the crown of said lining to the crown of said shell.
    3. A helmet or .head shield consisting of a metal shell, a loose buffer lining spaced away from said shell at the lower edge and detachable means holding the crown of said lining to the crown of said shell.
    4. A helmet or head shield consisting of a metal shell, a loose buffer lining spaced away from said shell at the lower edge and containing absorbent material and detachable means holding the crown ' of said lining to the crown of said shell.
    5. A helmet or head shield consisting of a metal shell, a loose lining, resilient pads at intervals between the lower edge of said lining and said shell and detachable means holding the crown of said lining to the crown of said shell.
    6. A helmet or head shield consisting of a metal shell, a loose lining containing absorbent material, resilient pads at intervals between the lower edge of said lining and said shell and detachable means holding the crown of said lining to the crown of said shell.
    7. A helmet or head shield consisting of a metal shell, a loose lining, rubber pads held in loops of said lining at intervals between the lower edge of said lining and said shell and detachable means holding the crown of said lining to the crown of said shell.
    8. A helmet or head shield consisting of a metal shell, a loose lining containing absorbent material, rubber pads held in loops of said lining at intervals between the lower edge of said lining and said shell and detachable means holding the crown of said lining to the crown of said shell.
    9. A helmet or head shield consisting of a metal shell, a loose lining composed of an outer layer of felt, an inner layer of canvas, and an intermediate layer of absorbent material and detachable means holding the crown of said lining to the crown of said shell.
    
      10. A helmet or head shield consisting of- a metal shell, a loose lining composed of an outer layer of felt, an inner layer of canvas, and an intermediate layer of absorbent material, resilient pads at intervals between the lower edge of said lining and said shell and detachable means holding the crown of said lining to the crown of said shell.
    11. A helmet or head shield consisting of a metal shell, a loose lining composed of an outer layer of felt, an inner layer of canvas, an intermediate layer of absorbent material and a head cover of fabric turned up around the lower edge of said felt, rubber pads held in loops in said head cover at intervals between the lower edge of said lining and said shell and detachable means holding the crown of said lining to the crown of said shell.
    12. A helmet or head shield consisting of a metal shell, strap buckles on said shell, a loose buffer lining spaced away from said shell at the lower edge, a chin strap passed through said buckles and over said lining and detachable means holding the crown of said lining to the crown of said shell.
    13. A helmet or head shield consisting of a metal shell, strap buckles on said shell, a loose lining, resilient pads at intervals between the lower edge of said lining and said shell, a chin strap passed through said buckles and interstices between two said pads and over said lining and detachable means holding the crown of said lining to the crown of said shell.
    14. A helmet or head shield consisting of a metal shell, a loose lining, rubber pads held in loops of said lining at intervals between the lower edge of said lining and said shell, a chin strap passed through said buckles and interstices between two said pads and over said lining and detachable means holding the crown of said lining to the crown of said shell.
    In plaintiff’s oath upon said application it was stated that no application for patent on said improvement had been filed by him or his representatives or assigns in any country foreign to the United States “ except as follows: In England on the 16th of August, 1915, No. 11803/15.”
    Upon said application the examiner in charge thereof, on October 11, 1916, entered the following action:
    “ The claims are alternative in the wording. This should be corrected.
    “ Claims 1, 3, 5, 7, 8, 12, 13, and 14 are each rejected, in view of the patent to (Br.) Towell, 11409, June 1, 1899; helmets (1 sht.).
    “The above-patent is held to contain the full equivalent of applicant’s structure.
    
      “ Claims 2, 4, 6, 9, 10, and 11 are each rejected on To well, in view of (Br.) Curtis, 19109, Aug. 16, 1914; helmets (1 sht.).
    “ The following patent is made of record: Stern, 1184785, May 30, 1915; helmets.”
    In response to said action of the examiner the plaintiff, on September 17, 1917, submitted the following:
    “ Cancel the claims and substitute the following: ”
    (Nom- — -Here follow claims 1 to 15, inclusive, in the same form as appears in the patent hereinafter following, except that claim 15 as here submitted was rejected and withdrawn.)
    Following which plaintiff stated:
    “Neither of the citations disclose the idea of applicant’s invention.
    “ In British patent 11409/99, Towell, the outer shell of the helmet consists of cork pith or the like (see page 1, line 17).
    “ The inner shell A is held in proper position by means of blocks or distance pieces C; these distance pieces C are attached to both the inner and outer shell so that they are firmly secured and practically integral (see page 1, lines 25 to 30, of British patent 11409/99).
    “ On page 2, lines 5 to 7, of British patent 11409/99 there is stated: ‘ The lower part of the inner skull or shell A is secured to the corrugated band Gr, which is itself secured all round to the interior of the outer skull or shell B in the ordinary manner.’
    “ This again shows that both parts are practically integral.
    
      “ The helmet of applicant’s invention is restricted to metal shells, and the distinctive features of applicant’s invention is that the interior lining is loose and easily removable.
    “Applicant respectfully refers to page 3, lines 9 to 13, of his specification, where he states:
    “ ‘ The lining is only loosely secured inside the shell, and preferably only at one point in such a way that the shell can be easily removed from the lining if the latter sticks to the injured head. This arrangement also enables the lining to be quickly renewed.’
    “ British patent 19109/14 Curtis refers to aviator helmets. On page 2, lines 18 and 19, there is stated:
    “ ‘ The helmet is made of leather and other suitable materials commonly used in helmets of this character.’
    “ The lining consists of a cork dome 1 covered with leather 2 and provided with cotton lining 3; springs 4 are arranged within the dome and are secured to the sides of the helmet by rivets 5, and they are secured by rivets 6 at the dome of the lining. The springs are thus integral with the outer leather shell of the helmet.
    “As previously stated, the feature of applicant’s invention is to provide a loose buffer lining within a metal helmet by one single fastening such as a split rivet which allows the metal shell to be easily removed from the lining.
    “ In U. S. patent 1184785, Stern, a head band a is secured to rigidly extending supports b which are fastened to a curved flexible band c. To said latter curved flexible band o there are secured arched flexible members d which are united with one another at the point of intersection at the apex of the supporting frame thus formed. (See page 1, lines 77 to 103.)
    “ On page 1, line 106, there is stated: 1 The entire structure thus far described being made up of several flexible members fixedly united with one another.’
    “Applicant submits that the above-mentioned details of patent 1184785 are the only feature of Stern’s invention which concerns his (the present applicant’s) invention.
    “ In Stern’s invention the arched flexible members d which forms the rigid part of the shell of the helmet are firmly secured to the frame band e, to which is rigidly secured the headband a. It is true that Stern uses a resilient headband, but this resilient headband is firmly secured to the members forming part of the shell. Moreover, Stern does not use a loose buffer lining, but uses a headband firmly connected to the rigid part of the shell.
    “ In applicant’s case the loose buffer lining is secured to the shell of the helmet at one point only and can be easily removed.
    “ It is respectfully submitted that applicant has shown the difference between his invention and the inventions shown in the citations; and a favorable consideration of the new claims is respectfully solicited.”
    On November 27, 1917, the application was allowed; on December 5, 1917, the final fee was paid; and on January 1, 1918, patent No. 1251959 was issued to plaintiff, who was and is the sole owner thereof, and which patent is as follows:
    United States Patent Office.
    (John Leopold Brodie, of London, England. Helmet or Lead shield. 1,251,959. Specification of Letters Patent. Patented Jan. 1, 1918. Filed June 27, 1916. Serial No. 106,278.)
    
      To all whom it may concern:
    
    Be it known that I, John Leopold Brodie, a subject of the King of Great Britain and Ireland, residing at London, England, have invented Certain new and useful improvements in helmets or head shields, of which the following is a specification, reference being had therein to the accompanying drawing.
    The present invention relates to helmets or head shields for military, mining, and the like use.
    The resisting power of existing steel helmets designed to protect the head against wounds caused by the impact of rifle bullets, shrapnel bullets, shell splinters, falling coal, stones, or minerals and the like, depends upon the thickness of the metal of which the helmet or head-shield is made. The thickness, however, has hitherto been restricted by the weight of the helmet. Even in the case of comparatively light but fairly strong helmets of the existing kinds, the method of fitting them on the head has the disadvantage that the force of a relatively small impact is transmitted direct to the skull and may easily produce concussion of the brain, or at any rate a severe bruise. Apart from the danger of such bruises or wounds becoming infected and causing blood poisoning, difficulties arise in removing these helmets when they have received jagged penetrations and deep indentations, because the metal becomes embedded in the head. Moreover such helmets in cold weather are likely to cause frostbite and in hot weather become insupportable.
    The present invention aims at overcoming these drawbacks.
    According to the invention, the helmet or head shield is stamped from a resistant metal, and when used for military purposes from a known form of bullet-proof steel, such as manganese steel, so that comparatively thin plate may be used, which is as resistant as much thicker plates hitherto used for making helmets.
    In order to prevent concussion of the brain by external impact and to prevent injury to the frontal, parietal, or occipital bones of the cranium by any indentation or penetration of the helmet, the latter is provided with an inner lining adapted to act as a buffer. This buffer or anticoncussion lining is so arranged within the helmet shell that a free space or air gap is left between lining and shell, and therefore the helmet may be subjected to a considerable force of impact or even be indented or penetrated without injury to the wearer.
    By providing an antiseptic and absorbent cushion of lint or cotton wool in said lining the danger of wounds becoming infected is avoided, while any blood is absorbed and prevented from running down into the wearer’s eyes. In cases of strong hemorrhage, the helmet can be strapped tightly so as to act as a tourniquet.
    The lining is only loosely secured inside the shell, and preferably only at one point in such a way that the shell can be easily removed from the lining if the latter sticks to the injured head. This arrangement also enables the lining to be quickly renewed.
    The buffer or anticoncussion lining tends to retard the velocity of objects striking the helmet and this diminishes the shock usually felt with other helmets. The inner lining protects the wearer against frostbite in cold weather and the air gap surrounding the lining keeps the wearer’s head cool in hot weather. The lining equalizes the distribution of weight on the wearer’s head because of its resiliency and thereby prevents the undue local pressure which is a prime cause of headaches. The inner protective lining grips the head firmly and- does away with the continued necessity of pressing down the helmet to keep it in place. The lining also protects the helmet from rusting.
    In order to fully understand the invention one way of constructing the helmet or head shield is explained by way of example with reference to the accompanying drawings—
    Figure 1 is a' front view;
    Fig. 2 a top view;
    Fig. 3 a cross section;
    Fig. 4 an underside view;
    Fig. 5 an enlarged section of part of the buffer lining; and
    Fig. 6 a section of a modification.
    The shell a- of the helmet which is made considerably larger than the skull and provided with a brim of 1 to 1% inches wide all around is stamped out of bullet proof steel plate of about one-twentieth of an inch thickness. The brim or any other convenient part is provided with riveted chin strap buckles 6 (Figs. 3, 4, and 6) and leather straps a, the buckles 6 being arranged in such way that when the straps are tightened they do not inconvenience the wearer. As shown in Fig. 5 the buffer lining is arranged in the shape of a skull cap and is composed of an outer layer of felt d an inner layer of canvas † and an intermediate layer of absorbent cotton, wool, or lint e. The edge of the felt layer d is stiffened by means of a surrounding band of fiber or other suitable material g, which is sewn on to the other linings. The canvas lining † is covered with American cloth or the like h cut and arranged in the way usual for helmet linings. The outer edge of this American cloth is turned up outside the stiffened band g and stitched to the felt at i, being also provided with loops l (Figs. 3, 4, and 5) preferably made by cutting the American cloth. Small buffers or studs m of resilient material such as rubber or the like are passed through said loops l for the purpose of providing the required air space or gap n between the lining and the shell and for absorbing shocks produced by external impact. When rubber studs are used these may be perforated. Ventilating holes 7c are provided at suitable position and are cut right through the felt d, absorbent cotton e, and canvas †. The lining is fixed to the crown of the shell by a single fastening device such as a split rivet r which, while affording sufficient hold for the lining in the shell, also allows of the steel shell being easily removed from the lining in case of injury to the skull.
    Fig. 6 shows a modification of the attachment of the chin strap. As will be seen from the drawings the chin strap c is passed through one buckle 5 over the lining and through the other buckle. The strap is fixed by the rivet at the crown of the helmet. This kind of attachment has the advantage that the lining adjusts itself to the wearer’s head when the strap is pulled around the wearer’s chin. The buckles 5 are preferably made slightly larger than is the case in the arrangement shown in Fig. 3 so as to give adequate play to the chin strap.
    
      
      
    
    
      The steel shell is preferably colored in rainbow colors so as to make it invisible to the enemy when the helmet is used for military purposes, and to prevent injury by the sharp edge of the rim of the helmet, the edge is preferably rounded off as shown in Fig. 4.
    It is evident that various alterations and modifications of the construction of the helmet are possible without departing from the spirit of the invention, and I do not therefore desire to limit myself to the exact form of construction shown and described.
    What I claim as my invention and desire to secure by Letters Patent is—
    1. A helmet or head shield consisting of a metal shell and a loose buffer lining, secured at one point only of its crown to the crown of said shell by detachable means.
    2. A helmet or head shield consisting of a metal shell and a loose buffer lining which contains absorbent material and is secured at one point only of its crown to the crown of said shell by detachable means.
    3. A helmet or head shield consisting of a metal shell and a loose buffer lining, spaced away from said shell at the lower edge, said buffer lining being secured at one point only of its crown to the crown of said shell by detachable means.
    4. A helmet or head shield consisting of a metal shell and a loose buffer lining spaced away from said shell at the lower edge, said buffer lining containing absorbent material and being secured at one point only of its crown to the crown of said shell by detachable means.
    5. A helmet or head shield consisting of a metal shell and a loose buffer lining provided with resilient pads at intervals between the lower edge of said lining and said shell, said lining being secured at one point only of its crown to the crown of said shell by detachable means.
    6. A helmet or head shield consisting of a metal shell and a loose buffer lining containing absorbent material and provided with resilient pads at intervals between the lower edge of said lining and said shell, said lining being secured at one point only of its crown to the crown of said shell by detachable means.
    7. A helmet or head shield consisting of a metal shell and a loose buffer lining provided with rubber pads held in loops of said lining at intervals between the lower edge of said lining and said shell, said lining being secured at one point only of its crown to the crown of said shell by detachable means.
    8. A helmet or head shield consisting of a metal shell and a loose buffer lining provided with rubber pads held in loops of said lining at intervals between the lower edge o-f said lining and said shell, said lining containing absorbent material and being secured at one point only of its crown to the crown of said shell by detachable means.
    9. A helmet or head shield consisting of a metal shell and a loose buffer lining composed of an outer layer of felt, an inner layer of canvas, and an intermediate layer of absorbent material and secured •at one point only of its crown to the crown of said shell by detachable means.
    10. A helmet or head shield consisting of a metal shell and a loose buffer lining provided with resilient pads at intervals between the lower edge of said lining and said shell, said lining being composed of an outer layer of felt, an inner layer of canvas, and an intermediate layer of absorbent material and being secured at one point •only of its crown to the crown of said shell by detachable means.
    11. A helmet or head shield consisting of a metal shell and a loose buffer lining composed of an outer layer of felt, an inner layer of canvas, an intermediate layer of absorbent material, and a head cover of fabric, which is turned up around the lower edge of said felt and is provided with rubber pads held in loops in said head cover at intervals between the lower edge of said lining and said shell, said lining being secured at one point only of its crown to the crown of said shell by detachable means.
    12. A helmet or head shield consisting of a metal shell, strap buclsles on said shell, and a loose buffer lining spaced away from said shell at the lower edge, a chin strap passed through said buckles and over said lining, which is secured at one point only of its crown to the crown of said shell by detachable means.
    13. A helmet or head shield consisting of a metal shell, strap buckles on said shell, a loose lining, resilient pads at intervals between the lower edge of said lining and said shell, a chin strap passed through said buckles and through interstices between adjacent parts of said pads and over said lining, which is secured at one point only of its crown to the crown of said shell by detachable means.
    14. A helmet or head shield consisting of a metal shell, strap buckles on said shell, a loose lining, rubber pads held in loops on said lining at intervals between the lower edge of said lining and said shell, a chin strap passed through said buckles and through interstices between adjacent pairs of said pads and over said lining, which is secured at one point only of its crown to the crown of said shell by detachable means.
    In testimony whereof I affix my signature in presence of two witnesses.
    John Leopold Beodie.
    Witnesses:
    Conbad John Stabdet, '
    Frederick John Taylor.
    
      IV. Plaintiff in this action limits his right to recover to the alleged use by the.United States of his said patent as defined in claims 1, 3, 5, 7, 12, 13, and 14.
    V. Some time after the beginning of the World War but while the United States was yet neutral it came to the knowledge of officers of the U. S. Army that steel protective helmets were being used by combatants on both sides and investigations into the subject began particularly on the part of the assistant to the Chief of Ordnance in charge of the equipment division and his subordinates.
    After some time a French helmet such as was being used by the French Army was procured and this was sent in May of 1916, to the Bock Island Arsenal with instructions to the commanding officer to develop a type of helmet suitable for use by the United States Army. Experiments-were there carried on for some time but in the mean time a British and a German helmet were received. After conference between British experts and members of the General Staff of the U. S. Army, it was concluded that the British helmet was best adapted to the uses of the U. S. Army and the Bock Island Arsenal was directed to prepare specifications, with suggested modifications, on which contracts for the manufacture of helmets could be let, which was-done. Such contracts were thereafter let arid helmets were manufactured for and used by the United States.
    It is stipulated and is accordingly found that the helmet marked “ Petitioner’s Exhibit A” is a sample of a helmet such as was made for and used by the defendant subsequent to the 1st of January, 1918, and prior to the filing of the petition herein.
    This type of helmet was made and used during 1918 but it was the subject of many complaints and investigations and experiments were being conducted all the time looking to the development of a more satisfactory model. Finally a new type known as the Liberty Bell helmet was developed by Major McNary of the equipment division, A. E'. F., then on duty at Tours, France, which, in November, 1918, was approved by the General Staff. On August 2, 1919, an order of the General Staff directed the disposition of all helmets like “ Exhibit A” except a number to be held pending production of the new type.
    YI. All of the contracts made by the United States for the manufacture of helmet linings or for the assembling of helmets like said “ Petitioner’s Exhibit A” contained a clause requiring the contractor to save the United States and all persons acting under them harmless on account of the use of any patented invention.
    VII. No officer of the United States having to do with the preparation and adoption of the design and specifications for the manufacture of helmets like “ Petitioner’s Exhibit A” had any knowledge, until the dates hereinafter stated, of plaintiff’s patent No. 1,251,959, nor that any invention claimed in said patent was embodied in said helmet nor that plaintiff claimed that said helmet infringed his said patent nor did any of said officers intend to appropriate for the United States said patent or any rights of plaintiff thereunder.
    Under date of January 25, 1919, the plaintiff addressed to the “ Secretary State of War ” a letter which was received in the War Department, as follows:
    Savoy Hotbu,
    
      London, January 25th, 1919. To the SboeetaRy State of War,
    
      Washington, D. G., U. 8. A.
    
    Ee Brodie patent pattern steel helmet.
    Dear Sir : With reference to my patent steel helmet supplied to the entire British Army in the field and to the American Expeditionary Force in France through the British War Office, I beg to inform you that as soon as I am able to leave England for Washington I shall give myself the pleasure of calling upon you to present my claim for the use of my patent helmet by the American Government.
    I wish to point out to you that my patent helmet is the only patent pattern approved of and used by the British War Office, and every helmet used by the British War Office for the entire British Army in the field, and supplied to the American Expeditionary Force in France and the American Government through the British War Office, has my name stamped on the American cloth in the inside.
    Am enclosing a letter dated the 21st January, 1919, from the Ministry of Munitions of War, London, which will ex-
    
      plain to you why I am delayed here, as all the helmets are made under my personal supervision.
    Kindly return the letter to me.
    Yours truly, J. L. Bkodie.
    Beceipt of this letter was acknowledged by an officer in the office of the Chief of Ordnance, U. S. A., on April 11, 1919, and on October 3, 1919, the plaintiff wrote as follows:
    October 3, 1919.
    War Dept.,
    Office of Chief of OkdNANCe,
    Washington, D. O.
    
    Be Brodie patent steel helmet.
    Dear Sir : With further reference to my letter of January 25th, 1919, and yours of the 11th of April, 1919, reference O. O. No. 072/250, Brodie, J. L., I herewith present my claim for two million dollars for the use of my patent steel helmet by the U. S. Government, providing it is paid to me free of any tax.
    I shall be glad, therefore, to receive your check accordingly. Yours truly,
    J. L. Brodie.
    Under date of November 13, 1919, the plaintiff addressed to the Secretary of War a letter in which he discussed his patent and his claim in detail and in which he for the first time referred by number to the patent under which he made his claim.
    VIII. The following letters patent, publications, and structures were in and part of the prior art at the time of the plaintiff’s said application for patent:
    Exhibit No.
    1. United States patent to McNamara & Peppier, No. 557,864 granted Apr. 7, 1896_ 20
    2. United States patent to Strouse, No. 773,349, granted October 25, 1904_ 21
    3. British patent to Abel, No. 1894 of 1891_ 19
    4. British patent to Towell, No. 11409 of 1899_ 16
    5. British patent to Hewerdine, No. 9968 of 1905_ 18
    6. British patent to Curtis, No. 19109 of 1914_ 17
    7. Homer’s Iliad, Pope’s Translation, published prior to 1905, pages 207 to 212, inclusive_ 11
    8. Dictionnaire du Mobilier Francis, published at Paris, France, 1874, Volume V, pp. 207 to 212, inclusive, and pages 256 to 272, inclusive_ 14
    
      Exhibit No.
    9.La Nature, published at Paris, Prance, Nov. 27, 1915, pages 349 to 351, inclusive_ 12
    10. Scientific American, published at New York, N. Y., Nov. 27, 1915, pages 468 to 469, inclusive_ 8
    11.- Japanese war hats, Nos. 20197 and 20381, and Japanese begging priest’s hat, No. 20762- 28,29, 30
    12. Japanese war helmet_ 41
    The Japanese helmets, Exhibits Nos. 28, 29, and 30 were on exhibition at the Brooklyn Museum at Brooklyn, New York, and the Japanese war helmet, Exhibit No. 41, was on exhibition at the Carnegie Museum at Pittsburgh, Pa., all prior to the alleged invention by Brodie.
    The foregoing Japanese hats are respectively illustrated by the photographs, defendant’s Exhibits Nos. 22, 23, 24, 39, and 40.
    The foregoing copies of patents, photographs, and translations identified by said exhibit numbers are made a part, hereof by reference.
    IX. The helmet in the form shown in Figure 3 of plaintiff’s patent went into limited use in the British Army in the latter part of 1915 or early part of 1916, but after about six months the construction was changed to that of Figure 6, as shown in plaintiff’s patent in suit. Structural changes were made at different times by the plaintiff who was engaged as contractor in manufacturing helmets for the British Army, and there were departures from the construction shown in Figure 6. A helmet in evidence as “ Petitioner’s Exhibit F ” is the helmet manufactured by the plaintiff in large quantities for and used by the British Army. There are structural differences between “ Exhibit F,” the British helmet, and Figure 6 of the patent in suit; there are structural differences between “ Exhibit F,” the British helmet, and “ Exhibit A,” the helmet manufactured for and used by the United States, and there are structural differences between “ Exhibit A ” and “ Exhibit F.”
    X. In the light of the prior art there was neither patentable novelty or patentable invention covered by claims 1, 3, 5, 7, 12, 13, and 14 or either of them as set out in plaintiff’s said patent No. 1251959, and said patent is invalid.
    XI. If there was validity in any feature or features of plaintiff’s Letters Patent No. 1251959, as claimed in said claims 1, 3, 5, 7, 12, 13, and 14, or either of them, no invention defined by said claims or either of them was present, in the helmet made for and nsed by the United States.
    The court decided that plaintiff was not entitled to recover..
   DowNey, Judge,

delivered the opinion of the court:

The plaintiff sues to recover for the alleged use by the-United States, without license or lawful right, of a patented invention covered by U. S. Letters Patent No. 1251959 issued to him on January 1, 1918. When he filed his application for said patent he was a British subject residing in London,. England. When said letters patent were granted and when this suit was commenced on November 4, 1920, he was still a British subject although on December 2, 1919, he had declared his intention to become a citizen of the United States..

A jurisdictional question is first for consideration. It is contended that the plaintiff, being at the time he commenced this suit an alien, a subject of the King of Great Britain, might not sue in this court because a citizen of the-United States could not have prosecuted such a suit in the-courts of Great Britain.

The contention, briefly stated, is that the act of June 25,. 1910, 36 Stat. 851, under which, as amended by the act of July 1, 1918, 40 Stat. 705, this suit is brought, is a statute-contemplating appropriation under the power of eminent domain (citing, among others, in support of the proposition,, the case of Crozier v. Krupp, 224 U. S. 290), that there was in this case no intention to appropriate plaintiff’s patent, if one he had, and no circumstances giving rise to an implied contract to pay, but that the use was a tortious infringement by the United States, that such a claim could not be prosecuted against the Crown under the laws of Great Britain and that therefore the plaintiff may not come into this court under section 155 of the Judicial Code.

The proposition has been elaborately and ably argued both by brief and orally and the argument supported by a wealth of authorities. We do not, however, consider it in detail because the solution of the question seems to us-to rest upon a construction of section 155 and our view of that section of the code does not agree with that contended for by counsel, and renders it unnecessary to determine the correctness or otherwise of counsel’s contention as to the nature of this action.

Section 155 gives the right to prosecute claims against the United States in this court to “ aliens who are citizens or subjects of any government? which accords to citizens of the United States the right tojprosecute claims against such government in its courts.” It is conceded in argument “ that United States citizens have the same standing in British courts as do British subjects,” but contended that “neither could or can prosecute an action for tortious infringement against the Crown.” The contention implies too narrow a construction of section 155 while the concession embodies the true spirit of the section. It is a “ reciprocity ” provision and the admission of citizens of the United States to all the rights of British subjects in British courts certainly embodies a full measure of reciprocity. The exclusion suggested is operative against British subjects as well as American citizens. The true test is not whether a citizen of the United States may prosecute an action of a particular nature in a British court but whether the doors of British courts are open to American citizens for the prosecution of “ claims ” against the Crown, but necessarily only such claims as might be prosecuted by British subjects, for there as here there are classes of action as to which the sovereign has not consented to be sued. We think this plaintiff has standing in this court.

""~We come to consider the plaintiff’s case upon its merits. During the World War he was engaged in developing and, as a contractor, in manufacturing for the British Government steel “ helmets or head shiélds ” for the use of its army. On August 16,1915, he filed application for a British patent on “ an improved helmet or head shield,” filed his complete specifications on February 16,1916, and a patent was allowed on August 10, 1916. On June 27, 1916, he filed application in the U. S. Patent Office for a patent on improvements in helmets or head shields, on September 17, 1917, after rejection of all his original claims, he canceled them and filed new claims on which the patent in suit was issued to him on January 1, 1918. In both 'the British and United States patents the specifications declare that “ The present invention relates to helmets or head shields for military, mining, and the like use.”

It is hardly worth while to argue the proposition that there is and for centuries has been no novelty about helmets or head shields or some form of protective head covering, mostly in the old days for military purposes and later for other purposes as well. The prior art as recited in the record goes back to Homer’s Iliad and includes publications dealing with helmets as used centuries ago. If not always called “ helmets ” they were always in fact “ head shields.” Encyclopaedias, histories, and like publications are full of the subject. They were quite commonly of metal and included some sort of lining or head covering to the end that the metal need not come in direct contact with the head. As early as the fifteenth century helmets or hoods of mail or metal in other form were worn under which was used a sort of cap or padded cloth or hide fitting the head so that the cap was clamped to the head by the shell, the latter necessarily being removable without disturbing the inner cap or, in effect, lining.

During the World War the need of a protective head covering became apparent and it was equally apparent that it should be of such construction as not only to protect the head from blows but also, to an extent at least, to deflect bullets, fragments of shrapnel and the like. Before the plaintiff developed a type of helmet which he submitted to British authorities for approval the French Army was equipped with helmets, which he had seen, and patents had been granted both by Great Britain and the United States on different types of protective head covering.

The French method of affording head protection in the early stages of the war was by the use of a steel cap inserted between the head and the forage cap, but later there was developed and used the French helmet of thin sheet steel with a buffer lining attached at the brim and with ventilating spaces. The plaintiff in developing a helmet for the use of the British Army used a steel of more resisting power and therefore better adapted for the purpose but nothing is claimed in his patent because of the composition of the metal and we are not concerned with that feature. Neither is the-particular shape of the helmet material for our consideration.

In plaintiff’s British patent for which he made his application on August 16, 1915, he illustrated his invention by five cuts. In his United States patent he illustrated by six cuts, the first five of which, except for an apparently immaterial difference in Figure 4, are the same in both patents, but Figure 6 of the United States patent does not appear in the British patent. However, the plaintiff’s statement is that after about six or eight months helmets like Figure 3 in both patents were abandoned and Figure 6,. appearing only in the United States patent was adopted. Bates are peculiarly absent both as to the time of the adoption of Figure 6 and subsequent modifications which entered into the construction of the British helmet as generally used. Reference to these must be again made.

When plaintiff made his application for a United States patent he stated his claims as set out in Finding III. They were all rejected by the examiner, after which they were cancelled by plaintiff and others substituted. In rejecting the original claims 1, 3, 5, 1, 8, 12, 13, and 14 the Patent Office cited British Patent 11,409, of June 1, 1899, to Towell. The substituted claims bearing the same numbers were like the original except in one respect, and the change in that one respect was common to all. We have here to do with these particular claims except 8. The other claims involved features not here in issue.

Claim 1, for example, was for “A helmet or head shield consisting of a metal shell, a loose buffer lining and detachable means holding the crown of said lining to the crown of' the shell.” In all of these original claims the identic language, and detachable means holding the crown of said lining to the crown of the shell,” was used. Substituted claim 1, finally allowed, was for ’’'A helmet or head shield consisting of a metal shell and a loose buffer lining, secured at one point ordy of its crown to the crown of said shell by detachable means.” The substituted phraseology indicated in italics, which are ours, is common to all the claims in question.

The Towell patent cited related to “ an improved cork or pith or like helmet.” It consisted of two shells, an outer and an inner, with a ventilating space between and connected at the crown by a ventilating tube. The two shells are connected at intervals at the sides by distance pieces of cork or other suitable material attached to the outer and inner shells “by solution.” There is a corrugated band between the lower edge of the inner shell and the outer shell, ventilating spaces and a “ head band ” inside the inner shell, which, as illustrated in the patent, it may be said, can not but suggest similarity between it and the British helmet.

In rejecting other claims than those against which Towell alone is cited, the Patent Office cited “ Towell in view of (Br.) Curtis, 19,109, Aug. 16, 1914; Helmets (1 sht.).” Curtis might well have been cited as to features of the claims in suit, but we deem it unnecessary to review it in detail. And this largely because it seems to us more important to consider the conclusion to be drawn from the action of the Patent Office in rejecting the original claims and allowing the substituted ones, and the plaintiff’s statement in that connection, as indicating the scope of plaintiff’s patent.

Attention has already been directed to the difference in the language used in the original and substituted claims. In both instances it has to do with the means of holding the crown of the lining to the crown of the shell. The claims were rejected when they provided for “ detachable means holding the crown of said lining to the crown of said shell,” but they were allowed when they provided that the lining should be “ secured at one point only of its crown to the crown of said shell by detachable means.” Plaintiff in his communication to the Patent Office, set out in Finding III, in which he cancels his original claims and substitutes others, attempts to differentiate his patent from those cited and in doing so repeatedly asserts that the distinctive feature of his invention is a loose lining attached at one point only and easily removable. The only reasonable conclusion is that it was upon this feature of his claim that he asserted his right to a patent and upon which it was granted.

The action of the Patent Office in thus reversing itself upon such an apparently minor change is hardly understandable. It has been suggested that it might have been influenced by humanitarian consideration in connection with the war in view of the statement in the specifications that the invention was designed to facilitate the removal of the shell without removing the lining in case of injury to the skull. If that was an animating influence, which is only a matter of inference predicated on the representation as to advantage in this respect, it does not appear that it was ever so used. It does appear that the removable character of the lining facilitated the installation of new linings when the old were worn out.

But upon this feature it is first to be observed that the prior art was but limitedly cited by the Patent Office. Perhaps the citations were regarded as sufficient for the purpose in the first instance, but other citations might well have been made on final consideration with, possibly, a different result. British patent 9968 of 1905 to Hewerdine related more particularly to head coverings designed for use in hot weather, but it involved an outer shell and an inner frame attached at the crown, although there are other fastenings,, but in one form “ the inner frame is made entirely separate and easily removable,” and in his specifications the applicant says, “ I am aware that the use of an inner lining or head piece detachable from the crown is not of itself new.”

Much more in point is the U. S. Patent No. 557864 of April 7, 1896, to McNamara and Peppier. Why it was not cited by the Patent Office is incomprehensible.

The invention was a miner’s hat for use of men employed in mines “ or similar places ” and designed to provide a hat “ which will withstand a shock of coal, rock, or other material falling thereon.” Plaintiff’s patent is said to “ relate to helmets, or head shields for military, mining, and the like use ” and steel helmets are referred to in his specifications as “ designed to protect the head against wounds caused by the impact of rifle bullets, shrapnel bullets, shell splinters,, falling coal, stones, or minerals and the like.” Both patents-involved an outer shell of metal and a lining attached to a headband and so arranged that there should be a ventilating space between. In McNamara and Peppier the lining was secured at the lower edge or headband by “ curved spring plates.” These springs are the equivalent in all respects of the “ resilient pads ” or “ small buffers or studs of resilient material such as rubber ” in plaintiff’s patent, which are “ for the purpose of providing the required air space or gap between the lining and the shell and for absorbing shocks produced by external impact.” And since they afford the only means of attaching the shell to the lining it is important on the question of removability of lining to note that their attachment to the lining is only by the inclusion of one downward extending member of the spring within a fold of the headband so that the headband may be readily slipped off the spring members and the lining is free. In the specifications it is said “ Furthermore, the lining can, at any time it is deemed desirable, be taken out without ripping any part of the same.”

The loose buffer lining was here present attached to the shell by detachable means which permitted its ready removal. It was not attached at one point only to the crown of the shell but if the one point attachment by detachable means was a feature of plaintiff’s patent, possessing value because facilitating removal it seems clear that the lining was easier of removal in McNamara and Peppier than in Brodie which necessarily involved filing or burring off the head of the rivet. And the use of a rivet as a “ detachable means ” involved no novelty or invention. Neither would it amount to invention to use one rivet when possibly two or even three might have been used before if ordinary mechanical skill dictated the desirability and sufficiency of one instead of more.

There is much more that might be said as to the prior art, but we deem it unnecessary. It seems to us sufficiently established that plaintiff’s patent is invalid for want of novelty or invention.

There are many authorities which might be cited on the question of what constitutes “ invention ” and on the proposition that “ novelty ” is not necessarily invention, but rather than review them we quote a general and comprehensive statement by Mr. Justice Bradley in Atlantic Works v. Brady, 107 U. S. 192 at 199. This case is frequently cited and the opinion sometimes referred to as a “ classic.” He said:

“The process of development in manufactures creates a constant demand for new appliances, which the skill of ordinary head workmen and engineers is generally adequate to devise, and which, indeed, are the natural and proper outgrowth of such development. Each step forward prepares the way for the nest, and each is usually taken by spontaneous trials and attempts in a hundred different places. To grant a single party a monopoly of every slight advance made, except where the exercise of invention, somewhat above ordinary mechanical or engineering skill, is distinctly shown, is unjust in principle and injurious in its consequences.

“The design of the patent laws is to reward those who make some substantial discovery or invention which adds to our knowledge and makes a step in advance in the useful arts. Such inventors are worthy of all favor. It was never the object of those laws to grant a monopoly for every trifling device, every shadow of a shade of an idea, which would naturally and spontaneously occur to any skilled mechanic or operator in the ordinary progress of manufactures. Such an indiscriminate creation of exclusive privileges tends rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contributing anything to the real advancement of the arts. It embarrasses the honest pursuit of business with fears and apprehensions of concealed liens and unknown liabilities to lawsuits and vexatious accounting for profits made in good faith.”

It is rather startling, in connection with the consideration of this case, to have attention called to an opinion by Judge Westenhaver, of the Northern District of Ohio (American Chain Co. v. Cox Brass Mfg. Co., 292 Fed. 624 at 626), in which, considering the validity of a patent on an automobile bumper, he, by way of illustration, said:

“ Shields, fenders, and devices for purposes of protection are of immemorial antiquity. In the World War, when it was realized that some protection against shrapnel fire would be serviceable, the need was at once answered by the development of the steel helmet. In a commercial sense the steel helmet was new, but in a patentable sense it was not novel nor an invention. No inventive genius was involved, either' in the conception or in the embodiment of it in a practical device.”

If perchance the conclusion reached may be erroneous, and to the end that the case may be fully considered, there is yet the question as to whether the United States used plaintiff’s patent if its validity in any respect is conceded.

Thus far we have not discussed all features of the Brodie helmet. It has seemed unnecessary. Perhaps in comparing-that structure with the helmet made for the United States- and with the British helmet it may be desirable to advert to some features additional to those already discussed, but the-whole field of protective head coverings ordinarily called helmets need not be reviewed. Much of it is of common knowledge of such a character as may not be appropriated by anyone to the exclusion of the public. We can not see any possible basis for a contention that the United States might not without infringing anyone’s rights manufacture a helmet with a steel shell and line it to protect the wearer’s head from the steel, and in accomplishing that purpose to use a loose lining either entirely detached from or attached to the shell, and to provide ventilating space between the shell and lining and to provide a headband attached to and as a part of the lining equipped with buffers between the headband and shell to absorb shock and to attach straps as might be convenient or necessary for holding the helmet on the head. All of this is old, some of it as old as history records. And if this be true we have but by another route-reached the same conclusion as that heretofore derived from a consideration of the action of the patent office and plaintiff’s statements in connection therewith and that conclusion must necessarily be, otherwise stated, that if the plaintiff' had a valid patent at all it was a very narrow one, and the-United States can not be liable for the use of anything outside of the validly patentable features.

Officers of the United States Army, learning during the early stages of the World War that protective helmets were being used by troops on both sides, naturally and properly became interested in the subject. It was the duty of some of them in particular to look after proper equipment for our own troops. We were then neutral and not in position to seek cooperation from either side. First, a helmet like those .used by the French Army was brought over. It was sent to the Bock Island Arsenal with instructions with reference to the development of a helmet for the United States Army. Before much real progress had been made some of the foreign commissions reached the United States bringing with 'them various war exhibits, among which were helmets such -as those worn by the British and German Armies. After conferences on the subject it was concluded to pattern after the British helmet, then in use in the British Army, and, with some changes, this was done.

But it is to be observed that the “ British helmet,” although manufactured for Great Britain by Brodie, the plaintiff, ■•as a contractor, was not necessarily the Brodie helmet of the patent in suit. Brodie was a contractor for the manufacture ■of helmets for Great Britain and as such made them in very large numbers. He was, he says, the “ helmet expert ” of the British War Office. He “ presented ” the British helmet to the British Government free of royalty. When he developed his first type of helmet he submitted it to the British War Office for a test which consisted principally in putting on the helmet and permitting himself to be struck over the head with an iron bar. This naturally tested the resisting qualities of the steel shell and the action of the buffer lining or headband with which we do not seem to be concerned. After this helmet was approved and made in limited quantities for .a short time he made various changes at different times, .approval of which he was not required to secure. The change first made, after six or eight months, was, he testifies, to Figure 6. Figure 6, as already said, appears in the United States patent but not in his British patent. His •explanation as to why he incorporated this in his United States patent but did not include it in a British patent is perhaps not a proper subject for comment. The date when this type of helmet was made and used does not definitely appear in its relation to his procedure in the Patent Office here, but we pass without discussing any questions of that nature arising because we are furnished with exhibits of both the British and. American helmets, and, as we see it, the British helmet, so called, was not in accordance with .Figure 6.

Figure 8 of the patent in suit, which is apparently the ¡same as Figure 3 in plaintiff’s British patent shows the chin strap attached to buckles riveted to the brim of the shell. Figure 6 shows a modification of the attachment of the chin ■straps. The specifications say: “As will be seen from the drawings, the chin strap is passed through one buckle, over the lining, and through the other buckle. The strap is fastened by a rivet at the crown of the helmet.” And it is said this kind of attachment has the advantage that the •lining adjusts itself to the wearer’s head when the strap is pulled around the wearer’s chin. There is no mention of the attachment of the chin strap to the headband or otherwise than to the rivet at the crown of the helmet. The theory apparently was that the pulling down of the shell by the chin strap attached to its crown would serve to seat the lining or headband on the head, and in testimony the strap, in passing from the buckles on each side to the rivet at the crown of the shell is described as pulling in a V shape and clamping the lining to the head. In the specifications it is said that “ the inner protective lining .grips the head firmly and does away with the continued necessity of pressing down the helmet to keep it in place.” If this operation of the chin strap, passing through the buckles and over the lining and attached only at the crown •of the shell, is material, it is to be said that no exhibit helmet which we have before us follows that type of construction. In the exhibit helmet introduced as the British helmet, as well as the helmet stipulated into the record .as the one manufactured for the United States, the chin strap, after passing 'through the buckles on each side, is attached to the headband.

If the first recited construction was amended or in fact not put into practical use and it was modified by the fastening of the chin straps to the headband it must be but reasonable to assume that the helmet as represented by Figure 6 was not practically operative. It is difficult to see how it could have been so without the attachment of the chin strap to the headband to seat the latter and hold it properly to the head. If this feature of the construction is for consideration at all, it is then to be noted that the exhibits-indicate a difference between the construction and operation of the British helmet and that made for the United States. In the British type, while the chin strap is attached to the headband, it is so attached that when tightened under the chin the “ pull ” is upon the rivet at the crown of the shell. In the United States helmet the “ pull ” is upon the headband, and when it is seated the strap passing from the buckles to the crown of the shell is not taut but remains slightly loose, serving to hold the shell, but at the same-time permit slight motion. We are fully aware that there is in evidence a cutaway helmet from which it has been sought to demonstrate that there is nothing in the construction of the United States helmet to interfere with the pull ” of the strap on the crown of the shell. This is entirely true so far as the operation of the strap in the-cutaway helmet is concerned, but it does not take into consideration the fact that in the helmet proper there is attached to the headband an adjustable netting which rests upon the top of the head of the wearer, and assuming that the headband is furnished in proper size and the netting properly adjusted to its intended purpose, the pull ” is upon the headband properly set to the head, and not upon the crown of the shell.

While these differences have been suggested for what they are worth it would seem that determination of the question as to whether or not the United States used the plaintiff’s patented invention must be in the light of the scope of that invention,. and we have already observed the necessarily narrow construction which must be put upon that invention, if there was invention at all. The phraseology heretofore quoted from the various claims relating to the attachment of the crown of the lining at a single point to the crown of' the shell implies a construction which is not found in the-United States helmet. The whole lining of the shell in plaintiff’s patent is integral, with an attachment at the crown by a rivet, as stated, the strap passing over the lining. The lining in the United States helmet is not so constructed but is .found to be in two parts. There is first a separate ■oval pad of possibly asbestos or some similar material, which is seated in the top of the crown of the shell, attached thereto ;and under which the chin strap passes. The other part of the lining, if it is to be so termed, consists of the headband, to which, at its upper edges is attached the adjustable netting, and this headband and netting constituting the loose and removable lining finds no attachment whatever to the shell at any point. It is attached only to the chin strap at each side above the buckles and may be removed by disengaging the chin strap alone.

But we see no occasion for further discussing this feature of the case. We are confident of the correctness of our conclusions with reference to the invalidity of the plaintiff’s patent. The secondary question has been limitedly discussed simply that the whole case may receive consideration. It is our conclusion that upon either or both of the stated grounds the plaintiff must fail of recovery and that his petition must be dismissed.

Geaham, Judge; Hat, Judge; Booth, Judge; and Campbell, Chief Justice, concur.  