Carrier Corp. v. United States

534 F.2d 244, 22 Cont. Cas. Fed. 80,019, 208 Ct. Cl. 678, 190 U.S.P.Q. (BNA) 55, 1976 U.S. Ct. Cl. LEXIS 139
CourtUnited States Court of Claims
DecidedJanuary 28, 1976
DocketNo. 267-74
StatusPublished
Cited by24 cases

This text of 534 F.2d 244 (Carrier Corp. v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Carrier Corp. v. United States, 534 F.2d 244, 22 Cont. Cas. Fed. 80,019, 208 Ct. Cl. 678, 190 U.S.P.Q. (BNA) 55, 1976 U.S. Ct. Cl. LEXIS 139 (cc 1976).

Opinion

CoweN, Chief Judge,

delivered the opinion of the court:

This case, before the court on defendant’s motion for partial summary judgment, requires us to determine whether the alleged use of plaintiff’s patented invention in the performance of a refuse collection contract was a use by or for the Government within the meaning of 28 U.S.C. § 1498 (a) ,1 Although this is, surprisingly, a case of first impression in this court,2 the legal issues presented have arisen in a number of patent infringement cases in other courts.3

[681]*681Plaintiff, Carrier Corporation, is successor in interest to Dempster Brothers, Inc., and is owner by assignment of patents relating to certain features of refuse compactors and containers. Although the Government’s motion for partial summary judgment is addressed solely to alleged infringement of plaintiff’s patents resulting from the use of certain refuse handling equipment in the performance of a service contract awarded by the Department of the Air Force for the collection and removal of refuse at Andrews Air Force Base, resolution of the legal issues presented by the parties will simplify the remainder of the case which involves a number of other contracts awarded under substantially similar circumstances.

Under the Andrews contract, the contractor, Associated Refuse and Compaction Services, Inc. (Associated Refuse), was required, among other things, to furnish and install certain equipment, including refuse compactors and containers of specified size, at various locations on the base, and to remove at regular intervals all refuse collected in the containers. Since some of the facilities on the base were large enough to use efficiently stationary refuse compactors which compress solid waste into detachable containers, use of such equipment was expressly provided for by the terms of the contract.

Plaintiff originally claimed that it was entitled to compensation under 28 U.S.C. § 1498(a), because the refuse compactors and detachable containers utilized by Associated Refuse in the performance of the Andrews contract incorporated the subject matter of two of plaintiff’s patents — No. 3,229,622, which relates to the refuse compactors, and No. 3,144,149, which relates to the detachable containers. However, since plaintiff has apparently withdrawn all claims involving the former patent, we need only consider plaintiff’s allegations regarding the detachable containers.

In order to have jurisdiction of an action brought under 28 U.S.C. § 1498(a), this court must be satisfied that the use [682]*682complained of is a use by or for the Government within the meaning of that section. Defendant, in support of its motion, contends that this court is without jurisdiction of any claims arising out of the Andrews contract, because any use by Associated Refuse of plaintiff’s patented invention in the performance of that contract was not a use by or for the Government within the meaning of Section 1498(a). Since we find that we are in agreement with this contention, we grant defendant’s motion for partial summary judgment.

The patented invention allegedly used in the performance of the Andrews contract is an apparatus for hoisting a detachable refuse container onto a truck bed for transportation to a dumping site and for placing the container back on the ground after it has been emptied. Obviously, such a device had a usefulness only with respect to Associated Refuse’s duty to regularly pick up and empty all refuse containers at the base. It has no usefulness at all in relation to the function performed by the Government — i.e., the placing of refuse into the compactors and the activation of the devices electrically to compress the refuse into the detachable containers. Accordingly, we find that if there was any use of plaintiff’s patented invention, such use was by the contractor and not by the Government.

A more difficult question, however, is whether the alleged use of plaintiff’s patented invention was a use for the Government with its authorization or consent. Defendant contends that it expressly withheld its authorization and consent and, therefore, that any use of plaintiff’s invention was not a use for the Government within the meaning of Section 1498 (a). Defendant bases this contention on the inclusion in the Andrews contract of a standard clause which limits the Government’s authorization and consent to:

all use and manufacture, in the performance of this contract * * * of any invention described in and covered by a patent of the United States (i) embodied in the structure or composition of any article the delivery of which is accepted by the Government under this contract, or (ii) utilized in the machinery, tools, or methods the use of which necessarily results from compliance by the Contractor or the using subcontractor [683]*683with, (a) specifications or written provisions now or hereafter forming a part of this contract, or (b) specific written instructions given by the Contracting Officer directing the manner of performance.4

Defendant contends that since neither the contract specifications nor any specific written instructions from the contracting officer required Associated Refuse to use a particular type of equipment, the Government has not authorized or consented to any infringement of plaintiff’s patent in the performance of the Andrews contract.5 We agree.

The specifications of the contract require only that the detachable containers be “steel refuse containers that are fully enclosed and fireproof as specifically manufactured for refuse collection purposes.” Technical Provision (TP) 3-05d. No structure or performance characteristics are required. Mr. Legrant Campbell, who, as technical representative of the contracting officer, was primarily responsible for administration of the contract, states unequivocally in an uncontro-verted affidavit that “at no time was the particular equipment to be used in performance of the contract specified or required.” Of similar thrust is the affidavit of Mr. Carroll David Case, the president of Associated Refuse, who states that “ [n] either the written specification attached to the basic contract nor [the] Government technical representative who administered the performance of this contract ever specified any preference for a particular type of machine. The only [684]*684requirement was that the devices furnished be capable of compacting' refuse and that the containers be hauled away at specific intervals.”

During the term of the Andrews contract, Associated Refuse’s standard inventory included only detachable containers of the type plaintiff accuses of infringing its patent. During this entire period, however, detachable containers were available in the open market which could have been purchased and used, and which would not have infringed plaintiff’s patent.

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Bluebook (online)
534 F.2d 244, 22 Cont. Cas. Fed. 80,019, 208 Ct. Cl. 678, 190 U.S.P.Q. (BNA) 55, 1976 U.S. Ct. Cl. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carrier-corp-v-united-states-cc-1976.