Hipkins v. United States

111 F. Supp. 274, 124 Ct. Cl. 708, 97 U.S.P.Q. (BNA) 72, 1953 U.S. Ct. Cl. LEXIS 104
CourtUnited States Court of Claims
DecidedApril 7, 1953
DocketCongressional No. 17866
StatusPublished

This text of 111 F. Supp. 274 (Hipkins 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
Hipkins v. United States, 111 F. Supp. 274, 124 Ct. Cl. 708, 97 U.S.P.Q. (BNA) 72, 1953 U.S. Ct. Cl. LEXIS 104 (cc 1953).

Opinion

Jones, Chief Judge,

delivered the opinion of the court:

This case comes to us pursuant to House Resolution 734, 81st Congress, 2d Session, which reads as follows:

[711]*711Resolved, That the bill (H. R. 5243) entitled “A bill for the relief of Otho F. HipMns, individually, and Otho F. HipMns; Cecil Clyde Squier; Conrad Reid; J. Thomas C. HopMns, Junior; and Isaiah Lawrence Paxton, as trustees of the HipMns Traction Device Company,” now pending in the House of Representatives, together with all accompanying papers, is hereby referred to the United States Court of Claims pursuant to sections 1492 and 2509 of title 28, United States Code; and said court shall proceed expeditiously with the same in accordance with the provisions of said sections and report to the House, at the earliest practicable date, giving such findings of fact and conclusions thereon as shall be sufficient to inform the Congress of the nature and character of the demand, as a claim legal or equitable, against the United States, and the amount, if any, legally or equitably due from the United States to the claimants.

Plaintiffs’ original petition was based upon three patents which were issued to Otho F. HipMns.

The referred bill was in two parts. The first part related to services performed and expenses incurred by the plaintiff. Otho F. HipMns and the HipMns Traction Device Company.

The second part of the bill deals with the alleged unauthorized use by the Government of traction devices invented by Otho F. HipMns and the infringement of Letters Patent Nos. 1,600,588,1,600,589 and 2,008,210.

All three patents involved a traction device which would operate on trucks and other mobile veMcles in a somewhat similar manner to the way in which a caterpillar track is operated on a caterpillar tractor. The device involved here was intended to enable the faster and more mobile vehicles to operate satisfactorily on wet or sandy terrain.

We will deal with the second part of the bill first.

After the taking of the testimony in the case was completed the plaintiffs on June 16, 1952, filed a motion to dismiss the petition in part. The motion was as follows:

In view of the small procurement of traction devices by the Government during the life of the first two patents in suit, plaintiffs, by and through their attorney, move to dismiss the petition insofar as it requires (a) a report to Congress and (b) judgment by this court on any unauthorized use of any claims of United States [712]*712Letters Patent Nos. 1,600,588 and 1,600,589 under U. S. C., Title 28, Section 1498.

This motion was granted. Consequently this portion of the discussion of the referred bill will relate primarily to the last patent in suit, No. 2,008,210. Application for this particular patent was filed August 12, 1933 and the patent thereon issued July 16, 1935.

The first two patents mentioned above were assigned by Hipkins to the Hipkins Traction Device Company. • The last mentioned patent was not assigned and remained the property of Otho F. Hipkins. As originally filed the last application for a patent contained various forms of structural claims. However, when the patent was issued it was specifically limited to certain structural features of an adjustable coupling shoe by means of which the length of the traction device around the wheels could be adjusted.

A detailed description of the traction device is set out in findings 23 to 28, inclusive.

The alleged infringing structure was manufactured by Alliance Engineering, Inc., of Alliance, Ohio, pursuant to contracts entered into by that company with the defendant through the Office of the Chief of Ordnance of the War Department. A description of the alleged infringing structure is set out in detail in findings 29 to 32, inclusive.

A comparison of the description and illustrations of the Alliance structure with the phraseology of the claims of the Hipkins patent No. 2,008,210 as actually granted demonstrates clearly that there is little similarity in the shoes or locking devices of the two structures which was the part of the traction device that was covered by the last Hipkins patent. Consequently there is no infringement of the patent by the accused device.

PRIOR ART

A British patent that was issued to Kennedy on March 23, 1933, a description of which is set out in finding 36, is for the same function and very similar in construction to that claimed in the last Hipkins patent. When contemplated in view of the prior art as explained in detail in finding 37, all the [713]*713claims are anticipated except claim 3, which is quite limited in scope, and not infringed.

There is no proper basis for holding that the Government through the Alliance contracts utilized the subject matter of the Hipkins patent No. 2,008,210 as covered by the patent actually issued.

THE IMPLIED CONTRACT

Plaintiffs also present a claim for alleged authorized use of the invention covered by the three Hipkins patents in suit in connection with traction devices procured by the Government from other than the Hipkins Traction Device Company with special reference to the traction devices purchased by the Government under five contracts with the Alliance company. These are listed in detail in finding 29.

Plaintiffs base this claim largely upon the conversation they claim took place between Otho F. Hipkins and Major Wallace some time in May 1930. They assert that this discussion resulted in a verbal understanding that the Government would either adopt the Hipkins traction device and purchase them from Hipkins or enter into a license agreement under the three patents in suit. Major Wallace died before the trial of the case.

There is no evidence which corroborates Hipkins as to tbis understanding and there is no evidence that Major Wallace had any authority to bind the Government in an agreement to purchase the Hipkins traction device.

Plaintiffs also rely upon a conversation which they claim Hipkins had with General Bishop, Chief of Field Artillery, in the early part of 1931, in which he quoted General Bishop as stating at the conclusion of the test that he was thoroughly convinced and satisfied that the use of the Hipkins traction device on the wheels of a commercial vehicle would materially increase its cross-country mobility and that there was no question in his mind that it could be considered as satisfactory as a light prime mover and a cargo vehicle for light Field Artillery purposes. General Bishop is also deceased, and there is no further evidence of this conversation, nor is there any evidence in the record that any Government agent with authority to bind the Government contractually guaranteed [714]*714Hipkins that his device woidd be purchased in quantities other than those specified in the seven contracts entered into by the Government with the Hipkins Company and described in detail in finding 16.

On April 14,1932, Hipkins assigned to the Hipkins Traction Device Company the first two patents involved in this suit. The only interest which he retained was as a stockholder and officer of the Hipkins Company.

On August 22,1934, the Hipkins Traction Device Company granted to the Lukens Steel Company an exclusive license until December 31,1945, to make, use and sell traction devices.

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111 F. Supp. 274, 124 Ct. Cl. 708, 97 U.S.P.Q. (BNA) 72, 1953 U.S. Ct. Cl. LEXIS 104, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hipkins-v-united-states-cc-1953.