Isham v. United States

Court of Claims

Isham v. United States

76 Ct. Cl. 1, 1932 U.S. Ct. Cl. LEXIS 497, 1932 WL 2086

CourtUnited States Court of Claims

DecidedMarch 7, 1932

DocketNo. 33966

StatusPublished

Cited by4 cases

This text of 76 Ct. Cl. 1 (Isham 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

Isham v. United States, 76 Ct. Cl. 1, 1932 U.S. Ct. Cl. LEXIS 497, 1932 WL 2086 (cc 1932).

Pincite

Opinion

Booth, Chief Justice,

delivered the opinion of the court: This is a suit brought for recovery from the United States for the manufacture and use of certain high-explosive shells and fuse inventions covered by the following Isham patents:

#1179105, issued April 11, 1916

#1188178, issued June 20, 1916

#1237909, issued August 21, 1917

The original petition in this suit was filed on May 23, 1918, by the original plaintiff, Clara H. Isham, since deceased, to whom the patentee, Willard S. Isham, had assigned the above-mentioned letters patent. The said Clara H. Isham became deceased on or about April 21, 1925, and the claim now sued upon is one of the assets of her estate, the suit being continued by the husband of the decedent, Willard S. Isham, an executor, an amended petition being filed under date of January 21, 1926.

The record is most voluminous and contains 191 exhibits, making a record of a character which throws a heavy burden on the court in order to arrive at the proper judicial determination of this case.

It appears from the record that Willard S. Isham, the patentee, has had considerable experience in the art of high explosives, and that since 1899 he has been more or less in contact with the various Government officials interested in ordnance development, in having trials and experiments made with respect to his various theories and designs. In 1899 Isham conceived the idea of the use of an explosive in a shell of a nature sufficiently insensitive to withstand the shock to which the shell was subjected when the same was fired from a gun, but still sufficiently sensitive in character to explode when the shell, in the course of its trajectory, impacted with the target. Certain experiments with this •early design were carried out by the War Department during the period from 1899 to 1903. Some of these shells were fired successfully, while one shell exploded prematurely in the gun from which it was fired.

It was this early work of Isham which apparently ultimately led to the conception of the fuse construction and shell set forth in the three patents in suit.

[37]*37On May 12, 1914, the first of the three applications whicfy materialized into the three patents in suit, was filed in the Patent Office and subsequently Isham took up the matter of his fuses with the Navy Department, with the result that a board, known as the Fiske Board, was organized by order of the Secretary of the Navy on October 2, 1914, to investigate and report upon the value of the Isham shell and fuse for naval purposes. Isham disclosed to this Board the drawings and descriptive portion of his previously filed applications, but withheld from them the claims or portion of his application which specifically defined the patent monopoly that he was striving to obtain in the Patent Office.

As given in detail in findings VII to XIII, inclusive, there were numerous meetings of the Fiske Board, various ideas and sketches being submitted from time to time by Isham, experimental firing tests conducted, the entire story being the usual one of mixed failures and successes which always go with the development of a complicated mechanical device. The Board ended its work with the recommendation that the Navy Department acquire from Mr. Isham such of his rights as were essential in the development of the shell and fuse? “ and proceed with such development with all due expedition.”

From a review of the facts outlined in findings VII to XIII, inclusive, two cogent observations appear, the first" being that while the Navy Department was paying the costs of this experimentation, Isham nevertheless did not see fit to disclose to the Navy the terms of the patent monopoly that he was attempting to obtain, and the second being that while the Fiske Board felt that Isham might have something of value it was not yet perfectly developed, and more development and experimentation were still necessary. In plain language, it appears impossible that there could have been any real meeting of the minds with respect to the “ rights ” which Isham wanted to sell or the Navy wanted to purchase from him.

Following the tests of the Fiske Board, certain tests were made of the Isham fuse shown in figs. 1 and 2 of the Isham patent in suit, no. 1237909, by the Navy Department under authority of Ralph E. Earle, then Chief of Ordnance.

[38]*38Plaintiff maintains that a contract was then entered into with the Government for the development of a fuse, but he has failed to produce any such contract, does not know who signed it on behalf of the Government ? and the Government official, Captain Earle, with whom he was dealing, is equally positive that there was no such contract.

We fail to find any satisfactory evidence that any contract was entered into between plaintiff and defendant. (See finding XVIII.)

Plaintiff pleads in the alternative form that because of the circumstances outlined above there exists an implied contract, but if not, plaintiff is entitled to recover under the patent act of June 25, 1910, for unauthorized use of a patented invention. Plainly, these two positions are antagonistic and inconsistent. The plaintiff protests that the Government had no right to use the patentee’s devices, and at the same time pleads an implied contract, which carries with it a consent to use.

See Brothers v. United States, 52 C.Cls. 462, 467.

Rusell's case, 182 U.S. 516.

We accordingly take up for discussion the three patents in suit, as regards their validity and alleged infringement by the Government, as pleaded under the Patent Act of 1910.

Isham patent #1179105

The structure which is made the basis of this patent is a device adapted to be inserted in the nose or head of a high-explosive shell. The structure is stated by the plaintiff to be capable of exploding the shell in three different ways: First, instant explosion when the shell equipped with this fuse strikes a heavy target such as is typified by the heavy armor on battleships, having sufficient resistance to break up or seriously deform the shell; second, a substantially simultaneous explosion after the shell impacts with less heavy armor; third, the shell after impacting with a very light target offering resistance equivalent to water, explodes after a predetermined delay. Fig. 1 of the patent in suit, which is one of the sectional illustrations of the preferred embodiment, is appended herewith. The same comprises a [39]*39cylindrical body having at its lower end a detonator chamber 11, which the patentee states is intended to contain “ a semi-insensitive explosive.” As the exact character of this explosive appears to be material in this case, we quote from page 2 of patent #1179105 in suit the following subject matter relative to this semi-insensitive explosive:

“ Typical explosives of this character are guncotton, •carrying a large percentage, say 10 percent, of water; explosive gelatin, containing a large percentage of camphor; or any other suitable explosive that will be exploded by a violent shock sufficient to seriously deform or break up the shell, hut which will not explode by shock when the shell strikes water or other material offering approximately the same or less resistance, and which will not of course be exploded [40]*40by the lesser shock incident to firing the shell from a gun..

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