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Montgomery v. United States

65 Ct. Cl. 526, 1928 U.S. Ct. Cl. LEXIS 389, 1928 WL 2985
CourtUnited States Court of Claims
DecidedMay 28, 1928
DocketNo. 33852
StatusPublished
Cited by3 cases

This text of 65 Ct. Cl. 526 (Montgomery 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
Montgomery v. United States, 65 Ct. Cl. 526, 1928 U.S. Ct. Cl. LEXIS 389, 1928 WL 2985 (cc 1928).

Opinion

Booth, Chief Justice,

delivered the opinion of the court:

This is a patent case. The petition alleges that under the act of June 25, 1910, 36 Stat. 851, plaintiffs are entitled to recover for an infringement by the Government of claims 4, 9, 12, 16, 17, 18, 28, and 32 of Letters Patent #831173 granted on September 18, 1906, to John J. Montgomery, now deceased. The Government denies infringement and challenges the validity of the patent.

[544]*544A preliminary question of title is called to our attention. On July 27, 1914, the plaintiffs assigned an undivided interest in the patent to Frank A. Garbutt. The consideration for the assignment was a duty imposed upon Garbutt to attempt to reconcile the conflicting claims of Montgomery with other inventors in the same art and procure for the Montgomery patent a sufficient recognition to entitle the owners of the patent to realize its worth in money; failing in this, to institute suits for infringement of the patent. Garbutt did commence two suits, both were dismissed without prosecution to a conclusion, and subsequently, i. e., after this suit was commenced, Garbutt reassigned his interest in the patent to the plaintiffs. We think in view of the result of this suit that the contention of the defendant is unimportant.

The petition alleges infringement of claims 4, 9,12, 16, 17, 18, 28, and 32 of Montgomery’s patent. There are forty-six claims in the Montgomery patent.

The plaintiff’s case is predicated largely upon a contention that Montgomery, the patentee, was a pioneer in the art and his patent a basic patent; that he was the first to invent the principle of wing warping to secure equilibrium and lateral control essential to flying; that the other elements of his machine disclose the principles of stability and rudder control, all of which, or their equivalents, are embodied in the Government machines, offered as exhibits of infringing devices. The record in the case is moat voluminous and involved and has required exacting attention and labor. The first vital issue depends upon whether from the record it is to be held that Montgomery was a pioneer inventor and his device a basic patent. If so, his cl'aims, as repeatedly adjudicated, are to be accorded a broader construction than were the situation otherwise. Unless it may be said and established by proof that the inventor has a patent which performs a function which was not performed before, he is not entitled to be designated a pioneer inventor. Westinghouse v. Boyden Power Brake Co., 170 U. S. 537.

Attempts to construct flying machines did not, of course, originate with Montgomery. The art is old, its progress was slow, the early development crude and impracticable. [545]*545Inventors many decades ago studied the flight of winged animals and sought without -success to imitate their motions and bring into being a device that would accomplish, with the aid of man, what flying birds, eagles, vultures, etc., did with natural ease. This record is replete with a l'arge number of exhibits, publications, and patents which antedate Montgomery by years, disclosing the extent of sustained interest in the art, and efforts made to accomplish flying in a heavier-than-air machine.

Montgomery first centered his attention upon the subject in 1888; from this date until 1886 he conducted a number of experiments with some sort of a mechanism designed as a “ glider.” He does not seem, at this time at least, to have conceived the idea of soaring from the ground and remaining aloft in a device under control. What he was attempting was the construction of a machine that might be released from high altitudes and glide safely to earth under control. From 1886 until 1908 Montgomery turned his attention to other and distinct inventive fields; he contributed nothing to this particular art during this period- In 1903 he renewed his experiments. During that year he came in contact with one Baldwin, a balloonist, who had been making successful glides from a hot-air balloon in a parachute. Baldwin became interested in Montgomery’s efforts and the two entered into a contract, whereby Montgomery was to construct his device, and if it proved successful in descending from a balloon with a man on board the two were to engage in public exhibitions and divide the profits. Montgomery and Baldwin disagreed before any actual experimentation with the prospective glider obtained, and Montgomery thereafter entered into a somewhat similar contract with another balloonist. Montgomery had constructed in May, 1904, a large machine to meet the requirements of the Baldwin contract, and in the summer of 1904 carried on some experiments at the ranch of Peter Cox, in California. The exact and detail structure of his machine is not disclosed. The experiments made consisted in elevating the machine to a desired height by suspending it from a wire to which it was attached, stretched between two upright [546]*546poles. At the proper time it was released to ascertain its gliding qualities. Other tests were made by resorting to a steep hill, when men, by means of a rope, pulled it down the incline, Montgomery holding onto the device. Just how many and the exact character of the tests so made is impossible of determination. It is sufficient to observe that they were quite numerous. In March, 1905, Montgomery attached his machine to a hot-air balloon, and having secured the services of an aeronaut by the name of Maloney to make the test the machine with Maloney in the saddle seat was released from the balloon at a high altitude and safely glided to earth. On July 8, 1905, Maloney attempting the same experiment lost his life, the machine failing to function.

On April 26, 1905, Montgomery filed his application for the patent in suit. The patent was granted on September 18, 1906.

We have epitomized Montgomery’s early efforts, with respect to which a great volume of proof has been adduced, solely because the plaintiffs have sedulously insisted that the facts are sufficient to antedate the effective date of invention to a time which would exclude reference to certain prior art. A careful analysis of the record upon this point is conclusively convincing that the proof signally fails to sustain the contention. Out of fifty-two prior patents and publications cited in the record all but eight bear dates which make them statutory bars, provided they disclose the structure of the patent in suit. The courts have uniformly held that to show anticipation as against issued letters patent some drawing, some model, some positive means of identification must appear. Oral testimony is regarded as insufficient and unreliable for this purpose. Without exception it is to be discarded, for, however free from intentional misrepresentation, it is uniformly tinctured with the interest of the parties in the litigation and necessarily characterized with acute limitations of the possibility of particular and precise descriptions of the device and its comparison with another. Symington Co. v. National Malleable Castings Co., 250 U. S. 383; Deering v. Winona Harvester Works, 155 U. S. 286; The Barbed Wire Patent, 143 U. S. 275; Torrey [547]*547v. Hancock, 184 Fed.

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Bluebook (online)
65 Ct. Cl. 526, 1928 U.S. Ct. Cl. LEXIS 389, 1928 WL 2985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/montgomery-v-united-states-cc-1928.