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Smith v. United States

145 F. Supp. 396, 136 Ct. Cl. 487, 111 U.S.P.Q. (BNA) 135, 1956 U.S. Ct. Cl. LEXIS 130
United States Court of Claims·Decided October 2, 1956·No. No. 48974·Published·Cited by 5 cases

Opinion

Jones, Chief Judge,

delivered the opinion of the court:

This is a patent suit. Plaintiff claims that certain airplanes used by the Government are infringements of a patent owned by plaintiff relating to wing structures.

The main issue is validity of the patent in suit over prior domestic and foreign patents, and over a prior public use. This issue is factual. United States v. Esnault-Pelterie, 303 U. S. 26. Our findings describe in detail the structures involved.

Application for the patent in suit, entitled “Aeroplane Structure” and known as the Smith patent, was filed April [488]*4885, 1929, and letters patent were issued October 31, 1933. Plaintiff is tbe patentee and sole owner.

Under severe atmospheric conditions, ice tends to form on certain surfaces of an airplane during flight. The effect of such ice in changing the effective contours of an airplane wing, as well as the additional weight of the ice, has long been a recognized problem. Efforts to prevent such ice from forming by the application of oil to the wing surfaces, or by the use of pulsating flexible surface areas, or boots, were known prior to the Smith patent application. A British patent accepted in 1912 disclosed a thermal anti-icing system in which a regulated quantity of hot exhaust gases was directed into metal tubes within an airplane wing.

The stated purpose of the Smith patent in suit is to provide a structure “for maintaining exposed surfaces of the airplane at a temperature above the freezing point” of water, a structure which “also serves as a muffler or silencer for the engine exhaust.” The patent further states that the structure disclosed distributes engine exhaust gases into effective heat exchanging relation to the upper wing surface by applying the heat in streaks. A detailed description of the Smith patent disclosure is set forth in our finding 4, which includes a reproduction of the patent drawings.

The record in this case does not show that Smith reduced his alleged invention to practice prior to the constructive reduction to practice by filing his application for letters patent on April 5, 1929. The record does not show that any licenses under the patent were issued or that the specific structures illustrated have achieved commercial success.

Plaintiff elected to rely upon claims 1, 2, 3, 12, 13, 16, 17, 19, 21, 23, 24, 25, 26, and 27 of his patent. These claims are stated in full in finding 5. Claims 1 and 21 are illustrative of the alleged invention and read as follows:

1. An aeroplane wing comprising an upper surface and a plurality of substantially parallel heating ducts secured to the undersurface thereof, whereby in effect a substantially continuous body of heated fluid is applied to the undersurface only of said aeroplane surface, said ducts being formed in part by said surfaces.
21. In an aeroplane having a wing structure comprising upper and lower surfaces; means to heat one of [489]*489said surfaces by a beating fluid, said means comprising a plurality of ducts in parallel incorporated with and forming part of said surface and spaced one from another whereby the entire surface will be heated owing to linear conduction of heat through the intermediate material of the surface between the spaced means, and manifold means to supply a heating fluid to said first named means.

The claims in suit, when considered in the light of the prior art subsequently discussed, lead us to conclude that the Smith patent is in no sense a pioneer, and that it is directed merely to structures and arrangements already known in the art.

Prior to the Smith application filing date, numerous patents disclosing pertinent subject matter were available to the public as prior art. The more pertinent prior patents are mentioned in findings 14a-o inclusive.

The patents to Sueter, Tolputt, Matthews, Lee, Carousso, Lewis, Alfaro, Koch, Vining, Simon, and Kilgore disclose thermal anti-icing constructions in which hot exhaust gases are utilized to head airplane wing surfaces. The patents to Thurston, Mummert, et al., Pescara, and Nieuport-Astra, and the publicly used Curtiss Kacers include airplane wing radiators not unlike the structure illustrated by the Smith patent. The actual structure used in the Curtiss Kacers is discussed in detail in our finding 16.

The Vining patent, application filed May 9,1928, discloses an airplane wing having an upper surface and a plurality of substantially parallel heating ducts or compartments secured to the undersurface thereof. The Vining ducts or compartments are for the purpose of applying a substantially continuous body or flow of heated fluid (hot exhaust gases) to the undersurface only of the upper wing. The ducts or compartments are formed in part by the sheet metal skin that constitutes the upper wing surface. The Vining structure anticipates the alleged invention defined in Smith claim 1.

Plaintiff urges that ducts are different from compartments. We conclude that an elongated compartment through which a heated fluid flows from an inlet at one end to an outlet at the other end is a duct. The Smith patent does not specify any particular size or proportions for the duct structure.

[490]*490The Vining patent discloses a manifold to supply a heating fluid to the ducts or compartments as recited in Smith claim 21. Separation or segregation of the ducts one from another is disclosed, for example, in the Lewis patent and in the Neiuport-Astra patent.

The variations in the language used in the several Smith claims in suit, and the additional structural elements recited in certain claims but not included in claims 1 and 21 discussed above, do not in our opinion render such claims valid over the prior art specifically noted in our findings 19-28 inclusive.

Plaintiff urges that the Smith patent construction utilizes a heat flow theory which plaintiff calls uniform forced convection heat transfer. Plaintiff argues that the only real way such convection can be produced is by the use of an open-ended duct and the avoidance of eddy currents. Such a theory is not disclosed in the Smith patent specifications. The Smith patent discloses the use of a slidable plate to partially close the forward end of the ducts for controlling the fluid flow, and shows ducts of a general U-shape. We conclude that the uniform forced convection heat transfer theory first presented at the trial of this case fails to distinguish the operation of the Smith patent structure from prior art structures such as Vining, Lewis, and Thurston.

Whether or not patentable invention exists is essentially a question to be determined in the light of the problem involved, the state of the prior art, and pertinent public uses and knowledge. Wilson Athletic Goods Mfg. Company, Inc. v. Kennedy Sporting Goods Mfg. Company, Inc., 106 U.S.P.Q. 32.

We conclude that each of the several claims in suit is invalid for lack of novelty. The alleged invention was described in prior patents before the invention thereof by the plaintiff. The alleged differences between the subject matter claimed by plaintiff and that taught by the prior patents are of minor character.

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Smith v. United States, 145 F. Supp. 396, 136 Ct. Cl. 487, 111 U.S.P.Q. (BNA) 135, 1956 U.S. Ct. Cl. LEXIS 130 (cc 1956).

145 F. Supp. 396 (Smith v. United States) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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