JoNes, Chief Judge,
delivered the opinion of the court:
This is a suit for alleged patent infringement by the Maritime Commission and contractors building ships for that agency. A patent was issued to Edward A. Juul on July 15, 1930. It related to construction of concrete walls and floors.
The Universal Building Corporation had been incorporated March 23, 1929. The incorporators were Edward A. Juul, Sr., William Jung and Hubert Zetche.
On June 16, 1931, Edward Juul, Sr., assigned the letters patent to the corporation.
Edward A. Juul, Sr., died on December 28, 1946, and on January 11, 1947, Edward A. Juul, Jr., was appointed administrator of his estate.
The original petition in this suit was filed April 1, 1946, by Edward A. Juul, Sr. After his death his son, as administrator, filed an amended petition on December 10, 1947. The petition alleges that plastic armor used in the construction of pilot houses, radio and chart rooms of vessels built on behalf of the United States infringed claim 3 of the patent in suit.
At the outset defendant pleads that plaintiff has not shown that he is the owner of the patent. The issue arises in this way:
The petition alleges that on January 1, 1935, the corporation reassigned the patent to Edward Juul, Sr., and that thereafter the patent belonged to him and his heirs.
The only direct evidence of a reassignment to Juul, Sr., was the testimony of Juul, Jr., that in early 1935 his father exhibited a document which he said was an assignment of the patent by the corporation to Juul, Sr. At the time, Juul, Jr., was about 14 years of age. The document was not produced and no such document was ever recorded.
On November 3, 1947, after the patent had expired on July 15, 1947, the corporation undertook to reassign the patent to Juul, Jr. In the preliminary part of the assignment it was recited that "all the stockholders of the corporation are satisfied and convinced that such patent is not the property of the corporation, but in truth and in fact was owned by Edward Arthur Juul since 1935 and up to the time of his death on December 28, 1946, and is presently an asset of his estate".
This is not satisfactory evidence of reassignment, but in view of our later findings it is not necessary to determine this question.
The patent relates to building construction and particularly to removable and reusable forms for pouring concrete walls. In constructing a wall in accordance with the patent, a series of permanent vertical wall columns the thickness of the proposed wall would be erected. A series of flat metal forms would then be placed horizontally between the beams, one resting above the other, one set on the outside and one on the inside of the proposed thickness of the walls, thus forming a wall cavity. These flat retaining metal plates would be retained against the beams by removable upright supports such as T-bars bolted to the beams. Concrete would be poured between the two sets of flat retaining forms. After the concrete was set the removable upright supports would be unbolted and the flat metal forms removed, thus leaving the concrete wall reinforced by the spaced steel beams. The metal forms, removable upright supports and bolts could then be used for further wall operations. The forms are described and illustrated in finding 6.
Plaintiff asserts that the defendant infringed claim 3 of the patent in suit in the construction of deckhouses, radio and chart rooms on vessels constructed for the United States Maritime Commission.
This work as done by contractors for the Maritime Commission consisted of a three-inch layer of bituminous concrete made of a mixture of asphalt material with a suitable filler such as crushed stone or gravel. This mixture was poured between structures of relatively thin steel plates, the inner one of which was permanent and formed the wall of the deckhouse. The purpose of the bituminous concrete was to prevent the ready penetration of shell fragments and small caliber projectiles, thus acting as a protective armor.
A description of the forms used by the Government is set out in finding 10. Yertical steel T-bars or columns were welded to the steel plate forming the wall of the deckhouse and the steel forms were placed against the outer faces of the columns, forming a cavity to receive the pouring of the bituminous mixture. These flat plates were retained against the vertical columns by means of removable upright supports bolted thereto. In the main, these outer forms consisted of a single sheet extending the full height of the deckhouse, but in some instances more than one plate was used. After the filler material had cooled and hardened the upright supports were unbolted and the forms removed.
A number of instances of the prior art cited by the Patent Office are set out in findings 13 and 14.
A detailed description of the Cummings patent which preceded that of plaintiff is set out in finding 15. It contemplated the use of multiple frame mold boards one placed upon the top of the other on opposite sides of a proposed wall and forming a container for the pouring of a concrete wall. The front and back board forms were removable.
Another prior patent was issued to Peabody on May 8, 1928. It is described in finding 16. It provided for removable forms on the front and back sides of columns and plastic concrete was poured into the cavity formed by the columns and forms. When the concrete had hardened, the forms could be removed and used again.
Another previous patent, known as the Bagby patent, is described in finding 17.
Another patent known as the Smith patent was issued June 10, 1922. It also related to a method of constructing concrete walls. It is described in detail in finding 18. It called for a plurality of permanent wall columns in spaced relationship to each other in the line of the proposed wall. A plurality of form boards was placed horizontally one above the other on opposite sides of the wall column. These were retained in place against the columns by means of pairs of vertical form-supporting members. After plastic concrete was poured into the cavity thus formed, the vertical upright supports could be loosened and the forms with their supporting members and clamps could be reused on another portion of the wall.
A comparison of the elements in claim 3 of the Juul patent and the corresponding elements in the Smith patent is set out in finding 20, and indicates similarity of structure, element by element, between claim 3 and the prior art patent.
It also appears from a comparison that the exact structure used by the Government in its plastic armor construction was taught by the Cummings patent with the exception that the Government reinforced the forms by upright supporting members located against the outer surface of the forms. The use of such vertical supports was taught by the Peabody and Bagby patents described in findings 16 and 17, and was thus available to those skilled in the art prior to the time of plaintiff's patent. Plainly, therefore, all the material features of the structure used by the 'Government were present in the prior art. Claim 3 here in issue is invalid and not infringed.
Even if it were clear that the title to the patent in suit were vested in plaintiff, there would still be no basis of recovery.
Plaintiff's petition is dismissed.
Howell, Judge; MaddeN, Judge; Whitaker, Judge; and LittletoN, Judge, concur.