Autogiro Company of America v. The United States

AMERICA COMPANY OF AUTOGIRO STATES.

The UNITED

No. 50328. of Claims. States Court

United 13, 1967.

Oct. J., Collins,

Cowen, dis- J.,C. part.

sented in

393 Pa., Shinn, Philadelphia,

J. Edwаrd attorney record, Syn- plaintiff, Lechner, Raymond Syn- nestvedt & H. nestvedt, Pa., Philadelphia, and C. Wil- Hayes, Washington, C., lard D. of counsel. Acting Atty. Asst. Gen. J. William defendant, Doolittle, for Francis H. Fas- sett, Alexandria, Va., and Howard B. Rockman, Md., Spring, Silver of counsel. WEN, Judge, Before CO Chief LARAMORE, DURFEE, DAVIS and COLLINS, Judges. * patents valid and claims of eleven to be OPINION infringed. Judge. DURFEE, Infringement Patent America, Autogiro Company of The suits, infringement many patent Like owning patents corporation all Delaware legal ques- presents case no this novel sues, litigation, under involved in this any found tions. Absent issues 1498,1 the “reasonable to recover § U.S.C. This does case. run-of-the-mine compensation” Govern for the and entire go should not mean law involved allegedly use of ment’s unauthorized complexity The inven- unstated. question patented Only the inventions. suit, length trial, tions liability before the court. now disagreement parties basic on recovery any amount determination of legal considerations that dic- issues are proceedings be reserved for further tate a recital of this law of court’s fore the trial commissioner. infringement. on in this court initiated suit Plaintiff I 21, 1951, a Petition September The Patent Act of 35 U.S.C. § claimed Pending Call which Motion for grant applies patents seq., et to all patents. twenty-six infringement January 1958,2 ed on or is the before March petition amended was controlling previous No law in this case. dropped from 1954; patents were twelve act contained a section on in years Four added. and six were the suit fringement. Congress always al had num- proceedings pre-trial reduced of lowed the courts to with settle issue During that patents of to sixteen. ber guidelines. Rich, any legislative out In appeared, over period, witnesses fourteen fringement of Under 271 Section presented, exhibits were one thousand Patent Act of 21 Geo.Wash.L.Rev. pages of fifteen thousand and almost (1953). 271(a)3 521 Section which cov com- transcript taken. The trial were type infringement alleged ers the of here 232-page report con- missioner issued any clarify not was inserted in Act to findings taining of Fifteen of fact. 415 legal problems, only as a codification but eighty- patents in suit the sixteen existing judicial of determinations. As eighty-six suit claims in five their got one commentator “We has stated: infringed by vari- found valid were along years without for 162 we patent One Government structures. ous again. change could Its omission would in- not found one claim were nothing.” Id. at 537. fringed. patent pro The claims of the excepted any find- to Plaintiff not has vide the concise formal definition excepted ings to has of fact. Defendant They para invention. are the numbered

findings concerning patents the fifteen graphs “particularly [point] out infringed. distinctly subject find found valid and We [claim] mat- * court, Trial Hammond, At Com- the direction See Western Electric Co. v. prepared (1st 1943). missioner Donald E. Lane 135 F.2d 283 Cir. opinion as- which has been substantial Lyon Optical Co., Bausch & Lomb sistance. (2d 1955), 224 F.2d 536 Cir. cert. part: § 28 U.S.C. 1498 states denied 350 U.S. S.Ct. 100 76 L. 799; Engine Airplane described “Whenever an invention Ed. Fairchild & by Corp. States, United of the and covered v. United 285 F.2d by (1961). or for is used or manufactured States Ct.Cl. of the license States without the United 271(a) “Except 3. Section states: other- right to use or lawful owner thereof or provided title, wise in this with- whoever remedy same, the owner’s manufacture the authority any makes, out uses or sells against the United action shall be patented invention, within the United re- for the in the of Claims Court States during States the term the there- covery com- his entire reasonable and for, infringes patent.” pensation manufacture.” such use approaches regards hypo- applicant as his in We find both

ter which the It is to these thetical. ambiguous be clear and un- vention.” 35 cannot U.S.C. Claims § comparison wordings must on their face. A look determine one infringement.4 lucidity claim is there been must of a whether has exist. light can determined in ideas it is Courts neither broaden nor narrow of what something give patentee trying convey. Only by knowing the the claims to idea, than set can one decide shadow different what he has forth.5 how much reality. great temptations No matter how encumbers the policy making, fairness or courts do not very nature of would make words They only interpret rework claims. unambiguous a clear and claim a rare oc- Although them. courts are confined Writing statutory interpre- currence. language not, claims, they tation, Justice Frankfurter commented however, language confined on the inexactitude of words: interpreting meaning. claims in their meaning. symbols But They are occasionally confined have Courts symbols, mathematical unlike language claims. themselves especially a phrasing document, of a clear and been found When claims have enactment, complicated attains seldom gone unambiguous, be- courts have approximate precision. If than more yond content. their them determine symbols, are inexact individual words Bridge Co., Keystone Iron Co. v. Phoenix variables, config- shifting their 344; supra, 24 L.Ed. 95 U.S. at hardly invariant uration can achieve Borg-Warner Co., Corp. v. Mall Tool meaning or definiteness. assured (7th 1954); F.2d Zonolite Co. Cir. Frankfurter, on the Reflections Some Insulating Corp. v. United Concrete Reading Statutes, 47 Col.L.Rev. States, F.Supp. 953, 138 Ct.Cl. (1947). See, also, A Re-Evaluation (1957). Courts have also held that the Legislative History of the Use of in the ambiguity fact that claims are free from Courts, (1952). Federal 52 Col.L.Rev. limiting is no reason for the material may purpose inspected inability pre- which for of words to achieve understanding meaning of patent better of cision is none the less extant with Swasey prob- claims. Warner & Co. v. claims than it Univer- is with statutes. The supra, F.Supp. likely sal Marion Corp., 237 lem is more acute with claims. 737. Statutes definition are the reduction g., Mfg. Greenleaf, 336, E. Yale 599, Lock Co. v. 365 U.S. 5 81 L.Ed.2d S.Ct. 554, 846, (1961) ; Mfg. 117 U.S. 6 S.Ct. 29 L.Ed. 952 592 Tank Graver & Co. v. ; (1886) Yeomans, Co., 605, Merrill v. 94 U.S. Linde Air Products U.S. 339 568, (1876) ; Keystone 854, (1950) ; 24 L.Ed. 235 70 S.Ct. 94 L.Ed. 1097 Bridge Co., Perry States, F.Supp. 503, Co. v. Phoenix Iron 95 v. U.S. United 76 274, (1877) ; ; (1948) 24 L.Ed. 344 Smith 112 v. Ct.Cl. 1 Chesterfield Unit v. Snow, 1, 279, States, F.Supp. 294 371, U.S. 55 S.Ct. 79 ed L.Ed. 159 141 Ct.Cl. (1935) ; Theatres, (1958) ; 721 Altoona Publix 838 Yosemite Chemical Co. v. Tri-Ergon Corp., States, Inc. 948, v. American 294 United 360 F.2d 175 Ct.Cl. 477, 455, (1966) ; Corp. 55 U.S. S.Ct. L.Ed. 1005 79 623 Unit Soundscriber v. (1935) ; Ethyl Corp. States, 954, Gasoline Unit ed v. 360 F.2d Ct.Cl. 644 175 States, 436, 618, (1966). ed 309 U.S. 60 S.Ct. (1940) ; Sontag 84 L.Ed. 852 Chain (15 g., Fiske, How.) Brooks 56 E. v. U.S. Co., Stores Co. Ltd. v. National Nut 310 212, (1853) ; 14 L.Ed. 665 White v. U.S. 60 S.Ct. 84 L.Ed. 1204 Dunbar, (1886) ; 119 U.S. 47 Cimiotti ; (1940) Paper Scott Co. Marcalus v. Unhairing Refining Co. v. American Fur Mfg. Co., 326 66 U.S. S.Ct. 90 Co., (1905) ; 198 Bros. U.S. 399 Hutzler (1945) ; L.Ed. 47 Milcor Co. Steel v. Affiliates, Inc., v. F.2d 260 Sales 164 George Co., A. Fuller 316 U.S. 62 (4th 1947) Swasey ; Cir. Warner & Co. (1942); S.Ct. 86 1332 L.Ed. Mar Corp., F.Supp. v. Marion 237 Universal Telegraph coni Wireless of Co. America ; (D.Colo.1964) Morrill Automatic 719 Industries, v. States, v. United 320 63 U.S. S.Ct. (W.D. Inc., F.Supp. 697 (1943) ; Mfg. 87 L.Ed. Aro Mo.1950). Top Replacement Co., Co. v. Convertible something ability means what- print. derland view of ideas to Since en- statutory it to makes for mean ever chooses enact one crucial verbalize is reading, facility joyable law. Claims legislators develop with but bad ment, with connection equally developed are best construed in inventors. words not parts patent instrument importantly other An most invention exists surrounding tangible the circumstances of with structure or a series draw application. ings. inception usually patent portrayal A is verbal Engineering afterthought satisfy & North- Leeds Doble Co. v. the re written 1943). (1st In rup quirements Co., Cir. patent 134 F.2d This conver law. documents, one utilizing all the sion of machine words for unin allows these value of gaps should not sacrifice the tended cannot idea be satis “unimaginative factorily adher- references filled. Often the invention is phrases.” professional ence well-worn novel do not words exist describe Frankfurter, supra, dictionary always law keep at 529. Patent it. The does not replete major construction abreast canons the inventor. It cannot. Things provid- minor which have seldom made sake value not for unraveling words, guidance things. in the but To ed useful words over complex Instead, lag, patent these canons come claims. this allows the law prob- only lexicographer. inventor have added confusion to to be his own Chicago interpretation. Foundry En- lem of Doble Steel claim Co. v. Burnside gineering Northrup, Foundry (7th su- Co., Steel v. Leeds & 132 F.2d 812 Co. 1943); pra, Oxygen Cir. Stuart Co. Ltd. Josephian, (9th 1947); 162 F.2d 857 Cir. II Universal Oil Products Co. v. Globe Oil Refining Co., (7th & 137 F.2d 3 Cir. deriving meaning of a 1943), aff’d U.S. 64 S.Ct. claim, inspect documents we all useful (1944). L.Ed. 1399 Holmes called the reach what Justice meaning” “felt claim. In seek Allowing patentee license verbal ing goal, parts this we use of three make augments only difficulty of under patent: specification, standing claims. The sanction of drawings, wrapper. file hybrids old new words or from ones Specification. is, leaves unsure a rose one what —Section requires specification Patent Act but also unsure whether a rose a rose. process describe manner of mak Thus we find that a claim be in cannot using any so that terpreted going beyond without the claim person patent’s may in skilled art ap No how itself. matter clear a claim serving statutory pur utilize In it. pears be, lurking background in pose, specification in aids ascertain may completely are documents dis ing scope meaning lan rupt meaning.6 initial on its views guage employed in the claims inasmuch necessity way for The a sensible and words must be in used the same systematic interpre approach specification. both the claims claim and the 75(d).8 U.S.Pat.Off. Rule tation is axiomatic. The The Alice-in-Won- use of the Berkey 75(d): States, 8. Bule “The In v. 361 F.2d claim or claims United must 983, ‍‌​​​​‌​‌‌‌​‌​‌​​‌‌​‌‌​​​‌‌​‌​​‌‌‌​​‌​​‌​​‌​​​‌​‌‍(1966), involving conform 1 to the 176 a ease invention as set forth in Ct.Cl. benefits, supposedly specification the remainder veterans’ clear and unambiguous phrases read on terms and section a statute used in the claims payments support must find certain to the clear the surface to bar or antecedent incompetent description basis survivors veteran. The in the of an so that the mean- ing may below the surface and found of the terms court went claims be as- op by Congressional descrip- was certainable intent reference posite tion.” surface manifestation. Johnson, 488, U.S. v. 221 United States (1911). 496, 627, 31 55 L.Ed. 823 S.Ct. 398 (1st 1946), specification 329 729 Cir. cert. denied U.S. as a concordance court, 741, every 79, accepted by But 67 S.Ct. 91 L.Ed. 639.

claims is almost specification concept patent law.9 where does not refer to and is a basic simply an embodiment or a class of embodiments Most courts stated that have specification explain mode,” in terms of is to be used to “best such reference may claims; propo interpretation. be of value in claim others stated the have terms, patentee This would sition in different be where the de but with following being expressions an same effect. scribes in embodiment as approach: way are vention itself indicative of this latter one «* * * (1) utilizing patentee’s it. broadest [A] claim can be no broader than his actual may Drawings. patent con —The Printing Corp. invention.” Kemart v. drawings. U.S.C. tain 35 § Arts Laboratoriеs, Inc., Research 201 F. “ represen * * those instances where a visual 624, (9th 2d 1953), (2) 629 Cir. may drawings words, can tation flesh out specifica [R]ecourse must be had to the manner and with be used in the same tions to see how far the means there dis specification. the same limitations as the correspond closed with those made Corp., Permutit Co. Graver 284 U.S. v. Perry States, defendant.” v. United (1931); 52 76 L.Ed. S.Ct. 163 F.Supp. 76 503, 505, 112 Ct.Cl. 30 Works, Stekoll, Cameron Iron 242 Inc. v. (1948); Engineering Mfg. Grubman & (5th Mfg. 1957); F.2d Cir. Binks Co. Goldberger, (2d 47 F.2d Electro-Coating Ransburg Corp., Co. v. 1931), Cir. (3) specifica “[W]hile (7th 1960); 281 F.2d 252 cert. Cir. may tion be referred to in order to limit dismissed 366 U.S. 81 S.Ct. claim, it can never be made available (1961); Tay L.Ed.2d 239 Foxboro Co. v. expand it.” Mfg. Hanovia Chemical & Companies, lor Instrument 157 F.2d 226 Co. v. Co., David Buttrick F.Supp. (2d 1946), Cir. cert. denied 329 U.S. 646 (D.Mass.1941), aff’d 127 F.2d 888 (1947). 67 S.Ct. (1st L.Ed. 684 1942). Cir. specification forth wrapper. file “set[s] File —The contemplated best mode the inven of the wrapper record the entire contains carrying tor of out his invention.” proceedings from in the Office Patent U.S.C. 112. This § one embodiment of papers application issued to the the first the invention does not restrict the claims. express representations patent. Since all interpretation Claim must not make patent applicant use to induce made of “best mode” terms inasmuch grant wrapper, as the file patentee guard against need not infringe provides this material accurate chart- by listing every ment possible infring ing history. patent’s pre-issuance specification. device in the wrap- wrapper Adams use of the file One file States, v. United 330 F.2d per estoppel, application Ct. which is Cl. (1964), aff’d 383 U.S. estoppel principles S.Ct. familiar Patent Of- 708, 15 (1966); Paper infringement L.Ed.2d 572 Grant prosecution fice Box Co. Co., v. Russell litigation. Box patent applicant 154 F.2d must 156, Topliff Topliff, E.g., 1957); (9th 145 9. v. U.S. 252 F.2d Carl 589 Cir. (1892); 825, Braun, Corp., Mar L.Ed. 658 12 S.Ct. 36 116 Inc. v. Kendall-Lamar Telegraph (2d 1941); coni Co. of America Wireless Hutzler Bros. F.2d Cir. 663 Coe, States, supra; Affiliates, supra; Inc., Bates v. v. United v. Co. Sales 31, L.Ed, (1878); Corp., Scherbatskoy Cimiotti 98 25 68 U.S. v. S. Steel 287 U. Refining Unhairing (7th 1961); v. American Fur Co. National F.2d 552 Cir. Co., supra; Co., Mfg. Corp. v. Co. Schriber-Schroth France Transformer v. Co., 211, 1954); (6th Trust 311 U.S. 61 S. Cleveland 215 F.2d 343 Cir. Standard 4 235, (1940); Duplicating 65 Ct. 312 U.S. United American Machines Co. v. Adams, 39, Corp., S.Ct. 101 States v. 383 86 Business Machines 174 F.2d U.S. (1966); (1st 827, 708, 1949), Fauber v. 15 L.Ed.2d 572 cert. denied 338 Cir. U.S. 415, States, F.Supp. 76, Ct.Cl. L.Ed. United 37 93 70 S.Ct. 94 Rasor, (1941); 11 v. Tinker & Stearns

399 convince, patent material, examiner that his broader use prior as source statutory require invention meets wrapper gives art cited in the file clues ;10 otherwise, patent ments will not as to what the claims not do cover. West inghouse application rejected, Mfg. issued. When the Electric & Co. v. Formica applicant Co., 117, will 342, insert limitations and Insulation 266 U.S. 45 S.Ct. inducing purpose (1924); Remington restrictions for the Rand, 69 L.Ed. 316 grant the Patent patent. Office Co., his Meilink Inc. v. Steel Safe F.2d 140 patent (6th issued, When the patentee 1944). 519 Cir. Moto-Mower Co. v. cannot disclaim Inc., these C. alterations and E. Steams & Co. 126 F.2d 854 interpretation (2d ignore 1942). seek Cir. would them. He cannot construe the claims narrowly before the Ill Patent Office and broadly later before courts.11 File parts The use of the various wrapper estoppel serves two functions in meaning determine the claim interpretation; applicant’s only process of of the claims is half the only terms, statements not define but infringement. determining patent also set the barriers within which the “reading on the other half is the claims meaning claim’s kept. must be These accused structures.” If the claims read results arise when wrapper the file dis structures, literally an in on accused closes either what the claim covers or infringement for itial hurdle in the test it

what does not cover. over; not has been cleared. The race is wrapper only literality The file has also started. To allow has general, infringement satisfy broader and more use. This is would test utilization, specification literary like the force reward law to drawings, creativity. scope to determine and not And skill mechanical example, prior claims.12 For since the is to the inventor’s art law benefit genius talents, wrapper cited in the file and not is used in this the scrivener’s wrapper literally estoppel, manner. In file claims must not it is read prior provides guide structures, art accused also the struc but lines, applicant’s work, acquiescence but tures must “do the in sub same regard prior way, accomplish stantially to the art. In its same requires Pine, pat- (1931); Also, 10. 35 U.S.C. 103 “A “File § that: L.Ed. 707 may thоugh Encyclopedia Wrapper Estoppel” ent not be obtained the in- identically Management, vention is not disclosed or Patent de- Patent Practice and ed.). scribed (Calvert as set forth section 102 of this 295 title, if the differences between the sub- “legis wrapper the file The use of ject sought patented matter to be history” most has been condoned lative prior subject art are such that mat- E.g., Goodyear Dental Vulcanite courts. ter as a whole would have been obvious 222, (12 Otto) Davis, v. 102 U.S. Co. the time the invention was made to a Hey (1880); L.Ed. v. 26 149 Crawford person having ordinary skill in the art singer, 589, 399, L. 123 U.S. 8 S.Ct. 31 subject pertains.” to which said matter Corp. (1887); Ed. Lavelle Aircraft 269 E.g., States, I.T.S. Rubber v. Co. Essex Rub F.2d Ct. v. United 358 175 Co., States, ber (1966); 272 U.S. 47 S.Ct. 71 v. United Cl. 325 Jones (1926); Morgan Envelope L.Ed. F.Supp. 628, (1951); 335 Co. 747 Ct.Cl. Albany Wrapping Paper (9th v. Shops, Perforated v. F.2d Moon Cabot Co., 1959); 152 U.S. 14 S.Ct. 38 L.Ed. denied U.S. Cir. cert. (1894); Supply (1960); Exhibit Co. v. Ace 4 L.Ed .2d 546 80 S.Ct. Corp., Westinghouse Corp. Patents 315 U.S. 62 S.Ct. Hanovia Electric v. (1942); Mfg. Co., (3d 86 L.Ed. 736 Powers-Ken F.2d Cir. Chem. & nedy Contracting Corp. 1949); v. Concrete Mix Quaker Mall Tool Vibra Co. Conveying Co., tors, Inc., F.Supp. (E.D.Pa.1939). 282 U.S. 841 30 95, (1930) Keystone ; S.Ct. Contra; Spalding 75 L.Ed. 278 A. G. & Bros. v. John Engineering 1919); Driller v. Wanamaker, (2d Co. Northwest 256 F. Cir. 530 Corp., 42, 262, Lehman, 294 Corp. U.S. 55 S.Ct. 79 L.Ed. 121 F. Zenith v. Radio (1935); Magic City 747 Smith Supp. (S.D.N.Y.1954), v. Kennel 69 aff’d F.2d 217 Club, Inc., 291, 784, 1955). (2d 282 U.S. 51 S.Ct. 75 954 Cir. 400

substantially Mfg. Domin- Tank Products same result.” & Co. v. Linde Air Co., Magnesium States, supra, 607, 320 at ion Ltd. v. United 339 U.S. at 70 S.Ct. 396, 240, (1963). 856, 388, F.2d 162 94 L.Ed. Ct.Cl. 252 1097: making overlap approach This oí literal permit patented imitation of a [T]o step entire test of in- every copy invention does not fringement consistently applied has been literal detail would be to convert Westinghouse the courts since v. protection patent grant into a 537, Boyden Co., Power Brake 170 U.S. thing. hollow and useless Such a limi- 722, 707, at 18 42 S.Ct. 1136 L.Ed. tation would leave room for —indeed (1898), where Justice Brown stated: encourage unscrupulous copyist —the ** * bring unimportant patentee may to make The and unsubstan- changes tial defendant within the letter of his substitutions claims, patent which, though adding nothing, if but the latter has so far changed enough principle copied would be of the device to take literally claim, patent, matter the claims of the outside the and hence * * * construed, represent outside the reach have ceased his law. invention, subject actual he is as little Checking subordination adjudged infringer to be as one whо depriving and not of substance to form has violated letter of a has statute inven his of the benefit of inventor convicted, to be when he has done range The tion cannot be standardized. nothing in spirit conflict with its patent; equivalence each * * * varies with 13 intent. however, general guidelines can be some read If claims do not guide important is whether drawn. One structures, literally in on the accused persons reasonably in the art skilled fringement necessarily interchange ruled out. is not would have known equivalence casts around doctrine ingredient ability of an not contained penumbra a claim must be which also Id with one that was. infringement. avoided if there no guide the no 70 S.Ct. 854. Another infringes, provides It that a structure given pioneer patents tion that are to be being overlap, there literal if without ranges equivalence wider minor than substantially performs the same function Whitney improvement patents. Pratt & way substantially and for same States, supra; Co. United Aluminum v. substantially purpose the same as the Thompson Products, Co. of America v. Equivalence claims set forth.14 is the Inc., 1941). (6th 122 F.2d This 796 Cir. discounting obverse of the of literal over statement is less canon of construction lap. accused; protect The latter is to expression and more a shorthand protect patentee. the former to patents the dictates of the law and the equivalence rationale behind was set equivalence themselves. The doctrine of Supreme forth Court in Graver wrapper estoppel. is subservient file Mfg. Cramer, E.g., Singer E.g., v. 192 Co. Murphy, Machine Co. v. 97 U.S. 24 L.Ed. (1877); U.S. S.Ct. 48 437 24 L.Ed. 935 Graver Tank (1904); Mfg. Mfg. Graver Tank & v. Co., Co. & Co. v. Linde Air Products supra; Co., Perry supra; ‍‌​​​​‌​‌‌‌​‌​‌​​‌‌​‌‌​​​‌‌​‌​​‌‌‌​​‌​​‌​​‌​​​‌​‌‍Linde Air Whitney Products Co., Pratt & Inc. v. States, supra; Independent Pneu States, United 345 United F.2d 170 Ct.Cl. Chicago (1965); matic Dwyer Tool Co. v. Pneumatic States, 829 v. United 357 Co., (7th 1952); (1966); Tool 194 F.2d 945 Cir. F.2d 174 1064 Ct.Cl. Ba Engineering Mfg. States, & F.Supp. Grubman Co. v. dowski v. United Goldberger, supra; Kresge (1956) ; Chicago S. S. Co. v. 135 Ct.Cl. 93 Pneumat Davies, (8th 1940); Hughes Co., 112 F.2d 708 Cir. Tool ic Co. v. Tool 97 F. Development (10th 1938) Standard Oil Co. v. James 2d 945 Cir. cert. denied 305 Berry Co., (3d 415; B. Sons’ 92 F.2d 386 Cir. U.S. S.Ct. L.Ed. 1937); Mattel, Co., Corp. Inc. v. Louis Marx & Powder Power Tool v. Powder F.Supp. (S.D.Calif.1961); Co., Inc., U. S. Actuated Tool F.2d Gypsum Insulating Co., (7th 1956). v. Rock Co. Wool Cir. F.Supp. (D.Colo.1962). range any- The Patents may within its include It not thing ex- limitations vitiate that wоuld patents in are concerned with suit The pressed Ex- the Patent Office. before systems on and control rotor structures Corp., Supply Ace Patents v. hibit Co. wing principal rotary The two aircraft. Club, Magic City supra; Kennel Smith rotary wing types are the aircraft of Inc., supra. patent that has been Thus a (also gyroplane helicopter re and severely prior art limited avoid the by plaintiff’s trademark Auto- ferred to range only it have a small between will autogiro giro).15 fixed The has both beyond point which it violates blades, wings rotary and resembles wrapper estoppel. Similarly pat- file a airplane heli a and a cross between an major departure ent which is a from the rotary copter. helicopter only The has prior larger range in art will have a autogiro propeller-pow The blades. is equivalence which can function. The ; helicopter, rotary ered blade- scope patents also influences autogiro powered. cannot achieve range equivalence. pioneer patent of A under normal circumstances a vertical occupies symbolically a six-inch rotary helicopter like take-off with equiva- circle will have three inches of power; blade must taxi on takeoffs it range fifty percent. lence if its is An airplane propeller power. like the with improvement patent occupying two- types The two of aircraft do have several equiva- inch circle has one inch of They common characteristics. rise both range. lence with the same Thus with and descend and control horizontal move relatively ranges, scope identical of through operation ments of same provides patent pioneer patent systems respectively, control the collec — absolutely larger range with equiva- of cyclic pitch system.16 tive and control lence. I IV 2,302,- Stanley Patent No. summary, the determination In excepted party has 068. —Neither two-step infringement patent is a of finding of fact trial commissioner’s meaning First, process. claim; single there patent and its this by a must be determined claims issue opinion. adopted part fore, this as it is study relevant documents. of all rotor patent17 with The '068 is concerned Secondly, read on the claims must be they have Since construction. doing this, it is accused structures. blades, apertured not routed and they literally on read little value that structures, HUP- the accused the Vertol is the structures. What crucial helicopters, do H-21B Vertol work, in must do the same structures pat infringe of this the one claim substantially way, and accom same ent. plish substantially con the same result general infringement. II stitute This is the approach court uses to deter which this 58(c) requires Rule Court Claims “ * ** infringement all the mine the [appropriate refer- each the end of properly it case. be made at claims before this ences shall see, inventor, autogiros, generally, copters “Autogiro” coined was Gablehouse, Autogiros, Helicopters proprietary Cierva, name. la Juan de 210-212, a, Chaps. spelled 222- case I-III and at lower When 227-230; Cierva, Wings generic generic term. Other used as a History Flight; Tomorrow; Canby, autogyro, rotorplane, A include terms Helicopter. Story Francis, opinion, “autogiro” giro. be In this will group this of aircraft. used to cover patents men- this and all other 17. For op- opinion, analysis will identification tioned this 16. A more detailed wing rotary types to the last three made reference two eration of these patent’s digits number. appears in the discussion of aircraft background patents. on heli- For various 402 1,991,165— parts Patent No.

exception re Cierva of the record to the patent support The relates to mechanism upon ’465 the thereof.” Other lied in rotary folding determining wise, ex rotor blades of merit for wing equipped required with vertical ceptions, aircraft the court would be pivots go through for con and to mechanism entire record without trolling rele about a task movement of blades benefit of a baedeker. Such gates 1, 5, making parties’ pivots. and these Claims 10 the court to infringed deciding by the HUP-1 it. it has 13 are Vertol case rather than Thus enforcing 58(c). helicopter particularly For construс and been strict example, party Rule tion of its fore and aft rotors. has not been allowed to only set forth its own extended narra 1,990,291.— Larsen Patent No. appendix tive of the facts with version patent method The ’291 adjusting to a relates for findings proposed of' of fact. its own flap the effective incidence Willett, States, Hunt and Inc. v. United pingly-pivoted rotor in their track blades 980, 168 See, (1964). 351 F.2d Ct.Cl. 256 ing. infringed by Hiller Claim is 4 also, Anonyme Societe Des Ateliers helicopter particularly its H-23A and States, Brillie Freres v. United 160 Ct. sustaining construction, the rotor Vertol States, (1963); Cl. 192 Schmollv. United helicopter particularly HUP-1 and F.Supp. 63 105 de Ct.Cl. cert. rotors, construction of its fore and aft nied 329 U.S. 67 S.Ct. 91 L.Ed. helicopter par and the ticularly HTL-4 and Bell (1946). sustaining construc rotor infringed by tion. Claim 5 is the rotor patents eight and of the For tracking procedures blade of the Vertol excepted claims, has their defendant infringed by HUP-1. Claim 6 is by opinion the trial commissioner’s tracking procedures rotor blade findings listing numbers H-23A, HUP-1, Hiller and the Vertol No briefs fault. fact which it finds Bell HTL-4. support these have been submitted exceptions. 2,151,215.— trial to the No references Patent No. Larsen displaceable un made to patent record or have exhibits been relates to ’215 sustaining allegation derpin com droop support the trial for mechanism findings. purpose This rotary wing in his missioner erred Its aircraft rotors. gesture striking excepting prevent method of is a hollow rotor from blades ground has the effect that failure the rotor and same or the aircraft when Harrington except See, rotating rotating v. United has. sub is either not stantially or flight speed. States, (1963); Batchelor 161 Ct.Cl. 432 than less normal infringed States, 1, 2, 5, 6, United cert. de Ct.Cl. 8 and 9 are Claims helicopter. L.Ed. nied 382 U.S. 86 S.Ct. the Kaman HOK-1 (1965). 2d 109 This failure to meet 2,389,836. Campbell Patent No. ) 58(c burden of Rule results in this patent —The aircraft with ’836 relates to adoption court’s commission of the trial arranged side-by-side so that twin rotors findings following pat er’s fact above, left hand when from viewed ents: counterclockwise, rotates right hand rotor rotates clockwise. — 1,918,157 No. Patent Larsen infringed by HOK- Claim is the Kaman wing rotary patent relates ’457 helicopter. particu sustaining rotors aircraft damper Campbell 2,321,572. mecha Patent No. larly improved n —The ’572 relates to aircraft with controlling pivotal move nisms side-by-side flappingly-pivoted rotors their vertical about blades ment of rotor 8, 9, blades. 29 are in- Claims 28 and 9, 12, 13, pivots. Claims fringed helicopter. the Kaman HOK-1 infringed by the Vertol patent this particularly helicopter Campbell 2,311,966. Patent No. HUP-1 control aft rotors. relates to the —The its fore construction 1061, 15 (1966); side-by-side S.Ct. rotors L.Ed.2d 851 Texas aircraft with Refining Corp., particu- Co. v. Anderson-Prichard flappingly-pivoted blades. (10th 1941); lar, func- 122 F.2d Cir. Alex Lee the turn control this is Wallau, Landenberger positioned by having Inc. so v. W. & rotors J. tions Co., shifting F.Supp. (S.D.N.Y.1954); of 121 provide 555 differential for Co., Celery of Vollink fore and aft v. Holland lines both Planter the rotors’ lift F.Supp. gravity. (W.D.Mich.1938), This 33 center of 203 aff’d the aircraft’s 1940). (6th 112 in a cer- F.2d or bank Cir. There allows the craft turn fore, only infringed one 1 is element of the claim is to tain direction. Claim be helicopter. discussed. is This the element which the Kaman HOK-1 states: 2,3UU,967.— Patent No. Bennett aircraft, sustaining In an rotor con of patent to the control The ’967 relates having struction mounted blades side-by-side and rotors aircraft with respect movement with to an axis particular, flappingly-pivoted blades. proportioned member that, so and un longitudinal lateral atti is and this der the currents, of influence air con functions tude control which average blades have an autorotational tilting joint lines of the rotors of lift speed tip substantially at the in excess laterally both fore and aft and of flight of speed maximum of which craft. The also relates to ’967 * * *18 capable. the craft is [Em phasing rotor minimizes which phasis added.] bouncing experience rotors effects which claim, surface, The “so on its defines flight. in Claims translational proportioned” in of function or terms infringed by and 18 are Kaman result; however, reading of term helicopter. HOK-1 light in shows documents proportioned” Ill “so to include means of accomplishing its function. See Findings following pat- of fact for the specification 112. The U.S.C. shows § properly excepted ents in were to either proportioning rеlationship that is a part: whole or in wing. between rotor blades and a fixed 1,9U7,901.— Cierva Patent No. beginning, In the it states that: The trial in commissioner found Claim 3 * * * present con- invention fringed by helicopter the Vertol HUP-1 templates features certain novel particularly and the rotor construction disposition proportioning of the rotors, of its fore and aft the Hiller H- system, rela- blades helicopter sustaining 23A and its rotor lifting sur- tion to the fixed thereof construction, and the Bell HTL-4 heli * * Specification ’901 faces *. copter sustaining and its rotor construc 46-50. Is. tion. in the The invention later is described is a The combination claim. —Claim following manner: elements, containing each claim several equal According complete considered essential de- to be the most Mfg. however, invention, velopment all Co. v. Convertible others. Aro Replacement Co., supra, Top contemplate combining, 365 U.S. I the same For construction, wings 5 L.Ed.2d 592. S.Ct. fixed certain necessary infringement, positive conjunction there to is be incidence with every having swinging freely element or substantial air-ro- a rotor equivalent blades, found in accused struc it- tated each of which blades is g., McCullough positive tures. E. Tool Co. re- self set incidence with Inc., Surveys, (10th setting Well F.2d lation a no-lift axis * * 1965), Cir. cert. denied 383 *. U.S. Id at Is. 3-9. complete properly excepted Appendix 18. The text of this claim all other claims I. to is type ships particular In a section which discusses embodiments rotor and the patent, specification arrangement wing employed ex fixed ** pressly Wrapper proportioning. em The discusses '901 File novelty relationship rotor bodiments referred to in this section of this between wings proportioning not means the rotor recited in other blades fixed is blades, dealing relationships parts wrapper but various of the file between wing. inadequacy prior the rotor blades and a fixed art to meet See, wing relationship spirit g., claims. e. id at blade-fixed his throughout constant No this section. 60 and 82. relationship suggested, only other vari interpretation The above relationship.19 ous ratios of this ignore the proportioned” does not “so propor- Plaintiff “so contends concept differentiation claim tioned” refers to the the construction of to presumed claims should be states that specification individual blades. It cites means This different inventions. cover references to “a thin or medium-thick interpretation claim should of a that an substantially section of fixed of center the claim if it would make avoided be pressure” 46-48) (id 3, at Is. and a blade differen one.20 read another Claim like symmetry “of uniform from end end to rigid guide, rule. If tiation is a not lifting portion” (id of its effective at interpretation, only one claim will bear 28-30). Is. Neither of these references similarity have to be tolerated. will company was made in the of the term refer to the ’901 Claims of 4-7 proportioning. Furthermore, these ref- (i. wing). e. substantially fixed aerofoil erences are to embodiments inasmuch as relatively And refer to a Claims 8-17 specification the states that fore- “[t]he Interpret- lifting surface. fixed aerofoil going are cited to show that different wing fixed refer to a Claim 3 to types may of blade construction em- be any re- claims would not render of those ployed carrying in present out in- the ones with dundant. 4 and the Claims vention.” Id at Is. 51-53. similarity, greatest which 3 has the wrapper compel The file does a markedly not to different. Claim 3 refers interpretation different flight the claim. speed the “maximum of which initially rejected Claim 3 was three times capable;” refer craft is Claims 4 5 strength prior the of the flight art. Re- the the which to “translational

ferring along rejection, its with other capable.” Also, to does not craft is Claim 3 claims, applicant remarked specificity about have of these claims —for entirely cooperative “the novel relation- example, an aircraft their limitation to Specification rotary wings, The ’901 states at fixed rotor of both 149-4, may operate substantially 1. 20: be made to at a further, “Still to speed through obtain to the fullest uniform rotation advantages extent range flight speeds craft, dis- hereinbefore cussed, especially speed, computed as to the combined ef- such rotational positive-incidence fects of the tip, approximate rotor blades will blade to 140% 200% positive-incidence wings, top speed fixed such craft.” lifting efficiency, as: increased increased g., Corp. Printing Arts E. Kemart v. top speed craft, and maintenance Laboratories, Inc., F.2d Research 201 624 possible uniformity closest (9th 1953); Machine Cir. Western States speed, preferable rotor it is to make Hepworth Co., F.2d Co. v. S. S. 147 wings equal total area of the fixed 1945), (2d Cir. cert. denied 325 U.S. 345 about of the amount of 75% 100% (1945); L.Ed. 65 S.Ct. 89 1991 blades, although area of the four in rotor Stekoll, F. Iron Works v. Cameron craft, reasons, certain for constructional 1957); Kennedy (5th Trim 2d 17 Cir. wings it is desirable fixed be Nurseryland Furniture, Inc., F.2d ble proportioned smaller, say somewhat 50% wing (2d 1938); Cir. Baker-Cammack blade rotative area. With fixed Mills, Co., Hosiery 181 F. Inc. v. Davis proportioned range (es- area in that (4th 1950), 2d cert. denied 340 Cir. pecially between the lim- 75% 100% L.Ed. 605. U.S. 71 S.Ct. positive settings its) and with incidence pitch substantially of an fixed aerofoil rotor and attached to collective “with a system. up, percent speeds approximately control As the effective area centrifugal in percent of the of the rotative concomitant area increase weights are not to causes out- blades.” These differences force move slightness their board. because of Such movement increases undervalued covering pitch angle invention since claims same the rotor blades and slows degrees scope by greater varying presenting of breadth or blades blade slight usually only have differences. surface to air flow. purposes, listing patent’s The accused structures. —The Is. col. specification states Vertol, Hiller, helicopters Bell found object provide is to further infringe “A 1-5: the trial commissioner my cooperation governing means wing; 3 do not have a fixed there Claim tend will incidence control fore, they pro their rotors cannot have speed of rotational constant to maintain portioned in the manner called for “governing the term the rotor.” Since explained by supporting as сlaim specification in the used means” operate in they documents. do Since way,22 proper presume in this substantially way same claim way being in the same it is used they infringe requires, do not it. op. supra at cit. and 37. Claims 2,380,581. Prewitt Patent No. —The 36, (28, claims 8. The other footnote (1) trial commissioner found: Claim “centrifugal 42) term 38 and use the infringed by 28 Hiller heli- the H-23A centrifugal means is means.” it Since (2) copter, 29, 36, 37, and and Claims 38 means, governing produces the which infringed by the Hiller H-23A and interchangeable. See these terms are helicopter. Infringe- Bell the HTL-4 2, 2, Specification 10-17. col. Is. ’581 helicopters ment these included their pitch systems having collective both only Claim contends that Plaintiff manually centrifugally and actuated governing provides rotation a for means pitch governing mechanisms. speed cen of the It claims that al rotor. trifugal governing means are means claims.—Each claim an and contains governing which the element defines a not same. To obtain nonmanual means, says regulating cen mechanism for there must be the it rotational speed rotary trifugal wing plus means of means a resilient aircraft rotors.21 changes only provides through this Such are and that achieved the Claim weights only use of movable combination.23 combination is mounted in each This speed urge (28) “centrifugal 21. These to the elements rotational are: tions operatively changed pitch angles, means and associated the blades toward with responsive manually rotor and to the to means actuated override increase of rota- speed governor provide urge centrifugal tional to means to the blades toward pitch setting pitch angles, positive adjustable increased of the for manual “centrifugal op- operatively angles” ; (42) resilient means means associated centrifugal eratively vary the the rotor with to the associated with means speed urge responsive neutralized”; at which to variations rotational such is changed “governing urge speed (29) changing for to the blade toward means said pitch angles, angle.” pitch modifying and means the ef- governing fectivenеss means to 11. id. at col. 22. See 29—col. change speed pitch at which the angles support affected”; this, “centrifugal (36) it col. are In cites id at operatively means Is. associated 17-29: with responsive my governing device, rotor and I have to increase of rota- “For speed urge weights the blades are tional located in toward blades resulting pitch upon by centrifugal angles”; (37) “supple- forces increased acted governing part rotor. means in of the mental least from the rotation weights changing on cor- mounted the rotor for are attached to the “The adjustment angles blades”; pitch responding (38) incidence said “cen- block trifugal operatively through maimer to tend means cables in such associated responsive angle the rotor incidence to varia- to increase preferred subject embodiment re- same limitations on governing (usually spring) 28, 29, silient means necessary means as 36 and 37. con- for maintenance wrapper supports The file the idea speed; stant rotational acts as that the resilient means is not a neces- aid such an id at col. Is. 8- end. ingredient sary governing in the means means, 30. Without the resilient stating: centrifugal means will still “tend As additional factors in the control speed maintain constant rotational provision spring situation the rotor.” 113 with or without its control variable (wing 114) nut is a variant the au- prosecuting Claims governor change tomatic the rota- patent24 '581 before speed governor tive at which the be- Office, applicant the Patent based effective, change comes and thus to validity gov their on novel non-manual predetermined pitch angle. R.P.M. and erning means which tended maintain pointed This has been out in certain speed.25 constant After claims urged of the new claims which are narrowed, had been so Exam Patent anticipated by allowance any as not 36; iner allowed Claims Claim record, notably art of and illustra- rejected distinguishing 37 was for not * * tively [claim ’581 28] prior art. It was then when allowed Wrapper File at 59. amended to be in com- accord with its govern- Furthermore, claiming the when panion Wrapper . claims. File at 73. an advance over the means to be patent, After allowance of the ’581 art, prior applicant no distinc- made Claims 38 and 42 were entered under 37; 28, 29, tion between Claims permits Patent Office Rule 78 which though only even 28 contained a resilient entry of additional claims after the means, grouped together all were in dis- application. allowance rule This cussing prior over art. advances provide way not intended to for the prosecution approved ap continued The accused Bell of an structures. —On the plication ; helicopter, an additional claim HTL-4 that is not the accused structures “obviously upright counterweights usually are allowable” is not ac attached cepted. trailing edges See Manual of inboard Exam the rotor Patent ining counterweights Procedure blades.27 714.16. These A claim will balance likely “obviously aerodynamic (rotor most be it counteract allowable” if forces is no scope already broader pitch loads) operat in than loads and collective claims ing allowed. wrapper Thus the file on the blades that raises otherwise would presumption by sys- have to that Claims and 42 be absorbed the control by governor centrifugal arranged blade action of the automatic as 'to so urge pitch angles against tension in the cables. Biased of the blades or centrifugal weight rotor, substantially the action of the the R.P.M. to a is an adjustable spring By flight, or elastic means. normal value used in level which arrangement, completely foreign any this the rotor is of the art of tends speed Illustratively only, centrifugal rotate at a constant until record. disturbed by pilot.” weights provide disclosed a function of governing present in [the is not entered, 24. When first the claims were prior art].” 32, 33, numbered 39 and 40. To avoid confusion, claims will be referred Rule which is now Rule 312 states: to at by all times their final after the numbers. “Amendment notice of allow- application per- ance of an not will be ap- Wrapper, 25. At the ’581 Pile may right, mitted as matter of but be plicant system stated that “the disclоsed made, printing specifica- if the of the specification drawings in the instant begun, tion has not on the recommenda- automatically tends to return the blade primary examiner, approved tion of by angles pitch predetermined to a value Commissioner, without withdraw- pilot.” without the attention And of the ing the case from issue.” “ * * * applicant pro- id at 59: has Appendix. drawing control in vided devices in the form an See permit They into a rotor blade produce built shifting pilot. twist- terns and the balancing blade of the mass center approximately moments outwardly, forwardly it centrifugal states: both by force which those created change normally pos- pitch would make weight [adjustment as as well large undesirably sible longitudinal loca- sectional and weights perform a force. do The not gravity of the center of tion of the governing speed rotor function. may obtained. thus also be speed HTL-4 no has non-manual rotor Specification at Is. 70-73. col. governor; always speed rotor con- gives direc- This context “sectional” pilot. trolled meaning. juxtaposition with Its tional “longitudinal” helicopter, refers On the Hiller H-23A indicates that direction, (or chordwise) flyweight accused ballast the front-rear structures They arms inboard- attached to the rotor word refers to the blades. and the other (or spanwise) serve the same function direction of that the counter- outboard weights helicopter in the on the Bell HTL-4 do. used blade. Thus “sectional” is speed op- Rotor control is some also a “cross-sectional” and not manual sense of eration on this craft. constituent section. only is mention of Not there no Since the accused structures on meaning “part” “sectional” as helicopters these two do achieve the prob specification, is the but there also substantially same or a similar result might meaning lead lem that such claims, they infringe do not the ’581 indefinite of the claim for invalidation patent. leads as section ness. No to what Cierva Patent No. 2,380,583.— any involved can be found (1) commissioner found: trial Yet, particular documents. if a straight infringed by Claim 56 сlaim, it must section is intended in the twisted rotor blades of wooden Vertol. pointed people out so skilled helicopter and the tandem-dis- HUP-1 patent. make the art can use of posed blades or metal rotors with wooden to meet re 112. Failure this U.S.C. § (2) helicopter, H-21B the Vertol quirement in can in the claim’s result HUP-1, infringed Claim 59 the Vertol See, g., Co. e. Bullard v. validation. sustaining H-21B, Vertol (4th Co., General Electric F.2d HTL-4 heli- the Bell construction Bros., 1965); Cir. Locklin Switzer sustaining copter, and the rotor construc- (9th 1961), Inc., 299 F.2d 160 cert. Cir. (3) helicopter, tion the Hiller H-23A 8 L. denied 369 U.S. S.Ct. infringed Claim HUP-1 the 60 Vertol Anonyme (1962); Des Ed.2d 18 Societe H-21B, (4) 62 in- Claim the Vertol United Anciens Etablissements Cail v. fringed by the rotor construction States, (1907), 224 Ct.Cl. aff’d fore of and aft rotors and rotor blades 56 L.Ed. 778 U.S. S.Ct. (5) helicopter, the McCulloch MC-4C (1912). infringed by Claims and 65 the Vertol of “cross-sec- Use “sectional” to mean H-21B, HUP-1, the Vertol McCulloch the tional” not doctrine of does violate the HTL-4, MC-4C, Bell Hiller the and the and 57 claim differentiation. Claims Only H-23A. Claims 64 and 65 have way in use mass center the that we same properly excepted to; therefore, been we interpreted center as have sectional mass findings

adopt trial the commissioner’s Claim differentiation would Claim 64. infringement of on Claims 62. normally expressions have different in element differently. of this claim Claim in different claims But 6k.—An read states the rotor (56, that 64), blade’s sectional these claims the two mass phrases interchangeable. center as as be at least far forward meant are to be aerodynamic only its appears center. “Sectional” the Claims 56 57 use references to specification. convey once in the In ex- us- chord achieves what 64 plaining weights may any making that movable ref- "sectional” and not Thus,

erences chord. the dif- The make the the accused structures. —We holding phrases ference these is on 64. between intended same on that made we style adopt one to be content. We find- of not the commissioner’s trial ings H-21B that the HUP-1 and Vertol The accused structures. —Ex helicopters infringe And we Claim ceptions only have been taken to the do find all other accused structures infringe findings trial commissioner’s infringe not Claim 65. HTL-4, on H- ment the Bell the Hiller in provides, claim 59.—This Claim 23A, and McCulloch MC-4C. On the along weights placement part, helicopters, Vertol we HUP-1 and H-21B edge leading near the blade adopt findings infringement. his bring helps tip.29 placement This generates The mass center forces forward of the blade center mass push downwardly on it is when blade neg aerodynamic as achieve center so producing aerodynamic The lift. center 4, col. Id pitching at moment. ative generates upward forces. effect total It increases Is. also 19-22. depends upon these forces their relative in the rotor inertia of moment of placement along the blade’s cross-section. lesser in that manner economical spot, occupy If the two same centers in tip weight is effective as out near their forces balance out. This called weight greater increasing inertia pitching neutral moment. With the 14-19 Is. col. inboard. Id aerodynamic forward, center the forces 1, Is. ‍‌​​​​‌​‌‌‌​‌​‌​​‌‌​‌‌​​​‌‌​‌​​‌‌‌​​‌​​‌​​‌​​​‌​‌‍63-73. col. push upward positive and there is Exceptions accused structures. — pitching moment. With the mass center commis- trial taken to have been forward, leading edge is forced down infringement findings sioner’s negative pitching ward and a moment On Hiller H-23A. and the Bell HTL-4 negative pitching results.28 A moment helicop- H-21B HUP-1 and the Vertol flapping reduces blade and increases infringe- findings ters, adopt his we efficiency. This result ment. seeks, part, Claim 64 to achieve. Specification col. Is. 20-33. helicopters Hiller The Bell and rotor blades their steel bar on have a excepted None three edge. leading It is is close to infringe structures 64. Neither Claim tip of however, near concentrated not the Bell HTL-4 nor Hiller has H-23A length full since it extends the negative pitching cross-sectional mo blade, sec of uniform cross and is helicopter ment. The Bell has a mass negative achieving bar tion. The aids percent center one to two behind economically pitching moment, not but aerodynamic center. The Hiller heli increasing of inertia. Since the moment copter has the mass center one to three way operate sub in a the bar does percent aerodynamic behind the center. teachings stantially similar negative moment, pitching Without substantially similar 59 and with a Claim these structures cannot achieve the de helicopters result, the Bell Hiller way sired result the claim sets infringing not structures. forth. The same holds for the McCulloch 2,216,162. Patent Cierva No. —The pitching MC-4C which has a neutral (1) trial commissioner found. Claims 7 moment. infringed by and the Bell HTL-2 and helicopters, (2) 8 in- HTL-1 and Claim dependent upon Claim 65. —It is fringed by the HTL-2. only infringed Claim 64 and can if be infringed. Schutte, Application 64 is of the ’162 The claims. —The claims of obtaining 323, (1957). teach a means F.2d 44 CCPA 922 drawing Appendix Appendix. drawings 2, 29. for a de- See 4 in 28. 3 and See piction as found in the this drawings. They capacity. obtain the rise this result two levers must measure of vertical register operation ro conjoint propose with one another when the the pitch releasing con clutch is in “clutch lever the tor controls the drive engaged bring position” pitch in a simultaneous control trols to about the pitch position. pitch disconnection lever is in minimum crease in rotor and a the 1, 2, See, applied the power. Id at col. Is. at rotor is 16-30. also id Power only the col. Is. craft is 67-75 and at col. rotor when the 72-4, 1,1. ground a no- rotor at col. and has its blades rotating pitch. at lift When the rotor is the the con References fact that pilot speed, a sufficient activates joint operation separate for should allow simultaneously that increases mechanism pitch control of the rotor and mecha pitch collective rotor blades nisms does not show that functions power from the rotor. and disconnects other than vertical are contem take-offs This increase in lift will cause sudden plated by They only show the invention. rotory wing literally jump aircraft off linkage that controls between the two ground a semblance thus achieve should be constructed to con allow each Specification of vertical take-off. trol to also serve its normal function. Is. col. 6-18.30 The accused structures.- —Since operation rotor drive conjoint The autorotatively operated, its rotor is an change effect a ver- pitch controls autogiro cannot achieve use the rotor to is not embodiment tical take-off equipped vertical takes-offs unless it is of its invention, is a statement but as some additional mechanism such re- take-off The result. vertical desired taught by patent. The the T62 ac Id “the invention.” is as sult referred being helicopters, structures, cused do 1,1. 2 Is. 72- And id at col. col. require not take-off vertical assistance. purpose” “the referred to as powered they rotor, With a have the specification does the invention. ability vertically to rise as a matter of embodiments, as means discuss but operating procedure. normal Since implementing take-off and vertical patentee patent’s has limited his result conjoint op- for not additional uses assistance, vertical take-off the ac following the controls. The eration of cused structures do achieve same supports this statement: substantially They or a similar result. susceptible of a num- The invention is operate way also do not same ber of constructional embodiments. the claims teach since at no time would regulating example, For a control lever pitch helicopter’s of a in be rotors angle pitch and a control lever ac- simultaneoulsy creased with disconnec may tuating release be ar- the clutch power. tion of the rotor Claims 8 and ranged side, similarly by to the side infringed. 22 are not twin-engined throttle control levers of — 2,421,364 way Patent No. aircraft in such a that either lever Cierva (1) operated independently found: can be but both trial commissioner by infringed 33, 44, operated levers can one hand of Claims helicopter, particu- pilot purpose Kaman HOK-1 of simul- larly (2) taneously releasing rotors, clutch the construction of its starter increasing infringed by angle. pitch Bell To Claims 53 and 54 flight specification that utilized in autorotative sub- 30. The states: stantially time at the same as the starter “The invention refers to the method over-speed- disengaged, ‘taking-off’ in order to which сonsists transmission energy kinetic the rotor means of the starter utilize the excess overspeeded transmission, having latter to raise aircraft a suitable ground.” purpose, substantially vertically gear with the ro- from ratio for this pitch angle, pref- tor blades set at a small 2, 1, 1, Is. Is. and col. 31. Id. at col. 19-27 erably zero, increasing and the blade 45-46. great pitch angle at to a value least as 410 Development Engineering Lab- particularly its helicopter, main. HTL-4 America, Corp. sustaining construction, Radio oratories rotor Hiller (2d 1946); Binks 153 523 Cir. helicopter rotor construc- F.2d H-23A its Electro-Coating Mfg. Ransburg

tion, helicopter Co. v. MC-4C and the McCulloch 55, supra. rotors, (3) Corp., fore Claims and aft infringed by the HTL-4 56 and 60 Bell applicant’s were The claims late-filed 33, 44 and H-23A. Claims Hiller them to he limited allowed since to; excepted properly 45 have not been scope previously claims. allowed therefore, adopt we the trial commis- “a stated to combina- Claim 54 was be findings infringement on sioner’s general pur- tion within of features these claims. view of claims heretofore allowed * * patent the ’162 The claims. —Where Wrapper File 249. ’364 at accomplish a to provided means manual Claim called “a simi- 55 was combination pro- patent take-off, the ’364 vertical subject-matter lar to heretofore allowed means. vides nonmanual applicant.” to Ibid. comments Similar were made about 56 and 60. Id Claims were 54, 55 and 60 Claims already at 250 and 251. al- claims on presented the Patent Office first to regarding lowed had limitations vertical May February 1947; Claim take-offs and the means nonmanual years eleven 1947. was some This achieving They specific them. cited patent application. filing after components needed for take-off Wrapper It was 235-238. ’364 File the take-off itself. and/or years heli the first successful four after flight using copter struc accused originally Claim 53 was entered year than one after tures and more similarity on the basis of its to Claims production completion first heli By 54 depend and 60. Id at 300-302. copter using the accused structures. ing upon 54 and 60 to sanction its late first more have bеen filed Claims which filing, 53 must bear limitations their may year usage public be than one after scope be considered no broader 102(b).32 Where invalid. U.S.C. § previously than allowed claims. express the late-filed makes claim specification regarded “[a]n states been as what would have object provide an to of this invention is equivalent claims or it of earlier where par improved rotor and more efficient merely incorporates into one what claim obtaining ticularly adapted the most gathered perusal to be from was possible.” all, efficient direct take-off together, to if read allowed. Specification 1. col. exceptions 54—col. permitted These since object It of the inven designed also refers to protect public rule is to obviating disadvantages against tion abuses of the and not law prior col. take-off devices. Id at deprive they plainly vertical to inventors what 3, Is. put 7-32.33 public never meant into the do- Stackers, Also, Works, E.g., use.” Coats Loaders & Muncie Gear Inc. v. Out Henderson, (6th Co., Mfg. Cir. Inc. v. F.2d 915 board Marine & 315 U.S. Corp. 1956); Engineering v. Borden R.U.V. (1942) L.Ed. S.Ct. 1948); o., (2d Railway F.2d 688 Sayles, C Cir. 97 U.S. at 563 Co. v. Knitting Jacquard Co. v. Ord (1878) Machine 24 L.Ed. 1053 “ * * * Gauge Co., (E.D. F.Supp. says nance and 564: Courts (3d Pa.1951), Cir. regard jealousy aff’d 213 F.2d 503 should and disfavor 1954). enlarge any attempts scope of an application filed, or of a once once specification 33. The states: granted, the effect which would be process accomplishing a di- “In the patentee appropriate enable take-off, from instant at which rect prior al other inventions made such begins pitch autorota- increase until teration, appropriate operates established, that which or un- tion is regime, continuously changing gone public has, meantime, char- der a into

4H arrangement patent reaches its The way result of is The the ’364 this simple. quite When that movement of the on the result is blade desired hub, drag change pivot the power the rotor is associated connected to with a is lag angle pitch in the because blade will behind hub such that when blades lags to the move the blade of the resistance of the air behind its normal mean position, angle power pitch radial ment of the blades.34 When is de- stopped, By force will creased and vice is the blades’ inertia this means versa. swing angle pitch in the hub.35 them advance of automatic control of during lead-lag starting trans These tendencies can be of the rotor and obtained, lated into actual movement if take-off is blade the effect of permits application starting torque mounted on of the blade is an axis causing lag it to the back forth restric move without the blade to pitch angle, tion. if the therefore And free axis is inclined decrease its swings forth, starting torque where the whereas blade back and when van- change disengagement pitch will ishes on the blade also in its clutch, lags, pitch swings starter movements. When it the blade about angle drag pivot approximately will its decrease. leads When or into its swings pitch angle position forward, normal radial will inc with a conse- change quent pitch pitch angle rease.36 The increase of sudden in to about angle obtaining power that will value arise when the in is autorotational flight. provides removed from the rotor the im petus for a non-manual vertical take-off summary, teaching the ’364 way provided in a similar to that manu and its claims is means ally by patent.37 the ’162 achieving vertical This result take-offs. necessary by jump free axis that allows in reached the non-manual swing angle blade to pitch back product and forth with- in which turn is the out restriction as inclined, taking well as the inclination of an free axis advan- tage speci- axis are lead-lag set forth in both the of a rotor blade’s tenden- drawings. fication specifi- and the cies. provides cation at col. Is. 50-70: structures. —The The accused drag pivot pin The axis do Hiller H-23A Bell HTL-4 and the Fig. (termed axis) alpha in is shown their blades a free axis on which have 13 at and it will be seen that this [x-x] forth; swing their blades can back and upwardly and outward- axis is inclined hub unyieldingly the rotor affixed to longitudinal ly angle they at an acute to the flexibility. lead-lag Also, with no permit

blade axis b-b. inclination would have no which by varying which, inflow, upward start- is fоllowed acterized acceleration which zero, rapidly lifting relatively rapid falling at increas- ef- has first off of value, reaching ing positive (downward) give fort, may loss of rise declining peak height attained, more be- and thereafter the maximum from reversing again finally slowly flight to zero autorotative is established. fore sign object present it- as autorotation establishes invention is “An of the above-mentioned disadvan- self. to obviate the pitch angle “If, take-off, tages.” instantaneously from almost is increased drawing Appendix II. See value of zero to an autorotative about drawing Appendix degrees, II. say See the thrust the ro- or 6 jumps nothing immediately from to a tor drawing Appendix II. See exceeding large (peak) much value weight aircraft, take-off, pitch on account of the 37. After decreases inflow, angle initial absence of to an autorotational to a cer- due up (downward) builds the thrust inflow construction of the rotor blade which tain sharply taught to fall as the and continues the ’364 at col. falls speed falls. Thus the be- rotational Is. 56-60 and col. Is. 17-28 ginning specification. is a take-off there violent change swing, they separated by blades, the if did rotor and bear the mast ings. ring Only pitch. The blades one revolves. McCulloch MC-4C’s The pilot’s lead-lag flexibility, linked to the control is non-rotat but have limited rotating ring ring linked pro- and is there the no inclination that would is by change. helicopters rods the When control is pitch duce All blades. three applied, swashplate by power tilts and the the entire achieve vertical take-offs bring the rods attached the directed and no use blades to their rotors have cyclic changes.39 pitch taught about for a non-manual take-off as patent. the ’364 The accused structures The ’580 and its claims teach work, do not do the same in the same cyclic tilting pitch by control the real way, and for the same the result as specification axis. In the invention operation Nor claims issue. is their is so limited: substantially similar; therefore, they do Broadly, stabilizing this and control- infringe 55, 53, 54, Claims 56 and 60. ling controlling by action effected is 2,380,580. No. Cierva Patent —The of lift effect line of (1) Claims found: trial commissioner rotor, by causing shifting of by 1, infringed HTL-4 the Bell and lift Specifically, line thereof. the in- system, helicopter rotor control contemplates mounting vention helicopter rotor and its the Hiller H-23A common rotational axis of the rotor system, and the Kaman and rotor control tilting bodily displacement and/or helicopter and rotor HOK-1 and its rotor longitudinally laterally infringed by system, (2) Claim 8 control craft. helicopter, the McCul- Vertol HUP-1 specifically, the invention Still more helicopter, loch Vertol MC-4C mounting contemplates or ro- hub 12, (3) 10, helicopter, 11, H-21B Claims pair the rotor tational axis infringed by the HTL-4 and 15 Bell pivots, one of ex- transverse which H-23A, (4) in- and the Hüler Claim 13 longitudinally generally tends of the fringed HTL-4, (5) by the Bell Claim craft the other of which extends infringed by HUP-1 and Vertol generally transversely of the craft. the Vertol H-21B. arrangement preferred further wing Rotary aircraft The claims.— articulation of the dual each involves cyclic by plane a' a horizontal steered in wing rotor to its hub axis or system im system. This pitch control means of individual horizontal and changes blades poses on the rotor pitch pivots. vertical in in an to revolve rotor which cause 2, Specification 2, at 20-35. col. Is. concomitantly plane and which clined See, 4, 1, 2, also, 1. I. id at col. 7—col. 14. con Its produce movement. horizontal discussing non-rotating spe- In “certain of mech the more must be a trol device advantages objects cific in- though upon which anism even vention,” specification rotating discusses Gener mechanism. it ally, ais acts tilting pitch the types cyclic invention in terms of real are two there axis, tilting 7, 1, may id 1. I. 2. col. col. systems. be a There control 50— cyclic controlling pitch The possibility of the rotor or the virtual of the real axis by affecting axis, tilting is virtual axis is men- control the real axis. In non-rotating part tioned. id at col. Is. 13-15 and col. directly to a linked specification goes Is. no application con 56-66. The the rotor hub. rotating acknowledging further than existence tilt part also trol this will approach; axis, tilting other nowhere does it part.38 con virtual tilting directly teach such the virtual axis. applied blades. trol is swashplate seems usually Such casual reference sufficient done This encircling ap- patentee rings in that covere'd this concentric which is two Appendix drawing Appendix drawing 39. See II. 11 in II. 10 in See helicopter, dis- HUP-1 the Vertol H-21B hel- proach in his ’582 between cussed by cyclic pitch specification pitch hub, Brobdingnagian teach, blades. When problems pitch control substantially they This lends the ’580 coincidental patentee sition of structures tilting such control is is linkages relevant. Courts that copters these two crafts control so self not what tol Bell HTL-4 and the Hiller H-23A heli- their control supra, ing their blades trol HOK-1, one form stone documents copters The embodiments The accused achieved. This great HUP — cyclic pitch control; by do 5-) he control power Bridge they hereafter. is high by tilting not impose do not might patent’s approach tilting the McCulloch A has limited his invention Even (i. e., might cyclic pitch are not embodiments U.S. to find when achieve horizontal movement support member of the real axis of cyclic pitch do not do infringe. accompaniment degree and the Vertol hub is (id is the result of result and not the cause of the same by tilting the real axis. Co. v. supported by it would take a force of control as applied through have claimed though structures. —The achieve have been control relative to the real swashplate) parts. proportions general, but of may go what the real axis. used on of friction is created tilting through control. That col. Phoenix Iron 24 L.Ed. discussed the view it tilt control. has been MC-4C, way; cyclic pitch all through This friction is in the the ’580 claims instead, axis; claimed. creates is not when to the the fact that the accused H-21B heli- on the rotor bodily more is ir- helicopters. the 50-12, therefore, hub. The 344. the rotor that The fact same claimed, instead, various in the Kaman control patent it is a by major impo- cyclic cyclic apply mov- Key- Ver- con- this Co., col. the the it- or was and 17 copter, icopter, and the McCulloch MC-4C heli- aminer, copter, оp. seeking Bell HTL-4 have been fringed by stated: other accused structures. In to; over 16 is pitch fending ed this claim to Only sioner’s 149. Claim Claim control art Claim differentiation pitch control. pivot torneys pointed ment of blade root present end ly whereby position pivot altered as tively interposed The claims. —This [16], the file cit. therefore, offered * * * * * the showing any control only idea that the See, flapping pivot flapping pivot, mounting infringed by supra, (2) but and the blade cyclic findings operatively findings prior ^[17] calls out in means case and * also at 148. At acceptance the wrapper, includes Claims under Patent Office applicant (3) This claim a by tilting we footnote for: pitch is based unaware art. unit pitch cyclic variety. pitch change pivot opera- cyclic pitch interview, Bell member Claims adopt the trial commis- flapping pivot. adapted such pitch 6, 7, between the control without the Bell HSL-1 heli- the added feature includes infringement as an mounting infringement interposed of the blade and the blade HTL-4 stated: mounting properly excepted 26 and specific involves virtual axis. File the control in Claim applicant the Patent Ex- 16 and 17 in- adds applicant’s at- allowed * * any pitch control in de- system to alter teaches 9, 12, 13, 16 improvement shifting 148-149, Wrapper specifically helicopter. p. Claim available arrange- flapping between general- Rule member support may change *. on the on limit- cyclic cyclic claim root As 78. all he be In being 2,380,582.— pitch operatable mean Cierva Patent No. (1) cyclic independently pitch con- trial commissioner found: (as 1, 2, 3, 4, 7, 8, 13, 16, de- trol. This should be allowable Claims pendent [16]) infringed by 20 and from allowed Claim for Vertol they unit, bination; for are each a each serv- to the basis reasons similar * Therefore, single purpose. other *. of certain claims allowance cyclic system pitch the Bell control Wrapper If Claim 16 ’582 File at 163. operate or HTL-4 does not same pitch as well referred to control collective substantially way same as Claim cyclic pitch control, there would havе infringe it. does been adds no need for Claim dependent upon Since Claim pitch control to a of Claim collective base only infringed it can a structure claim But since differentiation infringes Application also would have 16 and cover ma- different Schutte, supra. Therefore, in- is not terials, it follows that 16 includes fringed by the Bell HTL-4. cyclic pitch control. IV structures. —The accused following summary, we “make inter cyclic system pitch Claim 16 infringement: findings posed flapping pivot and the between the mounting.40 HTL-4’s The Bell blade 1,948,457 (1) Patent Larsen No. cyclic pitch pivot located infringed control 12,13, 18 9, 14 , Claims assembly point higher rotor hub in the helicopter. by HUP-1 the Vertol mounting member than either 1,994,465 (2) Patent No. Cierva longitudinal blade.41 or the axis infringed 5,1, 7, 13 6 Claims 10 16 can be read on combination Claim by Vertol HUP-1. cyclic pitch helicopter and collective 1,990,291 (3) Larsen Patent No. systems control is control the latter since infringed by the Claims 4 and 6 flapping pivot interposed between the HTL-4, H-23A, Bell Hiller mounting A com member. the blade helicop- HUP-1 Vertol systems bination of these seems to two ters; 5, by Vertol Claim infringe they since horizontal achieve HUP-1. by system oper cyclic pitch movement (4) 2,151,215 Larsen Patent No. ating way taught by in a claim. infringed 2, 3, 6, 1, 9 5, 8 and Claims systems, however, These do not interact helicopter. by the Kaman HOK-1 together produce or the re contribute (5) Campbell 2,339,886 Patent No. taught by sult the claim. The fact that infringed by Kaman Claim 1 they operated simultaneously has can be bearing they HOK-1. op no whether have relationship them erative needed to label (6) Campbell 2,321,572 Patent No. infringing an combination. must There by 8, 9, infringed Claims 28 29 be an correlation coordina essential or the Kaman HOK-1. systems mutually tion con 2,344,966 Campbell (7) Patent No. sys tributes to a common result. infringed by Kaman 1 Claim mechanically tems not need interact HOK-1. together They one another. need act 2,344,967 (8) Patent No. Bennett result; they say, for the same that is to infringed 1, 3, 4, 2, 18 13 and Claims part must be unit which same by HOK-1. Kaman single purpose. g., serves a E. Beecher 2,880,583 (9) Patent No. Cierva Mfg. Mfg. Co., 114 Co. v. Atwater U.S. infring- 59, 60, 56, 64 and 65 Claims 523, (1885) ; 1007, 5 S.Ct. 29 L.Ed. 232 by HUP-1 and the Vertol ed Co., Supply Sachs v. Hartford Electric H-21B; by the 62, Claim Vertol (2d 1931); Appliсation F.2d Cir. McCulloch MC-4C. Worrest, 930, 201 F.2d CCPA (10) 2,421,864 (1953); Celery Patent No. Holland Plant Cierva Vollink v. infringed by 33, Co., supra. cyclic er collective 44 and 45 Claims pitch systems Kaman control are not such a com- HOK-1. drawing Appendix drawing Appendix in II. in II. See See validity deciding thermore, 2,380,582 find

(11) Patent No. we Cierva substantially public 7, 9, 13, 12, serve the 16 and does not Claims might finding invalidity infringed by interest. A Bell heli- HSL-1 1, 2, psychological copter; some value in have Claims against holding patentee 16, 17, 9, 12, 13, with a court’s 20 and validity might MC-4C, able to exert McCulloch infringer pressure against alleged HUP-1, and the Vertol Vertol patentee HUP-1, that a with an unblemished H-21B. and the Vertol legal might. Validity scant court record There is Patent holding of value to be from a in- derived infringed All claims found validity. Only may collat- defendant trial commissioner also found were erally holding subsequent ac- in a use party properly valid. has Neither ex against plaintiff. party tion No third cepted any findings validity. of fact on privy relationship par- not in a with the Only infringed on claims found it nec may litigation by ties avoid use of essary validity. to reach a decision on estoppel. Technograph collateral See infringe This results from the fact that Circuits, States, Printed Ltd. v. United ment an invalid it the same (1967). 372 F.2d 178 Ct.Cl. 543 Al- noninfringement.42 Therefore, adopt we though patentee might Judge be, findings the trial commissioner’s of va suit, terms, “wiped Frank’s out” this lidity infringed. on all claims found not, court, “wiped he is least this good. out” for infring found not all claims On summary, we find valid all claims ed, question of valid not reach the we do infringed. Op. supra, found cit. section ity. approach notwith-' We take this IV. validity argument standing that or not reached issue should be whether Conclusion infringement. finding has a there been plaintiff Since is the lawful owner of Judge concurring opinion Frank See all infringed, claims found valid and it is Plug Corp., Spark B. in Aero Co. v. G. entitled to recover “reasonable and entire 1942). (2d 130 F.2d Cir. compensation” for the unauthorized use deciding argument validity for is based Judgment of these claims. is entered to ground stake that there is more at liability effect. The extent of will validity issue of between than be proceedings determined in further be- parties. public inter There is a the two fore commissioner, the trial pursuant to est that must be served —an interest 47(c). Rule should the state of a so that know unnecessary and onerous and license Appendix I arrangements royalty could avoided. be 1,947,901 NO CIERVA PATENT validity case, Unlike the issue of was this squarely appeal aircraft, sustaining raised on in the Aero In an a Spark Plug having Co. case. Ibid. This distinc for construction blades mounted important; otherwise, tion is respect this court movement to axis mem- with an required that, would be to same proportioned do the work ber and so under scope unexcept we felt our currents, outside on the influence of air the blades have infringement Supreme ed-to average issues. The speed tip an autorotational at the recognized practice Court substantially has this in excess of the maximum treating validity flight speed not issue of capable when is craft (cid:127) properly Supply raised. being Exhibit the blades of the rotor of an aero Corp., supra. Co. v. Ace Patents Fur- substantially foil section of fixed center E.g., Printing Mfg. 1939); Cummings Moore, Miehle Press & Co. v. F.2d Corp., (7th (10th 1953); v. Publications 166 F.2d 615 Cir. Breeden Attwood 1948); Works, F.Supp. Cir. M. Swift & (W.D. Sons v. W. H. Brass Mfg. Co., (1st Mich.1952). Coe 102 F.2d 391 Cir. angles comprising respect pitch arranged, variable pressure, with rotor, centrifugal means member, to the hub a manner as such axis to the operatively equilib- the rotor associated with positions of free to assume responsive of rotational to variations lift forces inertia rium between changed speed urge toward general path of ro- ‍‌​​​​‌​‌‌‌​‌​‌​​‌‌​‌‌​​​‌‌​‌​​‌‌‌​​‌​​‌​​‌​​​‌​‌‍the blades points in their various angles, manually being pitch actuat- and means set and said blades tative travel centrifugal governor re- ed to override the positive calculated with a spect incidence provide positive manual set- a means for position relative no-lift to the angle. ting pitch of rota- plane perpendicular axis

tion. winged having 42. A aircraft rotative comprising rotatable a sustained rotor a 2,380,581 NO. PATENT PREWITT pivotally connected there- hub and a blade hub, comprising blades 28. Aircraft swinging upward with for and downward arranged on the hub and mounted compensate for differential movement to comprising angles pitch variable flight, lift in translational effects manually rotor, ac- means with the hub a mounting incor- blade porating on the hub further angles govern pitch tuated to blades, providing means for variation centrifugal operatively as- means pitch manually angle, ac- of blade means responsive to rotor and sociated with the angle govern pitch tuated to blades, urge the speed to of rotational increase centrifugal operatively means angles, pitch increased blades toward responsive associated with rotor and operatively adjustable as- means resilient urge speed to variations of rotational centrifugal means sociated with angle. changed pitch the blade toward urge neu- vary speed such at which tralized. 2,380,583 PATENT NO. CIERVA comprising rotatable 29. Aircraft sustaining 59. For autorotatable wing system, have of which the blades wing aircraft, rotary or rotor for having being system pitch angles, said variable mounting flapping pivot and in- adapted differential to accommodate corporating mass elements additional to chang- manually flight forces, for means requirements, ele- structural said mass ing angles, governing pitch means said being along ments concentrated the lead- angles, changing pitch and for said ing edge tip of the near the there- blade modifying of the means governing effectiveness of. change speed at means to aircraft, 64. In an autorotatable an angles pitch which the affected. sustaining adapted accommodate rotor hub, comprising 36. Aircraft a blades flight comprising differential forces and arranged for mounted on the hub and plurality a of with aeroform blades angles comprising pitch variable and varying pitch means for of effective manually rotor, actuated the hub a means being blades, of each of said blades blades, govern angles pitch of the substantially pressure fixed center sec- of centrifugal operatively as- and means having tion and center its sectional mass responsive sociated with the rotor and aerodynamic at least as far forward urge speed inсrease rotational of center. pitch angles. increased blades toward flapping variable-pitch rotor 65. A wing aircraft, sys- a rotatable 37. In having set forth features the blade having comprising tem rotor a blades 64. in Claim angles, pitch means which have variable angles, manually changing pitch for said 2,216,162 NO. CIERVA PATENT governing supplemental and means sustaining having a In an aircraft 7. part at least mounted on the rotor for - hub, plurality comprising a a rotor angles changing pitch of said blades. pivot mechanism blades and autorotatable mounting hub, inde- comprising hub, said blades on 38. a blades said Aircraft arranged operatable drive pendently disconnectible on the and for mounted hub longitudinal substantially independently center on said for rotor and means raising operatable axis. for and lower- means pitch the effective blades sustaining 54. In an aircraft rotor rotor, two and an interlock between said upright about an and con- rotatable axis independent means mounted for move- yielding flapping for structed operative inoperative ment between sufficiently sense to accommodate dif-

positions. ferential lift effects due translational flight, elongated sustaining an aeroform sustaining having In an aircraft a blade, capable autorotation, having a comprising hub, plurality rotor a a adapted root connection to mount pivot autorotatable blades and mechanism point longitudinal axis, blade at a on its mounting hub, said blades on said inde- including pitch varying said connection a pendently operatable drive, diseonnectible pivot approximately whose axis intersects independent- means for the rotor and rotation, having the axis of said blade a ly operatable raising means for and low- profile being bi-convex of a construc- ering pitch effective the blades providing flexibility tion flapping in the rotor, flight and a movable control having sense and its sectional mass cen- adapted posi- for the craft in at least one longitudinal ter located on said axis. tion to independent interlock said two sustaining means. In an aircraft rotor adapted compensate to accommodate or aircraft, combination, in an 22. The flight forces, elongat- for differential an power plant, an a autorotatable sus- ed sustaining blade, capable aeroform generally up- taining including rotor a autorotation, having blade-swinging a pivotally right secured hub and blades pivot general whose axis intersects including varying for thereto mechanism provide axis of up rotation to for pitch blades, the effective mecha- blade-swinging pitch-varying down and a driving nism for said rotor from said pivot disposed plane approximately in a power plant, operatable separately con- containing longitudinal axis of the mechanisms, trol for each of said rotation, being blade and the axis of interconnecting means said controls profile providing and structure operation. at will for common mass center location for blade sub- stantially longitudinal on said axis. 2,421,364 PATENT NO. CIERVA sustaining (cid:127)56. In an aircraft capable an aircraft of substan- compensate adapted or to accommodate tially descent, take-off sus- vertical forces, elongat- flight for differential taining generally rotor rotatable about a capable sustaining blade, ed aeroform upright adapted axis to accommodate blade-swinging autorotation, having a flight compensate or for differential general pivot whose axis intersects having forces ro- and means of direct up provide and for axis of rotation to flight, tor in control vertical effective swinging pitch-varying and down-blade a comprising elongated an aeroform sus- approximately pivot disposed plane in a taining blade, capable of autorotation at longitudinal containing the axis of the positive having pitch, said a root blade having rotation, axis and blade and the of adapted connection to amount the blade being profile and of struc- a bi-convex a point longitudinal axis, at a on its said providing for a mass center location ture vary- incorporating connection means for longitud- substantially on said blade ing pitch of the blade effective inal axis. approximately movement an about axis intersecting aircraft, sustaining rotation, axis In an air a of said 60. having adapted compen- profile a rotor blade a bi-convex and accommodate or flight forces, providing flexibility for construction in sate differential an elongated blade, sustaining path direction aeroform transverse to its rotational varying autorotation, having yield capable with freedom to under of a blade- thrust, having swinging pivot mass axis the blade further its whose intersects up aerodynamically provide general for to be rotated about said axis of rotation pitch- blade-swinging axis as a structure center and mounted and a

and down plane approx- respect for varying pivot disposed movement with said struc- in a longitudinal substantially ture containing axis about an inter- imately axis rotation, secting structure, the axis of and of said axis of blade provid- wing being profile control means mechanism for the and structure of a providing ing shifting for of the blade a center location for the controllable mass axis, longitudinal mounting system, lift line substantially of said of on said controllably varying wing including each ar- two individual and means for angled ticulations path to maneuver to each other and rotation of the blade longitudinal wing, axis of where- the aircraft. by to minimize control loads. 2,380,580 NO. CIERVA PATENT sustaining aircraft, a an aircraft, principal means In an a compris- system controlling rotor blade flight comprising support in a sustain- normally ing blade aeroform a rotatable type autorotatable-wing rotor of flight positive-lift inci- positioned in having rotation a vertical substantial general rotational to its dence relative rotor axis as the hereinafter referred path, pivot for said mechanism axis, controllably tilting said means for pivot plurality system incorporating a body rotor in of the axis relation to provide movements for blade axes which generally in aircraft at least one vertical compen- purposes as to well fоr control plane at least one real or virtual about flight forces for differential sate pivot axis, any in such characterized gyroscopic effects, said mech- minimize pivot center of axis located above the providing oscilla- axis of blade anism gravity aircraft, point general ro- axis of tion to the transverse intersection of the rotor axis with approximately rocking tation and a axis projection aerody- of the line of resultant oscillation, intersecting both said axis place namic reaction of the rotor on a intersecting substantially said axes containing both the rotor axis general rotation, and mech- axis of shortest distance between rotor axis controlling said rotor blade anism for pivot pivot and said axis is above said system mem- comprising pilot’s control axis, pivot and that off- the said axis is plurality in for ber movement mounted set from the rotor axis the direction of coupled pivoted parts planes dynamic the aero reaction line so that system by control connections of said flight no condition of forward does the adapted blade movements which to effect aerodynamic lie axis between system in like the lift line of tilt said pivot axis, reaction line and the said sense to the direction movement limiting pivot case in which the said axis pilot. said member passes through point the said of inter- sustaining aircraft, In an being section included. controlling system comprising rotor blade 3. An aircraft in accordance with normally posi- aeroform blade rotatable pivot Claim ar- in which the axis is flight positive-lift tioned incidence ranged longitudinal tilting for ro- general path, relative rotational generally transversely tor and extends system adapt- power drive means said the craft. provide op- to ed also for autorotational 4. An aircraft in accordance with system, pivot eration of said mechanism pivot Claim ar- which the axis is system incorporating for blade said rotor ranged tilting for lateral rotor and plurality pivot provide a axes which generally longitudinally the extends purposes for blade control movements for craft. compensate as to for differential well as flight gyroscopic aircraft, ef- forces and a rotative sustain- minimize In an fects, providing ing including upright an axis system axis said mechanism an gen- adapted structure, wing oscillation to the means blade transverse blade or rocking surfaces for horizontal tail vertical and axis a and eral axis of rotation longitudinal stability, intersecting and a of directional axis approximately said substantially mounting pylon rotor above streamlined oscillation, axes of said both autorotatably rotation, body, actuable sus- the taining intersecting general axis of by body controlling rotor rotor connected said to mechanism for and pylon having flappingly pivoted and pilot’s said system comprising control a blade acting wings, upon plu- rotor for means in a for movement member mounted wings shifting path pivoted of rotation of the coupled rality plans and with lat- by so as shift the rotor lift-line both system to parts control connec- of said erally longitudinally pur- for control and adapted movements blade tions to effect housing poses, pylon system in said streamlined of said tilt lift line the control connections to the rotor and of movement like to direction sense being upright positioned pilot, power for surfac- said of said member being for center of ar- coaction above the and drive means .constructed with, gravity rotor in lat- pivotal the controllable ranged permit move- free blade erally stabilizing controlling the operation and mech- of the control ments and flight craft. conditions. anism under all according 12. A Claim construction 2,380,582 CIERVA PATENT NO. sys- incorporating means which the aircraft, comprising In an a rotor to stabilize the craft at a tem acts certain adapted a hub a member to rotate about flight given flight speed. attitude for a radially generally upright axis a according 13. A construction to Claim extending having mount- blade a root end incorporating non-rebounding damp- 10 ing ing member, pivotally in- mechanism for exerting upon means a restraint terconnecting mounting the hub and said system. operations controllable of said provide pivotal member to for movements according 14. A construction Claim respect blade as a whole with 10, together acting with means resistive hub, including pivot said mechanism given general

to restore said blade to a flapping pivot providing a upward freedom for path of rotation relative to the aircraft swinging and downward move- relationship aerodynamical- when their during flight ment of the normal blade ly disturbed. maneuvering, pivot mechanism including pitch change aircraft, pivot further sustaining In an operatively interposed controlling flap- comprising elongated between the rotor ping pivot mounting means, and the centrally open rotatable blade mem- blade whereby pitch may member, ber rotor supporting hub blade a rotor shifting be position projecting upwardly member altered aas unit without into the pivot, opening flapping member, pivot central and con- of the hub cyclically varying respectively mounting trollable means for pitch angle mechanisms for synchronism blade blade means on the hub member and including pi- with rotation of the supporting hub member on the mem- having coupled pivotal ber lot’s control intersecting and connections axes each pilot’s other control and extended there- the axis of rotation of the rotor provide beyond pivot flapping from rocking both to the for movement of mounting member, root end blade blade said purposes means for control being flexibly-jointed adja- swinging connections movement of the blade flapping pivot cent the means to forces, axis to accommo- flight accommodate differential swinging date the manually regulable movements means for controlling flapping pivot blade rocking on the without in- movement of the troducing change pitch means, move- whereby extensive control at- swinging ments as a result of titude said blade laterally long- the aircraft itudinally. movements. having according body aircraft, 17. A construction to the preceding claim, normally control means thereоf fixed toward the rear pitch cyclicallyvarying pitch, be- adapted mean blade means to alter the ing independently operable. controllable said control means and having positive setting. WEN, Judge (concurring in incidence CO Chief dissenting part part): Claim tabulated to the elements show and thereof, reads as follows: majority and With deference recognition aircraft, In an due time with my study Judge asso- Durfee sustaining 1. a rotor construction join ciates who him have devoted with having blades case, I am un- of this the consideration (a) mounted for re- movement with agree portion of the able to with that spect member axis opinion to Cierva court’s which relates (b) proportioned that, under so 1,947,901, as to Patent No. referred currents, the influence of air the blades patent. average speed have an autorotational pointed As out the trial commissioner tip substantially in excess of the power- opinion, helicopters in his with flight speed maximum of which the rotary wings gyroplanes driven with capable, craft rotary wings (autorotation) wind-driven (c) being the blades broadly types are both old both substantially fix- an aerofoil section of wing resolving rotary aircraft. pressure, ed centre of issue, important it is mind that to bear in (d) arranged, respect throughout history prosecution member, manner as axis in such patent, issuance of the ’901 claims positions equilib- be free to assume present two different kinds were rium between lift forces intertia and application patent first, for the claims — points general path at various in their only rotary which are concerned with of travel rotative wing and, second, aircraft claims which (e) being a containing at rotary and said set to blades relate aircraft both wings positive re- wings. calculated incidence with and fixed aerofoils or original spect position application to (def. 94) to the no-lift relative ex. filed in plane perpendicular presented ro- a axis of claims, than the more in- numbering cluding tation. and [Indentation claims which did not refer to wing or added.] include a fixed and a number of wing others which recited a fixed as an the describing improvement of the In Moreover, element of the combination. patent over by the ’901 covered invention of pat- the claims included in ’901 the patent, the inventor earlier the ent, 14 do not recite or refer to fixed states: wings or areofoils. These are Claims I can best found that further I have 3,2, through 19 and 24 results, least these desirable attain the ’901 first of sentence sym- substantially employing when application re- the invention states that indi- sections, an with metrical blade wing improvements rotary air- lates in setting of positive-incidence vidual applicant’s craft earlier disclosed in the axis, prefer- of their common blades patent, 1,590,497. No. That Patent 5°, 3°, ably more than but around 2° or ro- in a

which was issued disclosed substantially compared with wing. tary wing aircraft without a fixed my setting said illustrated neutral produc- 1,590,497. This As trial commissioner’s shown in the No. Patent striking finding 25, results: in- the ’901 rather Claim of of two tive speeds of here, relationships first, slow not at rather volved does define that craft, rotary wing system of the and a between movement translational supplemental wing. Instead, operates slow- per- it at a somewhat fixed the rotor one with sustaining speed tains than to a rotor construction er of rotation nega- slight having proportioning a at no-lift or at features of dis- set blades incidence, lift- position blades, increased of with rotor are but which tive efficiency swingingly-pivoted ing friction- decreased in a airfoil section higher resistance; second, arrangement the rotor blades and with al advantageous of his most use craft, ered the speeds rotor tends to patent does use to which the materially rotation- invention—a run faster than craft, quotation does not him. The speeds speeds not confine al at low substantially proportioning of the rotor mention system. or rather than slower Instead, specification states respectively case constant as is combining one uses an aircraft if rotors, that the effective par- rotary wings neutral; both fixed negative or blade incidence is invention important ticular embodiment produces re- all of which described, the fix- total there area sult, later to considered. wings proportioned to the ed should be positive set- incidence Reference ting range of 50 of rotor blades area within in six of the rotor made blades is percent percent. read in to 100 When specifications separate paragraphs of the claims, connection with other advantages dealing purposes with the only perfectly clear that Claim 3 covers the ’901 invention. sustaining In that rotor construction. majority The decision of the is based context, proportion- the claim refers to a upon its “so conclusion the term tip rotor blades to achieve proportioned” rela- in Claim means a speed Therefore, find no described. I tionship fixed between rotor blades reading quotation basis in into wings. helicopters Since the accused only pertains Claim a3 limitation that wings, no have fixed holds that court wings proportioning to a fixed infringed. Claim 3 has In not been blades in both aircraft where reaching result, majority relies wings types employed. primarily upon quotations three from the view, my cer- the court has utilized specifications. The first these refers . pat- tain illustrative embodiments in proportioning disposition specifications purpose ent for the of en- system blades and blade and the “rela- grafting on Claim which does lifting tion thereof” to the fixed sur- wing aircraft, involve fixed limita- interpret portion faces. I first pertains wing tion which fixed quotation propor- aas reference to a aircraft. It me tioning seems an to that such the of rotor themselves in blades interpretation holding contrary is to the wings an aircraft without fixed for the of this in court purpose Zonolite Co. United achieving v. of the results describ- States, F.Supp. 953, 958, 149 Ct.Cl. 138 ined portion Claim 3. I read the second 114, 123, wherein the court stated: quotation of the as a statement that for including other claims drawings fixed both and ro- specifications and Patent tary wings, relationship there is a be- to read so as limit the are not to be tween the rotor blades and the fixed scope of the the claim recital where wing. There unambiguous. is no statement that the recital is clear and claim proportioned rotor blades are to the fixed in claims should construed While be wings. light specifications and the understanding drawings to obtain The quotation speci- second from thereof, the illustrative embodiments opinion fications in the court’s is no specified are into the not to be read more than an illustrative embodiment of Dunbar, claims. See v. White what inventor conceived to be the 47, 51-52, 72, L.Ed. 119 U.S. 7 S.Ct. 30 using best mode by employing invention, e., of his i. what is The claims alone define 303. having it in an aircraft by Kuhne patent. covered See wings. rotary both fixed There is Systems, United Inc. Identification v. no quotation reference in this second States, 1936, 82 Ct.Cl. “proportioning” 258. of the rotor blades. rule, quotation specifica- particularly in third from reason appears tions in footnote of an illustrative embodiment the court’s cases where opinion. again conception represents Here is that inventor’s an illustrative embodiment offered what the use of invention is inventor consid- the best (def. 122) applicant argued p. infringement, ex. set was as a defense to brings that as out Conti “the claim amended by Supreme in Court forth Paper proportioning re- Bag the blades with Paper Co. Eastern v. nental spect weight in to the of the craft such Bag Co., 28 S.Ct. 210 U.S. positive-lift in- that with a (1908): manner even 52 L.Ed. setting speed tip cidence have the will court that think it is clear We relationship in claim.” forth set sought com- considered Liddell that Thus, pro- is term “so it clear that ply of the Revised Stat- with § patent portioned” the ’901 has been in words, de- he filed utes. In other application filed disclosure since the was invention, explained scription its of his given in the definition 1930. Since principle, in which and the best mode questioned applicant not was princi- “contemplated applying he Office, the in- Patent to me that seems give ple” up all did intend to not interpretation ventor’s should be control- application. other modes An inven- ling. in the It also noted that should be conceives to tor must describe what he applicаtion, (def. pp. 1-4 Claims ex. mode, is con- be the he best but 16-17), (def. 49, pp. 18-20 23- Claims ex. most fined that. If this were not so 24), 28-29) (def. 49, pp. ex. and Claim 30 patents little worth. would wing no included to fixed air- references [Footnote omitted] craft. Id. at S.Ct. at proper It in look at other claims my It conclusion that Claim E interpreta determine the defines an invention particular tion in a of a involved proportion- claim which blades are so Adams, case. shape, area, United U.S. ed States and incidence with re- 39, 49, weight 15 L.Ed.2d 572 S.Ct. lation to the aircraft reaching (1966). interpretation, produce tip gives greater In speed majority compared efficiency has Claim 3 with operation rotary in the of a wing 8-17, refer Claims 4-7 and all aircraft. That conclusion is based wing upon to a fixed How or fixed aerofoil. wrapper, file consideration ever, study I contrast Claim would patent, Claim of the entire ’901 compare prior art, testimony expert Claim 3 with Claim and the having Claim which relates to aircraft witnesses —all as reflected the trial rotary wings, findings both reads as and fixed commissioner’s of fact. follows: determining meaning proportioned,” term “so I would turn sustaining rotor aircraft, a In an application first to the file. Connecticut having mounted blades construction Valley Enterprises, States, Inc. v. United respect an axis to movement with for 949, 468, ; 348 F.2d (1965) 172 Ct.Cl. 475 that, un- proportioned and so member Telephone Mastini v. American Tele & currents, the air der influence of the graph Co., F.Supp. 310, (S.D. average rotational an have blades N.Y.1964). substantially excess in speed tip the flight speed of proportioned” used the term “so was of translational original blades capable, the is in in the craft several of the claims which the arranged, original being re- example, with patent. the rotor For Claim of member, man- proportioning spect in such to the axis referred to positions free assume so under the influence ner to be to blades that as lift currents, inertia equilibrium of air have a of the blades would between gen- points their speed in forces at rotational as described. No refer- various together travel, wings. path of rotative ence made fixed eral was Claim substantially with a state the blades was amended that of aerofoil fixed approximately respect area proportioned an were to the “so with 50% effective 24). the rotative weight (def. the area p. the craft.” ex. 100% of supplied.] seeking [Emphasis In the blades. the allowance of Claim noteworthy portion relatively exceptions It is that the first In its few that court, comply Claim like Claim refers with the rules of this de- proportioning upon parts of the rotor blades to at- fendant has relied certain tip speed By specifications support tain the described. con- the trast, argument the last clause in Claim which that Claim is concerned ex- wing, specific clusively rotary wing includes a fixed recites a with aircraft hav- percentage wing wings. supplemental my of the area of fixed fixed In judgment, to the area rotative blades. find- commissioner’s trial ings 11-23, 362, 364, 366, 368, 380 and wing rotary covers Claim which effectively wing dispose of the fixed part aircraft, follows: states findings inclusive, 24-45, defense. His * * flight, wings having *; said deal with the features of the invention position of at an intermediate when upon disclosed in Claim and are based average pivotation, autorotational specifications, drawings, the file positive-lift with incidence is at which wrapper, testimony of the wit- plane perpendicular to the relation to a evidentiary findings, nesses. Such both form, rotation; elongated axis of ultimate, sustain a conclusion that average incidence of the area and the subject matter of Claim 3 is not wings being propor- said so rotative wing limited to fixed In aircraft. his weight tioned relation of of findings 56, inclusive, 48 to 57 to full that with the burden craft inclusive, 74, inclusive, and 66 to the trial falling upon sustention said rotor commissioner has shown clear detail wings average thereof have an rota- how the helicopters incorporate accused greater speed tip tional than combination elements defined in speed top forward Claim patent, operate 3 of the ’901 in the capable craft influence of under the manner, samе produce the same re- proplusion said forward means. [Em- sult. findings Since each of the enumer- phasis supplied.] ated supported by above is well the rec- wing, Since Claim 3 recites no fixed ord, adopt I would separate them as find- I would utilize the underlined statement ings of fact and as the basis determining proper in Claim 18 for conclusion of law. interpretation propor- of the term “so especially Under our in a rules and tioned” as it is used in Claim 3. case like this where a amount of vast The defendant contends trial parties evidence is offered both findings commissioner’s ultimate of fact conflicting testimony where there and recommended conclusions of are law expert witnesses, the trial commissioner’s entirely upon language based findings presumed to be correct. regard pertinent Claim 3 without to other my opinion, the defendant has not made reading evidence. mere A find- strong showing affirmative ings complete demonstrates inac- rejection justify would find- of such curacy of that contention and shows that ings. States, Davis v. United 164 Ct.Cl. findings validity infringe- (1964); Dodge 616-617 Street ment two-step process: resulted from a Building Corp. States, F.2d v. United First, meaning 641, 644, determination of the (1965). It 169 Ct.Cl. of Claim 3 from a consideration of all seems to me that a careful adherence evidence, including relevant pat- our rule is called for in this case. ent, application file, prior art, record one of the most voluminous that testimony many presented litigation witnesses. has in ever been in this court. determination Second, a determination ac- many requires issues factual helicopters cused substantially do balancing credibility of the wit- substantially same in work way same weight accomplish nesses and an assessment of the same result as the invention recited in documentary Claim 3. accorded to the evi- be. knowledge dence and understand- but principles ex- scientific so

tensively in this involved action. training experience view of the matters,

the trial commissioner such findings

I would not disturb his of fact respect to the ’901 on the regard inadequate

basis of what I as an showing contrary. to the above,

For the reasons stated I would

hold that Claim 3 of the infringed. valid and has been As to the patents action,

other I involved in this

concur in the court’s decision. COLLINS, Judge, joins ‍‌​​​​‌​‌‌‌​‌​‌​​‌‌​‌‌​​​‌‌​‌​​‌‌‌​​‌​​‌​​‌​​​‌​‌‍in the fore- going opinion, concurring part

dissenting part..

EASTERN ROTORCRAFT COR-

PORATION

v.

The UNITED STATES

Sidney SANDNES, G. Sandnes, Edward S. Sandnes, Arnold G. partnership, d.b.a. Sons, Sandnes’ Third-Party De- fendants.

No. 14-63.

United States Court of Claims.

Oct.

Case Details

Case Name: Autogiro Company of America v. The United States

Court Name: United States Court of Claims

Date Published: Oct 13, 1967

Citation: 384 F.2d 391

Docket Number: 50328

Court Abbreviation: Ct. Cl.