Reporter's Statement of the Case United States patent to Kjellman, #814547, patented March 6, 1906. United States patent to Whiting, #1143470, patented June 15, 1915. British patent to Mannlicher, #6787 of 1892. United States patent to Schneider, #788432, patented April 25, 1905. United States patent to Gerdom, #751847, patented February 9, 1904. Copies of the above patents, defendant's exhibits numbers 8, 9, 10, 11, 12, 13, 14, and 15, are by reference made a part of this finding. 25. The British patent to Maxim, #14047 of 1885, relates to machine guns; figures 19 and 29 of the patent disclose details of the firing mechanism. The structure as disclosed in these figures of the drawings and in the specification comprises a reciprocating breechbolt having a sear and a slide member both mounted thereon; the sear is mounted so as to have a reciprocatory motion about a pivot, the sear having the usual function of engaging a firing pin for the purpose of controlling its release. This firing pin is also contained in the breechbolt. The slide member is mounted in a vertical position and its upper end engages the rear end of the sear. The lower end of the slide member has a cammed surface which is adapted to assume a position for contact with a trigger member when the breech bolt is in the forward or breeched position. The trigger member is adapted for operation by the trigger, a hand-operated trigger being shown. Pressure on the trigger causes rotation of the trigger bar which in turn operates through the cam surface of the slide member to force the slide upward, provided at that time the breechbolt is in the forward position. The upward motion of the slide member operates the sear, causing the same to reciprocate about its pivot and release the firing pin. A second or safety sear is provided which functions to hold the firing pin in the retracted position independently of the release by the main sear until the breechbolt reaches its forward or breeched position. Reporter's Statement of the Case 26. The Maxim structure is capable of being successfully synchronized for firing from aircraft by the substitution of a trigger motor of a synchronizing gear for the hand trigger so that the trigger motor plunger would either act on the trigger bar or come into direct contact with the slide member. A number of machine guns embodying the structure as shown in the Maxim patent were built and used by the German Army during the World War for synchronized firing from aircraft; at least one of these guns is now in the museum of the Ordnance Department of the United States Army at Washington, D. C. 27. If the Maxim structure is thus synchronized and the trigger member receives an impulse when the breechbolt is not in a forward position the cam surface on the slide member will not be in registration with the corresponding cam surface on the trigger member and the latter will, therefore, merely idle, and the gun will not fire. Should the trigger member receive an impulse at an interval in the operation of the parts when the cam surfaces of the trigger member and the slide member are in partial but not complete registration, the slide member will be lifted as the breechbolt moves forward but the gun will not fire until the safety gear is released by the breech bolt assuming its full forward position. Such action will cause a slight variation or lag in the time of firing. This variation while varying the width of the shot group, is within the factor of safety. The arc of the shot group taking the variation into consideration with the propeller running at a blade speed of 1,800 r. p. m., is 16.5 degrees with the structure of the Maxim patent operated with a synchronizing trigger motor of the same type as that of the patent in suit, as compared with an arc of 15.75 degrees in the shot group with the structure of the patent in suit at the same propeller speed. 28. British patent to Enever, #5940 of 1915, discloses an automatic hand-operated firearm of the magazine type. The firing mechanism as disclosed provides a sliding reciprocating breechbolt mechanism having a vertical sliding sear. When the breechbolt is moved into the forward or breeched Reporter's Statement of the Case position the end of the sear is carried into operative relationship with a plunger connected with the trigger, this plunger member being carried on the housing or receiver of the gun. When the trigger is pulled the plunger member will operate through the sear to release the firing pin provided the end of the sear is in operative relationship with the plunger which relationship only occurs when the breech bolt is in a substantially breeched position. 29. United States patent to Kjellman et al., #690739 of 1902, discloses an automatic hand-operated firearm of the magazine type having a reciprocating breech bolt carrying a firing pin and firing pin spring. A vertical sliding sear is also mounted in the breech bolt with its upper end arranged to engage with the firing pin when the latter is in a cocked position. The sear is normally held in an elevated position by means of a spring and has as its lower end a hook-shaped portion adapted to engage with a sliding member carried or mounted on the frame of the gun. This slide is engaged by one end of the trigger. Upon operation of the trigger, if at that instance the breech bolt is in its forward or firing position, the slide engages the sear and thus operates the firing pin. 30. One character of problem solved by prior art structures as exemplified by the Vickers machine gun as synchronized by the Constantinesco gear, the Browning machine gun structure as supplied to the Marlin Rockwell Corporation for synchronization, the Maxim machine gun in British patent to Maxim #14047 of 1885, British patent to Enever, #5940 of 1915, and United States patent to Kjellman et al., #690739, was that of imparting a trigger impulse from a trigger member carried on the frame of a machine gun to a sear carried on a breech block having a reciprocating motion relative to the frame. This same problem when considered in connection with the adaptation of the Browning gun for synchronized fire at the plant of the Marlin Rockwell Corporation, differed from the above enumerated prior structures and patents only in that it involved the additional problem of transmitting Reporter's Statement of the Case motion from a trigger member on the frame having a path of movement at right angles to the movement of the sear. The use of inclined cam surfaces for transmitting motion in one direction to motion in a direction at an angle thereto was used quite extensively in various mechanical arts as well as the gun-making art, and was within the knowledge of a mechanic skilled in the art at the time of application for a patent in suit. This is exemplified by the following prior patents: United States patent to Heyse, #141714, patented August 12, 1873. United States patent to Brown, #179155, patented June 27, 1876. United States patent to Hartness, #425224, patented April 8, 1890. United States patent to Nordenfelt, #298493, patented May 13, 1884. Copies of the above patents, defendant's exhibits numbers 16, 17, 18, and 19, are by reference made a part of this finding. 31. The Government paid the Marlin Rockwell Corporation the sum of $2,000 each for the first three Browning aircraft machine guns manufactured by it. The price paid to the Marlin Rockwell Corporation by the Government for the remainder of the Browning aircraft machine guns was $242 apiece. At the time of the final settlement between the Marlin Rockwell Corporation and the United States, which took place in 1919, the United States reimbursed the Marlin Rockwell Corporation for the wages of its various employees, including Swebilius, the patentee herein, for services performed for their employer during the year 1918. 32. The maximum daily capacity of the plant of the Marlin Rockwell Corporation for the manufacture of Browning aircraft machine guns was 300 guns. As was well known to the company, the Government requirements were far in excess of that quantity, and it was, therefore, necessary to develop additional sources of supply of Browning aircraft machine guns. For that purpose the Marlin Rockwell Corporation at the request of the Government, in June 1918 and at various times thereafter, sent full and detailed speci Reporter's Statement of the Case fications, drawings, and working models of the Browning aircraft machine gun to several other manufacturers, among whom were the Remington Arms Company, the New England Westinghouse Company, and the Colt Patent Firearms Corporation. As was then well known to the Marlin Rockwell Corporation, it was the purpose of the Government to have these companies manufacture Browning aircraft machine guns. Beginning in or about June 1918, the Government, with the full knowledge of the Marlin Rockwell Corporation, ordered Browning aircraft machine guns from the aforesaid companies, and without any protest from it or anyone else. Neither the Marlin Rockwell Corporation nor anyone else informed or notified either the Government or any of the aforesaid companies that an application for a patent on any part of the said gun had been filed in behalf of the Marlin Rockwell Corporation or that it was intended to file any such application. The Government, other than the United States Patent Office, received no information of the filing of the application for a patent until after the patent was issued April 3, 1923. No objection was ever made or any question raised as to the use by the Government of the device covered by the patent in suit, either by Swebilius, the patentee herein, or the Marlin Rockwell Corporation, or any of its officers or directors. 33. No notice of infringement was ever served on the defendant prior to the commencement of this action. Neither the Marlin Firearms Corporation nor the receivers herein have ever manufactured any guns covered by the patent in suit. Neither Swebilius, the patentee, nor the Marlin Rockwell Corporation, nor its successor, The Marlin Firearms Corporation, ever made any claim against the United States in connection with the patent in suit prior to the filing of the present action, and the Government was not informed of any intention on the part of the foregoing to make any claim. The following United States Letters Patent have been withdrawn from this action and the plaintiff expressly waives any claim to compensation in regard to each and all 78975-37-cc-vol. 83-5 |