Opinion of the Court of said letters patent, numbers 1444890, 1496324, and 1422238. The court decided that plaintiff was not entitled to recover. LITTLETON, Judge, delivered the opinion of the court: Upon the facts established by the record, which have been set forth in detail in the findings and need not be repeated here, we are of opinion that the patent is invalid for lack of invention in that it involved no more than mechanical skill. Plaintiff devotes considerable discussion to the proposition that the synchronization of machine guns for aircraft firing was a difficult and delicate problem, the solution of which was a commendable accomplishment. This problem, however, had been successfully mastered by Constantinesco in the development of his synchronizing gears, which had been successfully adapted to and used on the Vickers machine gun used by the British, French, and American armies during the war long prior to the date of the patent in suit. Swebilius was well acquainted with that apparatus and the manner in which it operated in conjunction with the Vickers machine gun. All that remained to be done when Swebilius, in collaboration with others as set forth in finding 12, first gave attention to the matter was to adapt the gears to the Browning machine gun. The Browning was an automatic machine gun and was equipped with all the elements or parts required in an aircraft machine gun except the means of transmitting the impulses of the trigger motor of the C. C. synchronizing gears to the sear that held the firing pin in a retracted position so as to depress the sear, thereby releasing the firing pin. This was accomplished by the placing of the sear slide 17, as shown in figs. 1, 2, and 4 of the patent, finding 20, in the firing mechanism of the Browning aircraft machine gun, the synchronizing gears of which were placed on the side of the Browning gun instead of at the rear as had been done in the case of the Vickers aircraft machine gun. The function of this slide and its relation to other members of the gears and breech Opinion of the Court bolt are explained in detail in the findings, particularly findings 14 and 20, and need not be repeated here. The purpose of the slide 17, figs. 2 and 4, was to transmit impulses from the synchronizing gears to the sear 11, as shown in fig. 1, which, in turn, controlled the firing pin which primed or fired the cartridge. The synchronizing gears so controlled the time of firing that the bullet from the gun would always pass between the blades of the airplane propeller. The use of the slides, or bars, in machine guns for the purpose of transmitting impulses from the trigger mechanism to the sear which controlled the firing pin was well known long prior to the date of the Swebilius patent. Such a feature was an element in all machine guns as shown by prior patents in the art, some of which used a pivoted sear and others a slide. The British patent, #14047, to Maxim discloses the details of the firing mechanism of a machine gun. It shows a reciprocating breech bolt, such as is shown by the patent in suit, having a pivoted sear and a slide, both mounted on the breech bolt. One end of the slide has a cammed surface (finding 25). The structure shown in the Maxim patent is capable of being successfully synchronized for aircraft use by the substitution of the trigger motor of a synchronizing gear in place of a hand trigger. A number of machine guns embodying the structure shown in the Maxim patent were built and used by the Imperial German Government for synchronized firing from aircraft (finding 26). The British patent, 5940, to Enever in 1915 shows a firing mechanism with a reciprocating breech bolt having a vertical sliding sear (finding 27). United States patent 690739, issued to Kjellman in 1902, likewise disclosed a firing mechanism comprising a vertical sliding sear (finding 29); likewise U. S. patent 788432 to Schneider in 1905 and U. S. patent 1143470 to Whiting in 1915 each disclosed a sliding sear to act upon the sear that controlled the firing pin. An examination of the prior art shows that in a number of earlier structures both the sear and the slide were mounted on the breech bolt, while in others one of these elements was Opinion of the Court mounted on the breech bolt, and the other was mounted on the frame of the gun. Likewise some of the earlier sears were pivoted structures, while others were sliding or reciprocating structures; in all respects the equivalent at least of the slide involved in the patent in suit. All of these alternative constructions formed a part of the prior art, and we think there was no novelty in selecting any one of them in preference to the other. Inclined cam surfaces, such as are disclosed by 15 and 17a of fig. 4 of the patent in suit, finding 20, for transmitting motion in one direction to motion in a direction at an angle thereto, were used extensively in various mechanical arts as well as in the gun-making art prior to the date of the patent in suit. This expedient was within the knowledge of a mechanic skilled in the art at the time of the application for the patent in suit (finding 30). From what has been said above, we think the device, which the patent in suit purports to cover, is not a patentable novelty and that this conclusion is clearly sustained by the authorities. In Mills v. United States, 75 C. Cls. 256, 276, this court said: Invention results from the use of the creative mental faculty and must involve original thought or discovery, in contradistinction to the mechanical skill of the mechanic or artisan in selecting, combining, or rearranging the ideas of others into a more useful form. In Curtiss, et al., v. United States, 75 C. Cls. 286, 321, this court said: The difference between invention and the exercise of mechanical skill is not always easily discernible. Invention concededly involves the creative faculty, an exercise of the mental processes to evolve some original thought or discovery. Mechanical skill, at least as to one manifestation, consists in part at least of taking from the art elements that are old, whose inherent qualities are well known and by a suggestive combination, itself familiar, rearrange and relocate them so as to produce a more useful form. See, also, Newcomb, David Co., Inc., v. R. C. Mahon Co., 59 Fed. (2d) 899, 901, in which the court stated that— * Opinion of the Court the inventor must have done more than make a judicious selection from the devices of the prior art ** *. This is but the exercise of the mechanical ability reasonably to be expected in the development of the art, * * Swebilius, the patentee, did not testify in the case and the only information we have concerning his work in adapting the C. C. synchronizing gears to the Browning machine gun, as a result of which the application of the patent in suit was filed, is that, insofar as the patent in suit is concerned, he had the assistance of numerous U. S. Army officers in the development of the device covered by the patent, together with material, blue prints, designs, and experimental data of the Ordnance Department of the U. S. Army, all of which was placed at his disposal. What has been said above applies to all of the claims of the patent in suit, but a word might be said with reference to the broad claims 22 to 28, inclusive, covering a basic combination of a machine gun with synchronizing gears. The original claims of the patent application were first rejected by the patent examiner on prior art. The applicant then sought to distinguish the references of the examiner (which references did not include the British patent to Maxim), by pointing out that in his structure both the sear which controlled the release of the firing pin and the slide that actuated the scar, causing the release of the firing pin, were mounted on the breech bolt, while in the art cited by the examiner the sear alone was mounted on the breech bolt and the slide was carried on the framework of the gun. Upon that basis the application was allowed August 18, 1920 (finding 17); but, when these claims were under consideration, the patent examiner apparently did not know and was not informed that the Browning machine gun for use on the ground and operated by a hand trigger, theretofore delivered to the Marlin Rockwell plant for adaptation to aircraft use and theretofore studied by Swebilius before he conceived his alleged invention and filed his application, had in fact both a slide and a sear mounted on the breech bolt. After the application was allowed in 1920 the applicant failed to pay the final fee within the prescribed time Opinion of the Court and the application lapsed. More than a year later The Marlin Firearms Corporation, the plaintiff herein, filed a petition as assignee of the patent to renew the original application; thereupon the examiner cited the British patent to Maxim to which no reference had been previously made and which carried both the sear and the slide on the breech bolt. Plaintiff sought to distinguish the Maxim patent on the ground that the latter used a pivoted sear while the patent application disclosed a sliding sear. In addition to the claims of the application as originally allowed, plaintiff, by amendment, added several new broad combination claims, nos. 22 to 28, inclusive. Thereafter the claims disclosed in the patent in suit were allowed and the patent in question issued April 3, 1923. During this consideration the patent examiner, obviously, it would seem, did not know and was not informed that the Browning machine gun of the ground type had a sliding sear and a slide both mounted on the breech bolt; to that extent, the very elements which the applicant claimed justified the allowance of the patent were found in a structure that had been in public use, and which had been delivered by the Government to the Marlin Rockwell Corporation, the plaintiff's predecessor, for modification to adapt it to synchronized firing. The elements of the broad combination claims 22 to 28, inclusive, were either found in the Maxim patent which was successfully synchronized for aircraft firing by the substitution of the trigger motor of a synchronizing gear in place of a hand trigger, and also in the Vickers aircraft machine gun, or in the various mechanical and the gun-making arts (findings 6, 7, and 30). The Vickers machine gun was delivered to and studied by Swebilius prior to the date of his alleged invention. This conclusion may be illustrated by an analysis of claim 22, which is typical of the combination claims. The first element mentioned is an automatic gun, that was old; the second is "a receiver", which was old; the third, "a breech bolt reciprocatively mounted therein", which also was old; the fourth, "a movable sear carried thereby" was likewise |