Reporter's Statement of the Case Nice, France, until 1904, and then at an army post at Chalais-Meudon, France. Prior to Esnault-Pelterie's French application for patent filed January 19 and January 22, 1907, which matured into French patents nos. 373763 and 373818, two printed publications were issued in France by Captain Ferber, as follows: "The Progress of Aviation since 1901 by Gliding Planes, published 1904", and "The Progress of Aviation by Gliding Planes-Step by Step, Jump by Jump, Flight by Flight, published 1906." Copies of these, defendant's exhibits D-68a and D-68b, are by reference made a part of this finding. These publications show and describe biplanes having a front elevator. Triangular "focs" or jibs are located in the opposite extremities of one of the plane surfaces. These are mounted to turn on a vertical axis and when so turned functioned to increase the resistance of that end of the plane thereby having a directional steering or turning function. The means whereby these "focs" were turned or controlled is not shown or described in these publications. There is no disclosure in these publications of the operating means for controlling the longitudinal or lateral equilibrium of the airplanes. XLI. Captain Ferber's first experimental airplanes had either one or two horizontally mounted rods which were pushed or pulled in the direction of their axes for operating the elevator to cause the plane to nose up or down and were swung from side to side to operate the "focs" or jibs for steering the plane. Such planes were constructed in 1904. In 1905 the jibs were no longer mounted vertically but pivoted on axes of about 45 degrees. The result of this change was that the jibs functioned not only as rudders but also as ailerons so as to introduce a lateral equilibrium control, combined with steering control. In the spring of 1905 Captain Ferber constructed an experimental machine in which the horizontal control levers were replaced by a three-sided rectangular frame erected in a vertical position, flexible joints permitting this frame to be twisted or moved in any direction. Reporter's Statement of the Case Control was effected by the pilot grasping the lower horizontal bar of the frame and moving the same forward or backward to ascend or descend, and moving it axially to the right or left to turn and bank the airplane. This machine was rebuilt in the latter part of 1905 and a closed rectangular frame substituted for the three-sided frame. The elevator was controlled by the fore and aft motion of the frame and the jibs or ailerons were controlled by a transverse motion or working of the frame. Still another machine was built by Ferber at Chalais-Meudon in 1906 in which a vertical frame was likewise used to operate the controls, except that the ailerons were actuated by moving the upright members of the frame alternately fore and aft. There is no evidence that any of these airplanes had steering means separate and distinct from lateral equilibrium controlling means. There is no evidence that any of these experimental machines are in existence, and no contemporaneous photographs or drawings disclosing details of connection of the controls are in existence. There is no evidence that Captain Ferber made application for a patent earlier than July 19, 1907, at which time he filed a patent application in France entitled "Arrangement for control of the rudders of an airplane." The army post at Chalais-Meudon was not open to the general public. A permit had to be obtained from the commanding officer in order to obtain access thereto. There is no evidence that the plaintiff, Robert EsnaultPelterie, ever witnessed any of Captain Ferber's tests, or ever saw any of his airplanes, or obtained any knowledge of his equilibrium controlling or steering-control means prior to January 19, 1907. XLII. In 1911 Esnault-Pelterie was commencing a series of suits in France based upon his French patents, and through his patent attorneys, Armengaud Jeme et Fils, notified Louis Bleriot, an experimenter and manufacturer of airplanes, of alleged infringement of his French patents. Bleriot directed the attention of Marcel Armengaud of the fact that in 1901-1903 he had constructed a flying ma 344-36-cc-vol. 81-- - 54 Reporter's Statement of the Case chine of the flapping wing type, which had a control system including a horizontal lever mounted on a universal joint at the rear of the pilot, the forward levers adjacent the pilot being provided with a pair of handlebars or forks which projected forward on either side of the pilot. This lever was connected to a control element comprising an integral horizontal and vertical rudder. XLIII. A translation of a letter written to Armengaud on February 10, 1911, by P. A. Vautrin, who constructed this airplane for Bleriot, reads as follows: "Monsieur Armengaud: "I saw Mr. Bleriot last Saturday. He asked me if I could remember the control (gouvernail) of the flapping wing airplane that I constructed at his place, rue Duret, 14 or 16, about 1901, 02, or 03. I do not remember exactly, and to write to you on this subject. Yes, sir; Mr. Bleriot and I studied this double control, direction, and height (profondeur), and I constructed myself, helped by several companion mechanics, rue Duret, about the date above stated. "Enclosed is a diagram of this control. "The aviator, facing forward in the direction of the arrow, is placed between the two handles of the control of the rudder, which makes only one piece with four arms, a b c d, and the frame e articulated at ƒ and g to the cross piece h. The cross piece h, of which the rectangular frame gives to it a great deal of amplitude, is articulated at i j to the fork k fixed to the tubular frame. The arms a b c d are respectively and constantly situated in the prolongation of the axes figi which intersect at the point o. At the extremity of the tube l mounted in a sleeve of the fork k is fixed a second cardan (universal joint) similar to the first, controlled by the latter by means of wires m n o p. It is useless to make the description of this second cardan which resembles almost exactly the first one. "The rudder properly called is mounted in the sleeve 9, Fig. 1 and Fig. 3. The rigidity of its axis (a tube) is aug mented by the action of the pulling wires connected respectively to the ends of the arms a' b'c' d' at the extremities of the cross pieces of the rudder a2 b2 c2 d2. "Figure 2 represents the two cross pieces h and h', and Figure 3 the rudder, the sleeve in which it is mounted and the four arms, the whole making only one sole piece. "If one wishes to control in height (profondeur) for rising for example, one presses down on the handles. The contrary if one wishes to descend. If one wishes to control Reporter's Statement of the Case in direction, to the right, one pushes the handles to the left. If one wishes to control in height for rising and in direction to the right, one presses down on the handles obliquely to the left. In a word one carries the handles to the side opposite to that one wishes to go. "One is obliged to employ these two cardans, being given the distance which separates the aviator from the rudder." The sketch which accompanies the letter and which is entitled "Rudder with Two Objects-Direction and Elevation," is illustrated herewith: Gouvernail fins._.direction XLIV. As a result of the disclosure referred to in findings XLII and XLIII, an agreement was prepared and signed by Esnault-Pelterie and Bleriot under date of November 1, Reporter's Statement of the Case The agreement in its preamble recites plaintiff's French patents of December 1906 and January 1907 and certain French patents of Bleriot applied for February 9, 1907, and April 26, 1907. The preamble continues as follows: "In consequence of claims made by Mr. Esnault-Pelterie against Mr. Bleriot, relative to his single bell lever, Mr. Bleriot has been able to prove to Mr. Esnault-Pelterie that he was in prior, legitimate, and personal possession of the invention that is to say, of the single lever mounted on a cardan joint-by proofs accepted by Mr. Esnault-Pelterie. "Under these circumstances the two parties have decided to conclude an arrangement consisting in putting in common their French patents in order to reciprocally enforce the rights thereto attached which secure to them the ownership of the single lever control of the organs of stabilization in airplanes, and they have entered into the present agreement." Articles III and IV of this agreement are as follows: "ARTICLE III "By reason of the legitimate and prior possession strictly limited to the person of Mr. Bleriot, the latter will be able to provide his machines with his arrangement of single bell lever without paying any royalty to Mr. Esnault-Pelterie, or, in other words, he will have the free use of his invention for all the levers with which his apparatus shall be provided and for all those that he will furnish directly to the private industry. "ARTICLE IV "By reason of this circumstance that the patents of Mr. Esnault-Pelterie are all prior to the patents of Mr. Bleriot, the latter engages himself to pay to Mr. Esnault-Pelterie half of the amount of the royalties that he will receive from his existing and future licensees for the single bell levers mounted in cardan (universal joint)." A translation of this agreement, defendant's exhibit D-32b, is by reference made a part of this finding. XLV. The expression "in prior, legitimate, and personal possession of the invention" is a phrase peculiar to the French patent law. It indicates a secret possession or knowledge legitimately obtained of a patented invention. prior to the application for a patent. |