CERTIORARI TO THE COURT OF CLAIMS.
Hughes, Van Devanter, McReynolds, Brandeis, Sutherland, Butler, Roberts, Cardozo; Stone took no part in the consideration or decision of this case.
MR. JUSTICE BUTLER delivered the opinion of the Court.
Respondent is a citizen and resident of the French Republic and authorized to sue the United States in the Court of Claims.*fn1 His amended complaint alleges a cause of action under the Act of June 25, 1910, as amended,*fn2 for the use and manufacture by or for the United States of a device covered by his patent No. 1,115,795, dated November 3, 1914, which describes means for the control of the equilibrium of airplanes by the simple oscillation of a single lever moving in all directions and operated by one hand. Defendant filed a general traverse. After taking evidence, the court made special findings and stated as its conclusion of law that the plaintiff was entitled to recover. It did not specifically find the patent valid or that defendant infringed it. The record does not show whether at first the conclusion of law contained any statement as to validity or infringement. Pursuant
to stipulation and in accordance with its rule, the court postponed entry of final judgment pending the taking of testimony upon the question of compensation.*fn3 On defendant's motion, the court amended its conclusion of law to read: "Upon the foregoing special findings of fact, which are made a part of the judgment herein, the court decides as a conclusion of law that the plaintiff's patent is valid and has been infringed by the United States and that he is entitled to compensation therefor under the act of June 25, 1910 . . ." It filed an opinion in which it states: "In conclusion we hold that the patent in suit is valid and has been infringed by the defendant." The court entered judgment in accordance with the amended conclusion of law. We granted writ of certiorari.*fn4
Plaintiff's contentions are based on claims 2 and 5 to 9. Claim 2 is: "An aeroplane having distortable wings for maintaining transverse stability, a rudder for maintaining longitudinal stability, a lever controlling said wings and said rudder, a steering rudder, and a separate lever controlling said steering rudder." Claim 5 is: "In an aeroplane, the combination of means for producing
lateral stability, means for producing longitudinal stability, and a single vertical lever movable in every direction for operating both said means for producing lateral stability and said means for producing longitudinal stability." Each of the other claims relied on contains the substance of claim 5 with variations and additions not here important.
On the facts found the petitioner contends: Respondent's patent is invalid as claiming a device not patentable over prior disclosures. No element of invention is found in the asserted instinctive character of the operation of the control lever. The patent, if held valid in any respect, should be limited to a combination comprising a pair of vertical control levers with a single integral or unitary tail surface of an airplane, and so construed is not infringed. The vertical control lever did not constitute invention over the structure disclosed in the respondent's 1906 French patent, application for which was filed more than one year before that for the patent in suit.*fn5 The claims are not supported by the disclosure. Plaintiff's patent is invalid because the claims on the control lever were not inserted in the application until five and one-half years after filing, while the device came into general use in the United States prior to that time.
Validity and infringement are ultimate facts on which depends the question of liability.*fn6 In actions at law they are to be decided by the jury. If the evidence is not sufficient to establish validity and infringement, it is the duty of the trial court to direct a verdict for defendant.*fn7 Similarly a judgment upon a special verdict cannot be sustained unless the findings extend to all material issues.*fn8 The same principle governs in cases brought here from the Court of Claims.*fn9 On writ of certiorari to that court, the record is required to include the pleadings, findings of fact and the judgment. The opinion, if any, is also included. The findings are required to be in the nature of a special verdict and specifically to set forth the ultimate facts; the evidence is not brought up.*fn10 As by its general traverse defendant put in issue all allegations of the ...