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Findings of Fact

124 C. Cls.

same is allowed and the petition is dismissed insofar as it requires a report to Congress and a judgment by this Court on any unauthorized use of any claims of United States Letters Patent Nos. 1,600,588 and 1,600,589 under U. S. C., Title 28, Section 1498.

PART ONE OF THE REFERRED BILL

Claim for Services and Expenses

3. Throughout the period from March 13, 1919, to September 30, 1926, Otho F. Hipkins was continuously employed by the defendant as a vehicle driver and repairman at the Aberdeen Proving Ground, Aberdeen, Maryland, Ordnance Department (War Department). He was employed as a tractor driver and drove vehicles for test purposes.

On August 1, 1936, Hipkins reentered the employment of defendant and from then until August 4, 1942, he was a civilian employee. On August 5, 1942, Hipkins was called to active duty as a Captain in the United States Army. He was on active duty as an officer until August 12, 1947. Since that date Hipkins' status has continuously been that of a Major, United States Army, retired.

4. The plaintiff Hipkins alleges that he gave approximately six and one-half years of his personal time valued at $3,000 a year, or a total of $19,500, and spent approximately $17,500 in cash for equipment and in defraying expenses in demonstrating the Hipkins traction device to United States Army officials, and that after the Hipkins Traction Device Company was organized he spent three years of his time as president of that company, valued at $4,000 a year, or $12,000, and approximately $25,000 in cash of the Hipkins Traction Device Company's money as expenses in demonstrating the Hipkins traction device and in training Army personnel in its practical use and application.

5. Period "A." Any claim for individual services and expenses on behalf of Hipkins is limited to the interval between September 30, 1926, when Hipkins left the employment of the Government, and April 14, 1932, when the Hipkins Traction Device Company at Port Deposit, Mary

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Findings of Fact

land, was incorporated, and Hipkins became its president, a period of approximately five and one-half years.

Period "B." Any claim for services and expenses on behalf of the Hipkins Company is limited to the period beginning April 14, 1932, the date of its incorporation, and extending to August 1, 1936, at which time Hipkins was reemployed by the Government.

There is no evidence of any tests or demonstrations made by the Hipkins Traction Device Company for the Government other than those made by its president, Hipkins.

6. Before considering in detail the pertinent facts of this case occurring in the periods just referred to it appears advisable to have some understanding of the general type of structure involved and which has been generally referred to as a traction device. In general, these are devices adapted to be applied to vehicle wheels for improving their tractive engagement with the ground, thus minimizing slippage of the wheels, especially when the ground is wet or sandy. Skid chains such as are commonly used today on automobile wheels are typical forms of traction devices.

A form of traction device approximating those which Hipkins and his company were working with is shown in the United States patent to Weed issued July 20, 1915 (defendant's exhibit 61). Figs. 1, 2, and 3 of this patent are reproduced herewith. As shown in these drawings and described in the Weed specification, this structure is applicable to a wheel having dual tires (see Fig. 3). The structure consists of a series of shoes 5 or gripping elements mounted on the periphery of the dual tires, each shoe extending across and engaging the surface of each tire tread. These shoes are connected to each other by a series of links 7 centrally located in the space between the two tires, these links also extending around the periphery of the wheel. One of the links 8 is divided, the two inner ends thereof being threaded and engaging an adjusting nut by means of which the peripheral length of the traction device may be adjusted and slack taken up, and in addition, if the nut is completely loosened, this provides for a disconnection of the traction device and its removal from the wheel.

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7. Referring now in detail to period "A" as set forth in finding 5, when Hipkins left the employment of the Government on September 30, 1926, he became a partner in a garage business known as "Hipkins & Paxton." This partnership had a place of business in Port Deposit, Maryland, with branch offices at Elkton, Rising Sun, and Perryville, Maryland. This partnership engaged in the sale of Nash, Star, and Chrysler automobiles, and the sale of automobile accessories, tires and tubes. The partnership also serviced automobiles. Hipkins was owner and manager and received an income from the partnership.

This partnership extended through period "A" and into a portion of period "B," terminating in November 1934.

For at least six months after Hipkins left the employment of the Government, Hipkins was busy establishing the garage business, and in this period did nothing with the development of traction devices.

8. Hipkins' first conference with a representative of the Government relative to traction devices occurred at Aberdeen Proving Ground about May 1, 1930. This conference was with a Major Wallace, who was then an officer of the

Findings of Fact

124 C. Cls.

Field Artillery and stationed at the Aberdeen Proving Ground as Field Artillery representative with the Ordnance Department of the Army. Major Wallace was relieved from this assignment on June 15, 1932, and assigned to duty in the office of the Field Artillery, and on June 18, 1932, entered on duty as Chief, Matériel Section, Office of the Chief of Field Artillery, Washington, D. C. In connection with this latter tour of duty, he was detailed to Aberdeen Proving Ground, Maryland; Fort Bragg, North Carolina; Fort Sill, Oklahoma; Fort Riley, Kansas, and Headquarters, 3d Corps Area, with duties as follows: witnessing tests of Field Artillery prime mover and carriages; witnessing a test by the Field Artillery Board of Field Artillery matériel; conference relating to Field Artillery matériel; conference with the Commandant, Field Artillery School, relating to test of truck-drawn 75-mm. gun battalion and observation of truckdrawn Field Artillery in maneuvers and exercises.

According to Hipkins, he reached a verbal understanding with Major Wallace that if tests and demonstrations of the Hipkins traction devices were satisfactory to Major Wallace and the then Chief of Field Artillery, Maj. Gen. Harry G. Bishop, the defendant would either adopt the Hipkins traction devices and purchase them from Hipkins or enter into a license agreement under certain Hipkins patents.

Major Wallace died prior to the trial of this case and there is no evidence that corroborates Hipkins as to his understanding with Major Wallace.

There is no evidence that Major Wallace at any time was a member of the Field Artillery Board or had any authority to bind the defendant by any contract, express or implied, for compensation for any services or for any expenses incurred in tests or demonstrations of the Hipkins traction devices, or for the purchase of any Hipkins traction devices.

9. Between May 1 and July 1, 1930, Otho F. Hipkins purchased a 12-ton Ford truck with dual pneumatic tires, a Warford transmission, and an oversized cooling fan. The Warford transmission was installed in the truck to enable a truck driver to operate the truck over a variety of terrain without stalling the engine by giving it seven speeds forward and two speeds in reverse. The oversized cooling fan

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