Opinion
No. 44276.
January 5, 1942.
Samuel Scrivener, Jr., of Washington, D.C. (William S. McDowell, of Columbus, Ohio, and Albert R. Grobstein, of Washington, D.C., on the brief), for plaintiff.
Paul P. Stoutenburgh, of Washington, D.C., Walter J. Blenko, of Pittsburgh, Pa., and Francis M. Shea, Asst. Atty. Gen. (T. Hayward Brown, of Washington, D.C., on the brief), for defendant.
Before WHALEY, Chief Justice and LITTLETON, WHITAKER, JONES and MADDEN, Judges.
Suit by International-Stacey Corporation against the United States to recover compensation for alleged unauthorized use of a patent.
Petition dismissed.
Plaintiff brings this suit to recover $35,000 as compensation for the alleged unauthorized use by the defendant of a patent directed to a radio antenna system for the generation and propagation of electromagnetic waves for radio transmission.
The defendant insists that the patent claims in suit are invalid under prior patents, publications, and uses.
Special Findings of Fact.
1. This suit alleges infringement of United States patent to Charles E. Schuler 2,008,931, issued July 23, 1935, on an application filed April 30, 1934.
The patent in suit is directed to a radio antenna system for the generation and propagation of electromagnetic waves for radio transmission.
2. The plaintiff, an Ohio corporation, was organized April 21, 1931, and on the date of filing the petition herein was in good standing as a corporation of that State. It has a place of business at 875 Michigan Avenue, Columbus, Ohio. The plaintiff is a manufacturing corporation.
3. The application which materialized into the patent in suit was filed in the United States Patent Office on April 30, 1934, the oath of this application being executed on April 23, 1934.
A certified copy of the file wrapper and contents of the application (plaintiff's Exhibit 7) is by reference made a part of this finding.
4. The patent in suit, a copy of which (plaintiff's Exhibit 1) is by reference made a part of this finding, was issued to the plaintiff corporation on July 23, 1935, the same having been assigned to plaintiff by Charles E. Schuler in an assignment executed April 23, 1934, which assignment was duly recorded in the United States Patent Office. A certified copy of the same (plaintiff's Exhibit 6) is by reference made a part of this finding.
Plaintiff corporation ever since the issuance of the patent has been the sole and exclusive owner of the entire right, title and interest therein.
5. The subject-matter of the present case relates to radio transmitting systems and involves certain basic principles involved in antenna construction.
There is diagrammatically illustrated on page 3 a simple vertical antenna comprising a wire or vertical conductor, this illustration being reproduced from paragraph 22 of the prior art publication "Radio Telephony for Amateurs" (Finding 27). As used for transmission, the antenna is suitably insulated from the earth and energized by a source of high-frequency energy, one terminal of this source being connected to the antenna and the other terminal connected to the earth.
The antenna has an electrical capacity effect with respect to the earth similar to that existing in an electrical condenser, the antenna comprising one plate thereof and the earth comprising the other plate of the condenser.
In a condenser it is fundamental that the capacity effect is greatest and the electrostatic field is a maximum where the distance between the plates is a minimum.
In the simple antenna diagrammatically shown, the capacity effect is therefore the greatest at the base thereof, where portions of the antenna are nearest the earth, the capacity effect at any point in the vertical antenna diminishing from the base thereof to the top.
When the antenna is energized from the high-frequency source, lines of electrical force, shown in the illustration as dotted lines, develop between the antenna
and the earth, these lines of force being most intense and concentrated at the portion of the antenna nearest the earth, or at the base of the antenna, and diminishing in intensity and concentration at points remote from the base of the antenna. These lines of force cause currents to flow in the earth as shown in the illustration in solid lines, which converge adjacent the lower end of the antenna, the current density being greatest at this point.
6. The earth is usually a relatively poor conductor and possesses electrical resistance, and the current flowing back to the antenna through the earth is partially dissipated as heat. The resistance characteristics of the earth may also vary, being dependent upon the character of vegetation and condition of the ground, whether the ground is wet or dry.
In order to decrease the loss of the current flowing in the earth, and in an attempt to obtain constant antenna characteristics, it has been the usual and standard practice in the art to provide a metallic ground or network which will provide a substantially low resistance surface, having constant electrical properties and through which the ground currents may return to the generator. The conventional form of ground system employed in the prior art is a system of 8 to 120 metallic wires radiating outward symmetrically, like the spokes of a wheel, from the base of the antenna to a distance of approximately one half of the emitted wave length, and buried a short distance below the surface of the ground. In a typical broadcasting station these wires are about 450 feet long.
Where the earth has a very high resistance the wires of the ground system are supported above the surface of the earth and are either insulated from the earth or each wire is connected to the earth at its extremity. Such systems are known in the art as counterpoises and are the functional equivalent of the buried ground system.
Economic factors may influence the extent and character of the ground system employed.
7. About 1930 the so-called vertical, self-supporting radiating tower antenna came into use. This structure consists of a metallic tower structure having a polygonal cross-section supported on legs, insulating means being interposed between each leg and the earth. Instead of the tower acting merely as a support for an antenna, the structural members of the tower are connected to the source of high frequency and the entire tower functions as the antenna.
The relatively large horizontal cross-sectional area of such tower antennas and particularly of the base thereof causes a more intense electrical field to exist between the lower part of the antenna and the earth than in the case of a vertically supported wire antenna of relatively small horizontal cross section.
The Patent in Suit.
8. As stated in the patent in suit, the disclosure thereof relates to "* * * the art of radio broadcasting and transmission of electromagnetic waves through space by means of a radio tower or vertical antenna radiator; and more specifically to a novel high vertical radiator or antenna comprising a self-supporting tower structure insulated from a base and separated therefrom by a grounded condenser; * * *."
The patent specification, after making reference to certain prior art constructions to avoid radiation ground losses, states that "The present invention is not to be confused with these prior proposals, although one of the achieved objects of the present invention is the reduction of ground loss energy. Other advantages and achieved objects include a vertical radiator that is substantially self-supporting without the use of guy wires; a vertical tower structure approximating theoretical maximum effectiveness of the height-wave length ratio; a composite apparatus that is simple in construction, takes relatively little space, and is efficient in wave transmission; a four-cornered tower structure having a highly conductive ground screen which functions as an element of a condenser which returns energy to the radiating system."
The preferred embodiment illustrated in the drawings of the patent in suit, Fig. 1 of which is reproduced herewith, comprises a rectangular tower formed of structural steel members and girders, having a relatively broad base tapering to a narrow top.
As shown in the drawing, Fig. 1, page 386 of 42 F. Supp., the tower structure 1 is supported on a plurality of insulators 4 which are in turn carried or supported on foundation piers 5. In the preferred embodiment of a metal framework 2 carrying a plurality of soldered intersecting copper wires 3 forms a screen or shield which is electrically connected to the bottom of the tower. A second shield or screen 6, which is likewise formed of intersecting wires, is stated to be "carried or supported on the foundation piers," this second screen being connected at a multiplicity of points along its boundary or edges by leads 7 to a conventional buried ground system which, as stated, may be either radial or a grid of wires. The two shields 2 and 6 have interposed between them the insulators 4, the specification stating that this combination functions as a two-plate condenser between the tower proper and the ground
With particular reference to the lower screen or ground screen the specification states as follows:
"By the present invention, however, the ground screen provides a highly conductive path upon which the electrostatic lines of force from the lower part of the tower terminate, and this screen being placed slightly above the surface of the ground, shields and prevents the intense electric field from existing at the surface of the ground."
Although the patent drawing discloses that the frameworks or screens 2 and 6 are coextensive, and have dimensions substantially double the spacing of the tower legs, there is no limitation or instruction given in the specification to those skilled in the art as to the size or area of the screens to be used.
The only statement contained in the specification with respect to the location of screen 6 is that it is to be "placed slightly above the surface of the ground." The specific embodiment disclosed in the drawings shows the ground screen 6 located at the bottom end of the insulators.
The specification further indicates that the elements or screens 2 and 6 may be made preferably in screen form with soldered intersecting wires of high conductivity, but both frameworks may be of solid conducting material if desired.
9. The claims in suit are as follows:
"4. A wave antenna tower comprising a plurality of upright members interconnected by rigid structural members, said tower being of pyramidal form with the lower base ends thereof insulated from the ground by insulators, and means below said insulators for reflecting energy normally lost and returning it to the tower.
"5. In a radiating tower antenna, a base support, insulators mounted on said support, and a condenser formed by metallic members on the opposite ends of said insulators comprising a grounded electrically conducting metallic plate disposed on the ends of the insulators closer to the ground and a metallic tower structure disposed above said insulators."
"7. In a radiating tower antenna, a base support insulators mounted on said support, and a condenser formed by metallic members on the opposite ends of said insulators comprising a grounded electrically conducting metallic plate member disposed in a plane substantially perpendicular to the axis of said tower on the ends of the insulators closer to the ground and a metallic tower structure disposed above said insulators."
10. While certain other claims of the patent not in issue, such as claim 3, contain phraseology directed to the pair of screens, the claims in suit are not so limited and do not include as an element the upper screen.
11. There is no evidence of conception or reduction to practice prior to April 30, 1934, the filing date of the application, of any of the subject-matter of the claims in issue.
12. In the latter part of July 1935, and in August 1937, the plaintiff, through its employee Schuler, at conferences with Mr. A.W.E. Jackson, Chief of the Radio Development Section of the Bureau of Air Commerce, and other officials of the Bureau of Air Commerce, gave oral notice of the existence of the patent now in suit.
There is no satisfactory evidence of any written notice.
The plaintiff, through the International Derrick and Equipment Company, its wholly-owned subsidiary, has sold and erected ground screens in connection with self-supporting antenna towers. There is no evidence that any of the equipment thus sold or erected has had any patent markings thereon.
The Alleged Infringing Structure.
13. The structures alleged to be infringements of the Schuler patent were purchased by the United States from the Blaw-Knox Company under contract #CC-2646 dated August 26, 1937, for 400 radio antenna towers, complete with sub-base, insulators, radiator, counterpoise, etc., the specifications and drawings for which are included in the contract.
The specification includes the following paragraphs:
"1. General Description:
"This specification describes a self-supporting insulated antenna tower to be used by the Bureau of Air Commerce. To insure a uniform electrostatic capacity for each tower regardless of varying heights of snow or vegetation in the vicinity of the tower, a counterpoise to be supplied on this specification will be located around each tower. * * *
"2. Type of Construction and Dimensions:
* * * * *
"The tower proper is to be supported on a steel base approximately eight feet high which will rest on the concrete footing. In order to reduce the capacity between tower and sub-base as much as possible, no horizontal member shall be used at the bottom of the tower or the top of the sub-base. However, horizontal members shall be provided approximately two feet below the top of the sub-base on all four sides to support the counterpoise framework. Supplemental diagonal bracing may be used if desired."
"9. Tower Insulation:
"Towers shall be insulated at the base with wet plastic process porcelain insulators which shall be designed so that they will adequately stand up under all stresses which will take place under the maximum loads specified. Porcelain insulators shall be given a high glaze to further assist in making them nonhygroscopic and to minimize the collection of dirt on the insulator surface. Insulators using inflammable materials, such as oil or phenolic compounds, shall not be used."
"18. Counterpoise:
"With each tower the manufacturer shall provide a counterpoise complete as shown in Drawing No. 1382A, revised 7/1/37, to be made of standard structural steel angles shipped completely knocked-down for bolting together in the field. * * * The counterpoise is to be designed for attaching to the horizontal members which are provided two feet below the top of the tower sub-bases. The mesh for the counterpoise is to be supplied in lengths of 52 feet. It will be noted that the clamps shown for holding the mesh to the framework are of 1/8 " material. Thinner material may be used provided the equivalent stiffness is obtained through some modification in the designs shown. * * *"
A copy of this contract, including the drawings (plaintiff's Exhibit 2), is by reference made a part of this finding.
14. At least one of the structures purchased by the United States under contract #CC-2646 (plaintiff's Exhibit 2) was manufactured for the United States by the Blaw-Knox Company and used by the United States subsequent to April 4, 1938, and prior to November 22, 1938, the filing date of the petition in this case. This structure is illustrated in plaintiff's Exhibits 19 to 21, inclusive, which are by reference made a part of this finding, plaintiff's Exhibit 20 being reproduced on page 389 of 42 F. Supp., for the purpose of illustration.
The antenna comprises a vertical metallic tower, pyramidal in shape and of approximately square cross-section, mounted on a concrete base extending two feet above the ground surface.
An insulator is interposed at each of the corner legs of the tower and a center strain insulator is provided, all of which insulators function to insulate the radiating portion of the tower from the earth. These insulators are located in a plane eight feet above the concrete base of the tower, and ten feet above the ground.
A conventional buried ground system comprising wires extending radially in all directions from the tower is associated with each tower and is connected to the grounded side of the exciting means for the tower.
A metal framework supports a horizontal reticulated metal netting or screen, which is positioned approximately two feet below the insulators and eight above the surface of the ground. This screen is approximately fifty feet square, the length of each side thereof being approximately eight times the length of each side of the base of the tower, the spacing of the tower legs being six feet. This screen is grounded by being electrically connected to the buried ground system at the center and at the periphery of the screen.
15. The ground screen as used in the Government structures possesses the dual function of providing a uniform electrostatic capacity for each tower, regardless of varying heights of snow or vegetation in the vicinity of the tower, and for reflecting energy which would be normally lost in the absence of such screens, and returning it to the tower.
16. The terminology of claim 4 of the patent in suit is applicable to the Government structure.
17. Claims 5 and 7 of the patent in suit contain phraseology specifying a definite relationship or location of the screen with reference to the insulators. These claims are in accord with the illustrated embodiment of the invention as shown in the drawings of the patent in suit, in which the ground screen is mounted against the brackets at the lower end of the insulators. For convenience, these claims are herewith repeated, with the limiting phraseology italicized:
"5. In a radiating tower antenna, a base support, insulators mounted on said support, and a condenser formed by metallic members on the opposite ends of said insulators comprising a grounded electrically conducting metallic plate disposed on the ends of the insulators closer to the ground and a metallic tower structure disposed above said insulators."
"7. In a radiating tower antenna, a base support, insulators mounted on said support, and a condenser formed by metallic members on the opposite ends of said insulators comprising a grounded electrically conducting metallic plate member disposed in a plane substantially perpendicular to the axis of said tower on the ends of the insulators closer to the ground and a metallic tower structure disposed above said insulators."
18. The phraseology of claims 5 and 7 is not applicable to the Government structure in which the screen is located two feet below the insulators.
Prior Patents and Publications.
19. The prior art cited by the Patent Office during the prosecution of the application which matured into the patent in suit is as follows:U.S. Patent No. 767,974, issued August 16, 1904, to John Stone Stone, plaintiff's Exhibit 7-A;
U.S. Patent No. 1,647,283, issued November 1, 1927, to Abraham Esau, plaintiff's Exhibit 7-E;
U.S. Patent No. 1,694,135, issued December 4, 1928, to Alexander Meissner, plaintiff's Exhibit 7-F;
U.S. Patent No. 1,747,027, issued February 11, 1930, to Ernest Y. Robinson, plaintiff's Exhibit 7-D;
U.S. Patent No. 1,752,864, issued April 1, 1930, to Laurens A. Taylor, plaintiff's Exhibit 7-C;
U.S. Patent No. 1,783,072, issued November 25, 1930, to Henri Chireix, plaintiff's Exhibit 7-G;
U.S. Patent No. 1,839,426, issued January 5, 1932, to Graf G. von Arco et al., plaintiff's Exhibit 7-B;
U.S. Patent No. 1,963,014, issued June 12, 1934, to Roy W. Brown, plaintiff's Exhibit 7-H; and
British Patent No. 338,982, issued December 1, 1930, to H.L. Kirke, plaintiff's Exhibit 7-I.
Copies of these patents, as enumerated above, are by reference made a part of this finding.
20. In addition to the art cited by the Patent Office during the prosecution of the patent in suit, the following patents and publications were available to those skilled in the art on the respective dates indicated:
U.S. Patent No. 706,746, granted August 12, 1902, to R.A. Fessenden, defendant's Exhibit 57-A;
U.S. Patent No. 693,651, granted July 4, 1905, to R.A. Fessenden, defendant's Exhibit 57-B;
U.S. Patent No. 1,929,845, granted October 10, 1933, on an application filed September 29, 1930, to S.C. Haynes, defendant's Exhibit 57-G;
U.S. Patent No. 1,937,964, granted December 5, 1933, on an application filed April 6, 1932, to R.L. Jenner, defendant's Exhibit 57-I;
Principles of Wireless Telegraphy, by George W. Pierce, published 1910, pages 316, 317, defendant's Exhibit 57-C;
Wireless Telegraphy, by Bernard Leggett, published 1921, defendant's Exhibit 57-D;
Radio Telephony for Amateurs, by Stuart Ballantine, published 1922, pages 33 to 36, and 58 to 90, inclusive, defendant's Exhibit 57-E;
Admiralty Handbook of Wireless Telegraphy, published 1925, pages 432, 433, defendant's Exhibit 57-F;
Air Commerce Bulletin, published July 15, 1932, pages 33 to 45, inclusive, defendant's Exhibit 57-J; and
Specifications Nos. 555 and 556, published March 3, 1932, defendant's Exhibits 57-K and 57-L, by the Department of Commerce, Aeronautics Branch, Lighthouse Service Airways Division.
Copies of these patents and publications, as enumerated above, are by reference made a part of this finding.
21. The following prior art patents relate to and disclose radio antenna of the self-supporting tower type:
U.S. Patent to Brown, No. 1,963,014, issued July 12, 1934, plaintiff's Exhibit 7-H;
U.S. Patent to Haynes, No. 1,929,845, issued October 10, 1933, defendant's Exhibit 57-G;
U.S. Patent to Jenner, No. 1,937,964, issued December 5, 1933, defendant's Exhibit 57-I.
These patents all disclose a radio antenna tower of the self-supporting type comprising a plurality of upright members interconnected or braced by rigid structural members, the towers being of pyramidal form with the lower ends thereof insulated from the earth by insulators.
None of the patents refer to any particular form of ground to be used in connection with the antenna, this portion of the transmitting system obviously being left to the choice of those skilled in the art.
Figures 9 and 10 of the patent to Jenner are reproduced on page 391 of 42 F. Supp. This tower as shown is of rectangular cross-section at the base and is provided with insulators 44 in each of the four legs and a central or strain insulator 54 in the center of the tower. The particular type of pyramidal self-supporting tower shown in these figures and disclosed in the Jenner patent is substantially the same as the antenna tower used in the Government structures.
22. U.S. Patent to Stone No. 767,974, issued August 16, 1904 (plaintiff's Exhibit 7-A), sets forth in the introductory portion of the specification that effective radiation of radio waves from an elevated conductor can be increased by "artificially increasing the natural electrical conductivity of the surface of the earth or other natural media in the immediate vicinity of the base of the transmitting-wire and maintaining said surface in a constantly-conducting state."
The specification contains the following disclosure with reference to accomplishing the desired effects:
"For making the surface of the earth more highly conducting and maintaining it in a constantly-conducting state a multiplicity of substances may be used. In the drawing I have illustrated one embodiment of my invention in which metallic wire-netting of large mesh, known as `chickencoop' netting, is placed in electrical contact with the earth surrounding the lower end of the elevated conductor and is connected to the lower end of said conductor. Such netting has been used successfully for the purpose herein specified. I have also used a layer of commercial calcium chlorid, although any other deliquescent salt which by virtue of its moisture-absorbing properties will maintain the surface of the earth in a constantly-moistened condition may be used, and a layer of such salt may with advantage be spread upon the earth within the area covered by the wire-netting. A solution of water and any conducting salt may be used."
The drawing of the patent, which is reproduced on page 391 of 42 F. Supp. is illustrative of the means whereby the conductivity of the surface of the earth in the neighborhood of the base of the antenna is increased.
With reference to the size of the conducting surface or netting to be utilized the specification states as follows:
"Although it is indicated by theory that any means employed to increase the natural electrical conductivity of the earth should extend from the base of the elevated conductor a distance equal to a quarter-wave length of the transmitted wave, it is to be distinctly understood that this length is merely the maximum length which may be advantageously employed, while excellent results may be obtained by using a much shorter length. In other words, the area of the netting or system of wires or other means specified herein may be much smaller than the area of a circle whose radius is
equal to a quarter-wave length of the transmitted wave, although better results are obtained as this area is approximated."
23. The U.S. Patent to Fessenden 706,746, issued August 12, 1902 (defendant's Exhibit 57-A), Figs. 1, 2 and 4 of which are reproduced on page 392 of 42 F. Supp. discloses a vertical antenna having an artificial ground composed of a highly conducting surface extending outwardly from the antenna and located at the base thereof.
As disclosed in the figures reproduced, the artificial ground consists of a plurality of radial wires laterally connected by other wires in the form of a spider web, the radial wires being grounded at their extremities. In connection with this disclosure the patentee states:
"I have found that it is essential for the proper sending and receipt of these waves that the surface over which they are to travel should be highly conducting, more especially in the neighborhood of the point where the waves are generated. I have found that this highly conducting portion of the surface should preferably extend to at least a distance from the origin equal to a quarter wavelength of the wave in air and in the direction toward the station or stations to which it is desired to send the
waves. Where the sending station is in a city or similar place where the waves may be cut off by high buildings or high trees, this highly conducting path should be extended still farther until it passes beyond the limits of the obstacle, and there the highly conducting portion, which may be in the form of a strip of metal or other conductor or of a number of wires, is connected to ground. This arrangement may be called a `wave-chute.'"
Figs. 1 and 2 disclose the arrangement of radio conductors in connection with the high buildings discussed, supra, by the patentee, and Fig. 4 discloses an artificial ground extending uniformly in every direction, Fig. 4 being referred to in the specification "as a plan view showing arrangement of station on rocky shore or other nonconducting ground."
The function of the ground system disclosed by the patent is stated in the specification as follows:
"Another very important function of the construction here described is that it enables the capacity and self-induction of the sending-station to be maintained constant, which is of fundamental importance in working tuned circuits. It frequently happens that stations are situated on rocky portions of coast where salt spray sometimes dashes up and renders portions of the ground-surface near the station conducting which were previously insulating, hence changing the capacity and inductance of the sending-conductor. If, however, the surface be covered by the network or strips heretofore described, the capacity will not be changeable, but constant, as the surface near the station is maintained in a constantly-conducting state. Hence the stations once tuned will not be put out of tune by changes of weather or other disturbances."
24. The Admiralty Handbook of Wireless Telegraphy, published in 1925 (defendant's Exhibit 57-F), describes in Section 584 what is referred to as "the earth screen." As illustrated in Fig. 336 of this publication, which is reproduced, on page 393 of 42 F. Supp. the earth screen is shown in connection with a vertical antenna having a flat top section.
Section 584 reads in part as follows:
* * * * * *
"The function of the screen is to intercept the lines of force from the aerial to earth and to carry the return current on the screen wires rather than by the earth.
"Further, when the earth system is placed on or in the earth, heavy eddy current losses occur in the earth, owing to its poor conductivity.
"When the earth system is raised up, as in the `earth screen,' these losses are reduced.
"The earth screen should extend on all sides beyond the area covered by a plan view of the aerial system by a distance equal to the height of the aerial.
"The wires composing it should not be spaced closer than a distance three times the height of the screen above the ground.
"At certain Naval Stations good results have been achieved by earthing the outer edges of the earth screen."
In this arrangement, the ground screen comprises metallic wires which are concentrated or spaced relatively close together directly below the vertical portion of the antenna, where the field is most intense. The description as quoted above also instructs those skilled in the art that the outer edges of the earth screen may be grounded. The earth screen herein disclosed constitutes a metallic surface upon which the lines of force from the antenna may terminate, thereby preventing the penetration of these lines of force into the earth, within the area of the more intense and concentrated field.
25. The book "Wireless Telephony" by Bernard Leggett, published in 1921 (page 82, defendant's Exhibit 57-D), after referring to a number of types of top-loaded vertical antennas, discloses the then prevailing practice for forming a metallic surface surrounding the base of the antennas for the portable transmitting stations of the British Army. The pertinent portion of this publication reads as follows:
"A counterpoise is ofter used as with land stations, by means of a system of wires supported by the mast or masts at a height of about 7 feet, i.e., just sufficient to prevent a man from striking them with injury to himself and them.
"The British Army stations usually make use of `earth mats' either with or without a counterpoise of wires. These consist of copper gauze rolls about 1 yard wide and 10 wards long, connected together and to the earth terminal of the wireless station and just unrolled out upon the ground. If the location is dry, they doubtless act as a counterpoise chiefly by capacity effects, whereas if the location is damp (they are preferable intentionally made wet by pouring water on them) they act as a true earth.
"This gives a rapid means of `earthing' together with an earth of constant properties.
"The number of such earth mats may vary, and they are usually arranged symmetrically around the wireless stations. * * *"
This publication discloses to a man skilled in the art an approximate equi-potential metallic surface approximately 30 feet square beneath the antenna.
In this construction the lines of force from the lower portion of the antenna terminate upon the earth mats, which form a low loss metallic connection to the ground lead of the generator contrasted to earth itself, and thereby prevent the penetration of these lines of force into the earth with its attendant losses within the area of the concentrated field.
26. The publication "Principles of Wireless Telegraphy" by George W. Pierce, published in 1910 (defendant's Exhibit 57-C made a part hereof by reference), pages 316 and 317, describes various devices which may be resorted to for obtaining "a satisfactory ground." These are (1) connection to the pipes of a water supply; (2) connection to a buried network of wires supplemented if desired by metallic pipes driven into the earth or supplemented by wire netting spread on the surface of the earth. The pertinent portion of this section reads as follows:
"In practice, for a small station a satisfactory ground can be obtained by a connection to the pipes of a water supply. Where this is lacking, a good arrangement is to bury a netting or network of wires at a short depth below the surface of the earth. This may be supplemented by metallic pipes driven to considerable depths into the earth, and also by wire netting spread out on the surface of the earth. When the station is located near the sea or other body of water, the wire netting or wires provided with terminal plates may be led into the body of water. On board ship, the grounding is usually effected by a heavy wire attached to the metallic hull of the ship. In the high-power land stations, netting and wires are made to ramify the surface of the earth for many acres."
This publication discloses to a man skilled in the art a ground system comprising a network of wires buried at a short distance below the surface of the earth supplemented by wire netting spread out on the surface of the earth to form an equi-potential surface to reduce ground losses in the antenna system.
27. The publication "Radio Telephony for Amateurs" by Stuart Ballantine, Second Edition, copyrighted 1922 (defendant's Exhibit 57-E made a part hereof by reference), contains a rather complete discussion of problems involved in radio transmission and suggests certain solutions therefor.
In the chapter beginning page 58 entitled "Antenna Construction," the publication refers to various types of antenna and ground systems therefor.
Under paragraph 18 of the publication entitled "Requirements for Transmitting," the various losses of energy are listed, and included in the listing, as items 3 and 4, are the following:
3. Loss due to heat developed in the earth (earth resistance) by currents returning to the lead-in.
4. Loss due to imperfect dielectrics in the electric field of the antenna.
The publication then takes up in detail the consideration of the various losses set forth, and in Section 22, which is entitled "Losses Due to Earth Currents," enters into a rather complete discussion of these losses and means for reducing them to a minimum. Paragraph 22 reads in part as follows:
"The third source of loss, usually the most prolific in antenna systems, especially at short wavelengths, is the heat generated in the earth by the currents returning to or coming from the lead-in. Remembering that the heat loss is equal to I² R, it is clear that the loss in any unit cube of the earth material goes up as the square of the current density at that point; consequently in order to keep down the whole loss the concentration of current at any point is to be avoided. The distribution of current depends upon the wavelength, conductivity, and dielectric constant of the earth, as well as upon the geometry of the antenna."
The above quotation is indicative of the fact that the conductivity and dielectric constant of the earth were both recognized in the prior art as affecting the distribution of current.
The paragraph further states: "The current converges toward the lead-in and the current density is therefore greatest at this point. In the antenna system, the current flows by a conductive path up through the antenna conductors, thence by capacity paths to the earth, and finally through the earth to the lead-in. It is precisely the concentration of current here that causes most of the loss in the average grounding system. The loss may be diminished by reducing the current concentration, and this may be accomplished by providing a generous surface in the grounding electrode."
28. Section 23, entitled "Direct Ground," describes a type of ground known in the art as "Round's Round Ground." As described, this consists of a ground electrode comprising a short circular cylinder of large radius with its lower edge buried in the earth, a depth of two or three feet being suggested for earth of not too poor conductivity and for wavelengths of from 200 to 300 meters. The section goes on to state:
"The connection is made by means of a number of wires which converge to the approximate center of the circle and unless the cylinder is very deep, and in any case if it is more than 15 feet in radius, should be supported above the earth and not buried in it or laid upon the surface. The cylinder itself may be made up of galvanized-iron sheets, such as are used in the construction of small temporary shacks. These need not be soldered together, but should overlap with no sharp edges protruding any distance from the body of the cylinder. A connection should be made to each sheet. They are better soldered, however, if it can be done. The ground is installed by digging a narrow circular trench under the antenna, not too far from the point at which the leading in the antenna diagrams, Figs. 45, 46 and 47, enters the earth. While it is not strictly necessary that the cylinder should be circular, this is the best form and no extreme departures which are likely to introduce sharp corners should be made."
This section of the publication discloses to those skilled in the art a ground screen comprising a plurality of radiating wires extending from a common central point under the antenna and not too far from the point at which the lead-in of the antenna enters the earth, these radiating wires being grounded at their ends or at the periphery of the circular area covered thereby.
29. Sections 24 and 25 discuss what is known in the art as the "counterpoise," and these sections are illustrated by Figs. 53(a) and (b) and Fig. 54, all of which are reproduced on page 395 of 42 F. Supp.
Section 24 reads in part as follows: "Lay upon the earth a large metal disc and connect this to the lead-in [Fig. 53(a)]. The currents will now find a large conducting surface and on account of the large area and circular shape of the plate a fairly low resistance ground will be obtained. There will probably be a slight concentration of current at the edges. This would make a very good ground and could be still further improved by extending its edges down into the earth as in the cylindrical ground system just described. The plate need not be on the surface, but may be supported above it as shown at (b), Fig. 53. The current flow is practically unaffected by this change and is completed through the condenser formed by the disc and the earth's surface. This system is found experimentally to yield a very low ground resistance, as the above reasoning would lead us to expect. From a practical point of view, however, a metal plate of this size is inconvenient and expensive. The advantages of the arrangement are not lost nor materially diminished if a net of wires is substituted for the plate, provided the wires of this network are sufficiently plentiful and they are not too far apart compared with the distance above the earth. Such an arrangement (b), Fig. 53, is called a counterpoise or capacity ground, and if properly designed and installed, is the most desirable and satisfactory type of ground for the amateur, especially in localities where the earth conductivity is poor."
Section 25 relates to the construction of the wire counterpoise and the pertinent portions of this section are as follows:
"The area of the counterpoise should be as large as possible since the distribution of earth currents is directly affected thereby. The exact shape is not generally important, but the best forms are the circular, elliptic, square and rectangular, in the order given. It should be placed as nearly under the antenna as possible and should extend well out beyond the antenna's projection on the earth. The number of wires should be as large as possible and the wires should be frequently bound together with cross jumpers. This will reduce to a minimum the generation of heat due to current vortices which form as a result of its possibly irregular shape and situation. The height of the counterpoise is governed by several considerations, the most important of which are the separation of the wires in the network, the evenness of the ground, the character of the vegetation with which it is covered, its conducting qualities, and the possible presence of ground water near the surface. If the height is small compared with the distances between the wires in the net, there will be a tendency for concentration of the current immediately under the wires. * * * Bushes, grass, and other flora under the counterpoise constitute poor dielectrics and in order to make the volume of dielectric which they represent as small as possible compared with the total dielectric, the height of the counterpoise should be increased when they are present. A similar remark holds for any type of poor dielectric. * * *
"The above precautions and desirable features have been incorporated in the design of a typical counterpoise system shown in Fig. 54. This may serve as a model in planning a counterpoise for any special situation. More detailed specifications would be of no particular value on account of the wide variation of conditions likely to be encountered by the readers of these pages. For fairly even ground covered with short grass, a height of 2 or 3 feet will be adequate; for uneven ground or ground covered with bushes and undergrowth, heights two or three times this will be necessary for best results.
"* * * The only way to ground the counterpoise would be to bury a circle of plates at its periphery, thus making a very large direct ground of the type described in the last section. * * *"
30. Sections 24 and 35 of the Ballantine publication disclose to those skilled in the art a ground screen or shield composed of a network of wires and located as nearly under the antenna as possible, elevated above the surface of the ground from a minimum of from two to three feet to a maximum of six to nine feet depending upon the character of vegetation underneath the screen, the screen being grounded at a multiplicity of points at its periphery.
The disclosed function of such a screen is to provide a low resistance metallic surface underneath the antenna for the purpose of shielding the antenna from dielectric losses, preventing an intense electric field from existing at the surface of the ground, and reflecting or returning energy to the antenna which otherwise would be normally lost.
31. In Section 33 of the Ballantine publication the author discusses the antenna systems located on the roofs of houses. This section states in part as follows:
"The chief disadvantage of these systems is that a great deal of material, dielectric and conducting, is directly under the antenna, in the most intense part of its field. The resulting dielectric and other losses will therefore generally be quite high. In the case of a house with a tin roof well bonded together electrically, there is sometimes an advantage in grounding the tin at its four corners, or in as many places as possible, by running a separate lead from each point of connection directly to the ground. The grounding of these leads should be well done; otherwise the supposed advantage may be turned into an increased loss. The ground-lead from the the transmitting apparatus may then be connected to the tin roof. The effectiveness of this scheme increases with the amount of load in series with the antenna. This should not, however, be construed to mean that the antenna should be operated above its fundamental. Figure 63 illustrates this type of installation."
This section of the publication discloses and suggests to those skilled in the art that the metallic roof of a building may be grounded at a multiplicity of points at its periphery, thus establishing a metallic screen below the antenna upon which the lines of force from the antenna may terminate, thereby preventing dielectric and other losses which would otherwise occur.
Prior Uses.
32. Broadcasting station WAVE of the National Broadcasting System is located at the Brown Hotel, Louisville, Kentucky. This station was erected in 1933 and has been operating in regular commercial daily broadcasts from December 30, 1933, until at least as late as May 11, 1939.
The antenna is located on the roof of the hotel, which is about 180 feet above the ground. The antenna comprises a single vertical self-supporting, four-cornered pyramidal tower 209 feet in height, insulated at its base from the supporting steel framework by means of porcelain insulators.
The hotel is of structural steel and brick construction and the roof is a concrete slab with asphalt covering. A roof screen was installed at the time of erection of the antenna tower in 1933, the same comprising approximately forty copper strips one thirty-second of an inch thick by two inches wide laid radially on the roof and radiating outwardly from a center beneath the base of the tower to the edges of the roof, covering an area approximately 45 feet by 75 feet. These strips were connected to the grounded water pipes of the building, the copper flashing of the roof, and to all metallic pipe systems in the building.
The radial strips were tied together by lateral strips of the same size at intervals, and metal plates, each approximately 3½ feet square, were laid beneath each corner of the tower-supporting members, the edges of these sheets being approximately nine feet apart. These sheets were also connected or bonded to the radial strips.
This roof screen was for the purpose of increasing the radiation efficiency of the antenna and returning to the antenna, or tower, energy which would otherwise be lost, were the screen not present.
The antenna and the roof screen installation at the Brown Hotel is open to the inspection of the public and it has been the custom of guests of the hotel and guests of the roof garden to have access to the roof, a picket fence being built around the base of the tower to prevent members of the public from coming in contact with high-tension portions of the tower.
While the radial strips are partially covered with asphalt or roofing compound, their presence and use as a ground screen are apparent to those skilled in the art, as shown in a series of photographs (defendant's Exhibits D-19 to D-24, inclusive), which are by reference made a part of this finding.
33. Broadcasting station KSO was erected on the roof of the Register and Tribune Building, a 13-story structural steel reenforced building in Des Moines, Iowa. This station was completed and in regular broadcasting service as a part of the National Broadcasting System from November 5, 1932, until October 3, 1935, when the station was moved to another location.
The antenna, which was located on the roof of the building, comprised a single vertical self-supporting four-cornered pyramidal tower approximately 154 feet high mounted on a steel framework of I-beams, the base of the tower being insulated therefrom by means of four corner insulators approximately two feet above the roof. The concrete roof on which the antenna tower was placed was approximately 65 feet square.
The ground system of the antenna included a mesh or net of copper wires laid directly on the roof, the wires being spaced from 18 to 24 inches apart and bonded to each other at the points of intersection and to all metal parts on the roof.
Strips of wire mesh, known as fox wire or chicken wire, approximately 30 feet long, were laid upon the roof directly under the vertical tower and extending outwardly in various directions therefrom. These strips were bonded together and also bonded to the copper wires.
The wire network and the fox wire strips were covered with a coating of tar and pebbles, this covering, however, being so thin that the fox wire was visible in places, as indicated in a photograph taken on or prior to March 1, 1933 (defendant's Exhibit 13), which is by reference made a part of this finding.
The fox wire strips were visible to a sufficient extent to show the use of a ground screen located under the antenna tower.
While not accessible to the general public, the antenna and ground system employed at KSO was available for inspection on request of interested individuals, such as radio engineers and those associated with engineering schools, and such inspections were made on various occasions.
34. Broadcasting station WKRC was erected on the roof of the Alms Hotel at Cincinnati, Ohio. The antenna system as erected and placed in operation in the fall of 1933 comprised two Blaw-Knox self-supporting type narrow base steel towers 154 feet high insulated at the base, the insulators resting upon frameworks of steel beams.
Upon the roof and under the base of each tower there was provided a #10 mesh copper screen extending some four feet beyond the steel work of the tower foundation on all sides, except where the parapet roof wall occurred. These screens each contained approximately 500 square feet of material. They were connected to each other by a copper strip running across the roof of the hotel between the two towers, and the screens and strip were further connected to the building framework and to water and ventilator pipes of the building, as well as to a buried ground network at the base of the building.
Station WKRC began commercial operations as a part of the Columbia Broadcasting System in the fall of 1933 and has been operating ever since, with the exception of a short period during the summer of 1934 when a heavy storm damaged the vertical towers, which had to be replaced.
The ground screens used in conjunction with these towers were laid directly upon the roof, and, with the exception of a few weeks during the constructional period, were covered by a coating of roofing paper and roofing compound which entirely concealed them. The presence or use of these screens would not be apparent to anyone inspecting the transmitting equipment of this station.
The screens of station WKRC were specified by the Columbia Broadcasting System, the owner of the station, and were installed in accordance with its specifications, which specifications are in evidence as defendant's exhibit 51-D made a part hereof by reference. The screens were used uncovered for a period of some weeks after they were installed and were then covered with roofing paper and asphalt, not for the purpose of concealing their use, but simply for the purpose of protecting the screening.
There has never been any occasion to or any attempt in suppression or concealment of facts or of the use of the screens from the public. The covering above-mentioned made no difference in the functioning of the screen
35. The prior art and use referred to in Findings 22 to 34, inclusive, indicate that prior to any effective dates of the Schuler invention those skilled in the art had knowledge —
(a) That both the conductivity and dielectric constant of the earth affected the distribution of current adjacent the antenna, and that a loss of energy was likely to occur by the penetration of the lines of force through the earth to a buried ground system;
(b) That a variation in the pattern of the radiated waves from the antenna would be caused by variations of conductivity in various portions of the ground under or adjacent to the base of the antenna;
(c) That a metallic ground screen located under the antenna, elevated above the surface of the ground, and grounded at various points in its periphery, would function to reduce the effects set forth in items (a) and (b) and would therefore return or reflect energy to the antenna which would otherwise be lost.
36. The beneficial effect of ground screens located at the base of the antenna was well known to those skilled in the art, and to utilize such a ground screen in connection with a pyramidal tower antenna such as is disclosed in the prior art (see Finding 21) would not produce any novel or unforeseen result and would not involve invention.
Claim 4 in issue is invalid.
37. If claims 5 and 7 are so interpreted as to disregard the specific limitation contained therein as to the ground screen or metallic plate member being located on the " ends of the insulators," these claims will be invalidated in view of the prior knowledge and use of ground screens located at the base of the antenna.
In view of the facts clearly established by the evidence of record, which facts so far as pertinent to the questions of validity and infringement now before the court are set forth in the findings, we are of opinion that claim 4 of the patent in suit is invalid under the prior art; that claims 5 and 7 as specifically limited are not applicable to the alleged infringing structure, and that if these claims are so interpreted as to disregard the specific limitation contained therein they, also, will be invalid in view of the prior knowledge and uses (findings 35, 36, and 37).
Claims 4, 5, and 7, which plaintiff alleges have been infringed by the defendant, are set forth in finding 9. These claims relate particularly to a ground screen used in connection with a radio broadcasting tower or antenna for reflecting electrical energy, which would be normally lost in the absence of such screen, and returning it to the tower. The disclosures of the patent in suit are set forth in finding 8. The description of the alleged infringing radio broadcasting tower and ground screen manufactured for and used by the defendant is set forth in findings 13, 14, and 15. The antenna of the alleged infringing structure comprises a vertical metallic tower, pyramidal in shape and of approximately square cross-section mounted on a concrete base extending two feet above the ground surface. An insulator is interposed at each of the corner legs of the tower and a center strain insulator is provided, all of which function to insulate the radiating portion of the tower from the earth. These insulators are located in a plane eight feet above the concrete base of the tower and ten feet above the ground.
Associated with each antenna tower is a conventional buried ground system comprising wires extending radially in all directions from the tower and connected to the grounded side of the exciting means for the tower. In addition, a metallic framework supports a horizontal reticulated metal netting or screen which is positioned approximately two feet below the insulators of the tower and eight feet above the surface of the ground. This screen is approximately 50 feet square, the length of each side thereof being approximately eight times the length of each side of the tower, the spacing of the tower legs being six feet. This screen is grounded by being electrically connected to the buried ground system at the center and at the periphery of the screen. This ground screen so used in the Government structure possesses the dual function of providing a uniform electrostatic capacity for each radio broadcasting tower regardless of varying heights of snow or vegetation in the vicinity of the tower and for reflecting energy, which would be normally lost in the absence of such a screen, and returning it to the tower.
The terminology of claim 4 of the patent in suit is applicable to the Government structure. Claim 4 is as follows: "A wave antenna tower comprising a plurality of upright members interconnected by rigid structural members, said tower being of pyramidal form with the lower base ends thereof insulated from the ground by insulators, and means below said insulators for reflecting energy normally lost and returning it to the tower."
Claims 5 and 7 of the patent in suit contain phraseology specifying a definite relationship or location of the screen with reference to the insulators of the radio antenna tower and the phraseology of these claims as so limited is not applicable to the Government structure in which the alleged infringing screen is located two feet below the tower insulators. These claims are as follows:
"5. In a radiating tower antenna, a base support, insulators mounted on said support, and a condenser formed by metallic members on the opposite ends of said insulators comprising a grounded electrically conducting metallic plate disposed on the ends of the insulators closer to the ground and a metallic tower structure disposed above said insulators." [Limiting phraseology italicized.]
"7. In a radiating tower antenna, a base support, insulators mounted on said support, and a condenser formed by metallic members on the opposite ends of said insulators comprising a grounded electrically conducting metallic plate member disposed in a plane substantially perpendicular to the axis of said tower on the ends of the insulators closer to the ground and a metallic tower structure disposed above said insulators." [Limiting phraseology italicized.]
If the specific limitation of these claims that the ground screen or metallic plate be "disposed on the ends of the insulators closer to the ground" is interpreted to mean only that the screen or plate be placed below the tower insulators, the phraseology of these claims would be applicable to the Government structure.
As set forth in finding 8, the patent in suit discloses a conventional vertical radiator in the form of an antenna tower, rectangular in shape, formed of structural steel members and girders having a relatively broad base tapering to a narrow top. The entire structure is provided with a plurality of insulators at the base of each leg of the tower. Mounted upon each end of the insulators there is a shield or screen which functions as a condenser. The entire system is supported above ground on a foundation structure. Screen 6, fig. 1, finding 8, with which this suit is concerned, is connected at a multiplicity of points along its boundary or edges by leads to a conventional buried ground system which, as stated in the patent, may be either radial or a grid of wires. Such a screen is known in the art as a grounded counterpoise and was claimed as such during progress of the application resulting in the patent in suit. The drawings of the patent give no indication of the extent of the ground system, except that it was substantially coextensive with the ground screen. The specification gives no indication of the extent of this ground system, other than it is a conventional one. There is no indication in the patent of the height of the base for the tower, nor the elevation of screen 6 above the surface of the earth, other than the statement in line 50, page 1, of the patent that "this screen being placed slightly above the surface of the ground, shields and prevents the intense electric field from existing at the surface of the ground." The testimony of plaintiff's witnesses, including that of the patentee, with respect to the elevation of the screen above ground is that the screen will function properly if laid "right on the surface of the ground" and that the distance of the screen above the ground is not of any importance as long as the screen is above the ground.
None of the claims in suit specify the exact manner in which the screen or counterpoise is grounded, the height the screen or counterpoise is above the surface of the earth, or the size or configuration of the screen or counterpoise, or the character of materials employed in the construction of the screen or counterpoise.
A consideration of the prior patents, publications, and uses described and discussed in findings 21 to 34, inclusive, shows that the principle and purposes with which the patent in suit deals were fully described and disclosed in patents and publications antedating the patent in suit. These prior patents, publications, and the prior uses set forth in findings 32 to 34, inclusive, disclosed and employed means for meeting and overcoming the problem of loss of energy around the base of a radio antenna tower in a way and by means identical with the means described and claimed in the patent in suit. They accomplished the same result. When tested by these disclosures it is clear, we think, that the patent in suit does not disclose or claim any new or novel device or means involving invention. Sections 4920 and 4886, R.S., 35 U.S.C.A. §§ 69, 31; Smith v. Nichols, 21 Wall. 112, 22 L.Ed. 566; Union Paper-Bag Machine Co. v. Murphy, 97 U.S. 120, 24 L.Ed. 935; Bates v. Coe, 98 U.S. 31, 25 L.Ed. 68; Cantrell v. Wallick, 117 U.S. 689, 6 S.Ct. 970, 29 L.Ed. 1017; Morley Sewing Machine Co. v. Lancaster, 129 U.S. 263, 9 S. Ct. 299, 32 L.Ed. 715; Eibel Process Co. v. Minnesota Ontario Paper Co., 261 U.S. 45, 43 S.Ct. 322, 67 L.Ed. 523.
It is clear from the record that the claims of the patent in suit, as interpreted by plaintiff's witness, if antedating the patents, publications, and uses set forth and described in the findings would be infringed by radio antenna towers and ground screens constructed in accordance with the disclosures and directions in the other patents, publications, and the screens actually used. Inasmuch, however, as these other patents, publications, and uses antedated the patent in suit, it is invalidated, because that which would infringe if later will anticipate if earlier. Peters v. Active Manufacturing Co., 129 U.S. 530, 9 S.Ct. 389, 32 L.Ed. 738; Knapp v. Morss, 150 U.S. 221, 14 S.Ct. 81, 37 L.Ed. 1059; Miller v. Eagle Manufacturing Co., 151 U.S. 186, 14 S.Ct. 310, 38 L.Ed. 121. The proof shows that the radio antenna ground screen claimed in the patent in suit is the same, or substantially the same, as ground screens previously described and used, and that it performs the same function in the same way to obtain the same result. Roberts v. Ryer, 91 U.S. 150, 23 L.Ed. 267; Sewall v. Jones, 91 U.S. 171, 23 L.Ed. 275; Burt v. Evory, 133 U.S. 349, 10 S.Ct. 394, 33 L.Ed. 647; Brown v. Davis, 116 U.S. 237, 6 S.Ct. 379, 29 L.Ed. 659; Egbert v. Lippmann, 104 U.S. 333, 336, 26 L.Ed. 755; Electric Storage Battery Co. v. Shimadzu et al., 307 U.S. 5, 20, 613, 616, 59 S.Ct. 675, 83 L.Ed. 1071.
The facts further established by the record clearly show that prior to the effective date of plaintiff's invention those skilled in the art had knowledge that both the conductivity and dielectric constant of the earth affected the distribution of current adjacent to the radio antenna and that loss of energy was likely to occur by penetration of the lines of force through the earth to a buried ground system; that a variation in the pattern of the radiated waves from the antenna would be caused by variations of conductivity in various portions of the ground under or adjacent to the base of the radio antenna tower; and that a metallic ground screen located under the antenna, elevated above the surface of the ground, and grounded at various points in its periphery, would function to reduce the above-mentioned effects and would therefore return or reflect energy to the antenna which would otherwise be lost. The proof further establishes that the beneficial effect of ground screens located at the base of the antenna was well known to those skilled in the art and that the utilization of such a ground screen in connection with a pyramidal tower antenna, such as is disclosed in the prior art (finding 21) would not produce any novel or unforeseen result and would not involve invention.
For these reasons, claim 4 of the patent in suit is invalid.
Claims 5 and 7, as specifically limited by the language thereof, as heretofore mentioned, have not been infringed by the defendant but if they are so interpreted, as plaintiff contends they should be, as to disregard the specific limitation that the ground screen or metallic plate member be located on the ends of the insulators, they are, likewise, invalid in view of the prior knowledge and use of ground screens located at the base of the antenna. The plaintiff cannot assert a broad construction of its claims in order to make out a case of infringement, and then narrow them so as to avoid anticipation. White v. Dunbar, 119 U.S. 47, 51, 52, 7 S. Ct. 72, 30 L.Ed. 303; Smith v. Hall, 301 U.S. 216, 232, 57 S.Ct. 711, 81 L.Ed. 1049.
Plaintiff is not entitled to recover and the petition is dismissed. It is so ordered.
MADDEN and JONES, Judges, and WHALEY, Chief Justice, concur.
WHITAKER, Judge, took no part in the decision of this case.