Dissenting Opinion by Judge Laramore 140 C. Cls. Similarly, we do not feel that he is entitled to flight pay for the period in question. For an officer to qualify for flight pay it is imperative that he participate in aerial flight, 37 U. S. C. § 235 (1952 Ed., Supp. IV), formerly 37 U. S. C. § 118 (1946 Ed.). Plaintiff did not participate in any aerial flight. Therefore, he cannot recover flight pay. He is, however, entitled to any emoluments which may be presently due him under the GI Bill of Rights, as well as payment for any accrued leave to which he was entitled. Defendant's motion for summary judgment is denied and plaintiff's motion is granted with the amount of recovery to be limited as outlined above and to be determined pursuant to Rule 38 (c). Judgment will be entered to that effect. It is so ordered. MADDEN, Judge; WHITAKER, Judge; and LITTLETON, Judge, concur. LARAMORE, Judge, dissenting: I respectfully dissent for these reasons: The Judge Advocate General had the discretionary authority to grant a new trial or to vacate a sentence, restore rights, privileges or property affected by the sentence, and to substitute for dishonorable discharge a form of discharge authorized for administrative issuance. Section 12 of the Act of May 5, 1950, 64 Stat. 107, 147. This the Judge Advocate General did; i. e., he ordered an honorable discharge substituted in lieu of dismissal. The majority opinion holds that the Judge Advocate General did not have authority to back date the discharge. The fallacy of this is that unless the Judge Advocate General was acting under his authority, he did not have the right to order any discharge. Plaintiff was a Regular Air Force officer and as such could not be discharged from his commission except for cause. Thus the Judge Advocate General necessarily had to recognize the court-martial in order to order any discharge. Plaintiff, in the light of the majority opinion, is still in the Army. 1 Syllabus I believe the Judge Advocate General acted lawfully when he substituted the honorable discharge. Substitute merely means one put in place of another. Here the Judge Advocate General put the honorable discharge in place of the dishonorable dismissal, which necessarily would require him to date the substituted honorable discharge the same as the dishonorable dismissal. Thus, looking at the situation from any angle, plaintiff was out of the Army initially when he was dismissed. He never re-entered the service by reason of the substituted honorable discharge, and until reappointed in some manner would not be entitled to receive the pay of an officer. Furthermore, the action of the Judge Advocate General was a part of the court-martial proceedings. Article 76 of the Uniform Code of Military Justice, 64 Stat. 107, 132, gives finality to all proceedings in courts-martial and makes the action binding upon all departments, courts, agencies, and officers of the United States. Thus, this court is without authority to review and hold erroneous the back dating of plaintiff's honorable discharge. In accordance with the opinion of the court and on a memorandum report of the commissioner as to the amount due plaintiff, it was ordered September 5, 1958, that judgment for the plaintiff be entered for $19,901.44. BREESE BURNERS, INC. v. THE UNITED STATES [No. 50191. Decided October 9, 1957] On the Proofs Patents; infringement; claim of invalidity by former licensee.— Plaintiff was the owner of two patents, one for an oil burner and the other to adapt the burner, with modifications and attachments, for use in Army tent stoves, converting such stoves from wood- or coal-burning units to oil-burning stoves which would not emit smoke. The converted stove was developed at the Army's request and was accepted by it after satisfactory tests. Plaintiff was promised a contract for the manufacture of 74,620 of the burners in consideration for which Patents Opinion of the Court 140 C. Cls. it granted a free license to the Government for the use of its patents. The license was for the period of the duration of World War II, and six months thereafter. In a former hearing in this case the defendant contended that the license extended for six months after the signing of the treaty of peace with Japan, but the court decided that the term ended six months after the cessation of hostilities. (128 C. Cls. 649) The Army now defends on the ground that the patents are invalid, having been anticipated by prior art. It is held that the patents are valid and that the defendant is liable for infringement. A royalty charge of 25 cents per unit is fixed by the court and judgment is entered for plaintiff for $146,580.50, based on the purchase by the Army of 586,322 units from persons other than plaintiff. Interest is allowed as set forth in the conclusion of law. 66 (1.7), 319 (1), 319 (4) Same; presumption; prior art.-There is a strong presumption in favor of the validity of any patent issued by the Patent Office and the burden is on the alleged infringer to show that the patent is anticipated by the prior art. Where the Army asked that the particular stove be developed and made extensive use of it, it is hardly in a position to say that the patents were anticipated by prior art. Patents 112 (3), 312 (1%) Messrs. Huston Thompson and Norman S. Parker, for plaintiff. Mr. Bernard Wohlfert, with whom was Mr. Assistant Attorney General George Cochran Doub, for defendant. WHITAKER, Judge, delivered the opinion of the court: This is a suit by plaintiff for compensation for the unlicensed use of its patent on an oil burner, and also of its patent on a "stove structure" containing a similar oil burner, with the modifications and attachments necessary to fit it into a regulation Army wood-burning stove, and with the modifications to prevent it from smoking, whether burning at extreme low or pilot heat, intermediate heat, or high heat. In August 1942 the Army requested plaintiff to undertake to convert its wood- and coal-burning tent stoves into oil-burning stoves that would not emit smoke. By May of the following year plaintiff submitted for testing such a converted stove. It was satisfactory to the Army with certain 9 Opinion of the Court modifications, and in the following June the Army requested a license under plaintiff's patents. This was not granted at the time. In the following September, the Army notified plaintiff it was to be awarded a contract for 74,620 of these burners, and the Army again requested a license. No response having been received from plaintiff, the Army wired it a few days later that the award would be withdrawn unless the license was received forthwith. A free license under plaintiff's patents was then granted. In the former hearing of this case the question presented was the duration of this patent license, which had been granted for the duration of the war and six months thereafter. Defendant contended it was good until six months after the treaty of peace was signed with Japan. Had defendant's position been upheld, it would not have been liable to plaintiff for the claimed infringement of its patents on the burners purchased, some from plaintiff and some from others, after the outbreak of hostilities in Korea, as plaintiff claims in this suit. However, we held the license expired in 1946, six months after the cessation of hostilities in World War II. Having thus been deprived of its defense that it had a license to use plaintiff's patents, defendant now says the patents are invalid. It also says it did not infringe them; but the latter cannot be so if plaintiff's patents are valid, because the Army purchased and used the very thing plaintiff had developed for it, and on which plaintiff had secured a patent. The first question is the validity of the patents. It should be here said, parenthetically, that defendant could not have asserted its claim of patent invalidity, if its claim that it had a license from plaintiff at the time it purchased the burners in question had been sustained. Its demand and acceptance of a license estops it to assert invalidity; it is an implied confession of validity. Harvey Steel Company v. United States, 38 C. Cls. 662, 685 (1903), affirmed in 196 U. S. 310 (1905); also see Automatic Radio Mfg. Co., Inc. v. Hazeltine Research, Inc., 339 U. S. 827 (1950), 85 USPQ 378, 381. But, since we have held its Opinion of the Court 140 C. Cls. license had expired, defendant has at least a technical right to assert this defense, even if it might be said that it cannot in good grace do so. 2 When plaintiff received the Army's request to convert its wood- and coal-burning tent stoves to oil-burning stoves that would not emit smoke, plaintiff undertook to adapt the burner on which it already had a patent for use in the Army stove. This oil burner consisted of a pot in which there were rows of air inlet holes from top to bottom, and what is called a frusto-conic baffle, with a hole in the center thereof. At the bottom of the pot there was an intake for oil. The top was enclosed with a lid which had an opening in the center. Just below the top of the pot there was a row of larger holes for the inlet of what is called secondary air. The combustion at high heat takes place above the top of the pot, and at low or pilot heat, within the pot. The claims of the patent upon which plaintiff relies specify a frusto-conic baffle plate within the pot, and specify that it shall be placed above the lower row of holes and with the rim of the opening in the center of the baffle plate in substantially the same horizontal plane as the second row of holes above the bottom of the pot. Claim 3 of the patent said that the baffle plate within the pot "substantially" closed it. Claim 4 differed only in that it said that there was "a substantial clearance between the outer periphery of the plate and the wall at the time of starting the burner." This is a simplified description of the oil burner that was used by plaintiff in converting the Army tent stove from wood or coal to oil. The purpose of the frusto-conic baffle within the pot was to permit the burner to operate smoke-free at very low or pilot heat. This burner is quite similar to a burner disclosed in a patent issued to Valjean prior to the issuance of plaintiff's patent. So far as we can tell, the differences in the two burners are that the baffle in the Valjean patent is placed between the second and third rows of the holes in the lower part of the 1 No. 2,182,465. A frusto-conic baffle is a piece of sheet metal formed in the shape of a cone, with the top cut off. |