2, 3, 6 and 7 of the patent in suit are also present in the Mustang aircraft. Such additional claims are also found to be infringed by the Mustang aircraft canopy construction. 37. The Scorpion (F-89D) aircraft includes a cockpit canopy supported by three trucks and moved fore and aft on its tracks by an electric motor connected to the canopy through an endless chain. Control switches for the motor are provided within the cockpit for both the pilot and an observer. The canopy is slidable to various positions either by the electric motor or by hand. In the fully closed posi tion, the canopy is sealed to the fuselage by an inflatable rubber canopy seal. The Scorpion aircraft includes a canopy jettison mechanism operated by compressed air. Pneumatic cylinders positioned on each side of the cockpit are provided with upwardly extending piston rods adapted to engage striker plates on the canopy frame. When com Findings of Fact 148 C. Cls. pressed air from an air storage bottle is admitted to the pneumatic cylinders, the rods engage the canopy frame, canopy fastening hooks are unlocked, and the canopy is jettisoned from the aircraft. A canopy jettison control valve is located within the cockpit. The construction of the connection between the trucks or carriage and the canopy frame itself is not clearly disclosed in the evidence received at the trial. The Scorpion canopy is jettisonable only from the forward or closed position. 38. The Scorpion sliding canopy construction includes a combination of elements like those recited in claim 1 in suit. These elements function in a similar manner and produce the same result as those disclosed and claimed in the Saulnier patent. This claim is found to be infringed by defendant's Scorpion aircraft construction. The similar elements recited in different language in claim 6 in suit are also present in the Scorpion canopy construction. Claim 6 is also found to be infringed by defendant. No finding is made with regard to the possible infringement of claims 2 and 7, also asserted by plaintiff, in view of the lack of evidence of the actual means employed in the Scorpion construction for securing the canopy support and the canopy together. 39. The Fury aircraft includes a cockpit canopy slidable fore and aft on tubular tracks at the sides of the cockpit. A jackscrew operated by an electric motor is provided to mechanically move the canopy to various positions. A control switch for the motor is located inside the cockpit for operation of the canopy by the pilot. The canopy is secured to roller trucks which engage the tracks. The canopy is provided with an emergency release system operated by an explosive cartridge. Pressure generated by the explosive charge is utilized in a cylinder and piston mechanism to slide the cockpit canopy aft until it is disengaged from the supporting tracks and is jettisoned in the aft direction. The construction by which the roller trucks become disengaged from the tubular tracks during jettisoning of the canopy is not clearly disclosed in the evidence presented at the trial. 507 Findings of Fact 40. The Fury sliding canopy construction includes a combination of elements like those recited in claims 1 and 6 of the Saulnier patent in suit. These elements in the Fury construction function in a similar manner and produce a similar result as those recited in said patent claims. These claims are found to be infringed by defendant's Fury aircraft construction. 41. The Sky Raider (AD-6 and AD-7) aircraft includes a cockpit enclosure or canopy slidable fore and aft on tubular tracks mounted inboard of the cockpit edges. The forward end of the enclosure is detachably secured to roller trucks which engage said tracks. The aft portion of the enclosure is provided with rollers which engage a track aft of the enclosure. The enclosure may be moved fore and aft manually by means of handles thereon at the inner forward end of the enclosure. The enclosure may be moved fore and aft by a hydro-mechanical mechanism including a cylinder containing an oil-operated piston connected to the enclosure. This mechanism is also operable by compressed air. The hydro-mechanical mechanism is controlled by a handle accessible inside the cockpit and connected to oil and air valves by cables, rods and levers. The cockpit enclosure may be jettisoned in an emergency by means of explosive charges installed in the connection between the supporting roller trucks and the forward end of the enclosure frame. An electrical system including a control switch accessible to the pilot within the cockpit is provided to detonate the explosive charges and thereby shear pins allowing the enclosure and its frame to separate from the supporting tracks. The force of the explosive charges gives the forward end of the enclosure an upward thrust to jettison the entire enclosure. 42. The Sky Raider aircraft cockpit enclosure construction includes a combination of elements like those recited in claim 1 of the patent in suit. These elements in the Sky Raider aircraft function in a similar manner and produce a similar result to those recited in said claim. Claim 1 is found to be infringed by the Sky Raider construction. The similar elements and additional elements recited in different language in claims 2, 3, 6, and 7 are also found Findings of Fact 148 C. Cls. to be present in the Sky Raider construction. These additional claims are also found to be infringed by defendant's Sky Raider aircraft construction. 43. Counsel for the parties have agreed that during the accounting phase of this case, if any, plaintiff shall have the right to present evidence as to other aircraft cockpit canopy constructions embodying structures allegedly falling within the scope of any claim previously held valid and infringed by the court; and that defendant shall have not less than ninety (90) days' notice of any and all such structures upon which plaintiff intends to rely in said accounting proceedings, if any, before being required to present evidence on the further issue of infringement thus tendered for trial for the first time during the accounting phase of this case. Plaintiff notified defendant by a letter dated October 24, 1957, that claims 1 and 6 of the Saulnier patent are also charged to be infringed by constructions identified as follows: No evidence was presented at the initial trial of this case as to the construction of the above-identified aircraft. 44. Under certain Blum-Byrnes Agreements between the United States and France, the French government has compensated plaintiff, a French citizen owning the United States patent here in suit, for certain aircraft canopies procured by the United States prior to September 2, 1945. Said action of the French government in compensating the French owner of a United States patent was not based on judicial proceedings concerned with the issues of patent validity and infringement now tendered in the subject case. The transmittal of information by defendant to French officials concerning the cost of some thirty-one thousand canopies procured by defendant during the World War II period does not constitute an admission by defendant that the patent 507 Syllabus here in suit was considered valid and infringed by such canopies. There is also evidence that the British government has purchased plaintiff's British patent said to correspond to plaintiff's French patent upon which the United States patent here in suit is based. There is no evidence that such purchase of the British patent was based on judicial proceedings concerned with the issues of patent validity and infringement now tendered in the subject case. CONCLUSION OF LAW Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that the plaintiff is entitled to recover and judgment will be entered to that effect. The case is remanded to the trial commissioner, pursuant to Rule 38 (c), to determine reasonable and entire compensation for defendant's unlicensed use of plaintiff's patented invention. BEN CUTLER v. THE UNITED STATES [No. 463-55. Decided January 20, 1960] ON THE PROOFS Taxes, employment; employer-what constitutes.-In an action by plaintiff, a musician engaged in the business of furnishing orchestra music at clubs, hotels, etc., to recover Federal employment taxes paid by him, on the ground that the purchasers of his services were the "employers" of the musicians whom plaintiff assembled to fulfill his contracts to furnish music, it is held that despite language in the contract which appeared to confer on the purchasers some control over the musicians in question, the actions and the understanding of the parties indicated that the musicians were employees of the plaintiff and not of the clubs, hotels, etc., for whom the music was provided, and that plaintiff was liable for the employment taxes. Petition dismissed. Internal Revenue & 1187.7 Taxes, employment; employer-employee relationship-what constitutes. Whether a person is an "employee" or an independent contractor depends upon all the factors involved in the particular relatonship, and control over the method of render |