138 C. Cls.

OFFSETS.

See Contracts XXXIII, XXXIV, XXXV, XXXVI.
OVERTIME PAY.

I. Plaintiffs, who were guards-firefighters at the Oteen Veter-
ans Hospital in North Carolina, sue to recover overtime
compensation and extra night pay differential under the
Federal Employees Pay Act of 1945, as amended. The
cases were referred to Commissioner C. Murray Bern-
hardt, pursuant to Rule 45 (c). The report of the com-
missioner was filed before the court's decision in Gaetke,
et al. v. United States, 136 C. Cls. 756. On the authority
of that decision the commissioner's findings of fact and
recommendation for conclusion of law are adopted by
the court. It is held that plaintiffs are not entitled to
recover and their petitions are dismissed. Sawyer, et al.,

152.

United States 39 (4)

II. Plaintiffs, distributing clerks in the Post Office Department,
were required to take periodic examinations as to speed
and accuracy in scheme distribution of mail. Study and
practice in the scheme assignments were engaged in by
plaintiffs outside of their regular hours of duty. They
sue for overtime pay for the time spent in this practice
and study, and also for reimbursement for practice cases
and cards which they purchased as an aid to greater
proficiency. It is held that plaintiffs are not entitled to
overtime pay under the authority of Deland v. United
States, 77 C. Cls. 55, and that no statute exists which
authorizes their reimbursement for the practice materials
purchased. Plaintiffs are not entitled to recover and the
petition is dismissed. Anderson, et al., 192.

III. Congress has long been aware of the decision in the Deland
case and if it intended or desired that such activities
should be covered by overtime pay it could have rectified
the situation by appropriate legislation. Id.
Statutes

220

IV. The theory that overtime pay should be granted for "off-
the-job" practice is impractical for a number of reasons.
There would be no way for the Post Office Department
to check on the amount of overtime actually employed,
leaving the system open to fraud. Also it would place a
premium on stupidity as the one requiring the longest
time to master his scheme would receive the most over-
time pay. Id.

138 C. Cls.

OVERTIME PAY-Continued

V. Plaintiffs, ship pilots employed by the Panama Canal, sue
for overtime pay under section 203 of the Federal Em-
ployees Pay Act of 1945. The time for which the addi-
tional compensation is sought is that spent between
notification of an assignment and the pick-up hour and
also that required to return to the starting point after
the trip through the canal has been completed, when such
return trip is made by the pilot on his day off or after
he has already worked 40 hours. The pilots are presently
compensated for the return trip when it is made under
conditions other than those above set out. It is held
that plaintiffs are entitled to overtime pay for the return
trip regardless of when it is made, but are not entitled
to be paid for the time spent in waiting for the pick-up
conveyance, since they may spend this time as they
please. Plaintiffs are entitled to recover with the amount
of recovery to be determined pursuant to Rule 38 (c).
Abbott, et al., 459.

VI. Pay of the pilots was on an annual basis but was subject
to adjustment from time to time by administrative au-
thority. The Governor of the Panama Canal acted as
a "wage fixing authority" within the meaning of section
203 of the Federal Employees Pay Act. Id.
Pilots

10

VII. The income of pilots in the United States, who operated
under monopolistic conditions, could not be employed as
a basis to fix pilot pay in Panama. It is held that the
Governor, in resorting to comparable pay of other canal
workers in the maritime field, such as masters of dredges,
met the requirements of section 203 as to prevailing
wage rates.
Id.

Pilots 11

United States 39 (2)

VIII. The Government's contention that pilots belong to a pro-
fession and were therefore excluded from the provisions of
section 203 is not sustained. The skill of piloting a ship
is learned by training and practice and not by academic
study. Id.

138 C. Cls.

OVERTIME PAY-Continued

IX. The Government's defense on grounds of laches and res
adjudicata is considered and found to be without merit.

I. Plaintiffs allege infringement by the Government of U. S.
patent No. 2,355,966 which is for an underground insu-
lated pipe system. The principal feature of the system
was that its lightweight concrete, containing vermiculite,
provided both insulation and support for heavy steam
mains. While the insulation feature was not new, the
combination of it with the support factor was. It is held
that the patent in question is valid and that it was
infringed by the Government's installation at McGuire
Air Force Base. Plaintiffs are entitled to recover with the
amount of recovery to be determined in further pro-
ceedings before a commissioner of the court. Zonolite
Co., 114.

II. The novel combination defined in the claims in suit was not
obvious to those skilled in the trade and was at first
received with skepticism. There is little doubt now that
construction was both new and useful. A novel combina-
tion of old elements which cooperate with each other so
as to produce a new and useful result or a substantial
increase in efficiency is patentable. Id.

Patents 26 (2)

III. Patent drawings and specifications are not to be read so as to
limit the scope of the claim recital where the claim recital
is clear and unambiguous. The claims alone define what
is covered by the patent. Id.

Patents 167 (1%)

IV. The infringement at the McGuire Air Force Base did not
extend to those portions of the accused installation where
a structural concrete encasement or preformed vermiculite
planks were used to enclose the heat-insulating concrete.
Id.

Patents 328

V. The Government questions the right of plaintiff Wing
Engineering Corporation to bring these actions on the
ground that it was a mere licensee. It is held that this

138 C. Cls.

PATENTS-Continued

plaintiff had an undivided interest in the patents and was
therefore an owner within the meaning of 28 U. S. C.
§ 1498. The case is remanded to the commissioner for
further proceedings. Wing Engineering Corp., 260.
United States 127

VI. Plaintiff Wing Engineering Corporation, under its contract,
had the exclusive right, subject to certain reservations in
favor of the licensor, the Chrysler Corporation and its
subsidiaries, to grant licenses and also the right to sue
infringers, the proceeds of such infringement suits to be
divided equally between the two corporations.
right makes it a part owner of the patents. Id.
United States

127

Such

VII. The intervening petitioners presented no evidence in support
of their claim that they were the rightful owners of the
patents and their petitions are dismissed for want of
prosecution. Id.

Courts 462

VIII. Plaintiff's patent, in an earlier opinion of the court, 129 C.
Cls. 427, was adjudged valid, and the issue now to be
decided is the question of infringement by the defendant.
Plaintiff's invention was for the addition of mesitylene to
gasoline to prevent engine knocking, but called for a
much greater quantity of the additive than was used in
defendant's product. The proportion of mesitylene
specified in plaintiff's patent was from 5 to 20 percent of
the total volume, while defendant's proportion was only
0.36 percent. The mesitylene in defendant's product
was merely incidental. It is held that there is no in-
fringement of plaintiff's patent and his petition is dis-
missed. Bereslavsky, 434.
Patents

IX.

250

Mesitylene is normally found in small quantities in natural
gasoline produced by distillation, cracking, etc. It was
merely incidental that this product was present in de-
fendant's mixture. The amount was too small to pro-
duce the result disclosed and intended by plaintiff's
patent. Other elements with anti-knock properties
were used by defendant. Id.

Patents 250

138 C. Cls.

PAY AND ALLOWANCES.

I. Plaintiff, an Air Force officer, after discovery of a lung
condition in May 1944, processed his application for dis-
ability retirement through numerous medical and review
boards and Air Force administrative officials, the final
action being a decision by the Air Force Board for the
Correction of Military Records more than seven years
after the condition had first been observed. The various
boards and officials all found that plaintiff was fit for
duty and he was denied disability pay. It is held that
plaintiff's right to recover is dependent on a showing
that there was arbitrary or capricious action on the part
of these administrative officials and the record does not
disclose any such conduct. The petition is dismissed.
Johnson, 81.

Armed Services 13.5 (5)

II. It is not the function of the court to determine who is fit
or unfit for military duty. See Holliday v. United
States, 128 C. Cls. 647; Wales v. United States, 132 C.
Cls. 765. Id.

Armed Services 13.6 (1)

III. Where an application for disability retirement has been
given careful and repeated consideration, including
numerous medical examinations of plaintiff, it would be
a waste of time and unnecessary expense to proceed with
testimony before a commissioner. A clear and undis-
puted record justifies disposal of the case by means of
summary judgment for the defendant. Id.

Armed Services 13.6 (1)

IV. A rating by the Veterans Administration as to the degree
of plaintiff's physical disability is not binding on the Air
Force. Ailments which form the basis for compensa-
tion by the Veterans Administration do not necessarily
qualify a claimant for retirement and retirement pay for
physical disability. Id.

V. Plaintiff applied for retired Army pay under the Act of
June 29, 1948. The application was granted effective
as of April 30, 1950. Plaintiff's suit is for pay back to
the effective date of the act, at which time plaintiff had
attained the age of 60 years and had completed 20 years
of satisfactory Army service. The Government defends
on the ground of the statute of limitations, contending
that plaintiff's claim accrued with the passage of the act.
It is held that the claim did not accrue until plaintiff's
application was acted on. No claim accrues for the pur-