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107 C. Cls. Reporter's Statement of the Case pendency of this suit and prior to the taking of testimony herein. The Burke and Herbert Bank and Trust Company, of Alexandria, Virginia, is duly qualified as administrator, c. t. a., of his estate.
William E. Richardson was engaged in the general practice of law in Washington, D. C., during the period herein involved. He died subsequent to the taking of the testimony herein, and Pearl W. Richardson is the duly qualified administratrix of his estate.
2. An automatic gun is one in which, when a cartridge is fired, a train of elements is actuated to eject the empty cartridge case, insert a new cartridge into the breech and otherwise prepare the gun mechanism for the next firing. In automatic guns the energy by means of which the train of mechanism is actuated is derived from the explosion of the firing charge in the cartridge. The methods of derivation of this energy and its application to the trains of mechanism, as well as details of the mechanism, differ in various types of automatic guns.
3. John C. Garand, a naturalized citizen of the United States, was a French-Canadian by birth. He came to this country when eight years of age and went to work at the age of 12. He then went to school for a short period and went back to work at the age of 14. He attended school in this country about two and one-half years, and still has some difficulty expressing himself in the English language and in writing
In 1919 he had had no previous business experience.
4. On August 16, 1918, Garand had partially completed the embodiment of an automatic rifle which he had designed. This work was being carried on by Garand as the result of a contract with one John T. Kewish. The development work on this automatic rifle was then being financed by Kewish.
On this date (August 16) Kewish made arrangements with the United States Bureau of Standards whereby Garand was to be employed by the Bureau at a salary of $1,800 per annum to continue the construction of the automatic rifle.
In this rifle a slight rearward movement of the primer relative to the cartridge case provided the energy for activating the gun mechanism. Garand worked on this rifle
Reporter's Statement of the Case until the latter part of December 1918, at which time the rifle had been completed and tested, and failed to function satisfactorily.
About this same time Garand began to have difficulty with Kewish in connection with his agreement, and in December of 1918 contacted Richardson and Bunn for advice and professional services.
In the meantime, Kewish had filed a patent application for a primer-actuated gun under date of July 9, 1918.
5. J. C. Gray was a major in the Army assigned to the Chief of Staff in World War I. He was connected with the office of the Chief of Staff until November 1920 and then went to the Ordnance Department as a civilian. Major Gray was the superior officer to a Captain Kopper who was liaison officer between the office of the Chief of Staff and the Bureau of Standards, with his office at the Bureau. Gray's connection with Kopper began in November 1918, and ceased in October of 1919, at which time Kopper resigned his commission.
As a part of his duties Kopper made periodical reports to Gray on any matters of interest developing at the Bureau of Standards. Captain Kopper had become interested in
. Garand's work on automatic rifles and had advised his superior, Gray, that Garand's designs and developments had possibilities.
6. After the failure of Garand's original design in December of 1918, arrangements were made for his continued employment at the Bureau of Standards in connection with the subsequent development of an automatic gun. On April 5, 1919, the third model which Garand had designed was successfully operated. This model obtained its energy for operating the gun mechanism not only by the blowback of the primer in the cartridge as in the original or first model, but also utilized the backward movement of the cartridge itself, and the recoil of the gun.
7. On April 26, 1919, at the instance of Captain Kopper, Garand filled out a mimeographed form entitled “Record of Military Invention." This form was intended to be signed by an inventor and returned to the Patent's Section, Purchase Branch, P. S. & T., Munitions Building, Washington, D. C.
107 C. Cls. Reporter's Statement of the Case This document contained a series of items to be filled in, including the description of the invention, its title, the dates of the first sketches, disclosures to others, and completion and tests of the device, etc.
Item (i) was entitled “Rights of United States Government.” This item as filled in by Garand contained the following statement:
To take out the complete patent and to manufacture and use for Government purposes only, all domestic com
mercial and foreign rights reserved to inventor. This document was signed by Garand as inventor and by Captain Kopper as forwarding officer.
Richardson was present at the Bureau of Standards at the time this document was filled out and signed by Garand.
8. During the first part of 1919 both Bunn and Richardson assisted Garand in a professional capacity. Richardson examined the papers and the correspondence between Garand and Kewish and had one or more conferences with Captain Kopper and Kewish.
On July 11, 1919, Bunn filed a patent application, serial No. 310,249, for Garand and requested the Patent Office to place the same in interference with the application Kewish had filed on July 9, 1918, for the purpose of establishing the rights of Garand.
This interference was declared on July 28, 1922, and on March 23, 1923, the interference examiner rendered a decision adverse to Garand through default of Garand in taking testimony. The Garand application was finally rejected and thereafter became abandoned.
9. On August 11, 1919, Garand, Bunn and Richardson entered into the following agreement:
This Agreement made this 11th day of August, A. D., 1919, by and between John C. Garand, party of the first part, and Alexander M. Bunn and William E. Richardson, of Washington, D. C., parties of the second part, witnesseth, that
Whereas, the party of the first part has made certain inventions in automatic and machine guns or rifles for which inventions he is now about to make applications for patent in the United States Patent Office;
And Whereas, a dispute has arisen between the party of the first part and one John T. Kewish concerning
Reporter's Statement of the Case the rights in said invention and said Kewish has filed and there is now pending in the United States Patent Office an application of the said Kewish for patent for discoveries and improvements in automatic and machine guns which will probably result in the declaration of an interference with one or more of the applications for patent of the party of the first part when presented;
And Whereas the said Kewish has claimed right to an interest in all inventions of the party of the first part embracing the subject matter above stated, for a period of five (5) years covering the different inventions and discoveries;
And Whereas the party of the first part disputes and denies the right of the said Kewish to any interest in or claim to any of the aforesaid discoveries and inventions of the party of the first part and has employed and retained the parties of the second part as his attorneys to protect and defend his interests in respect to said matters before the United States Patent Office and in any court or courts before which said matters may be considered;
Now therefore the parties herein in consideration of the mutual covenants and agreements contained herein do each jointly and severally covenant and agree as follows:
First. The said Alexander M. Bunn, party of the second part, will represent and prosecute the claims and interests of the party of the first part to the end that the said party of the first part may secure the patent or patents covering the said inventions and discoveries, and the said William E. Richardson will represent the said party of the first part in any litigation growing out of the said disputes and controversies with said Kewish, and in carrying out their said agreements the said Bunn and Richardson agree to represent the interests of the party of the first part diligently and to their best ability.
Second. Said party of the first part agrees, in consideration of the services to be rendered by the parties of the second part, and of the services which they have heretofore rendered, without any arrangement for compensation, and without retainer, to compensate each of the parties of the second part to the extent of five percent (5%) of any proceeds realized by him (the party of the first part) from any assignment or sale of, or license or agreement under, any patent or application for patent in the United States or any other country, up to a total sum of One Hundred Thousand Dollars ($100,000.00) and, and in addition thereto, the party of the first part 107 C. Ols. Reporter's Statement of the Case hereby covenants to pay to each of the parties of the second part thirty-three and one-third percent (3343%) of any proceeds above One Hundred Thousand Dollars ($100,000.00) which he may obtain in any manner whatsoever because of any of his inventions, discoveries, or improvements in machine or automatic guns or rifles, or firearms of any nature, or devices of similar character, provided, that such inventions, discoveries or improvements are to include only such as have already been conceived or made by the party of the first part, or which may be conceived or made by said party prior to the termination of the present agreement, and not to include any inventions, discoveries or improvements conceived or made by said party after the termination of this agreement.
In order that the above paragraph may be somewhat clarified, the following statement is added thereto.
a. The terms “machine or automatic guns or rifles, etc.”, shall be construed to cover, and do cover, light or heavy automatic guns or firearms of any description which the said party of the first part has invented or which he may hereafter invent, prior to the termination of this agreement, and which are described, or which may be described in any application for patent or patents already on file in the United States or any other country, under the name of the said party of the first part, as inventor or a joint inventor, or which application or applications may hereafter be filed, prior to the termination of this agreement, in the United States or any other country, under the name of the party of the first part as inventor, or in which said party has or may have any interest whatsoever, as an inventor or otherwise.
b. It is the spirit and intent of this agreement that the party of the first part is to pay to each of the parties of the second part, as above set forth.
1. Five percent (5%) of all profits which may be derived by the party of the first part up to One Hundred Thousand Dollars ($100,000.00), which One Hundred Thousand Dollars ($100,000.00) refers to the gross receipts of the party of the first part and not to the prorata shares of the other parties, and in addition thereto
2. Thirty-three and one-third percent (3343%) of any proceeds over One Hundred Thousand Dollars ($100,000.00) which may be similarly derived by the party of the first part.
This agreeement may be terminated by 1. Consent of all three parties, or