100 C. Cls. physical and personal inspection of the exhibits called for and such photographs as are considered essential, the inspection to take place in the presence of all parties interested and the commissioner of this court to whom the case has been referred. Item 3 is overruled. Reporter's Statement of the Case 7. Plaintiffs' attorneys appeared at the Navy Department and, in pursuance of said court order, requested permission to inspect the devices used by the Navy which they believed came within the terms of the court order. The Navy Department refused to permit inspection of any of the devices. mentioned upon the ground that the information sought was of a strictly confidential nature involving the National Defense and that disclosure of the mechanisms to the public would be contrary to public policy. 8. June 6, 1937, the Secretary of the Navy issued the following order: To All Whom It May Concern: Notice is hereby given that all information concerning the details of range keepers in use by the Navy Department, past and present, come within the provisions of the acts of Congress as defined in 50 U. S. Code. Such information relates to the National Defense, and its disclosure will be injurious to the public interest of the United States. (Signed) CLAUDE A. SWANSON, Secretary of the Navy. 9. June 7, 1937, a hearing was held on behalf of plaintiffs in New York City. The two principal witnesses were Commander Robert A. Lavender, of the Navy, and Charles R. Infante, a former employee of the Ford Instrument Company, which company, under contract with the Navy Department, had manufactured and delivered to the Navy the devices alleged by plaintiffs to infringe their patents. Defendant's attorneys objected to all interrogatories having to do with the disclosure of any range keepers used by the Navy and gave advance notice that objections would be made to any and all testimony of this character on the ground that the Navy considered such information secret and to make it public would be prejudicial to the National Defense. Each witness declined to answer any propounded question having to do with such a disclosure. 73 Reporter's Statement of the Case The Commissioner sustained defendant's objections, whereupon plaintiffs' attorney then moved that the hearing proceed in camera. The Commissioner's ruling was as follows: There are two things before me. There is your motion to instruct the defendants to proceed with the case in camera and Mr. Borst's objection to the question as calling for confidential Navy information. As to your motion to direct the defendant to proceed in camera, insofar as that is properly directed to me as a Commissioner, and not to the Court, I will deny that motion with an exception to you, so that you may raise the question directly before the court. As to Mr. Borst's objection to the testimony of the witness, calling for confidential information, I will sustain that objection for the same reason. That is, in passing on these two questions I make no attempt to decide them on the merits, but simply feel that the matter is of such importance that the Commissioner should not pass on it but should refer it to the full Bench; and you have your record and you are in a position to go before the Court with a motion to renew your motion before the Court. 10. July 2, 1937, plaintiffs filed a motion asking the court to order the Commissioner to permit plaintiffs to introduce before him the testimony sought to be elicited from the above witnesses, the plaintiffs offering to stipulate that the entire hearing and all the proceedings in the case be conducted in camera. The court overruled plaintiffs' motion. 85 C. Cls. 673. 11. In 1939 the plaintiff Pollen died. Thereafter plaintiffs by motion suggested to the court the death of Pollen and requested that the requirement of Rule 17 respecting substitution of personal representative of deceased be waived pending completion of the taking of testimony. That motion was granted by the court August 1, 1939. August 1, 1939, plaintiffs filed their amended petition, designating Arthur Hungerford Pollen (Maud Pollen, Executrix) and Harold Isherwood as petitioners, but no proof has been adduced of the legal capacity of Maud Pollen to maintain the suit. 574432-44-vol. 100- -7 Reporter's Statement of the Case 100 C. Cls.. Harold Isherwood survives and remains a subject of Great Britain and a resident of New York, New York. 12. The fact that the Ford Instrument Company manufactured and supplied to the United States Navy Department Ford Range Keepers, Mark I and Mark II, was a matter of public knowledge in 1920. In this year the Bureau of Ordnance of the Navy Department issued a publication entitled "Navy Ordnance Activities, World War 1917-1918." This book was printed at the Government Printing Office and was available at the New York Public Library. On page 159 of this publication it is stated with reference to the Ford Instrument Company, that— The company produced the following instruments, which were accepted and ordered by the United States Navy Department: 1. Ford range keeper, Mk. I. 2. Ford range keeper, Mk. II. * On page 152 of this publication there is a table showing that 946 Ford range keepers, Marks I and II, were ordered or delivered up to November 11, 1918. This publication does not disclose any of the constructional details of these devices. A copy of this publication, plaintiffs' exhibit Q, is made a part of this finding by reference. 13. Hannibal C. Ford, the president of the Ford Instrument Company, filed three applications for United States patents as follows, upon which patents were issued on the dates indicated: Patent 1,450,585 issued April 3, 1923, on application filed June 19, 1918, Serial No. 240,883; Patent 1,484,823 issued February 26, 1924, on application filed February 24, 1921, Serial No. 447,452; Patent 1,827,812 issued October 20, 1931, on application filed March 1, 1919, Serial No. 280,150. These patents all relate to range keepers or range clocks, and the disclosure of the structure and mechanism of the devices upon which these patents are predicated is in sufficient detail and sufficiently clear to enable those skilled in 73 Reporter's Statement of the Case this particular art to construct the devices and to practice the inventions covered by the patents. On the respective dates of issue of the patents as given above, these disclosures of mechanism and other statements made in the specifications by the inventor became matters of knowledge available to the general public. With respect to the Mark I Range Keeper, the following statement appears on page 1 of the specification of Ford patent 1,484,823: Instruments having the general structural details of that shown in the patent referred to above have been used in connection with range keepers of the type shown in my copending application, Serial No. 280,150, filed March 1, 1919, and which are particularly intended for use with guns of large calibre, such apparatus being known in the United States Navy as Mark I range keeper. In attempting to apply the instruments to range keepers of the type shown in my Patent No. 1,370,204 granted March 1, 1921, which is particularly intended for use in connection with small calibre guns, difficulty was experienced on account of the space occupied by the gear sectors and other associated parts of the mechanism. This statement has reference to Ford patent 1,827,812 listed above as identified by the application number. Copies of the three Ford patents, plaintiffs' exhibits N, O, and P, are made a part of this finding by reference. 14. There is no evidence as to what range-keeper devices were either manufactured for or used by the United States within the period beginning August 1, 1930 (six years prior to filing of the original petition), and terminating on July 10, 1934 (the expiration date of the latest patent in suit), and no findings on infringement or validity can therefore be made. 15. The defendant presented no evidence either as to manufacture or nonmanufacture, use or nonuse, of devices coming within the terminology of the claims of the patents in suit. The court decided that the plaintiffs were not entitled to recover, in an opinion per curiam as follows: The evidence submitted by plaintiffs is not sufficient to show what range-keeper devices were either manufactured Syllabus 100 C. Cls. for or used by the United States within the period beginning six years prior to filing of the original petition and July 10, 1934, the expiration date of the latest patent in suit (findings 12 and 14), and no findings on validity or infringement can be made. The petition must, therefore, be dismissed. It is so ordered. R. C. HUFFMAN CONSTRUCTION CO. v. THE UNITED STATES [No. 43478. Decided October 4, 1943] On the Proofs Government contract; notice to bidder to investigate conditions; no misrepresentation of conditions by defendant.-Where Invitation for Bids and Specifications put contractor on notice to investigate the conditions existing in the river bed to be dredged, and where defendant gave plaintiff such information as it had, there was no misrepresentation of conditions by the defendant. Same; equitable adjustment, right to.-It is a prerequisite to plaintiff's right to an equitable adjustment under Article 4 of standard Government contract that it appear that conditions at the site were materially different from those shown on the drawings or indicated in the specifications. Same; finding of contracting officer as to actual conditions conclusive if not arbitrary or grossly erroneous.-In determining whether or not conditions at site of work were different from those shown on the drawings or indicated by the specifications, the findings of fact of the contracting officer as to the conditions actually encountered are final and conclusive if not arbitrary or grossly erroneous. Same; equitable adjustment; conditions encountered differing from those shown on drawings or specifications.-Where specifications stated materials to be removed were believed to be sand and clay "with some hardpan and boulders" and where the hardpan actually removed was 11 percent of the total materials removed, conditions actually encountered did not materially differ from those indicated by the specifications; on the other hand, if the hardpan actually removed had been as much as that claimed by plaintiff, to wit, 50 percent, the conditions actually encountered would have materially differed from those indicated by the specifications. Same; Government contract; finality of findings of contracting officer on character of materials removed.—Where specifications provided for payment of cost of removing shoals occurring after previous dredging, but provided for the removal of misplaced materials |