APPEAL FROM THE COURT OF CLAIMS.
MR. JUSTICE McKENNA delivered the opinion of the court.
Suit by the Steel Company to recover royalties for the use by the United States of a patented invention owned by the Company.
On November 7, 1891, the United States by and through the Ordnance Bureau of the War Department contracted with the Bethlehem Iron Company for the manufacture of 100 guns of 8-inch, 10-inch and 12-inch calibre, which were to be equipped with the usual breech mechanism then known as "Model 1888 M 2".
On November 1, 1893, and pending the execution of the contract, Owen F. Leibert, an employee of the Bethlehem Iron Company, made application for an improvement in breech mechanism for ordnance. The Company notified the Bureau of the invention and of an application for a patent. It suggested that the Bureau have the application made special. This the Bureau did and a patent was issued to Leibert on March 20, 1894.
In February, 1894, the Bureau requested full information as to the patent and that it be permitted to use the same at the Watervliet Arsenal in an experimental test on a 12-inch gun. The request was granted and the Bureau prepared drawings for the test.
On December 23, 1895, while the Leibert mechanism was in course of construction the Chief of Ordnance forwarded to the Commanding Officer of the Arsenal a communication
showing a form of mechanism, saying that it seemed to possess marked merit and that it was a modification of the Leibert design, from which it differed "mainly in the mode of operating the withdrawal of the block, and in the pitch of the segmental rack to give increased power for rotation."
The Commanding Officer reported that the design was deemed superior to the other designs and that he had ordered its manufacture, as suggested by the Chief of Ordnance he should do in such case. It was thereafter manufactured and used by the United States on a number of guns.
The design that was used was prepared by John W. Stockett, a draftsman in the Ordnance Bureau, and was known and referred to as the "Stockett design", and the "Department design", but more generally as "Model 1895". Stockett applied for and received a patent for the design.
From time to time during 1894 to 1896 the Ordnance Bureau considered different forms of mechanism, and the Company notified the Bureau that work under the contract had reached a point that it was necessary to know the mechanism to be used, and requested that if any change was to be made the Company be notified. The Bureau replied that it had no objection to the use of the "Model 1895". The Company answered that it had no objection to conforming to that design, provided no modification be made in the price to be paid for the guns named in the contract on account of change in the breech mechanism. March 3, 1898, the Ordnance Bureau indicated its assent to that proposition.
On August 16, 1901, the Bethlehem Iron Company assigned all of its rights and franchises to the Bethlehem Steel Company and the latter Company asked that it be ...