NATIONAL INDUSTRIAL RECOVERY ACT.
See Contracts, XXXVIII, XXXIX. Taxes, XXVI, XXVII.
NAVY PAY.
I. Where an officer in the Navy was retired under the pro-
visions of U. S. Code, Title 34, Section 417 (R. S. 1453)
the effective date of retirement is the date contained
in the recommendation of the Secretary of the Navy
which the President approved, and not the date upon
which the President affixed his signature. Greenwald,
II. The President has the power to fix the date of retirement,
under the Statutes. Id.
OVERPAYMENT.
See Taxes XXXVIII.
OWNERSHIP.
See Patent Cases Procedure II.
I. From the prior art and the knowledge set forth in the
findings of fact it is held that the claims of plaintiff
are not directed to novel and patentable subject
matter and are therefore not valid. Myers, 107.
II. The question of continuity of invention as applied to
applications for patents filed upon different dates to
entitle one to priority is one of fact. Id.
III. Where no witness testified to that effect, and there is no
direct testimony that the method in question involved
only mechanical skill, but the evidence as a whole
makes this conclusion manifest, direct testimony by
an expert is not required in order to enable the court
to reach a conclusion. Martin, 179.
IV. Upon the evidence it is found that in a landing wheel
for an aeroplane, it was on March 12, 1918, the date
of plaintiff's application which matured into patent
#1432771, issued to plaintiff on October 24, 1922, not
new to have:
An outer rim and tire rotatable upon an inner part
not rotatable;
A nonrotatable axle mounted in a guide slot so as
to provide for a substantially vertical relative move-
ment between the two nonrotatable parts;
The vertical movement resisted by elastic bands
wrapped around portions of the two nonrotatable
parts in such a manner as to permit a yielding under
heavy loads or shocks;
Rubber for the elastic material in the bands;
The shock-absorbing element placed within the side
planes of the wheel, and while a shock absorber using
elastic bands had not been so located, such an opera-
tion would naturally be suggested to those skilled in
the art who wished to minimize the wind resistance of
the wheel. Id.
V. Prior to the issuance of plaintiff's patent, in suit, there
were two kinds of shock absorbers well known; one
used springs located within the plane of the wheel,
and the other rubber bands on the same general plan
as that described in plaintiff's patent but located out-
side of the plane of the wheel; scientific journalists
discussed the location of the shock absorbers within
the planes of the wheel without reference to the type
used, and this could be done with either type by those
skilled in the art. Id.
VI. Claims 1 and 2 of the patent of plaintiff are held to be
invalid because of complete anticipation, and claims
3 and 4 for want of patentable novelty or invention
over the prior practical, patented, and published art.
Id.
VII. It is held in the instant case the facts show that if the
claims of the patent are so construed as to read upon
the alleged infringement structures, they are clearly
anticipated by the prior art. Hamacek, 369.
VIII. The patent is held to be void through lack of proper
description. Id.
PATENT CASES PROCEDURE.
I. Where motion for bill of particulars seeks an admission
on the part of the defendant rather than an amplifi-
cation of defendant's pleadings, it is not allowable.
Martin, 249.
II. Whether the plaintiff has or has not made any agree-
ment, assignment, or exclusive license of the patent in
suit to any person, firm, or corporation is a matter
that comes definitely within his own knowledge;
ownership is one of the items of proof involved in the
presentation of plaintiff's case. Id.
III. It is not the function of a bill of particulars to require a
party to disclose evidence or names of witnesses. Id.
IV. Information as to employment of plaintiff at a particular
time is within the knowledge of plaintiff, and not
properly included in a motion for a bill of particulars.
Id.
V. Dates of conception and reduction to practice are matters
solely within knowledge of plaintiff. Id.
VI. The Court suggests that time and expense would be
saved if plaintiff would give notice to the defendant,
either in response to a motion for a bill of particulars,
or in some other form binding upon the plaintiff,
PATENT CASES PROCEDURE-Continued.
setting forth the dates of conception and reduction to
practice it intends to rely upon, and the application
of the claims in issue as applied to the alleged infring-
ing structures.
VII. Before a defendant can be called upon to furnish a bill
of particulars the essential facts relied upon by the
plaintiff to establish his cause of action must be
pleaded; in the instant case it is held that the plaintiff
is in error in seeking a bill of particulars asking the
defendant to divulge the prior art relied upon in order
to facilitate disposition of the case, without setting
forth in plaintiff's petition the dates of conception and
reduction to practice. Id.
PAY AND ALLOWANCES.
I. Where an officer of the Medical Corps, U. S. Army,
assigned to duty with the Governor of the Panama
Canal, as physician in the Health Department, was
reimbursed the amount he was required to pay for
rental of quarters owned by and controlled by the
Panama Canal, he is not entitled under the Act of
April 9, 1935, to recover an additional amount as
rental allowances. Porter, 172.
II. Where enlisted man in the United States Army, having
served as commissioned officer in the World War, was
retired, under the provisions of Section 8 of the Act of
June 6, 1924, on the retired pay of a warrant officer, it
is held that his pay comes under the provisions of
Section 212 (a) of the Act of June 30, 1932 (the
"Economy Act") when such retired pay, combined
with the annual rate of compensation of a civilian
position under the United States Government, held
by him, exceeds $3,000 per annum. Hayes, 309.
III. An Army officer, who, by reason of an airplane accident,
was physically unfit for duty as an airplane pilot, but
was assigned to duty as an observer and participated
as such in aerial flights, is entitled to the 50 percent
additional flying pay provided by statute. Holland,
341.
IV. "Nonpiloting duty" is not the equivalent of "nonflying
V. Assignment to duty determines an officer's pay status.
VI. Where enlisted man in Navy was retired after thirty
years of active service, having received from the
President full and unconditional pardon for desertion,
it is held that he is entitled to credit for conduct marks
PAY AND ALLOWANCES-Continued.
during his entire period of service without deduction
for period during which he was incarcerated under the
sentence of the general court-martial. Bennett, 602.
VII. Where an unconditional pardon has been granted, it gives
a new credit and capacity, blots out the existing guilt,
and makes the victim as innocent as if he had never
committed the offense.
PERFORMANCE, IMPOSSIBILITY OF.
See Contracts XXXVII.
POLICY OF GOVERNMENT.
See Indian Claims I.
PRESIDENTIAL PARDON.
See Pay and Allowances VI, VII.
PROFITS AND LOSSES.
PROPER DESCRIPTION, LACK OF.
See Patents VII, VIII.
PROTEST AS TO DISALLOWANCES.
See Taxes II.
RECEIVER, TITLE OF.
See Cotton Linters I.
RECEIVERSHIP, ORDER OF.
See Cotton Linters II.
RENTAL ALLOWANCE.
See Pay and Allowances I.
REORGANIZATION, TRANSFER OF STOCK IN.
See Taxes LXXII, LXXIII.
RESERVE FUNDS.
See Taxes LII.
RETIRED PAY.
See Pay and Allowances II.
RETIREMENT, EFFECTIVE DATE OF.
See Navy Pay I, II.
SHOCK ABSORBERS.
See Patents V.
STATUTE OF LIMITATIONS.
See Contracts XXVI, XXVII, XXVIII, XXIX; Taxes LXVIII,
LXIX, LXX, LXXI, LXXIV, LXXV, LXXVI.
STATUTORY EXEMPTIONS.
See Taxes LXII, LXIII.
STATUTORY LIMITATIONS.
See Taxes III.
STIPULATION SET ASIDE.
See Taxes VI, VII.
SUPERVISING ARCHITECT, APPROVAL BY.
I. Where taxpayer on December 12, 1931, filed claim for
refund of the entire amount of income tax for 1928,
which amount was paid in four installments-March
20, June 17, September 16, and December 16, 1929—
it is held that under Section 322 of the Revenue Act
of 1928, the claim for refund was properly held by the
Commissioner to have been timely filed, within the
two-year period, only as to the last installment.
Mohawk Rubber, 50.
II. Where taxpayer on December 10, 1930, filed a document
protesting against additional assessments for 1927 and
1928 and disallowances contained in revenue agent's
report, and alleging errors in said report, it is held that
this document was entirely lacking in the essential
elements of a claim for credit, which, while it need
not be made in any exact form, nevertheless must
make known taxpayer's contention for refund or credit
in such a manner that the Commissioner would be
apprised of taxpayer's desire. Id.
III. The granting of refunds and credits is confined to the
limits set by Congress, and specific statutory provisions
must be adhered to, no matter how great the equity
may be. Bull. v. U. S., 295 U. S. 247, and Dunigan
v. U. S., 87 C. Cls. 404, distinguished. Id.
IV. The doctrine laid down in Swift and Company v. United
States (69 C. Cls. 171) is reaffirmed, that in computing
the net income of a consolidated group of corporations
"the separate corporations are the taxpayers, and the
affiliated group is merely a tax-computing unit, not a
taxable unit." Woolford Realty Co. v. Rose, 286 U. S.
319, 328 cited. Federal Export, 60.
V. Since losses, if deducted at all, must be deducted from
the net income of the corporation sustaining the loss,
there can be no deduction from the consolidated in-
come of a loss sustained by a company which for the
particular year in question has no income. Id.
VI. Without regard to the rule in other courts, and in cases
where the Government is not the defendant, it is held
that the Court of Claims has the right, in order to
prevent an injustice being done the Government, to
set aside a stipulation which has been inadvertently
entered into by one of the Government's attorneys
even though the stipulation involves a matter of law;
the Court having previously held in Giddings v. United
States (29 C. Cls. 12, 15) that where a case was sub-
mitted on stipulation either party might withdraw it
at any time before a decision is announced, and in the
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