being provided for such movement. A detent lock is provided near the handle, which is adapted to engage a plurality of holes in the semicircular track, thus providing means for locking the gun carriage in any of a plurality of positions relative to the inclined track. The gun carriage 82 is provided with a goose-neck member 84 which is pivotally mounted therein, the goose-neck member carrying at its upper end trunnion mountings 85 for a machine gun 800. The gun is thus capable of both train and elevational movement with respect to the gun carriage 82 in any of its positions relative to the inclined track 80. The maximum elevation of which the gun is capable is 77 degrees from the horizontal as shown in defendant's exhibit 17. When in this maximum elevated position it would be difficult, if not impossible, for the gunner to get under the gun to look through the sights; the gunner 282 Reporter's Statement of the Case in his operation of the gun either remains seated on a fixed seat 86 or may stand on the same to depress the muzzle of the gun over the sides of the cockpit. 23. The 3-A gun mount and the 3-B gun mount are substantially identical in construction and operation, the 3-B gun mount differing only in that the forward ends of the circular track are slightly extended in a straight line along the edge of the cockpit so that the track is of a more pronounced U-shape with the ends thereof curved out of the plane of the main curved portion of the track which is inclined at 30 degrees to the horizontal. 24. All the claims in issue with respect to the Navy 3-A and 3-B gun mounts, viz., 1, 2, 3, 4, 10, 11, and 12, carry the express limitations in item (d) (see finding 10) that the gun carriage is adjustable in a horizontal plane. This defining clause with reference to the invention in suit is not applicable to the Navy 3-A and 3-B gun mounts, in which the track or platform extending about the cockpit of the aeroplane is inclined at an angle of 30 degrees and the phraseology of the above-enumerated claims is, therefore, not applicable to the Navy 3-A and 3-B gun mounts. PRIOR ART AND KNOWLEDGE 25. Prior to August 23, 1909, the filing date of the original Myers application of which the patent in suit is a division, there were available to the public the following patents and publications: Patents United States, Gruson, 367,617, Oct. 2, 1887 (Deft's ex. 6). United States, Canet, 410,968, Sept. 10, 1889 (Deft's ex. 8). United States, Spiller, 480,215, Aug. 2, 1892 (Deft's ex. 9). United States, Anderson, 422,003, Feb. 25, 1890 (Deft's ex. 10). United States, McClean, 749,214, Jan. 12, 1904 (Deft's ex. 15). Great Britain, Simms, 7,387, 1899 (accepted) (Deft's ex. 7). France, Voisin, 394,438 1908 (délivré) (Deft's ex. 14). 323387-41-vol. 93-21 93 C. Cls. Reporter's Statement of the Case Textbook of Ordnance and Gunnery, by R. R. Ingersoll, published 1894, page 122, and Plate 18 (defendant's exhibits 19 and 19-A). Description of Modern Gun Mounts in the United States Navy, published 1894, page 13, and Plate 12 (defendant's exhibit 18). Textbook of Ordnance and Gunnery, by R. R. Ingersoll, published 1899, pages 184 and 185, and Plate 11 (defendant's exhibit 2). Black and White, published in Great Britain November 28, 1903, page 793 (defendant's exhibit 11). The Pall Mall Magazine, published in Great Britain August 1908, pages 144 and 145, and accompanying drawing (defendant's exhibit 12). United States patent to Voller, #1,041,384 (defendant's ex16), was issued October 15, 1912, on an application filed May 3, 1909, and prior to the filing date of the original Myers application. None of the above art was cited by the Patent Office or considered by the Examiner during the prosecution of the Myers application maturing into the patent in suit with the exception of the French patent to Voisin, # 394,438 (defendant's exhibit 14). Copies of the foregoing patents and publications, together with a translation of the French patent to Voisin (defendant's exhibit 14-A), are by reference made a part of this finding. 26. French patent to Voisin, #394,438 (defendant's exhibit 14), discloses a flying machine of the heavier-than-air type. As disclosed the same comprises an elongated body or fuselage extending in the direction of travel with a plurality of wings or supporting surfaces located both at the forward end and at the rearward end transversely disposed with re spect to the body or fuselage and projecting laterally therebeyond. The drawings show some of the transverse surfaces disposed slightly above the body of the main surface. The fuselage or body of the aeroplane is provided with a cockpit longitudinally removed from the transverse sustaining surfaces and located between the forward sustaining sur 282 Reporter's Statement of the Case faces and the rearward sustaining surfaces. The cockpit is elongated or oval in character and is provided with an upper rim substantially flush with the top of the fuselage. The aeroplane is provided with means for propelling the same comprising an engine and a tractor propeller and also means for directing the movements of the aircraft which includes control surfaces and operating mechanism therefor located in the cockpit. 27. United States patent to Voller, #1,014,384 (defendant's exhibit 16), is directed to the concept of a gun mounted in an aeroplane, the specification specifically indicating that the gun mount therein disclosed is for use on airships, motorcars, or the like. This patent, as is shown in Figure 1 reproduced herewith, discloses a gun mounting having a set of trunnions in which a gun is mounted for adjustment in a vertical plane, the rotation of the trunnion bracket being provided for by means of a movable circular ring rotating on ball bearings which rotates on the rim of a second fixed circular race or track placed at the top of the conical portion of a fixed base. The gun may therefore be trained horizontally to any desired position and may be also adjusted through a large elevational angle on its trunnions. It is entirely obvious that when the Voller gun and mount are located in the cockpit of an aeroplane they would be naturally so positioned that the gun would be supported by its trunnions slightly above the top of the cockpit, or to use the phraseology of claim 4 of the patent in suit, "adapted to carry a gun support slightly above the level of the upper surface of the main body." Such location would be essential in order that the gun might be aimed and fired over the edge of the cockpit. 28. United States patent to Gruson, #367,617 (defendant's exhibit 6), discloses a vehicle having an armored gun mount as disclosed in Figure 1 of the drawing illustrated in the findings. The gun mount comprises a stationary circular supporting track or platform rigidly positioned at the top of the gunner's compartment just below the top edge. The movable circular portion of the gun carriage rotates on rollers car ried by this circular track. This movable ring portion carries trunnion mountings in which is fixed a gun capable of elevational movement in a vertical plane. The extent of the gun elevation is dependent upon the arc of the elevating rack and the length of the slot in the armored top, which are matters of mechanical design. The trunnions are within the projection of the vertical cylindrical compartment wall and when the gun muzzle is elevated the inner or breech end projects below the top edge of the gunner's compartment and is enclosed thereby. The gunner is positioned inside the stationary and movable rings and behind the gun, his position being always |