In August 1931 Frederick Fulmer made a camouflaging disruptive coloration parachute for the purpose of making it invisible. He based himself on a frog’s crypsis skin. He stated that in March 30, 1943, he entered into an oral agreement with officers of the United States Army while acting within the line or scope of their employment. Fulmer made a full disclosure of his invention in consideration of the promise by the officers that it would be treated in confidence and that they would pay Fulmer a reasonable value. Frederick Fulmer made Application No. 531500 for U.S. Letters Patent for Camouflaged Parachute.
From July 18, 1944, the US army made use of the camouflaged parachute and publicized it. The parachute was used in the prosecution of World War II. Fulmer didn’t receive any compensation for his work.
In 1948 Fulmer claimed that the United States breached the oral agreement of compensation for the use of camouflaging parachutes. On June 1, 1948, the court case Fulmer v. United States took place at United States Court of Claims. Judge Littleton held:
[Fulmer] has no cause of action under the terms of Royalty Adjustment Act. [He] had no license agreement with anyone for the payment of a royalty for the use of his alleged invention in connection with the manufacture of articles for the United States. [...] The petition does not state the name or position of the “officers, agents, or servants” of the government with whom he had negotiations concerning his alleged invention.
The court concluded that since Fulmer didn’t show that he had a contract with the government there was no basis for a suit. Fulmer tried a different way to protect the camouflaged parachute and brought an action against the United States for infringement of his copyright with irregular curved lines painted or dyed upon cloth of parachute. On April 8, 1952, the court case Fulmer v. United States took place at United States Court of Claims. Judge Madden held:
We assume that [Fulmer]’s design suggested a method of camouflaging parachutes, and we further assume only for the purpose of discussion, that the idea of camouflaging parachutes was original with [Fulmer], and was patentable. But [Fulmer] did not patent it and thereby [did not] obtain a statutory monopoly of the process. On the contrary, he disclosed the method to the public, by preparing and copyrighting his design. The only monopoly which the copyright gave him was the exclusive right to reproduce the design, as an artistic figure. [...] The claim to an invention or discovery of an art or manufacture must be subjected to the examination of the Patent Office before an exclusive right therein can be obtained; and it can only be secured by a patent from the government. [...] Whether the art might or might not have been patented, is a question which is not before us. [It] was not patented, and is open and free to the use of the public. [...] [Fulmer]’s petition does not state a cause of action for the infringement of his copyright. The government’s motion to dismiss the petition is granted.
The court concluded that The United States used the utilitarian aspects of the image. The camouflage pattern, which alters the way another object appears, was treated by the court as utilitarian. According to the court the camouflage pattern is not merely portraying the appearance of an article or conveying information but also a functional two-dimensional image inseparable from the utilitarian aspects of the parachute.