Feb. 28, 1929 (45 Stat. 1370), making appropriations for the support of the War Department. A similar provision has appeared in prior appropriation acts. 1365. Voluntary service by reserve officers.-Provided further, That section three of the Act approved February twenty-seventh, nineteen hundred and six, entitled, "An Act making appropriations to supply urgent deficiencies in the appropriations for the fiscal year ending June thirtieth, nineteen hundred and six, and for prior years and for other purposes," shall not be construed to prohibit the Secretary of War from accepting the gratuitous services of members of the Officers' Reserve Corps of the Army in the furtherance of the enrollment, organization, and training of the Officers' Reserve Corps, the Reserve Officers' Training Corps, or the Enlisted Reserve Corps of the Army or in consultation upon matters relating to the military service. Act of May 12, 1917 (40 Stat. 72), making appropriations for the support of the Army: Reserve corps; U. S. C. 31: 666. For the provision of sec. 3, act of Feb. 27, 1906, referred to above, see 699, ante. 1366. Training.—* * * no part of such total sum shall be available for any expense incident to giving flight training to any officer of the Officers' Reserve Corps who shall be found by such agency as the Secretary of War may designate not qualified to perform combat service as an aviation pilot; ** Act of Feb. 28, 1929 (45 Stat. 1370), making appropriations for the support of the War Department. This provision appeared for the first time in the act cited, under the heading “Organized Reserves, headquarters and camps." CHAPTER 26 PATENTS Applications for patents important to arma- Remedy for unlicensed use of inventions by 1367. Applications for patents important to armament or defense not to be regarded as abandoned. All applications for patents shall be completed and prepared for examination within one year after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within one year after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable: Provided, however, That no application shall be regarded as abandoned which has become the property of the Government of the United States and with respect to which the head of any department of the Government shall have certified to the Commissioner of Patents, within a period of three years, that the invention disclosed therein is important to the armament or defense of the United States: Provided further, That within ninety days, and not less than thirty days, before the expiration of any such three-year period the Commissioner of Patents shall, in writing, notify the head of the department interested in any pending application for patent, of the approaching expiration of the three-year period within which any application for patent shall have been pending. R. 8. 4894, as amended by sec. 1, act of July 6, 1916 (39 Stat. 348); U. S. C. 35: 37. Provisions for extension of time for filing application were made by act Aug. 17, 1916 (39 Stat. 516). The acquisition of an invention for radiodynamic control of water-borne carriers of high explosives was provided for by the act of July 6, 1916 (39 Stat. 347) and by sec. 7, act of Mar. 2, 1919 (40 Stat. 1309). Notes of Decisions Failure to prosecute application and effect thereof.--An inventor can not without cause hold his application pending during a long period of years, leaving the pub lic uncertain whether he intends ever to prosecute it. Woodbury Patent Planing Mach. Co. v. Keith (1879), 101 U. S. 479. 1368. Publication of inventions during war; compensation for use by Government. That whenever during a time when the United States is at war the publication of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, be detrimental to the public safety or defense or might assist the enemy or endanger the successful prosecution of the war he may order that the invention be kept secret and withhold the grant of a patent until the termination of the war: Provided, That the invention disclosed in the application for said patent may be held abandoned upon it being established before or by the commissioner that in violation of said order said invention has been published or that an application for a patent therefor has been filed in a foreign country by the inventor or his assigns or legal representatives, without the consent or approval of the Commissioner of Patents, or under a license of the Secretary of Commerce as provided by law. When an applicant whose patent is withheld as herein provided and who faithfully obeys the order of the Commissioner of Patents above referred to shall tender his invention to the Government of the United States for its use. he shall, if and when he ultimately received a patent, have the right to sue for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the Government. Act of Oct. 6, 1917 (40 Stat. 395); U. S. C. 35: 42. 1369. Inventions by military or civilian personnel of the Government.—The Commissioner of Patents is authorized to grant, subject to existing law, to any officer, enlisted man, or employee of the Government, except officers and employees of the Patent Office, a patent for any invention of the classes mentioned in section 4886 of the Revised Statutes, without the payment of any fee when the head of the department or independent bureau certifies such invention is used or liable to be used in the public interest: Provided, That the applicant in his application shall state that the invention described therein, if patented, may be manufactured and used by or for the Government for governmental purposes without the payment to him of any royalty thereon, which stipulation shall be included in the patent. Act of Mar. 3, 1883 (22 Stat. 625), as amended by act of Apr. 30, 1928 (45 Stat. 467); U. S. C. 35: 45. * * Provided, That hereafter no money shall be expended at said armories in the perfection of patentable inventions in the manufacture of arms by officers of the Army otherwise compensated for their services to the United States. Act of Mar. 3, 1875 (18 Stat. 455). R. S. 4886, mentioned above, prescribes the articles which may be patented, upon payment of fees required. 1370. Remedy for unlicensed use of inventions by the United States.-That whenever an invention described in and covered by a patent of the United States shall hereafter be used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, such owner's remedy shall be by suit against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture: Provided, however, That said Court of Claims shall not entertain a suit or award compensation under the provisions of this Act where the claim for compensation is based on the use or manufacture by or for the United States of any article heretofore owned, leased, used by, or in the possession of the United States: Provided further, That in any such suit the United States may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement, as set forth in Title Sixty of the Revised Statutes, or otherwise: And provided further, That the benefits of this Act shall not inure to any patentee who, when he makes such claim, is in the employment or service of the Government of the United States, or the assignee of any such patentee; nor shall this Act apply to any device discovered or invented by such employee during the time of his employment or service. Act of June 25, 1910 (36 Stat. 851), as amended by act of July 1, 1918 (40 Stat. 705); U. S. O. 35: 68. Notes of Purpose of statute. The purpose of the statute is to give further security to the rights of patentees by permitting suit and recovery of compensation in the Court of Claims in those cases where their inventions are availed of for the benefit of the United States by officials of the Govern Decisions ment, in dealing with subjects within the scope of their authority, but under circumstances not justifying the implication of contract with the patentees. Cramp & Sons v. Curtis Turbine Co. (1917), 246 U. S. 28; Marconi Wireless Telegraph Co. of America v. Simon (1917), 246 U. S. 46. 1371. Inventions made by persons serving abroad with the forces of the United States.-That where an invention was made by a person while serving abroad, during the war, with the forces of the United States, civil or military, the inventor thereof shall be entitled, in interference and other proceedings arising in connection with such invention, to the same rights of priority with respect of such invention as if the same had been made in the United States, and where an application became abandoned or forfeited, during the time the applicant was serving with the forces of the United States, by reason of his failure to take action or pay a fee within the time now required by law, such action may be taken, or the fee paid, within six months from the passage of this Act. Sec. 6, act of Mar. 3, 1921 (41 Stat. 1314); U. S. C. 35: 85. Notes of Officers and employees of Government.The mere fact that a person is in the employ of the Government does not preclude him from making improvements in the machines with which he is connected, and obtaining patents therefor as his individual property. Gill v. U. S. (1896), 160 U. S. 426. The Commissioner of Patents is not disqualified from obtaining a patent, after expiration of his term of office, for an invention made during such term. Foote v. Frost (C. C. 1878), Fed. Cas. No. 4910. The second section of the act of July 4, 1836 (5 Stat. 118), disqualifying an employee in the Patent Office from acquiring an interest in a patent, does not disqualify such employee from obtaining a patent, after such employment has ceased, for an invention made prior to the commencement of such employment. Page v. Holmes Burglar Alarm Tel. Co. (C. C. 1880), 1 Fed. 304. A naval officer or employee of the Government at a navy yard, who has invented an article for use in the naval service and patented it, if the invention does not relate to a matter as to which he was specially directed to experiment with a view to suggest improvements, is entitled to compensation from the Government for the use of such article, in addition to his salary or pay as such officer or employee. (1889) 19 Op. Atty. Gen. 407. The Secretary of the Navy may lawfully contract with an ensign of the Navy for the purchase of patent rights and improvements in ordnance for use in the Navy, when the ensign was not employed to make Decisions experiments, but paid the expenses of obtaining letters patent, and when no expense was authorized or facility furnished by the Bureau of Ordnance to aid him in making or perfecting his invention. (1892) 20 Op. Atty. Gen. 329. Invention by skilled mechanic.-Where a skilled mechanic in the Government employment, in the ordinary course of his employment, with the aids furnished by the Government and the suggestion and advice of his superior officer, produces a device upon which a patent is issued, he can not recover for its use by the Government. Eager v. U. S., 35 Ct. Cl. 556; (1900), Solomons v. U. S. (1886), 21 id. 479, and (1887), 22 id. 335; Gill v. U. S. (1890), 25 id. 415. Invention by one not specifically employed for the purpose.-When not specifically employed for the purpose, if he makes an invention he is entitled to the benefits of the same. U. S. v. Burns (1870), 12 Wal. 246; Solomons v. U. S. (1886), 21 Ct. Cl. 479 and (1887), 22 id. 335; Solomons v. U. S. (1890), 137 U. S. 342, 346; Gill v. U. S. (1896), 160 U. S. 426; Gill v. U. S. (1890), 25 Ct. Cl. 415; McAleer v. U. S. (1893), 150 U. S. 424; and Eager v. U. S. (1900), 35 Ct. Cl. 556. (See, however, act of June 25, 1910, ante, 1370, which authorizes a suit against the United States for infringement of patent rights with the proviso that the act shall not apply to any device discovered or invented by an employee of the United States, "during the time of his employment or service.") |