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the courts of the question as a jud

of legislation to station of the UD

companies of process of law, as equal protection Ommission Cases, 4,348, 349, 388

, 125 U. S. 681, O T. Minnesota, 1 702; Railway O, 12 Sup. Ct.

154 U. 8. 862, 14 alled "Railroad C $37,6 Sup. CL

rose under an

passed March 1 rllroad commis the duty of sur declarly with the of charges. T Company had

by a charter it from time to wire the tolls and cred for transpor

there was no evidence tending to show how | Whitney: "The paten
much of the profits was due to the complain cess, made up of seve
ant's invention, and that hence he was en patentee does not cla
titled to recover nominal damages only. It inventor of the consti
is, no doubt, well settled that, where a pat use of them singly is
ent is for a particular part of an existing What is secured is the
machine, it is not sufficient to ascertain the in the process.”
profits on the whole machine, but it must be In Littlefield v. Perr
shown what portion of the profits is due to certain improvements in
the particular invention secured by the pat the court below, havin
ent in suit. Blake v. Robertson, 91 U. S. 728; ment, decreed an accou
Dobson v. Carpet Co., 114 U. S. 439, 5 Sup. gains, and advantages
Ct. 945. But it is equally true that where fendants have received,
the patented invention is for a new article of or accrued to them, fro
manufacture, which is sold separately, the use, or sale of stoves em
patentee is entitled to damages arising ments described in and
from the manufacture and sale of the entire letters patent." This co
article. Manufacturing Co. v. Cowing, 105 cree is, as we think, too
U. S. 238; Hurlbut v. Schillinger, 130 U. S. order is to account for
456, 9 Sup. Ct. 584; Crosby Steam Gage & from the manufacture, et
Valve Co. v. Consolidated Safety Valve Co., cing the improvements
141 U. S. 441, 12 Sup. Ct. 49.

the patents. This would
The grates, on whose sale the master as made upon a stove hapii
sessed profits, were not sold as an incident to the improvements patei
any particular stove, but as an independent, quiry is as to the profits
marketable article, and the infringers must ants have realized as the
pay the entire profits realized from the sale improper use of these in
thereof. The statement that, at this late profits belong to the plain
day, there can be a grate, for use in ordi. | accounted for to him."
nary stoves, which is entirely new, and pat We think the court belo
entable in all its parts and as an entirety saying: “The complainant
is somewhat surprising; but that is what we and sold separately from
learn from this record. The patent infringed tionably it was intended
contains eight claims, of which seven are but so are many devices
for the several parts of the grate, and the subject of distinct invent
eighth for the entire device, and the defend- sold for use in one patter
ants are precluded by the decree, to which it could be used in many
they consented, from contending that the Although in general* appea
plaintiff is to be restricted, in his demand grates, it is so constructed
for damages, to any one feature or part of be used upon any other gre
the grate.

of other grates can be us It is further claimed that the master ought move the patented features, to have reported nominal damages only, be mains. Although it is an in cause there was evidence before him to the stoves, the complainant is n effect that tbe defendants, at the time they cover the profits upon the made and sold the complainant's grate, like the improvement only wise made and sold another kind of grate, that the profits ari called the "Hathaway grate," and that the features must be same price was received for both kinds. ing from the From this it is said to follow that there was application no advantage derived by the defendants patented." from the manufacture and sale of the com Finally, plainant's grate, "above that which they and the co would have received had they made and sold credit to th the Hathaway grate only. We do not think er's profit. that the consequence suggested necessarily We are ro follows as matter of fact, nor that it has might be a p any relevancy as matter of law.

ly, when a co Mowry v. Whitney, 14 Wall. 620, and Lit measured by tlefield v. Perry, 21 Wall. 205, which are re what cre lied on by the defendants to sustain this contention, were both cases in which the patent art. ed features were so blended with other features not covered by the patent that it became necessary to inquire into what portion of the defendants' profits was due to the patented features, and to apportion the profit accordingly. Thus it was said in Mowry

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Mr. Justice BREWER, after stating the risdiction upon the court of claims excludes facts in the foregoing language, delivered by the strongest implication demands against the opinion of the court.

the government founded on torts. The genThe United States cannot be sued in their eral principle which we have already stated courts without their consent, and in grant as applicable to all governments forbids, on ing such consent congress has an absolute a policy imposed by necessity, that they discretion to specify the cases and contin should hold themselves liable for unauthor. gencies in which the liability of the govern ized wrongs inflicted by their officers on ment is submitted to the courts for judicial the citizen, though occurring while engaged determination. Beyond the letter of such in the discharge of official duties." And consent the courts may not go, no matter again, in Morgan v. U. S., 14*Wall. 531, 534: how beneficial they may deem, or in fact "Congress has wisely reserved to itself the might be, their possession of a larger juris- right to give or withbold relief where the diction over the liabilities of the government. claim is founded on the wrongful proceedings

Until the organization of the court of of an officer of the government." claims by the act of February 24, 1855 (10 The rule thus laid down has been consist. Stat. 612) the only recourse of claimants was ently followed by this court in many cases in an appeal to congress. That act defines up to and including the recent case of Hill the claims which could be submitted to the v. U. S., 149 U. S. 593, 598, 13 Sup. Ct. 1011. court of claims for adjudication as follows: If there was any error in this interpreta

"The said court shall hear and determine tion, first announced in 1868, of the scope all claims founded upon any law of congress, of the act, and if it was the intent of conor upon any regulation of an executive de gress to grant to the court jurisdiction over partment, or upon any contract, express or actions against the government for torts, an implied, with the government of the United amending statute of but a few words have States, which may be suggested to it by a corrected the error and removed all doubt. petition filed therein; and also all claims While the language of the act of 1887 is which may be referred to said court by either broader than that of 1855, it is equally clear house of congress."

in withholding such jurisdiction. It added, * On March 3, 1863 (12 Stat. 765), this addi "all claims founded upon the constitution of tional jurisdiction was given:

the United States," but that does not include “That the said court * • shall also claims founded upon torts, any more than have jurisdiction of all set-offs, counter "all claims founded upon any law of conclaims, claims for damages, whether liquidat- gress," found in the prior act. The identity ed or unliquidated, or other demands whatso of the descriptive words precludes the ever, on the part of the government against thought of any change. any person making claim against the gov. It is said that the constitution forbids the ernment in said court."

taking of private property for public uses On March 3, 1887 (24 Stat. 505), a new act without just compensation; that, therefore, was passed in reference to the jurisdiction every appropriation of private property by of the court, its language being:

any official to the uses of the government, no “The court of claims shall have jurisdiction matter however wrongfully made, creates to hear and determine the following matters: a claim founded upon the constitution of the

"First. All claims founded upon the consti United States, and within the letter of the tution of the United States or any law of grant in the act of 1887 of the jurisdiction congress, except for pensions, or upon any to the court of claims. If that argument be regulation of an executive department, or good, it is equally good applied to every upon any contract, expressed or implied, other provision of the constitution as well with the government of the United States, as to every law of congress. This proh?bi. or for damages, liquidated or unliquidated, tion of the taking of private property for in cases not sounding in tort, in respect of public use without compensation is no more which claims the party would be entitled to sacred than that other constitutional proviredress against the United States either in a sion that no person shall be deprived of life, court of law, equity, or admiralty if the liberty, or property without due process of United States were suable.

law. Can it be that congress intended that "Second. All set-offs, counter-claims, claims every wrongful arrest and detention of an for damages, whether liquidated or unliqui- individual, or seizure of his property by an dated, or other demands whatsoever on the officer of the government, should expose it part of the government of the United States to an action for damages in the court of against any claimant against the govern claims? If any such breadth of jurisdiction ment in said court.”

was contemplated, language which had alUnder neither of these statutes had or has ready been given a restrictive meaning the court of claims any jurisdiction of claims would have been carefully avoided. against the government for mere torts. Some It is true also that to Jurisdiction over element of contractual liability must lie at claims founded “upon*any contract, express. the foundation of every action. In Gibbons or implied, with the government of the V. U. S., 8 Wall. 269, 275, it was said: “The United States," is added jurisdiction over language of the statutes which confer ju claims "for damages, liquidated or unliqul

dated," but this grant is limited by the pro Junction or other proceedings to restrain vision "in cases not sounding in tort." This

such use.

There was no act of congress in limitation, even if qualifying only the clause terms directing, or even by implication sug. immediately preceding, and not extending to gesting, the use of the patent No officer of the entire grant of jurisdiction found in the the government directed its use, and the section, is a clear indorsement of the fre contract which was executed by Cook did quent ruling of this court that cases sound. not name or describe it. There was no ing in tort are not cognizable in the court of recognition by the government or any of claims.

its officers of the fact that in the construcThat this action is one sounding in tort is tion of the pavement there was any use of clear. It is in form one to recover damages. the patent, or that any appropriation was The petition charges a wrongful appropria being made of claimants' property. The tion by the government, against the protest government proceeded as though it were actof the claimants, and prays to recover the ing only in the management of its own propdamages done by such wrong. The succes erty and the exercise of its own rights, and sive allegations place the parties in con without any trespass upon the rights of the tinued antagonism to each other, and there claimants. There was no point in the whole is no statement tending to show a coming transaction from its commencement to its together of minds in respect to anything. It close where the minds of the parties met, is plainly and solely an action for an in or where there was anything in the semfringement, and in this connection reference blance of an agreement. So, not only does may be made to the statutory provision (Rev. the petition count upon a tort, but also the St. § 4919) of an action on the case as the findings show a tort. That is the essential legal remedy for the recovery of damages fact underlying the transaction, and upon for the infringement of a patent. If it be which rests every pretense of a right to resaid that a party may sometimes waive & cover. There was no suggestion of a waiver tort and sue in assumpsit, as on an implied of the tort, or a pretense of any implied conpromise, it is technically a sufficient reply to tract, until after the decision of the court say that these claimants have not done so. of claims that it had no jurisdiction over They have not counted on any promise, an action to recover for the tort. either express or implied.

It may be well to notice some of the cases But we do not care to rest our decision up in which the jurisdiction of the court of on the mere form of action. The transac claims over implied contracts has been sustion, as stated in the petition and as dis tained. In the case of U. S. V. Russell, 13 closed by the findings of the court, was a

Wall. 623, which was an action to recovere tort pure and simple. The case was, within for the use of*certain steamers, the property the language of the statute, one "sounding of the claimant, it was found as a fact in tort." It is in this respect essentially dif “That in the case of each of these steamferent from U. S. v. Palmer, 128 U. S. 262, ers, at the times when the same were re9 Sup. Ct. 104. That was an action to re spectively taken into the service of the Unitcover for the authorized use of a patent by ed States, the officers acting for the United the government, and these observations in States did not intend to 'appropriate' these the opinion (page 269, 128 U. S., and page steamers to the United States, nor even their 104, 9 Sup. Ct.) are pertinent:

services; but they did intend to compel the “This is not a claim for, an infringement, captains and crews with such steamers to but a claim of compensation for an author perform the services needed, and to pay a ized use,-two things totally distinct in the reasonable compensation for such services, law; as distinct as trespass on lands is and such was the understanding of the from use and occupation under a lease. The claimant; and that each of said steamers, first sentence in the*original opinion of the so soon as the services for which they were court below strikes the keynote of the argu respectively required had been performed, ment on this point. It is as follows: "The were returned to the exclusive possession claimant in this case invited the government and control of the claimant." to adopt his patented infantry equipments, Thus it appears that the minds of the and the government did so. It is conceded claimant and the officers acting for the gov. on both sides that there was no infringement ernment met; both intended a contract; and, of the claimant's patent, and that whatever the power of the officers to act for the govthe government did was done with the con ernment in the premises not being disputed, sent of the patentee, and under his implied it was obviously just to treat the case as one license.' We think that an implied contract of contract, and not of tort. So, also, in the for compensation fairly arose under the li case of U. S. v. Great Falls Manuf'g Co., cense to use, and the actual use, little or 112 U. S. 645, 5 Sup. Ct. 306.

The appro much, that ensued thereon."

priation of the claimant's property was unHere the claimants never authorized the der direct legislative enactment by congress. use of the patent right by the government; The property thus appropriated was confess. never consented to, but always protested edly the property of the claimant, to which against it; threatening to interfere by in the government made no pretense of title.

173

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The claimants assented to sucb appropria Mr. Justice HARLAN (dissenting).
tion, entered into arbitration proceedings to .I am constrained to withhold my assent to
determine the amount due them therefor. the opinion and judgment in this case.
Hence all the elements of contract were The United States granted to Schillinger in
found in the transaction.

1870 a patent for an alleged new and useful But there is still another aspect in which improvement in concrete pavements. That this case may be considered. The patent of patent was surrendered, and a new one issued Schillinger runs to the mode of constructing in 1871, based on amended specifications. concrete pavements. The mere form of a The present suit against the United States pavement with free joints—that is, in sepa proceeds upon the ground that in a paverate blocks-is not, since the filing of his ment constructed in the capitol grounds, undisclaimer, within the scope of his patent. der the supervision of the architect of the It may be that the process or mode by capitol, the United States knowingly obtainwhich Cook, the contractor, constructed the ed, and still enjoys, the benefit of the impavement in the capitol grounds was that provement covered by the Schillinger patent. described in and covered by the Schillinger Can a suit be maintained against the United patent. He may, therefore, have been an States in the court of claims, as upon con

infringer by using that process or mode in tract, for the reasonable value of such use in the construction of the pavement, and liable of the patentee's improvement? o to the claimants for the damages they have In James v. Campbell, 104 U. S. 357, this

sustained in consequence thereof. It may court said: “That the government of the be conceded also that the government, as United States, when it grants letters patent having at least consented to the use by Cook for a new invention or discovery in the arts, of such process or method in the construc confers upon the patentee an exclusive proption of the pavement, is also liable for dam erty in the patented invention which cannot ages as a joint tort feasor.

But what prop

be appropriated or used by the government erty of the claimants has the government itself, without just compensation, any more appropriated? It has and uses the pave than it can appropriate or use, without comment as completed in the capitol grounds, pensation, land which bas been patented to but there is no pretense of a patent on the a private purchaser, we have no doubt. The pavement as a completed structure. When constitution gives to congress power 'to proa contractor, in the execution of his con mote the progress of science and useful arts tract, uses any patented tool, machine, or by securing for limited times to authors and process, and the government accepts the inventors the exclusive right to their respect. work done under such contract, can it be ive writings and discoveries,' which could said to have appropriated and be in posses not be effected if the government had a re sion of any property of the patentee in such served right to publish writings or to use a sense that the patentee may waive the such inventions without the consent of the tort, and sue as on an implied promise ? owner. Many inventions relate to subjects The contractor may have profited by the use which can only be properly used by the gove of the tool, machine, or process, but the ernment, such as explosive shells, rams, and work, as completed and enjoyed by the gov submarine batteries to be attached to armed ernment, is the same as thougb done by vessels. If it could use such inventions with. a different and unpatented process, tool, or out compensation, the inventors could get no machine. Take, for illustration, a patented return at all for their discoveries and ex. hammer or trowel. If a contractor in drive periments." ing nails or laying bricks use such patented U. S. v. Great Falls Manuf'g Co., 112 U. S. tools, does any patent right pass into the 645, 656, 5 Sup. Ct. 306, was a suit in the building, and become a part of it, so that he court of claims to obtain compensation for who takes the building can be said to be in all past and future use and occupation by the the possession and enjoyment of such patent United States of certain lands, water rights, right? Even if it be conceded that Cook, and privileges claimed by the plaintiff, and in the doing of this work, used tar paper, or taken for public use by the agents of the govits equivalent, to separate the blocks of con ernment. This court said: “The making of crete, and thus finally completed a concrete the improvements necessarily involves the pavement in detached blocks or sections, was taking of the property; and if, for the want such completed pavement any different from of formal proceedings for its condemnation what it would have been if the separation to public use, the claimant was entitled, at between the blocks had been accomplished the beginning of the work, to have the agents in some other way, and is the government of the government enjoined from prosecuting now in possession or enjoyment of anything it until provision was made for securing in embraced within the patent? Do the facts, some way payment of the compensation re as stated in the petition or as found by the quired by the constitution,--upon which ques. court, show anything more than a wrong tion we express no opinion,-there is no sound done, and can this be adjudged other than a reason why the claimant might not waive case "sounding in tort"?

that right, and, electing to regard the action We think not, and therefore the judgment of the government as a taking under its of the court of claims is atfirmed.

sovereign right of eminent domain, demand

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