formed by a straight rod as by a bent one. There may be difference in their dispersing power, but no difference in function, and one or the other would be instantly selected according to the need, under the clear description of the patent. This ready adaptation of the form of stirrer to the work to be performed Baldwin demonstrated even before the grant of the patent. Early in 1906 he put upon the market a lamp with a straight rod," which, among other things," as the district court has said, "has characterized the commercial lamp ever since."

To the contention that the Justrite Company, the manufacturing defendant, acquired rights before the reissue we again may oppose the reasoning and conclusion of District Judge Mayer and their affirmance by the circuit court of appeals. The learned judge said:

It will be remembered that this company entered the field with its lamp at a time when the validity and scope of the Baldwin patent were still unquestioned and when after some five years of capable effort the Baldwin lamp had created an extensive market. The Justrite Company took its chances and, in view of the necessities of the situation, it is relieved of all accountability for the period prior to the granting of the reissue patent; but when the reissue was granted the Justrite Company again took its chances.

By the reissuance of the patent, the patentee loses all in the way of an accounting under the original patent, but the dominant purpose of the reissue statute was to save to the inventor the future remaining after the reissue.

I see nothing in the course of plaintiffs or defendants which would allow a court of equity to conclude that defendants are to be relieved because of intervening rights.

Decree affirmed.

[Supreme Court of the United States.]

WILLIAM CRAMP & SONS SHIP & ENGINE BUILDING COMPANY V. INTERNATIONAL CURTIS MARINE TURBINE COMPANY AND CURTIS MARINE TURBINE COMPANY OF THE UNITED STATES.

Decided March 4, 1918.

249 O. G., 739; 246 U. S., 28.

PATENTS-GOVERNMENT CONTRACTS FOR PATENTED APPARATUS-ACT OF JUNE 25, 1910.

The proposition that the act of June 25, 1910, conferred on the United States a license to use patented inventions is directly against the express provisions of the act itself. "Its purpose was not to weaken the rights of patentees, but to further secure them." Nor does it confer upon contractors with the United States for furnishing apparatus a right to take without compensation the property of patentees; but, on the contrary, the contracting to perform duties for the Government imposes the responsibility to do so lawfully and without disregarding the rights of others (patentees). The contract does not vest the contractor with any right to exercise governmental powers (distinguishing Crozier v. Krupp, C. D., 1912, 633; 178 O. G., 1154; 224 U. S., 290.)

ON WRIT of certiorari to the United States Circuit Court of Appeals for the Third Circuit.

Mr. Clifton V. Edwards and Mr. Abraham M. Beitler for the petitioners.

Mr. Charles Neave, Mr. Wm. G. McKnight, and Mr. Frederick P. Fish for the respondents.

Mr. Chief Justice WHITE delivered the opinion of the Court.

The history of this suit from its commencement up to the development of the controversy now before us will be shown by an examination of the decided cases referred to in the footnote.1 We shall therefore not recur to that which has gone before but confine our statement to the things essential to an understanding of the phase of the issue which we must now decide.

Under proposals submitted by the Navy Department the petitioner, the Cramp Company, in 1908 contracted to build two torpedoboat destroyers, Nos. 30 and 31, and in 1911 further contracted to build four such boats, Nos. 47, 48, 49, and 50. The specifications submitted by the Department as to structure, engines, etc., were comprehensively detailed and the contracts were based either upon the acceptance of such specifications or upon such changes suggested by the contractor as met the approval of the Navy Department. The contracts contained an express provision, which is in the footnote," protecting the Government against any claims which might arise from the infringement by the contractor of the rights of any patentee, if any such rights there were.

The Turbine Companies filed their bill against the Cramp Company to recover damages and profits accruing from the infringement of certain patents on turbine engines which the Cramp Company had placed in the boats built under the contract of 1908. Ultimately this claim of infringement was upheld by the Circuit Court of Appeals for the Third Circuit. (Curtis Turbine Co. v. Wm. Cramp & Sons, 211 Fed. Rep., 124.) On the hearing which then ensued before a master as to damages and profits, the Turbine Com

1 International Curtis Marine Turbine Co. v. Wm. Cramp & Sons Co. (176 Fed. Rep., 925), in re Grove (180 Fed. Rep. 62); Curtis Turbine Co. v. Wm. Cramp & Sons Co. (202 Fed. Rep., 932); Wm. Cramp & Sons Co. v. Curtis Turbine Co. (228 U. S., 645); Curtis Turbine Co. v. Wm. Cramp & Sons Co. (211 Fed. Rep., 124); Wm. Cramp & Sons Co. v. Curtis Turbine Co.. (234 U. S. 755.)

2 Patents. The party of the first part, in consideration of the premises, hereby covenants and agrees to hold and save the United States harmless from and against all and every demand or demands of any nature or kind for or on account of the adoption of any plan, model, design, or suggestion, or for or on account of the use of any patented invention, article, or appliance that has been or may be adopted or used in or about the construction of said vessel, or any part thereof, under this contract, and to protect and discharge the Government from all liability on account thereof, or on account of the use thereof, by proper releases from patentees, and by bond if required, or otherwise, and to the satisfaction of the Secretary of the Navy.

panies urged their claim and tendered their proof concerning the same, covering the four destroyers, Nos. 47, 48, 49, and 50, built under the contract of 1911, upon the ground of an infringement like that which had been committed as to the boats built under the contract of 1908. (Rubber Co. v. Goodyear, 9 Wall., 800.) The inquiry was objected to on the ground of its irrelevancy because liability for infringement under the contract of 1911 was to be tested by a different rule from that which was applicable to the boats contracted for in 1908 in consequence of the applicability to the 1911 contracts of the act of Congress of June 25, 1910. (C. 423; 36 Stat., 851.) Under that law, it was insisted

the United States, by act of eminent domain, acquired a license to use the invention of all existing patents, and, therefore, the transactions under the contracts for torpedo-boat destroyers Nos. 47, 48, 49, and 50, being merely the building of devices for a licensee under that patent in suit, were licensed transactions, and consequently are not within the scope of this accounting.

The master overruled the objection but thereafter on request certified the subject to the district court where his ruling was held to be wrong on its merits and reversed. On a rehearing the court sustained the view which it had previously taken of the subject by a reference to a decision of the Circuit Court of Appeals for the Second Circuit. (Marconi Wireless Telegraph Co. v. Simon, 227 Fed. Rep., 906; 231 Fed. Rep., 1021.) (232 Fed. Rep., 166.) Application was then made to the circuit court of appeals by certiorari to review this ruling and by mandamus to compel the master to proceed with the hearing in accordance with the claims of the Turbine Companies. Finding that the ruling in the Marconi case was pending in this Court for review, the court of appeals postponed deciding the issue of statutory construction to await the decision of this Court, but directed the accounting to proceed as to both classes of contracts in such a manner as to enable the authoritative ruling on the statute when made by this Court to be applied without confusion or delay. (238 Fed. Rep., 564.) The writ of certiorari on which the case is now before us was then allowed and this and the Marconi case referred to by the court below were argued and submitted upon the same day.

The single question is, did the provisions of the act of 1910 operate without more to confer upon the United States a license to use the patents of the Turbine Companies; and if so, was the Cramp Company as a contractor authorized to avail itself of the license by using the patent rights of the Turbine Companies without their consent? Avowedly on the very face of the act its purpose was not to weaken the rights of patentees, but to further secure them. This results not only from the title of the law (An act to provide additional protection for owners of patents of the United States, and for

other purposes), but further from the report of the committee of the House of Representatives where the act originated which stated that such was the purpose intended to be accomplished by the act. (House Report No. 1288, 61st Congress, 3d session.) The conflict between the purpose thus intended and the construction now claimed for the act is evident unless it can be said that to confer by anticipation upon the United States by a law universally and automatically operating a license to use every patent-right is a means of giving effect to a provision of a statute avowedly intended for the further securing and protecting of such patent-rights.

But passing deducing the meaning of the act from its title and the report of the committee by which it was drafted, it is apparent that the significance which the contention affixes to it is directly in conflict with the text (which is in the footnote 1), since that text expressly declares that the object of the act is to secure compensation for patentees whose rights have been "used by the United States without license "the very antithesis of a right by license to use all patents which is the purpose attributed to the act by the argument. And this is made clearer by considering that the statute itself in directing the proceedings which must be resorted to in order to accomplish its avowed purpose, exacts the judicial ascertainment of conditions which would be wholly negligible and irrelevant upon the assumption that the statute intended to provide in favor of the United States the general license right which the argument attributes to it. This conclusion cannot be escaped when it is considered that if the license, which it is insisted the act in advance created, obtained in favor of the United States, the inquiry into the question of infringement by the United States for which the statute provides would be wholly superfluous and indeed inconsistent with the assumption of the existence of the supposed license.

But let us in addition pass these latter considerations and come not only to demonstrate the error of the construction asserted but to

1 An act to provide additional protection for owners of patents of the United States, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That whenever an invention described in and covered by a patent of the United States shall hereafter be used by the United States without license of the owner thereof or lawful right to use the same, such owner may recover reasonable compensation for such use by suit in the Court of Claims: Provided, however, That said Court of Claims shall not entertain a suit or reward [sic] compensation under the provisions of this act where the claim for compensation is based on the use by 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, which 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.

make manifest the true meaning of the statute from a twofold point of view; that is, first, from an analysis of the context of the statute as elucidated by the indisputable principles which at the time of the adoption of the act governed the subjects with which it dealt, and, second, from the consideration of the context and the effect upon it of the ruling in Crozier v. Krupp. (C. D., 1912, 633; 178 O. G., 1154; 224 U. S., 290.)

At the time of the enactment of the law of 1910 the following principles were so indisputably established as to need no review of the authorities sustaining them, although the leading cases as to all the propositions are referred to in the footnote.1

(a) That rights secured under the grant of Letters Patent by the United States were property and protected by the guarantees of the Constitution and not subject therefore to be appropriated even for public use without adequate compensation.

(b) That although the United States was not subject to be sued and therefore could not be impleaded because of an alleged wrongful taking of such rights by one of its officers, nevertheless a person attempting to take such property in disregard of the constitutional guarantees was subject as a wrong-doer to be controlled to the extent necessary to prevent the violation of the Constitution. But it was equally well settled as to patent-rights, as was the case with all others, that the right to proceed against an individual, even although an officer, to prevent a violation of the Constitution did not include the right to disregard the Constitution by awarding relief which could not rightfully be granted without impleading the United States, or what is equivalent thereto, without interfering with the property of the United States possessed or used for the purpose of its governmental functions.

(c) That despite the want of authority to implead the United States, yet where an officer of the United States within the scope of an official authority vested in him to deal with a particular subject, having knowledge of existing patent-rights and of their validity, appropriated them for the benefit of the United States by the consent of the owner, express or implied, upon the conception that compensation would be thereafter provided, the owner of the patentright taken under such circumstances might, under the statute law of the United States permitting suits against the United States on contracts express or implied, recover by way of implied contract

1 United States v. Palmer (128 U. S., 62); Schillinger v. United States (C. D., 1894, 658; 69 O. G., 1505; 155 U. S., 163); United States v. Berdan Fire-Arms Mfg. Co. (156 U. S., 552); Belknap v. Schild (161 U. S., 10); Russell v. United States (182 U. S., 516); International Postal Supply Co. v. Bruce (C. D., 1904, 720; 110 O. G., 2511; 194 U. S., 601); Harley v. United States (C. D., 1905, 726; 116 O. G., 875; 198 U. S., 229).