Opinion of the Court

tion here and it is in no way connected with the earlier invention.

Upon another phase of the petition the claim is that suit can be maintained under the act of June 25, 1910, as amended by the act of July 1, 1918, 40 Stat. 705. The act of 1910 was intended to give a right of action in the Court of Claims for infringement, when before the act the right of action was confined to contract, express or implied. The amending act of 1918 enlarged the earlier one but is confined to "patented inventions." See De Forest Radio Telephone Co. v. United States, 273 U. S. 236, 237. An invention "described in and covered by a patent" presupposes the existence of a patent. It is said in Gayler v. Wilder, 10 How. 477, 493, that the inventor's right is created by the patent "and no suit can be maintained by the inventor against anyone for using it before the patent is issued." It is said in Marsh v. Nichols, 128 U. S. 605, 612: "Until the patent is issued there is no property right in it; that is, no such right as the inventor can enforce." There is no reason to think that the acts of 1910 and 1918 were intended to confer the right to sue the Government except for infringement of the patent by the Government or its contractor. See Richmond Screw Anchor case, decided by the Supreme Court January 3, 1928, 275 U. S. 331.

As already stated, the theory upon which the petition proceeds is a right to maintain the suit under the provisions of the act of October 6, 1917, or under the act of June 25, 1910, as amended by the act of July 1, 1918. (See Paragraph XVI of petition.) In its brief, however, there is an assertion that the Government's use of the process or invention was under an implied contract. The allegations relied on to show an implied contract are less definite than are desirable, under the liberal rule stated in the cases of Berdan Fire-Arms Mfg. Co., 156 U. S. 552, 569, and Société Anonyme, 224 U. S. 309, and it may be noticed that these cases were for the use of patented inventions. Whether the same rule is applicable for the use of an alleged unpatented device, in the absence of an express contract to pay for its use, we need not consider, because in any view

Reporter's Statement of the Case

of that question an action upon contract can not be maintained in this case. The use complained of is thus stated in Paragraph XI of the petition: "That the actual use of said invention of a new and useful improvement in methods of making activated carbon by the Government of the United States was begun on or about September 1, 1918, and continued until some time about the middle of the year 1919." The use therefore began and ended more than six years before the original petition was filed, on July 6, 1927. This furnishes a complete answer to a suit upon contract and to a suit founded on the act of 1910, as amended by the act of 1918, as well, because of the bar of the statute of limitations which in this court is jurisdictional. It is said in the Berdan case, supra (p. 570): "We are of opinion that the Court of Claims ruled correctly that the statute of limitations was a bar to any recovery for the use of the patented invention prior to six years before the action commenced."

was.

The demurrer to the amended petition should be sustained and the petition dismissed. And it is so ordered.

Moss, Judge, GRAHAM, Judge; and BOOTH, Judge, concur.

HENRY H. ARNOLD v. THE UNITED STATES

[No. E-329. Decided February 20, 1928]

On the Proofs

Aviation pay; duty requiring flights. See Emmons case, 63 C. Cls. 121.

The Reporter's statement of the case:

Mr. George A. King for the plaintiff. Mr. Cornelius H. Bull and King & King were on the brief.

Mr. James J. Lenihan, with whom was Mr. Assistant Attorney General Herman J. Galloway, for the defendant. Messrs. John G. Ewing and Frank J. Keating were on the

Reporter's Statement of the Case

The court made special findings of fact, as follows:

I. The plaintiff, Henry H. Arnold, entered the service of the United States as a cadet at the United States Military Academy at West Point, N. Y., in 1903, and from the date of his graduation therefrom has served continuously in the United States Army as a commissioned officer on active duty. II. The plaintiff served in the United States Army in the following grades and during the following periods of time: Captain, from April 1, 1917, to June 26, 1917; major, from June 27, 1917, to September 4, 1917; colonel, from September 5, 1917, to July 31, 1918, and from June 1, 1920, to June 30, 1920.

III. May 20, 1916, the War Department issued to plaintiff Special Orders, No. 119, of which paragraph 35 is as follows:

"Upon the recommendation of the Chief Signal Officer, First Lieut. Henry H. Arnold, 3d Infantry, is detailed under the provisions of section 2 of an act of Congress approved July 18, 1914, in the aviation section of the Signal Corps, rated as a junior military aviator with the rank of captain, and will proceed via this city for consultation with the Chief Signal Officer to San Diego, Cal., and report in person to the commanding officer Signal Corps Aviation School for duty. The travel directed is necessary in the military service."

On January 18, 1917, the War Department issued the following Special Orders, No. 15:

"Captain Henry H. Arnold, junior military aviator, Signal Corps, is announced as on duty that requires him to participate regularly and frequently in aerial flights from October 18, 1916."

This special order was never revoked during the period for which flying pay is claimed here.

The following orders were also issued to the plaintiff :

SPECIAL ORDERS

No. 129

WAR DEPARTMENT, Washington, June 5, 1917.

[Extract]

2. Maj. Henry H. Arnold, junior military aviator, Signal Corps, now on temporary duty in this city, is relieved from

Reporter's Statement of the Case

further duty in the Canal Zone and will report in person to the Chief Signal Officer of the Army for duty in his office. (2607572, A. G. O.)

PAR. 68. The rating of Colonel Henry H. Arnold, junior military aviator, Air Service (Aeronautics), as military aviator, to date from May 20, 1919, is announced.

By order of the Secretary of War:

Official:

P. C. HARRIS,

The Adjutant General.

PEYTON C. MARCH,

General, Chief of Staff.

IV. Plaintiff, on April 1, 1917, was on duty in Panama with the 7th Aero Squadron. At that time he was ordered by the commanding general of the Canal Zone to proceed to New York to secure equipment for this squadron. Plaintiff reported to the commanding general of the Eastern Department, who verbally directed him to proceed to Washington, D. C., arriving about the 10th of April, 1917. He reported to the Chief Signal Officer of the United States. He was assigned to temporary duty in the office of the aeronautical division of the Signal Corps.

Upon being placed on temporary duty in Washington in April, 1917, plaintiff was placed in charge of the information division. His duties consisted in collecting and distributing all classes of military aeronautical information, which included technical information concerning new types of aeroplanes and equipment, standard training information con

Reporter's Statement of the Case

cerning the training of aviators, and all foreign information that it was possible to receive. Plaintiff was required to have an intimate knowledge of all branches of aviation and it was his duty to make inspections of the various kinds of equipment in use, and in order to properly perform his duties it was necessary to engage in regular and frequent flights. Plaintiff was on this particular duty until about the middle of August, 1917, when he was made assistant executive officer of the air division of the Signal Corps. His duties as such required that he be familiar with all Air Service activities, including supplies and production of aeroplanes, training of men, and use of material. In order to perform his duties as such assistant it was necessary for him to make frequent inspections of aeroplanes and aeroplane stations to ascertain conditions existing at such stations and the condition of the planes themselves. In order to do this plaintiff had to fly aeroplanes at various stations in order to make his reports on their condition when he returned to Washington.

Plaintiff served as assistant executive of the Air Service until October, 1917, when he was made executive officer of the air division. This change of position did not in any way change the duties of the plaintiff, but was only a change in name, and plaintiff still continued to fly planes as a pilot as the necessity therefor arose.

Upon the frequent inspection trips to the various air stations made by plaintiff incident to his duties he made a ground inspection with regard to the discipline of the men and the cadets, and the method of training, mess facilities, and inspection of aeronautical supplies. A technical inspection was then made involving the actual examination of each aeroplane that was present at the station and then flying such of them as he deemed necessary to fly.

Plaintiff made inspection trips in February, 1918, to Essington, Pa., Buffalo, N. Y., Detroit, Mich., Columbus, Ohio, Belleville, Ill., Dayton, Ohio, Memphis, Tenn., and Little Rock, Ark., and at such stations where aeroplanes were available plaintiff flew such aeroplanes as were necessary to gain knowledge of the equipment of the station. He returned to Washington about the middle of March, 1918.