Petition for Writ of Certiorari — United States v. Esnault-Pelterie

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ORION BEBOW poco ccccccccvcccoccoccoossosesosssenscacses 1

Pe cccccccdecenccecesesocessenntéestedéstanuceee 1

GCucebions peeqemted. «oo. ccccccccceccocccccccccescccsecese 2

Statutes involved. ~..... ee eee adocesncbenaxeuse 3

PERIOD co 0 00c02000esecenceesseeesscenndéesssedboaasne 3

Specification of errors to be urged_.... 2... ee 5

Reasons for granting the writ. ...................-.---.--- 7

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CITATIONS

Cases:

Barnes Automatic Sprinkler Co. v. Walworth Manufactur-

Rae Gi, GS Fes Gonccsascectionscdsanisnassee if

Blake v. San Franciaco, 113 U. 8. 679.2... 202k 9

Cramer Manufacturing Co. v. Nims Pump Co., 9 F. (2d)

Gi Onn.000s0n0nberesesenséstbsévtebéanbsaenesanne 13

Dwight & Lloyd Sintering Co. v. Greenawalt, 27 F. (2d)

Psesncasesesecesséoccassanssassausauaaseenaee 13

Esnault-Pelterie vy. Chance-Vought Corp., 56 F. (2d) 393;

66 F. (2d) 474.___.. occccccceds Ot, Dh aayhe

Fulton Co. v. Powere Regulator C 0., 263 e eee 15

Holland Furniture Co. v. Perkins Glue Co., 277 U. 8. 245_- 12

Jamea v. Campbell, 104 U. 8. 356. ....... 2. ..--------- 13

Knor v. Qisicksilver Mining Co., 4 Fed. 809__.......____- 15

Olmstead v. Andrewa, 77 Fed. 835_...............------ 11

Pennaylvania R. Co. v. Locomotive Co., 110 U. 8S. 490__ ~~ 10 _

Railway Co. v. Sayles, 97 U. S. 564...................-- 13

Sargent v. Hall Safe & Lock Co., 114 U. 8. 63...... ----- 12

Smith v. Magic City Club, 282 U. 8. 784.............--- 15

Snow v. Lake Shore and Michigan Southern Ry. Co., 121 .

Bn We Gai wecccescndsneccinasssdebassenmeaneaneened 12

Toledo Scale Co. v. Computing Scale Co., 9 F. (2d) 823__.- 11

‘ Underwood v. Gerber, 149 U. 8. 224...---.-----.-------- 11

Webster Electric Co. v. Splitdorf Electrical Co., 264 U. 8.

Gis cccuccesncsccdsédbanteadeuanedtesubasdsddaae 13

: Westinghouse Electric & Manufacturing Co. v. Metropolitan

Blecivrie Mfg. Co., 300 Pod. O61... 2... ccc ccc ccccces 15

, Wollensak v. Sargent, 151 U. 8. 221..................-- 10, 11

Statutes:

Act of June 25, 1910, as amended by Act of July 1, 1918

CU. Bs Gig Heese GE, GOR, Gin ccccccccccccnsesessusess 20

Judicial Code, sec. 155 (U.S. C., Title 28, sec. 261)... _- 21

Revised Statutes:

Sec. 4886 (U.S. C., Title 35, see. 31)...........--- 18

Sec. 4887 (U. 8. C., Title 35, sec. 32).............- 18

Sec. 4923 (U. 8. C., Title 35, sec. 72).............- 19

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Inthe Supreme Court of the United States

OctoBeR TERM, 1935

No. —

Unirep States oF AMERICA, PETITIONER

v.

Rosert ESNAULT-PELTERIE

PETITION FOR A WRIT OF CERTIORARI TO THE COURT

OF CLAIMS OF THE UNITED STATES

The Solicitor General, on behalf of the United

States of America, prays that a writ of certiorari

issue to review the interlocutory judgment of the

Court of Claims of the United States entered in the

above cause on January 24, 1936.

OPINION BELOW

The opinion of the Court of Claims is not yet

reported.

JURISDICTION

The interlocutory judgment of the Court of

Claims was entered January 24, 1936. The juris-

diction of this Court is invoked under Section 3

(b) of the Act of February 13, 1925.

(1)

2

QUESTIONS PRESENTED

1. Whether the patent in suit may be construed

to cover a single lever for controlling the equilib-

rium of an airplane, or whether it should be con-

strued as being limited to a combination compris-

ing a lever anda single integral or unitary tail

structure of an airplane. “

2. If the patent in suit may be construed to cover

a single lever for controlling the equilibrium of an

airplane, whether such a device was patentable

over prior disclosures. |

3. Whether the patent in suit covers a device

that was patentable over respondent’s French pat-

ent, No. 372753, which was applied for more than

a year prior tethe filing in this country of the

application for the patent in suit.

4, Whether the patent in suit, application for

which was filed in this country on January 16, 1908,

is invalid by virtue of the fact that the claims al-

leged to cover the single control lever here involved

were not inserted in the application until June 12,

4913; the control lever, during the intervening pe-

riod, having come into general use in the United

States, and having been described in printed pub-

lications.

5). Whether the respondent, by acquiescing in

the rejection by the examiner of patents of claim

13, is estopped from contending: that the claims of

the patent in suit should be construed to cover a

single lever for operating the means for control-

ling the equilibrium of an airplane.

3

6. Whether the patent in suit is invalid by vir-

tue of the fact that its ¢laims, if construed to em-

brace a single equilibrium control lever, are not

supperted by its disclosure.

7. Whether the patent in suit is invalid by vir-

tue of the fact that the control lever alleged to be

covered by it was in public use in France prior to

the date of its alleged invention by the respondent.

8. Whether the claims of the patent in suit were

infringed by the United States.

STATUTES INVOLVED

The statutes involved. will be found in the Ap-

pendix, infra, pp. 18-21.

STATEMENT

This suit was brought by the respondent, Robert

Esnault-Pelterie, ‘a citizen of France, against the

United States in the Court of Claims to recover

compensation for the use of an airplane control

device said to be covered by United States Patent

No. 1115795 issued to respondent on November 3,

1914. This device consists of a universally piv-

oted vertical lever, known as a joy-stick, utilized

for controlling the longitudinal and transverse

~ equilibria of airplanes and so connected that the

tilt of the airplane follows the tilt of the stick. The

device is generally employed in.all but the heavier

types of airplanes in use by both the Army and the

Navy. Finding XLVII. .

The court below found that at least one of each

of three types of airplanes, Curtiss JN-4D, DeHavi-

+

land DH-4B, and Loening monoplane M-—81 was

manufactured for and used by the United States

without license or permission from the respondent

(Finding XIX), and it was stipulated between the

parties that proof of the manufacture for or use

by the United States of any airplanes other than

these three might be deferred until after an adjudi-

_ eation of the questions of validity and infringe-

ment of the patent in suit. Finding XXIII. The

control systems of the Curtiss, DeHaviland, and

Loening planes referred to are substantially the

same.

These planes are steered directionally by a rud-

der which is controlled by a centrally -pivoted hor-

izontal rudder bar or lever situated directly in

front of the pilot and in position for actuation by

. the pilot’s feet. The longitudinal attitude of the

planes is controlled by a tail surface, pivoted on a

horizontal axis and generally known as the ‘‘ele-

vator’’, which by being turned up or down causes

the airplane to ascend or descend, as required. The

lateral attitude is controlled by hinged segments

of the wings, generally known as ailerons. The

latter are turned up or down, as the case may be,

in order to cause the airplane to tilt or ‘‘bank’’ to-

one side or the other as desired. The vertical lever

known as the joy-stick, claimed to infringe the

patent in suit, is located near the pilot’s seat and

is manually operated. It is capable of movement

in all directions, and is so connected with the ele-

—

a

vator and the ailerons that by a fore-and-aft mo-

tion it actuates the elevator, by a side-to-side mo-

tion it actuates the ailerons, and by an oblique

movement it affects both the ailerons and the eleva-

tor simultaneously. When the joy-stick is moved

. forward the airplane noses down; when it is moved

rearwardly the airplane noses up; when the lever

is moved to the right, the plane rolls to the right;

when it is moved to the left the plane rolls to the

left; and when the lever is moved to any interme-

diate position a consequent movement of the air-

plane will be produced corresponding relatively to

the degree of inclination and the direction of move-

ment of the lever. Findings XXI and XXII.

The respondent in this suit relies upon claims

2 and 5 to 9, inclusive, of his Patent No. 1115795.

These claims are set out in Finding IX.

The court below on November 4, 1935, filed

- special findings of fact, and on January 24, 1936,

it directed the entry of an interlocutory judgment,

holding that the respondent’s patent is valid and

has been infringed by the United States, and that

the respondent is entitled to compensation under

the Act of June 25, 1910, as amended by the Act of

July 1, 1918. An interlocutory judgment was

entered accordingly.

SPECIFICATION OF ERRORS TO BE URGED

The Court of Claims erred:

1. In holding that the patent in suit covers a

‘single control lever that was patentable over prior

disclosures.

6

2. In failing to hold that the claims of the patent

in suit should be construed as being limited to a

combination comprising a lever and a single, in-

tegral or unitary tail structure of an airplane.

3. In holding that the patent in suit covers a

device that was patentable over respondent’s

French patent, No. 372753, applied for on De-

cember 19, 1906, and issued on February 28, 1907.

4. In failing to hold that the patent in suit was

invalid by virtue of the fact that although the ap-

plication therefor was filed on January 16, 1908,

the claims alleged to cover the single control lever

here involved were not inserted into the appliea-

tion until June 12, 1913; the control lever, during

the intervening period, having come into general

use in the United States, and having been described

in printed publications,

5. In failing to hold that respondent was estop-

" ped, by acquiescing in the rejection by the examiner

of patents of claim 13, from contending that the

-elaims of the patent in suit should be construed to

cover a single lever for operating the means of

controlling the equilibrium of an airplane.

6. In failing to hold that the patent in suit, if

construed. to embrace a single control lever, is in-

valid by virtue of the fact that its claims are not

supported by its disclosure...

7. In failing to hold that the patent in suit, if

construed to embrace a single control lever, is in-

valid hy virtue of the fact that the control lever

7

alleged to be covered by the patent was in publie

use in France prior to the date of its alleged

invention by the respondent.

8. In holding that the claims of the patent in suit

were infringed by the United States.

REASONS FOR GRANTING THE WRIT

1. The Court of Claims in this case and the Cir-

cuit Court of Appeals for the Second Circuit in

Esnault-Pelterie v. Chance Vought Corporation,

66 F. (2d) 474, have rendered conflicting decisions

on the validity and construction of the patent in

suit and its infringement by modern airplane con-

trol levers. In the Chance-Vought case the Circuit

Court of Appeals, in affirming the decision of the

District. Court for the Eastern District of New

York (56 F. (2d) 393) held (pp. 477, 478) that,

in view of the prior art, there was no novelty in

the use of a single vertical lever capable of move-

ment in any direction to operate two or three con-

trols, or in determining, as an engineering prob-

lem, the choice as to which of the three controls

should be operated by the single lever; that the

patentee of the patent in suit may not claim inven-

tion in the asserted instinctive use hy the operator

of the control lever; that the patent should be nar-

rowly construed as limited to the integral verti-

‘cal and horizontal rudder structure disclosed in

respondent’s patent employing the so-called bird

tail or ringtail unit for control, with a restricted

62908—36——2

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range of equivalents; and that, as so construed,

the patent was not infringed by the airplane of the

defendant in that suit. In the ease at bar, the court

below held that the patent should not be limited to

the integral vertical and horizontal rudder strue-

ture of the bird tail or ringtail unit, but should be

broadly construed as covering a single vertical con-

trol stick whereby the entire equilibrium of an air-

plane may be controlled with a single instinctive

tilt of the control stick in any direction, causing the

plane to tilt in a similar direction; and that as so

- construed the patent was valid and was infringed

by the airplanes of the United States using such a

control stick. The airplane involved in the

Chance-V ought case and those involved in the pres-

ent case employed the single control lever. The

construction and function of the lever were the

same in each instance.

2. The questions of the validity and construction

of the patent in suit and its infringement by mod-

ern airplane controls are of momentous impor-

tance both to the Government and to the entire air-

craft industry, due to the extensive use of the

control lever. In view of the conflict of opinion -

between the Court of Claims and the Circuit Court

of Appeals for the Second Circuit, as to whether

the patent in suit covers such a control lever, a

final adjudication should be had by this Court.

The amount involved in this suit alone is very

large, as it is assumed that on the accounting the

9

respondent would claim a royalty on the great ma-

jority of airplanes used by;:the Government during

the period commencing six years prior to the in-

stitution of the action and the expiration of the

patent. This suit has been pending for a number

of years. |

3. The petition for a writ of certiorari is pre-

sented at this stage of the case—after an entry of

an interlocutory judgment holding the patent valid

and infringed—rather than after final judgment,

since, if this Court should grant the writ and re-

verse the decision of the court below, prolonged

and costly accounting proceedings may be avoided.

4. It is submitted that the decision of the Court

of Claims is erroneous, for a number of reasons.

(a) The single lever for controlling the longi-

tudinal and transverse equilibrium of an airplane

alleged to be covered by the patent in suit does not

constitute a patentable invention. The use of a

single lever mounted on. a universal joint and

capable of movement in all directions for the pur-

pose of controlling thé action of different mech-

anisms, was well known.at the time that the pat-

entee claims to have made his invention. (See pat-

ents to Wadsworth,- Weeber, Wilson, and Simp-

son, described in Findings XXIV, XXXII, -

XXXII, XXXVI, and XXXVII.) This Court

has frequently held that it does not constitute in-

vention to. take a well-known device and put it on

a new type of apparatus. Blake v. San Francisco,

PH WE

~ 10

113 U. 8. 679,.682; Pennsylvania Railroad Co. v.

Locomotive Co., 1100. 8. 490; Wollensak v. Sar-_

gent, 151 U. 8. 221, 227. The use of levers in air-

planes for control purposes was likewise old. (See

French patent to Laroze; French patent to Penaud

and Gauchot; British patent to Davidson; French

patent to Macedo; German patent to Schussler ;

German patent. to Jung and British patent to

Quentin, all of which are summarized in Findings

XXIV, XXVIII, XXV, XXVI, X XVII, XXIX,

XXX, and XXXV.) On this point the Circuit

. Court of Appeals stated in Esnault-Pelterie v.

Chance Vought Corporation, 66 F. (2d) 474, 478:

There is no novelty in the use of a lever

to operate two or three controls, or in déter-

mining, as an éhgineering problem, the

choice as to which of the three controls

should be operated by a single lever.

The Court of Claims, moreover, indicated that

the fact that, in its opinion, the control lever oper-

ated in a manner that it called instinctive, was a

reason for holding that the device was the product

of inventive genius, and, therefore, the proper sub-

ject of a patent. This suggestion was discussed in

detail by the Circuit Court of Appeals and repudi-

ated, 66 F. (2d) 477. e

~ (b) The plaintiff obtained three French patents.

His first French patent was issued on February 28,

1907, as the result of an application filed on De-

cember 19, 1906 (Finding III). The application

- = ge ne ne ht i a ln

‘11

for the patent in suit was filed in the United

States on January 16, 1908, more than twelve

months subsequent to the French filing date. Con-

sequently, under Section 4887 of the Revised Stat-

utes (U.S. Code, Title 35, See. 32), fra p. 18 the

plaintiff was barred from receiving a patent in this

country on the inve ition covered by his first French

patent. The patent in suit may, therefore, be sus-

tained only if, and in so far as, it claims a struc-

ture that is patentable over the 1906 French patent.

The latter disclosed two horizontal levers, one of

which was movable in all directions, employed for

the purpose of manipulating the control surfaces of

anairplane. Finding IV. The patent in suit shows

two vertical levers used for that purpose. The

principal difference in the two structures is the

difference in position between the two levers—one

horizontal, the other vertical. -We submit that it

was not invention to transpose the horizontal stick

to a vertieal position. Wollensak v. Sargent,

supra; Underwood v. Gerber, 149 U. 8. 224; Olm-

stead v. Andrews & Co., T1 Fed. 835; Toledo Scale

Co. vy. Computing Scale Co., 9 F. (2d) 823, 824 ;

Barnes Antomatie Sprinkler Co. v. Walworth

Manufacturing Co., @ Fed. 605, 607. Both the

District Court and the Circuit Court of Appeals

in the Chance-V ought case so held on this pgint, 56

F. (2d) 395; 66 F. (2d) 475, 477, 478.

(ce) The claims, even if valid, should be limited

to a combination comprising a single integral or

12

unitary tail structure. The specification forming

a part of the respondent’s patent discloses a struc-

ture in which the tail surfaces, instead of compris-

ing a separate elevator and a separate rudder, as

is the case with all modern airplanes, consists of a

single integral or unitary structure to be used both

as an elevator and as a rudder, according to the di-

rection in which it is manipulated by the control

levers. The Circuit Court of Appeals in the

Chance-Vought suit held that, in the light of the

prior art, the claims of the respondent’s patent in -

no event could be permitted to read broadly on the

modern vertical contro] lever, but at best should

be limited and restricted to a combination of the

control levers with an integral or unitary tail struc-

ture, 66 F. (2d) 478. This Court has not infre-

quently placed a narrow construction on and lim-

ited patent claims so as to conform them to the

exact disclosure, in order to save them from being

declared entirely invalid. ‘Sargent v. Hall Safe &

Eock Co., 114 U. S. 63; Snow v. Lake Shore and

Michigan Southern Railway Co., 121 U. 8S. 617,

629; Holland Furniture Co. vy. Perkins Glue Co.,

277 U.S. 245, 256. On this point there is a direct

conflict between the Court of Claims in this case,

and the Circuit Court of Appeals in the Chance-

Vought case.

_ (d) The respondent filed his application for —

Letters Patent in this country on January 16, 1908.

The patent was issued on November 3, 1914. The

13

claims alleged to have been infringed were inserted

into the application by amendment on June 12,

1913 (Finding VIII). During a part of the period

intervening between January 16, 1908, and June

12, 1913, the application contained no claims cover-

ing the control lever. Yet during that period the

device came into general use in this country (Find-

ing XX XVIII; paragraphs 1 and 2). We submit

that these facts rendered the patent invalid. Rail-

way Co. v. Saytes, 97 U. 8. 554, 563-564; James v.

Campbell, 104 U.S. 356, 370; Webster Electric Co.

vy. Splitdorf Electrical Co., 264 U. S. 463, 465;

Cramer Manufacturing Co. v. Nims Pump Co.,

9. F. (2d) 914; Dwight & Lloyd Sintering Co. v.°

Greenawalt, 27 F. (2d) 823, 830.

(e) The court below should have held that re-

spondent was estopped from claiming that his

patent covers a single control lever because of

respondent’s acquiescence in the rejection by the

Patent Office of respondent’s claim 13. Claim 138

was filed February 1, 1909, and was for ‘‘ An aero-

plane having means for controlling its inclination

and a single lever for operating said means to

control both the longitudinal and the transverse

stability of the apparatus, said lever being ar-

ranged ‘to oscillate in different vertical planes,

means for transmitting its movement in one plane

to the means for governing the longitudinal in-

clination, and means for transmitting its movement

in the other plane to the means for determining

14

the transverse stability, said lever being mounted

to permit also an oblique movement having com-

ponents in*each of said planes so as to actuate

simultaneously the means for establishing longi-

tudinal stability and that for establishing trans-

verse stability.’”? The examiner of patents on

March 2, 1909, rejected the claim for alleged lack

of invention over the French patent to -Laroze.

The respondent asked for a reconsideration;of the

claim, and the examiner on May 10, 1910, and

again on May 27, 1911, rejected the claim, this

time on the basis of the Davidson as well as the

-Laroze patent. On May 23, 1912, the respondent

cancelled the claim. On June 12, 1913, respondent

filed a new set of four claims, and on June 13,

1914, filed an additional claim. These claims were

subsequently allowed as claims 5 to 9, inclusive, of

the patent in suit. Finding VIII. They appear

in Finding IX, and each is for a combination of

means for producing lateral stability, means for

producing ‘longitudinal stability, and a single ver-

tical lever.

The principle is well settled that where an ap-

plicant for a patent to cover a new combination is

compelled by the rejection of his application by

the Patent, Office to narrow his claim by the intro-

duction of a new element, he cannot after the issue

of the patent broaden his claim by dropping the

element which he was compelled to inelude in order

to secure his patent. If the claim to a combination

15

be restricted to specified elements, all must be re-

varded as material, and limitations imposed by the

inventor, especially such as were introduced into

an application after it had been persistently re-

jected, must be strictly construed against the in-

ventor and looked upon as disclaimers. The pat-

entee is thereafter estopped to claim the benefit of

his rejected claim or such a construction of his

amended claim as would be equivalent thereto.

Smith v. Magic City Club, 282 U.S. 784, 789.

(f) The patent should have been held invalid

also on the ground that the claims, if construed as

respondent contends they should be, are not sup-

ported by the disclosure. In other words, the

specification describes one type of structure,

whereas, the claims alledgedly cover a device which

is entirely different. It is well settled that under

such circumstanees the claims are invalid. Knox

v. Quicksilver Mining Co., 4 Fed. 809; Fulton Co.

v. Powers Regulator Co., 263 Fed. 578, 580; West-

inyhouse Electric & Manufacturing Co. v. Metro-

politan Electric Mfg. Co., 290 Fed. 661, 664. In

this instance, the device disclosed in the patent

consists of two levers, one to control the steering

and the other for manipulating the means for

maintaining longitudinal and lateral stability.

The two levers are interconnected and interrelated

(Finding XIV). The claims in suit purport to

cover a single vertical lever to actuate the longi-

tudinal and lateral controls. The Govermment’s

16

position on this point accords with the decision of

the Circuit of Appeals in the Chance Vought case,

66 F. (2d) 477.

(g) Prior to the date of the respondent’s alleged

invention, single levers mounted on universal

joints and capable of movement in all directions

had actually been used on airplanes for the pur-

pose of actuating the control surfaces. This was

done by Captain Ferber in 1904 and 1905 (Finding

XLI), and by Bleriot, who later became famous

as the first aviator to fly across the English

Channel (Finding XLIII). This prior use, how-

ever, took place in France, and the court below

held that in orcer to bar a United States patent

prior public use must have taken place in this

country, in view of the provisions of Revised Stat-

utes, Section 4923, infra, p. 19. Undoubtedly that

is the law in case of an American patentee, but the

question whether R. S. 4923 should be applicable

to a situation such as is presented here, where the

patentee is a citizen of the foreign country where

the prior use took place, has never been directly

passed upon by this Court, or by any other court.

It is increasingly important with the growth of

modern means of communication and interchange

of information.

(h) In the Chance-V sail ease, the Circuit

Court of Appeals held that the claims of respond-

ent’s patent had not been infringed by the Chance-

Vought Corporation. The court below, differing

We erie crn ee sk a.

>

v

17

with the Circuit Court of Appeals as to the scope

of the patent, held that the claims of the patent had

been infringed by the Government. If the claims

-be restricted as they were by the Circuit Court of

Appeals, and as we contend they should be, there

ean be no doubt that the Government airplanes do

not infringe them. ;

Wherefore, it is respectfully submitted that this .

petition for a writ of certiorari should be granted.

STANLEY REED,

Solicitor General.

APRIL 1936. .

APPENDIX

R. S., Section 4886 (U.S. C., Title 35, Sec. 31):

Any person who has invented or discov-

ered any new and useful art, machine, man-

ufacture, or composition of matter, or any

new and useful improvements thereof, or

who has invented or discovered and asexu-

ally reproduced any distinct and new va-

riety: of plant, other than a tuber-propa-

gated plant, not known or used by others in

this country, before his invention or dis-

covery thereof, and not patented or de-

scribed in any printed publication in this

or any foreign country, before his invention

or discovery thereof, or.more than two years

prior to his application, and not in public

use or on sale in this country for more than

two years prior, to his application, unless the

same is proved to have been abandoned,

may, upon payment of the fees required by

law, and other due proceeding had, obtain

a patent therefor.

R. S., Section 4887 (U.S. C., Title 35, Sec. 32) :

No person otherwise entitled thereto shall

be debarred from receiving a patent for his

invention or discovery, nor shall any patent

be declared invalid by reason of its having

been first patented or caused to be patented

by the inventor or his legal representatives

or assigns in a foreign country, unless the

application for said foreign patent was filed

more than twelve months, in cases within

the provisions of section 31 of this title, and

four months in cases of designs, prior to the

(18)

19

filing of the application in this country, in

which case no patent shall be granted in this

country.

An application for patent for an inven-

tion or discovery or for a design filed in this

country by any person who has previously

regularly filed an application for a patent —

for the same invention, discovery, or design

in a foreign country which, by treaty, con-

vention, or law, affords similar privileges to

citizens of the United States shall have the

same force and effect as the same applica-

tion would have if filed in this country on

the date on which the application for patent

for the same invention, discovery, or design

was first filed in such foreign country, pro-

vided the application in this country is filed

within twelve months in cases within the

provisions of section 31 of this title, and

within four months in cases of designs,

from the earliest date on which any such

foreign application was filed. But no patent

shall be granted on an application for patent

for an invention or discovery or a design

which had been patented or described in a

printed publication in this or any foreign

country more than two years before the date

of the actual filing of the application in this

country, or which had been in publi use or

on sale in this country for more than two

years prior to such ges

R.S., Section 4923 (U.S. C., Title 35; Slee. 72):

Whenever it appears that a patentee, at

the time of making his application for the

patent, believed himself to be the original

and first inventor or discoverer of the thing

patented, the same shall not be held to be

void on account of the invention or discov-

ery, or any part thereof, having been known

.

mag cee

20

or used in a foreign country, before his in-

vention or discovery thereof, if it had not

been patented or described in a printed pub-

lication.

Act of June 25, 1910, as amended by Act of July

1, 1918 (U.S. C., Title 35, See. 68) :

Whenever an invention described in and

covered by a patent of the United States

shall be used or manufactured by or for the

United States without license of the owner

thereof or lawful right to use or manufac-

ture the same, such owner’s remedy shall

be by suit against the United States in the

Court of Claims for the recovery of his rea- ©

sonable and entire compensation for such

use and manufacture. The Court of Claims

shall not entertain a suit or award compen-

sation under the provisions of this section

where the claim for compensation is based

on the use or manufacture by or for the

United States of any article owned, leased,

used by, or in the possession of the United

States prior to June 25, 1910. 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 this chap-

ter, or otherwise. The benefits of the provi-

sions of this section shall not inure to any

patentee who, when he makes such claim, is

in the employment or service of the Gov-

ernment of the United States, or the

assignee of any such patentee. This section

shall not apply to any device discovered or

invented by suck employee during the time

of his employment or service.

bet i Nia La alin a Reds aL ts

21

, Judicial Code, Section 155 (U.S. C., Title 28,

' See. 261):

Aliens who are citizens or subjects of any

Government which accords to citizens of

the United States the right to prosecute

claims against such Government in its

courts, shall have the privilege of prosecut-

ing claims against the United States in the

Court of Claims, whereof such court, by

reason of their subject matter and charac-

ter, might take jurisdiction.

U.S. GOVERNMENT PRINTING OFFICE: 1936

SET RAEN FORO ROR,

HATE ERY OAT te SRE

SSL. aha nT ee

Naa SONS RENE AN A SeN AR KQUET Treg

a “