313 F.2d 313 (7th Cir. 1963), 13863, Anderson v. United States Atomic Energy Com'n

• Citation: 313 F.2d 313,136 U.S.P.Q. 401
• Docket Number: 13863.
• Date: 07 February 1963
• Parties: Herbert L. ANDERSON, Petitioner, v. UNITED STATES ATOMIC ENERGY COMMISSION et al., Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 313

313 F.2d 313 (7th Cir. 1963)

136 U.S.P.Q. 401

Herbert L. ANDERSON, Petitioner,

v.

UNITED STATES ATOMIC ENERGY COMMISSION et al., Respondents.

No. 13863.

United States Court of Appeals, Seventh Circuit.

February 7, 1963

Page 314

William E. Lucas, Chicago, Ill., Julius Tabin, Chicago, Ill. (Soans, Anderson, Luedeka & Fitch, Chicago, Ill., of counsel), for petitioner.

Stephen B. Swartz, Department of Justice, Washington, D.C., Joseph F. Hennessey, Gen. Counsel, Atomic Energy Commission, Washington, D.C. (Joseph D. Guilfoyle, Acting Asst. Atty. Gen., Alan S. Rosenthal, Stanley M. Kolber, Attorneys, Department of Justice, Washington, D.C., Sidney G. Kingsley, Roland A. Anderson, Asst. Gen. Counsels, John A. Horan, Attorney, Atomic Energy Commission, Washington, D.C., of counsel), for respondent.

Before DUFFY, CASTLE and KILEY, Circuit Judges.

CASTLE, Circuit Judge.

This matter is before the Court on the petition of Herbert L. Anderson for review of an order dismissing, ¹ without consideration of its merits, the application of petitioner for an award under Section 157(b)(3) of the Atomic Energy Act of 1954 (42 U.S.C.A. § 2187(b)(3)). The application was held barred by 28 U.S.C.A. § 2401(a) because it had not been brought within six years of its accrual.

On January 23, 1958, petitioner filed an application with the United States Atomic Energy Commission, respondent, for an award under the Atomic Energy Act based upon certain unpatented discoveries and inventions in the field of atomic energy. The application set forth, among other things, that activities of the petitioner, in concert with other scientists, during 1939, 1940 and 1941, in the development of atomic energy, which were disclosed in substantial compliance were the Act, led directly to the proper design of a suitable lattice of uranium in graphite and the successful construction of the first chain reacting pile. The government filed a response in which it asserted that the application was barred by limitations.

It is not disputed that whatever rights the petitioner may have under the Act first accrued August 1, 1946, the effective date of the Atomic Energy Act of 1946, which first made provision for the making of awards such as the one sought by the petitioner. The 1946 Act has been superseded by the Atomic Energy Act of 1954. The parties agreed that the limitations question be separately and first considered before the merits of the application would be reached. The Commission, in denying review, adopted the conclusion of its Patent Compensation Board that the application having been filed in 1958, more than 6 years after August 1, 1946, it is barred by the statutory limitation governing civil actions

Page 315

against the United States and its dismissal is required.

The sole contested issue presented for our determination is whether an application for an award under the Atomic Energy Act based on an unpatented invention or discovery is subject to the six year limitation period prescribed by 28 U.S.C.A. § 2401(a).

The Atomic Energy Act, in relevant parts, (42 U.S.C.A. § 2187(b)(3) and (c)(2)) provides:

'Any person making any invention or discovery useful in the production or utilization of special nuclear material or atomic energy, who is not entitled to compensation or a royalty therefor under this chapter and who has complied with the provisions of section 2181(c) of this title may make application to the Commission for, and the Commission may grant, an award. The Commission may also, upon the recommendation of the General Advisory Committee, and with the approval of the President, grant an award for any especially meritorious contribution to the development, use, or control of atomic energy. '* * * In determining the amount of any award under subsection (b)(3) of this section, the Commission shall take into account the considerations set forth in paragraph (1) of this subsection ((A) the advice of the Patent...