Dvorsky v. United States

• Decision Date: 12 November 1965
• Docket Number: No. 337-64.,337-64.
• Parties: Frank DVORSKY v. The UNITED STATES
• Court: U.S. Claims Court

352 F.2d 373 (1965)

Frank DVORSKY v. The UNITED STATES

No. 337-64.

United States Court of Claims.

November 12, 1965.

Frank Dvorsky, pro se.

Louise O'Neil, St. Paul, Minn., with whom was Asst. Atty. Gen., John W. Douglas, for defendant.

Before COWEN, Chief Judge, and LARAMORE, DURFEE, DAVIS and COLLINS, Judges.

PER CURIAM.

This case was referred pursuant to Rule 54(b) to Trial Commissioner Donald E. Lane, with directions to make his recommendation for conclusions of law on defendant's motion to dismiss the petition. The commissioner has done so in an opinion and report filed May 6, 1965. On May 12, 1965, plaintiff filed an additional brief on defendant's objection which is treated as a request for review of the commissioner's opinion and recommendation for conclusion of law. On June 14, 1965, defendant filed a reply and the case was submitted to the court on oral argument by the plaintiff and counsel for defendant. Since the court is in agreement with the opinion and recommendation of the trial commissioner, as hereinafter set forth, it hereby adopts the same as the basis for its judgment in this case. Plaintiff is, therefore, not entitled to recover, defendant's motion to dismiss the petition is granted and plaintiff's petition is dismissed.

Opinion of Commissioner

This case comes before the court on defendant's motion to dismiss the petition. The petition filed herein does not comply with the provisions of Rule 17 in that it does not identify any jurisdictional statute and does not point out the claims of the patent alleged to be infringed. It must be assumed that petitioner intended this suit to be based on Title 28 U.S.C. § 1498, and that he thus seeks the recovery of reasonable and entire compensation for unlicensed use by defendant of the inventions defined in all 7 claims of United States Letters Patent No. 2,795,341 issued to the petitioner on June 11, 1957. The patent relates to a mail sorting mechanism. The petition does not claim any specific amount of compensation.

The defendant bases its motion to dismiss on several grounds including failure to specify a jurisdictional statute, failure to allege that the patent invention has been used without lawful right, failure to state whether or not petitioner was employed by the defendant when the invention was made, and also on the ground that petitioner alleges that the accused mail sorting mechanism differs from that disclosed in petitioner's patent.

Copies of correspondence accompanying the petition indicate that the petitioner submitted some suggestions to the Post Office Committee on Suggestions and Experiments for the Postal Service as early as March 1952. Copies of correspondence also indicate that petitioner forwarded drawings of a mail sorting machine to the Post Office Chief Engineer in September 1954. The correspondence also indicates that Post Office officials informed the petitioner that the Post Office was unable to utilize the petitioner's suggestions. Petitioner filed his application for patent May 21, 1953, and received his patent in 1957. The correspondence accompanying the petition herein does not include copies of petitioner's suggestions or drawings submitted to the Post Office. The copies of correspondence accompanying the petition contain no indication that the Post Office ever promised to compensate petitioner for his suggestions.

Petitioner's response filed March 17, 1965, to the defendant's motion to dismiss asserts that petitioner was employed at the Church Street Post Office, New York City, from 1950 to 1958, and that in 1952 he invented the mail sorting mechanism. Petitioner's response asserts that he displayed a homemade model of his mail sorting machine at the General Post Office and an improved model at some later date. A further paper filed April 19, 1965, by the petitioner asserts that doubts concerning...