Stub v. United States

• Decision Date: 02 March 1954
• Docket Number: No. 478-53.,478-53.
• Citation: 119 F. Supp. 206
• Parties: STUB v. UNITED STATES.
• Court: U.S. Claims Court

119 F. Supp. 206

STUB v. UNITED STATES.

No. 478-53.

United States Court of Claims.

March 2, 1954.

John Stub, pro se.

Francis H. Fassett, New York City, Warren E. Burger, Asst. Atty. Gen., for defendant.

Before JONES, Chief Judge, and LITTLETON, WHITAKER, and MADDEN, Judges.

PER CURIAM.

On March 2, 1945, the plaintiff, John Stub, filed a suit in this court for alleged unauthorized use of his patent. At the time this suit was filed the patent jurisdictional act of 1910, 36 Stat. 851, as amended, 40 Stat. 705, was in effect, and provided in part —

"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." Italics supplied.

On October 10, 1945, the commissioner to whom this case had been referred was directed by a court order to take testimony to ascertain whether the structure claimed in the patent in suit was made before or during plaintiff's service with the Government, and report to the court.

A hearing was held in Boston on October 25, 1945, at which the plaintiff declined to put in evidence any of the drawings and descriptions then in his possession and alleged by him to be a complete description of his invention prior to the commencement of his government employment. The commissioner reported to the court that "The earliest date that can be accorded plaintiff for completion of the invention of the patent in suit is the filing date of his application, November 26, 1942. That date falls within the period of plaintiff's employment by the Government."

On January 7, 1946, that suit was dismissed by the court on defendant's plea in bar on the basis of the facts previously found by the commissioner, 63 F.Supp. 748, 105 Ct.Cl. 397. Plaintiff's motion for a new trial was overruled May 6, 1946. Petition to the Supreme Court for a writ of certiorari was denied October 14, 1946, 329 U.S. 751, 67 S.Ct. 81, 91 L. Ed. 647, and rehearing was denied October 28, 1946, 329 U.S. 825, 67 S.Ct. 120, 91 L.Ed. 701. This brings us to the present situation.

The patent jurisdictional act (now Title 28, sec. 1498 U.S.C.) was amended July 17, 1952, so that now a government employee has the right to bring suit for infringement against the United States in this court under his patent except in certain cases such as "where he was in a position to order, influence, or induce use of the invention by the Government" and where the invention is related to certain official functions of the employee.

The plaintiff Stub thereupon again filed suit in this court upon the same patent involved in the former suit, No. 2,346,337, which does not expire until April 11, 1961. It appears from certain letters which the plaintiff Stub has written to the court subsequent to the filing of his present petition that he is of the belief that section 1498 of Title 28 of the United States Code, as amended July 17, 1952, is retroactive in effect and that any cause of action which plaintiff may have thought he had at the time of filing his previous petition has now been revived and merged with the cause of action asserted in his present petition.

However, in the case of Strategical Demolition Torpedo Company, Inc., v. United States, 110 F.Supp. 264, 124 Ct. Cl. 492, this court decided that the jurisdictional act of July 17, 1952, did not have retroactive effect so as to change the law as applied in a prior case by the same plaintiff.

On November 13, 1953, the defendant filed a motion for an order declaring the period of ...