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U.S. Supreme Court

Schillinger v. United States, 155 U.S. 163 (1894)

Schillinger v. United States

No. 4

Argued October 9-10, 1894

Decided November 19, 1894

155 U.S. 163


The United States cannot be sued in their courts without their consent.

In granting such consent, Congress has an absolute discretion to specify the cases and contingencies in which the liability of the government is submitted to the courts for judicial determination, and courts may not go beyond the letter of such consent.

The Court of Claims has no jurisdiction of a claim against the government for a mere tort.

The owner of letters patent for an invention, who sets up in the Court of Claims that a contractor with the United States has made use of the patented invention in the execution of his contract without compensation to the claimant, and against his protest, whereby there was a wrongful appropriation of the patent by the United States for their sole use and benefit, and that a right has accrued to him to recover of the United States the damages thus done to him, to be measured by the saving or profit made by the United States, thereby sets up a claim sounding in tort, of which the Court of Claims has no jurisdiction.

When a contractor with the United States, in the execution of his contract, uses any patented tool, machine, or process, and the government accepts the work done under such contract, quaere whether it can be said to have appropriated and be in possession of any property of the patentee in such a sense that the patentee may waive tort and sue as on an implied promise.

On July 19, 1870, a patent was issued to John J. Schillinger for an improvement in concrete pavement. The claim of the patent was in these words:

"The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose described."

A reissue was granted May 2, 1871. The claims in the reissue were thus stated:

"1. A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described."

"2. The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose set forth. "

Page 155 U. S. 164

On February 27, 1875, Schillinger filed in the Patent Office a disclaimer which, after stating the language of the specification disclaimed, added:

"Your petitioner hereby disclaims the forming of blocks from plastic material without interposing anything between their joints while in the process of formation."

Thereafter the Architect of the Capitol invited proposals for a concrete pavement in the Capitol grounds, and on September 2, 1875, entered into a contract with G. W. Cook for the laying of such pavement. It does not appear that in the proposals, specifications, or contract there was in terms any reference to or description of the Schillinger patent.

Frederick Law Olmsted was the person who prepared the plans and specifications, and in the contract it was provided as follows:

"The pavement to be laid with free joints, in the best manner, the courses running diagonally, and arranged around the curved parts to the satisfaction of the said Fred.Law Olmsted."

"It is understood and agreed by the party of the second part that in the event of any legal proceedings' being taken by other parties against the contractor of the United States for the infringement of any patent or claimed patent during the execution of the work, the contractor shall hold the United States harmless, and if said proceedings tend to create delay in the prosecution of the work, the United States shall have the right to immediately employ other parties to complete the same, and the contractor shall reimburse the United States in any extra amount it may have to pay for such completion over and above the amount which the contractor would have been entitled to for the same work."

This is the only language found in the contract which in any manner suggests the use, or possibility of use, of the Schillinger patent. The contract price was 28 1/2 cents per square foot. Certain of the claimants who had acquired by assignment the right to use the Schillinger patent in the District of Columbia were bidders for such contract, and proposed to do the work in accordance with the Schillinger patent at 45 cents per square foot. Cook proceeded to perform the contract, finished it,

Page 155 U. S. 165

and received payment between October, 1875, and July, 1881.

On March 22, 1887, these claimants filed their petition in the Court of Claims, asserting full ownership of the Schillinger patent and seeking to recover from the United States damages for the wrongful use thereof in the construction of this pavement. * The Court of Claims held (24 Ct.Cl. 278)

Page 155 U. S. 166

that there was no contract, either expressed or implied, on the part of the government for the use of such patent, and on that ground dismissed the petition as outside of the jurisdiction of the court.

From that judgment the claimants appealed to this Court.

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