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Argument for Petitioner.

224 U.S.

affected by the decree, in which case a necessary party is wanting; or indirectly against the United States through the person of its officer and agent, for which proceeding no authority is vouchsafed by law.

The rule that the Government is immune from suit except where immunity is waived applies to the United States. Bracton, de Leg., 168 B; Staunford Prerogative, 72 B; Hale, Analysis of Law, § 9; Doe v. Roe, 8 Mees. and W. 579. It cannot be subjected to legal proceedings at law or in equity without its consent, and whoever institutes such proceedings must bring his case within the authority of some act of Congress. United States v. Clark, 8 Pet. 444. The same exemption from judicial process extends to the property of the United States and for the same reasons. The Siren, 7 Wall. 152, 154.

The United States has consented to be sued through successive acts of Congress. These suits must be filed in the Court of Claims or in the Circuit or District Courts of the United States. The first consent was granted in the act of February 24, 1855, 10 Stat., c. 122, p. 612, followed by the act of March 3, 1863, 12 Stat., c. 92, p. 765, and the act of March 3, 1887, 24 Stat., c. 359, p. 509, with amendments, and finally in the recent act (passed since the decree below) of June 25, 1910, 36 Stat., c. 423, p. 853.

Under the statutes the United States may be sued on a contract where it or its representatives have used the inventions under a contract made by the United States with the owner of the invention. United States v. Palmer, 128 U. S. 262; United States v. Berdan Company, 156 U. S. 552. The United States may also be sued under an implied contract, where it has appropriated the patented property of an individual under circumstances implying an agreement on the part of the Government to pay reasonable compensation therefor. United States v. Great Falls Mfg. Co., 112 U. S. 645; United States v. Alexander, 148 U. S. 186, 191. But the Government

224 U.S.

Argument for Petitioner.

The United States has

cannot be sued in cases of tort. not consented to be sued in actions sounding in tort for wrongs done by their officers, even though in the discharge of official duties. Gibbons v. United States, 8 Wall. 269; Langford v. United States, 101 U. S. 341; Hill v. United States, 149 U. S. 593; Schillinger v. United States, 155 U. S. 163; Russell v. United States, 182 U. S. 516; Stanley v. Schwalby, 147 U. S. 508, 512.

This immunity does not extend to the officers of the Government. In times of peace they are personally liable to an individual whose rights of property they have wrongfully invaded, even by authority of the United States. Bates v. Clark, 95 U. S. 204. Such officers, although acting under the orders of the Government, are personally liable to be sued for their own infringement of a patent. Cammeyer v. Newton, 94 U. S. 225, 235.

In the recent act, approved June 25, 1910, the patentee is given still further authority to sue the United States, and he may now file suit in the Court of Claims to recover compensation where his patents have been used without his consent, though there be no contract with the Government, express or implied. The conceit of suing the officer in this case does not save the proceeding from its necessary gravitation into its reality as a suit against the. United States and its property. The United States cannot be sued in this indirect manner any more readily than in a direct proceeding. Belknap v. Schild, 161 U. S. 10; International Postal Supply Co. v. Bruce, 194 U. S. 601. The petitioner has no interest in the suit, has made no profits, and no damages are asked from him.

The frame of the bill seeking to enjoin the future making of field guns and carriages does not take the case out of the rule. The injunction, if granted, necessarily affects only the Government and its property. Dashiell v. Grosvenor, 162 U. S. 424.

The dominion of the owner of a patent confers no

Argument for Petitioner.

224 U.S.

rights greater than those of the owner of other property. He may secure compensation from the Government for the taking of his patented property, but he may not restrain the taking. Schillinger v. United States, 155 U. S. 163, 168.

A very important branch of public policy supports the doctrine of the immunity of the United States from being sued and enjoined by a patentee under such circumstances as these. The Government has reserved no right in the patents conferred superior to that bestowed, but it must retain its own sovereignty, one incident of which is the right to be free from being enjoined in its public works whenever a litigant may conceive an infringement and resort to suit.

Plain, adequate, and complete remedy may be had by respondent for the invasion of its patents and no circumstances of the case warrant the court's interference by injunction, even if jurisdiction to do so otherwise existed. Bates v. Clark, 95 U. S. 204; Poindexter v. Greenhow, 114 U. S. 270; Armstrong-Whitworth Co. v. Norton, 15 App. D. C. 223; United States v. Lee, 106 U. S. 196.

Wholly apart from the considerations which apply to a case where, as in the case at bar, effort is being made to enjoin the United States, there is still no authority for the injunction even were both parties private litigants, for under the circumstances the rule of the apportionment of hardships would be invoked and the injunction accordingly denied. Courts of equity frequently weigh the relative hardship inuring to the complainant if the injunction be denied, and to the defendant, if it be granted. And if it appear that the injury resulting to the defendant from the granting of the injunction would be harsher and more oppressive than that falling to the complainant if it be denied, the courts will remit the complainant to his other remedy and refuse to enjoin. Gerken v. Hall, 71 N. Y. Suppl. 753; Gray v. Patterson, 45 Atl. Rep.

224 U. S.

Argument for Respondent.

995, N. J., 1900; Lloyd v. Catlin Co., 210 Illinois, 460; Smith v. Sands, 24 Fed. Rep. 470; Bowers Dredging Co. v. N. Y. Dredging Co., 77 Fed Rep. 980; Huntington v. Alpha Portland Cement Co., 91 Fed. Rep. 534.

Mr. William A. Jenner for respondent:

The right of a patentee to make, use and vend the patented invention is exclusive of the Government of the United States as well as of all others, and any use of such invention unauthorized by the owner of the letters patent, whether done directly by the United States or indirectly through one of its officers, is a violation of that right. Belknap v. Schild, 161 U. S. 10; Hollister v. Benedict Mfg. Co., 113 U. S. 59; James v. Campbell, 104 U. S. 356; Cammeyer v. Newton, 94 U. S. 225, 235; United States v. Burns, 12 Wall. 246.

The fact that the invasion of a plaintiff's property is done by a defendant while acting in his official capacity as an officer of the United States Government or of a state government does not of itself justify the wrong nor deprive plaintiff of the relief which otherwise the court would grant. Davis v. Gray, 16 Wall. 203; Osborn v. United States Bank, 9 Wheat. 738; Board of Liquidation v. McComb, 92 U. S. 531, 541; Allen v. Baltimore & Ohio R. R., 114 U. S. 311; Pennoyer v. McConnaughy, 140 U. S. 1; Howell v. Miller, 91 Fed. Rep. 129; American School of Healing v. McAnnulty, 187 U. S. 94; United States v. Lee, 106 U. S. 196; Tindal v. Wesley, 167 U. S. 204; Poindexter v. Greenhow, 114 U. S. 270; Bates v. Clark, 95 U. S. 204; Teal v. Felton, 12 How. 284; Little v. Barreme, 2 Cr. 169; Elliott v. Swarthout, 10 Pet. 137. Belknap v. Schild, 161 U. S. 10; International Postal Supply Co. v. Bruce, 194 U. S. 601, do not sustain the defendant's contention, and the facts and the prayer for relief in those cases are materially different from those in the case at bar.

Argument for Respondent.

224 U.S.

The courts have frequently entertained jurisdiction of actions brought to enjoin officers of the United States from infringement of letters patent. Dashiell v. Grosvenor, 162 U. S. 425; Cammeyer v. Newton, 94 U. S. 225; James v. Campbell, 104 U. S. 356; Hollister v. Mfg. Co., 113 U. S. 59.

The argument that an injunction against the manufacture by defendant of guns and gun carriages infringing complainant's patent would in effect be an injunction against the free use by the United States of the material at its arsenals used in the manufacture of guns and gun carriages, and that the case is within Belknap v. Schild and International Postal Supply Co. v. Bruce, is untenable. See Howell v. Miller, 91 Fed. Rep. 129.

The complainant had no remedy at law for the infringement by defendant of its patents.

It was intimated in James v. Campbell, 104 U. S. 356, and Hollister v. Manufacturing Co., 113 U. S. 59, that an action would lie within the jurisdiction of the Court of Claims to recover from the Government upon an implied promise to compensate a patentee for the use by the Government, or one of its officers, of his patented invention, but it was later settled that such a suit could not be maintained either in the Court of Claims, Shillinger v. United States, 155 U. S. 163, or in the Circuit Court of the United States, Hill v. United States, 149 U. S. 593.

If the officers of the United States have since the act approved June 25, 1910, used or shall hereafter use complainant's patented design, it is possible or probable that complainant may receive reasonable compensation under that act in the Court of Claims, but that possibility does not operate to defeat complainant's right to the equitable relief sought when the bill was filed.

The general rule is that where jurisdiction in equity has become established, a subsequent statute creating a remedy at law or removing the obstacles at law upon

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