1360. Reserve officers; retirement rights.

Retirement pay for reserve officers under certain conditions is provided for in 322b-1, and 1117, ante.

For Organized Reserves, $86,161,608: Provided, That this appropriation shall be available for flight training of officers of the Officers' Reserve Corps without regard to any limitation as to such training in the Military Appropriation Act, 1941: Provided further, That regardless of the limitation heretofore imposed, funds appropriated for Organized Reserves for the fiscal year 1941 shall be available for the pay and allowances of members of the Officers' Reserve Corps who may have been or may hereafter be given flight training and detailed as officer navigators, officer bombardiers, officer bombardierobservers and officer balloon observers with combat units of the Air Corps. Third Supplemental National Defense Appropriation Act of Oct. 8, 1940 (54 Stat. 970).

The original text of this section, based on War Department Appropriation Act of February 23, 1931 (46 Stat. 1297), was not repeated in the Military Appropriation Act for the fiscal year 1943.

The above provision is added as a new paragraph.

As to use of other appropriations for pay and allowances of reserve officers on duty pertaining to aviation, see 1733, post.

1366a. Reserve officers, warrant officers, and enlisted men; duty in connection with national matches.

This provision, based on War Department Appropriation Act of May 15, 1936 (49 Stat. 1300), and subsequent acts, was not repeated in the Military Appropriation Act for the fiscal year 1942 and subsequent acts.

1367. Applications for patents.-All applications for patents shall be completed and prepared for examination within six months after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within six months or such shorter time, not less than thirty days or any extensions thereof, as shall be fixed by the Commissioner of Patents in writing to the applicant after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable: Provided, however, That no application shall be regarded as abandoned which has become the property of the Government of the United States and with respect to which the head of any department of the Government shall have certified to the Commissioner of Patents, within a period of three years, that the invention disclosed therein is important to the armament or defense of the United States: Provided further, That within ninety days, and not less than thirty days, before the expiration of any such three-year period the Commissioner of Patents shall, in writing, notify the head of the department interested in any pending application for patent, of the approaching expiration of the three-year period within which any application for patent shall have been pending. R. S. 4894; sec. 1, act of July 6, 1916 (39 Stat. 348); sec. 1, act of Mar. 2, 1927 (44 Stat. 1335); act of Aug. 7, 1939 (53 Stat. 1264); 35 U. S. C. 37.

This section has been amended as above.

1368.

Withholding of patents in interest of national defense.-Whenever the publication or disclosure of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, be detrimental to the public safety or defense he may order that the invention be kept secret and withhold the grant of a patent for such period or periods as in his opinion the national interest requires: Provided, That the invention disclosed in the application for said patent may be held abandoned upon it being established before or by the Commissioner that in violation of said order said invention has been published or disclosed or that an application for a patent therefor has been filed in a foreign country by the inventor or his assigns or legal representatives, without the consent or approval of the Commissioner of Patents.

When an applicant whose patent is withheld as herein provided and who faithfully obeys the order of the Commissioner of Patents above referred to shall tender his invention to the Government of the United States for its use, he shall, if and when he ultimately receives a patent, have the right to sue

for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the Government: Provided, That the Secretary of War or the Secretary of the Navy or the chief officer of any established defense agency of the United States, as the case may be, is authorized to enter into an agreement with the said applicant in full settlement and compromise for the damage accruing to him by reason of the order of secrecy, and for the use of the invention by the Government. Act. of Oct. 6, 1917 (40 Stat. 394); sec. 5, act of July 1, 1940 (54 Stat. 710); 35 U.S. C. 42. Whoever, during the period or periods of time an invention has been ordered to be kept secret and the grant of a patent thereon withheld pursuant to the Act approved July 1, 1940 (Public, Numbered 700, Seventy-sixth Congress, third session, ch. 501), shall, with knowledge of such order and without due authorization, willfully publish or disclose or authorize or cause to be published or disclosed such invention, or any material information with respect thereto. shall upon conviction, be fined not more than $10,000 or imprisoned for not more than two years, or both. Sec. 5, added to act of July 1, 1940, by act of Aug. 21, 1941 (55 Stat. 657); 35 U. S. C. 42c.

*

This section has been amended as above. By section of the amending act as amended by act of June 16, 1942 (56 Stat. 370), it is to remain in force for the duration of the war.

1370. Remedy for unlicensed use of inventions by United States.

Notes of Decisions

In general. (2d paragraph.)-Change cita- of Claims. 35 U. S. C. A., sec. 68. Pollen tion to read: Manufacturers' Aircraft Assn. v. et al. v. Ford Instrument Co. Inc. (C. C. A. U. S. (1933). 77 Ct. Cl. 481; certiorari denied 2, 1940), 108 F. (2d) 762. (1934), 291 U. S. 667.

Amount of recovery.-United States statute authorizing owner of invention to sue the United States to recover compensation for unlicensed use of invention, basis for fixing amount to be paid for use is an implied agreement by the United States to pay reasonable and entire or just compensation for the value to the owner of the property right or license appropriated by the United States. 35 U. S. C. A., sec. 68. Olsson v. U. S. (1938),

The United States having adopted and used plaintiff's patented invention and having obtained the benefits of its advantages could not deny its utility when plaintiff sought to recover reasonable and entire compensation under statute for appropriation of right or license to use invention. 35 U. S. C. A., sec. 68. Olsson v. U. S. (1938), 87 Ct. Cl. 642; certiorari denied (1939), 307 U. S. 621; rehearing denied (1939), 307 U. S. 650. Statute restricting patent infringement 87 Ct. Cl. 642; certiorari denied (1939), 307 suits involving apparatus manufactured for or U. S. 621. sold to United States to Court of Claims is not unconstitutional, as taking property either without due process of law or without adequate compensation. 35 U. S. C. A., sec. 68. Pierce v. Submarine Signal Co. (D. C., 1939), 25 F. Supp. 862.

In suit for patent infringement, defendant was not liable in respect to machines made for and sold to United States, whatever the construction of the machines, and as to such machines the plaintiff's only remedy was in a suit against the United States in the Court

Patents by officers and employees.-Where one in the service of the Government is assigned the duty of developing a particular mechanism and he does so during his working hours, using the facilities and materials of his employer, incurring no expense, and he subsequently procures a patent for the mechanism so developed, he may not recover from his employer compensation for its manufacture and use. George B. Gates v. U. S. (1938), 87 Ct. Cl. 358.

1370a-1. Royalty Adjustment Act; notice and procedure.—That, to aid in the successful prosecution of the War, whenever an invention, whether patented or unpatented, shall be manufactured, used, sold, or otherwise disposed of for the United States, with license from the owner thereof or anyone having the right to grant licenses thereunder, and such license includes provisions for the payment of royalties the rates or amounts of which are believed to be unreasonable or excessive by the head of the department or agency of the Government which has ordered such manufacture, use, sale,

or other disposition, the head of the department or agency of the Government concerned shall give written notice of such fact to the licensor and to the licensee. Within a reasonable time after the effective date of said notice, in no event less than ten days, the head of the department or agency of the Government concerned, shall by order fix and specify such rates or amounts of royalties, if any, as he shall determine are fair and just, taking into account the conditions of wartime production, and shall authorize the payment thereof by the licensee to the licensor on account of such manufacture, use, sale, or other disposition: Provided, however, That the licensee or licensor, if he so requests within ten days from and after the effective date of said notice, may within thirty days from the date of such request present in writing or in person any facts or circumstances which may, in his opinion, have a bearing upon the rates or amounts of royalties, if any, to be determined, fixed and specified as aforesaid, and any order fixing and specifying the rates and amounts of royalties shall be issued within a reasonable time after such presentation. Such licensee shall not after the effective date of said notice pay to the licensor, nor charge directly or indirectly to the United States a royalty, if any, in excess of that specified in said order on account of such manufacture, use, sale, or other disposition. The licensor shall not have any remedy by way of suit, set-off, or other legal action against the licensee for the payment of any additional royalty remaining unpaid, or damages for breach of contract or otherwise, but such licensor's sole and exclusive remedy, except as to the recovery of royalties fixed in said order, shall be as provided in section 2 hereof. Written notice as provided herein shall be mailed to the last known address of the licensor and licensee and shall be effective upon receipt or five days lafter the mailing thereof, whichever date is the earlier. Sec. 1, act of Oct. 31, 1942 (56 Stat. 1013); 35 U.S.C. 89.

1370a-2. Royalty Adjustment Act; remedy of aggrieved licensor.-Any licensor aggrieved by any order issued pursuant to section 1 hereof, fixing and specifying the maximum rates or amounts of royalties under a license issued by him, may institute suit against the United States in the Court of Claims, or in the District Courts of the United States insofar as such courts may have concurrent jurisdiction with the Court of Claims, to recover such sum, if any, as, when added to the royalties fixed and specified in such order, shall constitute fair and just compensation to the licensor for the manufacture, use, sale, or other disposition of the licensed invention for the United States, taking into account the conditions of wartime production. In any such suit the United States may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement as set forth in title sixty of the Revised Statutes, or otherwise. Sec. 2, act of Oct. 31, 1942 (56 Stat. 1013); 35 U. S. C. 90.

1370a-3. Royalty Adjustment Act; settlement before suit. The head of any department or agency of the Government which has ordered the manufacture, use, sale, or other disposition of an invention, whether patented or unpatented, and whether or not an order has been issued in connection therewith pursuant to section 1 hereof, is authorized and empowered to enter into an agreement, before suit against the United States has been instituted, with the owner or licensor of such invention, in full settlement and compromise of any claim against the United States accruing to such owner or licensor under the provisions of this Act or any other law by reason of such manufacture, use, sale, or other disposition, and for compensation to be paid such owner or licensor based upon future manufacture, use, sale, or other disposition of said invention. Sec. 3, act of Oct. 31, 1942 (56 Stat. 1014); 35 U.S. C. 91.

1370a-4. Royalty Adjustment Act; reduction in contract price.-Whenever a reduction in the rates or amounts of royalties is effected by order, pursuant to section 1 hereof, or by compromise or settlement, pursuant to section 3 hereof, such reduction shall inure to the benefit of the Government by way of a corresponding reduction in the contract price to be paid directly or indirectly for such manufacture, use, sale, or other disposition of such invention, or by way of refund if already paid to the licensee. Sec. 4, act of Oct. 31, 1942 (56 Stat. 1014); 35 U. S. C. 92.

1370a-5. Royalty Adjustment Act; delegation of authority.-The head of the department or agency of the Government concerned is further authorized, in his discretion and under such rules and regulations as he may prescribe, to delegate and provide for the delegation of any power and authority conferred by this Act to such qualified and responsible officers, boards, agents, or persons as he may designate or appoint. Sec. 5, act of Oct. 31, 1942 (56 Stat. 1014); 35 U.S. C. 93.

1370a-6. Royalty Adjustment Act; applicability to contractors.—For the purposes of this Act, the manufacture, use, sale, or other disposition of an invention, whether patented or unpatented, by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government shall be construed as manufacture, use, sale, or other disposition for the United States and for the purposes of the Act of June 25, 1910, as amended (40 Stat. 705; 35 U. S. C. 68), the use or manufacture of an invention described in and covered by a patent of the United States by a contractor, a subcontractor, or any person, firm, or corporation for the Government and with the authorization or consent of the Government, shall be construed as use or manufacture for the United States. Sec. 6, act of Oct. 31, 1942 (56 Stat. 1014); 35 U. S. C. 94. For act of June 25, 1910, as amended, see 1370; ante.

Notes of Decisions

Waiver of royalties.-The Alien Property or assignees for such royalty payments and Custodian is authorized to relieve licensees his authority to do SO is not conditioned and assignees of the obligation to pay royal- upon a surrender by the licensees or assignees ties, including accrued royalties, under patents or their exclusive rights. (Nov. 28, 1944), 40 where another agency of the United States is Op. Atty. Gen. No. 86. required by contract to reimburse the licensees

1370a-7. Royalty Adjustment Act; scope and duration.-This act shall apply to all royalties directly or indirectly charged or chargeable to the United States for any supplies, equipment, or materials to be delivered to or for the Government from and after the effective date of the notice provided. for in section 1 hereof. This Act shall also apply to all royalties charged or chargeable directly or indirectly to the United States for supplies, equipment, or materials already delivered to or for the Government which royalties have not been paid to the licensor prior to the effective date of the notice provided for in section 1 hereof. Sections 1 and 2 of this Act shall remain in force only during the continuance of the present war and for six months after the termination thereof, except that as to rights accrued or liabilities incurred prior to termination thereof, the provisions of this Act shall be treated as remaining in force and effect for the purpose of settling, sustaining, qualifying, or defeating any suit or claim hereunder. Sec. 7, act of Oct. 31, 1942 (56 Stat. 1014); 35 U. S. C. 95.

1370a-8. Royalty Adjustment Act; rules and regulations; inspection and audit of contracts.—The head of each department or agency of the Govern