
    MARTHA J. COSTON v. THE UNITED STATES.
    [Nos. 16689 and 19636.
    Decided May 23, 1898.]
    
      On the Proofs.
    
    Letters patent are issued to Coston and to Very for improvements in signal cartridges. The Navy Department uses Very’s signal as Very’s signal. The Department does not assume or admit at any time that it uses the Coston signal; nor does it make any promise of compensation to Coston. The petition alleges that the defendants, “well knowing that the said invention and the letters patent therefor belonged to your petitioner, made and used the said invention,’’ hut does not state an admission hy defendants that they were using the device covered hy the Coston patent.
    
      I. 'The Court of Claims has no jurisdiction over an action for damages arising from the infringement of a patent. To recover, the claim- ■ ant must‘show that the action is based upon a contract express or implied.
    II. Where the Navy Department never used claimant’s invention as such, nor admitted that it was using it, nor made any promise in relation to compensation for its use, hut on the contrary used one Very’s invention as Very’s, and made a contract with him for the use of his signal as his signal, no contract can he implied with the claimant, and the court is without jurisdiction.
    
      The Reporters’ statement of the case: -
    The following are the facts as found by the court:
    I. In 1867 Henry H. Ooston filed a caveat in the Patent Office of the United States at Washington. This caveat is hereinafter set forth.
    II. Letters Patent No. 197339, dated November 20, 1877, were issued to Henry H. Ooston, a lieutenant in the marine corps, for improvement in signal cartridges. This patentee afterwards assigned his rights under this patent to Martha J. Ooston, the plaintiff herein. The specifications and claims upon which this patent was issued appear hereinafter.
    III. Letters Patent No. 190263, dated May 1, 1877, were issued to Edward W. Very for improvement in signal cartridges. These letters patent were issued upon specifications and claims which appear hereinafter.
    IV. Keissue No. 8167 of letters 190263 was made to Edward W. Very, April 9,1878. The reissue appears hereinafter.
    V. There has been in use by the Government in the Navy since the year 1878 to the time of the beginning of these actions, an aerial pyrotechnic signal which is called the “Very signal,” and this.signal plaintiff alleges to be the mechanical equivalent of the Ooston signal.
    VI. The signals adopted and used in the Navy were called “Very Signal Lights.” They were used under a contract with Lieutenant Very (then an officer of the Navy) that he (for a certain valuable consideration) should make no claim against the Government for the use of the signal, and that he retain the ownership of his “patent of the signal cartridge and with it all responsibility proceeding from the ownership, in so far as it may at any time be made the subject or interference with patents of a similar night signal taken out by Henry H. Ooston.”
    VII. The Department of the Navy has used in fact Very’s signal as Very’s signal. It lias not assumed or admitted at any time that it used the Coston signal or that Very’s invention was the mechanical equivalent of Coston’s invention; nor did it make any promise of compensation to Ooston.
    Appendix to Findings.
    “To the COMMISSIONER op Patents:
    “The petition of H. H. Coston, of Washington, District Columbia, respectfully represents that your petitioner has invented a new and useful method of gun signals, and that he is now engaged in making experiments for the purpose of perfecting the same, preparatory, to his applying for letters patent therefor. He therefore prays that the subjoined description of his invention may be filed as a caveat in the confidential archives of the Patent Office, agreeable to the provisions of the act of Congress in that ease made and provided, he having-paid ten dollars into the Treasury of the United States and otherwise complied with the requirements of the said act.
    “H. H. Ooston.”
    “united states patent oppioe.
    
      uHenry H. Ooston, of Washington, District of Columbia, assignor to Martha J. Ooston, of same place.
    
    “Improvement in signal-cartridges.
    
      “ [Speciiication forming part of Letters Patent No. 197339, dated November 20, 1877; application filed September 10, 1877.]
    “ To all idiom it may concern:
    
    “ Be it known that I, Henry H. Ooston, of the city and county of Washington, and District of Columbia, have invented new and useful aerial signals, or cartridges, or shells, adapted to be projected from guns or other fire-arms; and I do hereby declare that the following is a full, clear, and exact description of the same, reference being had to the accompanying drawings, making part of this specification, in which—
    “Figure 1 is a longitudinal central section of a gun barrel as it appears when loaded with one of my signals, or shells, or cartridges. Fig. 2 is a section of the shell or cartridge as it appears before it is loaded or filled, showing, also, a modified construction of the bottom, adapting it for breech-loading firearms. Fig. 3 is a central section of the lower part of said shell, showing another modification of a bottom and a modification of the firing device. Fig. 4 is a bottom view of one of my signal cartridges. Fig. 5 is an illustration of the operation of my invention. Fig. 6 is a chart of one of the signal codes made for the use of my signals.
    
      “My invention relates to an improvement on tlie stationary <Coston telegraphic night-signals,’ as now used in the United States and French naval service.
    “The nature of my invention consists, first, in a signal which shows colors while burning in the air, according to a given code, applied within a case which is adapted for being placed in a gun or other firearm, and for having its contents ignited by the spark or fire of the gun-cap or concussion produced by a firing-pin upon a cap or priming, and when thus ignited has its signal composition projected into the air and set on fire by powder within the ease.
    “ It consists, second, in a signal which shows one or more colors while burning in the air, constructed wit hin a case which is adapted for being placed in a gun or other firearm, and for having its contents ignited by the direct fire of an exploded cap or primer on the gun-nipple, or on the end of the signal-case, and when thus ignited is, with the case, projected into the air, and while in the air has its burning signaling composition discharged from the case, so as to signal according to a given code.
    “ It consists, third, in a pyrotechnic signal shell or case, which is constructed to contain the signaling composition and protect it from injury, and which shell is adapted for use either in a muzzle-loading or a breech-loading firearm.
    “It consists, fourth, in a pyrotechnic signal-shell having its propelling charge of powder capable of ignition from the ordinary percussion cap, or firing pin, or priming of a firearm, which charge, when ignited, sets on fire the signaling composition.
    “ It consists, fifth, in a signal shelTor case with a capped or otherwise primed main propelling-charge, and a fuse or quick-match, or similar connection for communicating the fire, in proper time, to other charges, for igniting and propelling the signaling composition.
    “It consists, sixth, in a shell, as hereinafter described,properly constructed to keep the said charges and their communicating composition in place.
    “ It consists, seventh, in arranging the said charges for propelling and igniting the signaling composition, and the blocks of the said signaling composition, with movable partitions of incombustible material, whereby the several blocks or charges of signaling composition are ignited successively, and are kept properly apart when ignited, and thus are prevented from blending.
    “ It consists, eighth, in a shell provided with diaphragm for separating the powder-charges, said diaphragm being sufficiently strong to sustain the shocks of the explosion on both sides..
    “ It consists, ninth, in a shell containing the signaling composition, and an explosion-chamber for its propelling powder.
    “ By my invention I am enabled to protect the signaling composition and theigniting-fuse and propelling and expelling charges from injury at all times, and am also enabled to fire the signals either from a muzzle-loading or a breech-loading firearm, in any direction, and to any desired altitude.
    uIn the drawings, A represents a gun, having a barrel with a diameter of bore adapted for the size of the signals, and an ordinary lock, hammer, nipple a, and vent a1. B is the case of a signaling cartridge or shell, preferably made of metal, and of cylindrical shape. It has a central tube, b, and near the bottom a diaphragm, b\ 'The bottom b2 of the cartridge may be made of pasteboard when in the form represented in fig. 1, or of tin or other suitable metal when made in forms as in figs. 2 and 3 of the drawings. The chamber C, formed between the diaphragm V and the bottom b2, is filled with powder, and the center of the bottom b2 provided either with fulminate c, as shown in figs. 1 and 2, or with a gun-cap, a1, placed in a receptacle, b3, formed in the bottom ¥, as in fig. 3, for the purpose of igniting the powder. In the first two cases the fulminate is ignited by the firing of the cap a?. The third, as in fig. 3, is especially adapted for the use of breech-loading guns with central firing-pins. I intend, in practice, to adopt any mode suitable for igniting the powder in the chamber C.
    “The bottom b'z (shown in fig. 2) is made the shape and size of an ordinary cartridge-bottom for a breech-loader, and is slipped over the lower end of the case B, and thus serves to centrally steady the case in the explosion-chamber of the gun. The fulminate c is protected, during transportation of the shell, by a strip of water-repellent fabric or paper c2, which is torn off before the signals are to be used. Above the diaphragm bl another charge of gunpowder, d, is placed. Above the powder d, I place a block of composition, D, for a green light. Above the green light a block, E, of light incombustible material is placed, and above this a charge of gunpowder, e; then a block, F, of white light composition; then a block of incombustible material, G; then a charge of gunpowder, g; then a block, H, of red-light composition; then a loose diaphragm, i, of incombustible matter; then a charge of fulminate, or gun or rifle powder, I; and, lastly, a protecting-cap, J, of wood or other suitable material, which is partly fitted into the case B, and is provided with a chamber,,/, for the powder-charge 1.
    “The diaphragm bl and the tube b are formed of one piece, or of two or more pieces very carefully united, so as to afford no leakage to the fire of the exploding powder below, or of the burning fuse in the tube b. The tube terminates at the'top of the diaphragm i, and it is, part of its length, charged with fuse composition K, while the remaining upper part contains a quiekmatch, L.
    “ The described charges of the case B are loosely fitted in place around the tube b, so that an igniting-channel for the passage of the burning powder between the tube and the blocks is formed, and so that they may easily leave the case when exploded.
    
      “The colors or colored compositions D FH are arranged according to a code for signaling between different parties, and I have shown in Fig. 6 a chart of a code for this purpose. In this chart the colored compositions are named and the blank spaces between them and above the diaphragm b} signify incombustible compositions for separating the signaling compositions, while the double lines signify rifle-powder charges. Fig. 5 is intended to illustrate the operation when the shell containing the signaling composition-is fired bodily from the firearm. In this figure, A represents a gun from which the case B is discharged, which case itself is represented discharging at a proper elevation, first the cap J, and then the lights II F D, and the incombustible blocks F G- between them.
    “The special mode of signaling illustrated in Fig. 5 possesses great advantages over the stationary signals, because the point signaled from can not be discovered by the enemy.
    “ Operation: The tape cl is removed from the bottom of the shell B, and the gun A. charged with the shell. A percussion-cap, a2, is then exploded on the nipple a of the gun, the fire of which cap ignites the fulminate o in the bottom b2 of the case B. This causes the powder in the chamber 0 to explode and force the case or shell B out of the gun and up into the air, leaving the bottom b2 behind. The said explosion ignites also the fuse K, which assists the signal-shell in ascending to the proper height, and then ignites the quick-match L. The quick-match L ignites the powder-charge 1, which explodes and throws off the cap J, and ignites the other powder-charges g e d by passing between the outside of the tube b and' the inside of the composition blocks, and thus the signal-composition blocks H F D are ignited, and which, having been expelled from the case at a great elevation, are clearly seen at a great distance.
    “The material used for the case B, tube b, diaphragm b\ and other parts of the cartridge may be any suitable metal, alloy, or composition. The ignition of the powder-charge in the chamber 0 may be effected by any other suitable devices than the percussion-cap and firing pin.
    
      “ The incombustible blocks E G-, whereby the signal lights are kept at proper distances apart, may be made of clay or any suitable composition, and of any proper thickness.
    “I have described signals constructed in shells or cases, which are projected into the air with the signals therein, and the signals afterwards expelled therefrom. I, however, do not confine my invention to such signal-shells, as the construction of a capped or primed shell with signals in it was not known prior to the invention thereof by myself, as I believe.
    “ Haying described my invention, what I claim, and desire to secure by letters patent, is—
    “ 1. An aerial pyrotechnic signal applied in a case having a priming or cap, winch is ignited by the aid of the gun within which it is placed, and is elevated into the air by the explosion of gunpowder contained within the signal-case, and which, when in the air and burning outside of its'case, serves for signaling according to a given adopted code, substantially as described.
    “2. A pyrotechnic signal which shows one or more colors while burning in the air, applied within a case which is adapted for being placed in a gun or other fire-arm, and for having its contents ignited by the direct fire of an exploded cap or primer on the gun-nipple, or on the end of the signal-case, and when thus ignited is, with the case, projected into the air, and, while in the air, has its burning signaling composition discharged from the case, so as to signal according to a given code, substantially as set forth.
    “ 3. A pyrotechnic signal-shell or case having a percussion cap or priming on its bottom, and containing signaling composition or compositions, and made of metal or other material impervious to water, said signal-shell being made either with or without a flange, and adapted for use either in a muzzle- • loading or a breecli-loading fire-arm, and is expelled, either in part or whole, from the fire-arm whón its charge of gunpowder is ignited, substantially as described.
    “ 4. A pyrotechnic signal-shell having its propelling charge of powder capable of ignition from the ordinary percussion-cap or firing-pin of a fire-arm, which charge, when ignited, expels the case, either iu whole or in part, and sets on fire the signaling composition, substantially as described.
    “ 6. A primed or percussion-capped shell having a charge of gunpowder for its own propulsion, a fire communicating and propelling fuse, a quick-match, and a set of gunpowder charges for the propulsion and ignition of a set of signal-lights, substantially as and for the purpose set forth.
    “6. The shell or case B, having the removable bottom ¥, the diaphragm //, the tube b, and cap J, substantially as set forth.
    “7. In a projectile-case, B,and forward of arigid diaphragm, bl, the signaling compositions D F H, the intermediate incombustible partitions EGi, and the gunpowder-charges deg I, arranged substantially as and for the purpose set forth.
    “8. In the signal-carrying projectile-case B, the diaphragm ¥, whereby the gunpowder-charge for propelling the projectile in the air and the gunpowder charge or charges for propelling the signals into the air are kept separate from each other while not ignited, substantially as set forth.
    “9. A signal or signal compositions placed in a capped or primed case above a charge of powder, and kept apart from said charge of powder by means of a transverse separating device integral with the case, substantially as described.
    “Witness my hand, in the matter of my application for a patent for aerial signals, or enrtridges, or shells projected from guns or other fire-arms, this 4th day August, A. I). 1877.
    “Witnesses: “H.H.Ooston.
    “Clarence Peters,
    “Ohas. Benner.”
    
      “united states patent oeeioe.
    
      “Edward W. Very, of Annapolis, Maryland.
    
    “Improvement in signal-cartridges.
    “ [Specification, forming part of Letters Patent No. 190263, dated May 1,
    1877; application filed February 14,1877,]
    
      uTo all whom it may concern:
    
    “Be it known that I, Edwakd W. Yeey, of Annapolis, Maryland, have invented a new and useful Improvement in Pyrotechnic-Signal Cartridges, of which the following is a clear, full, and exact description, reference being had to the accompanying drawings, making a part of this specification, in which the figure shows a signal-case or cartridge loaded and ready for firing.
    “ My invention relates to pyrotechnic signals, to be thrown into the air by means of the explosive force of a charge of common gunpowder; and it consists of a percussion capped signal cartridge or shell, having a charge of powder, and being pro vided with two or more signal-balls directly ignited by the flame of the burning gunpowder, and showing their light from the time they leave the cartridge case and pistol until they are entirely consumed.
    “To enable others skilled in the art to make and use my in- • vention, I will proceed to describe the exact manner in which I have carried it out.
    “ In the drawings, A represents a common cartridge-case capped, and provided with the charge of powder B. Upon this powder I place an ordinary wad to keep it in place, and upon the wad one or more lumps of signal composition, C C, made of the required shape and density, and of such materials as will cause it to burn with a flame of any desired color. Above this charge an air space, c, is left, and the mouth of the case is covered with a light and suitable wad or cover to secure the signal from damage or deterioration.
    “This signal can be thrown to a height of three hundred feet by means of a pistol constructed for the purpose.
    “In my system of signals I use but two colors, usually red and white; other colors may, however, be used without departing from the spirit of my invention. The balls, representing a digit of any numbered code, are thrown eithei simultaneously or in quick succession, so that they are all seen at once, the combination being so arranged that no more than three balls are visible at once. The combination is so arranged that odd numbers are distinguished from even ones in a manner distinct from the particular arrangement by which the integer is designated.
    “The time of burning is eight or more seconds, and the balls have a brilliancy sufficient to be distinguished at least three miles, they being directly ignited by the flame of the gunpowder, and showing their light from the time they leave the cartridge case and pistol until they are entirely consumed.
    “By this system the liability to mistake, on the part of either sender or receiver of the signal, is reduced to a minimum. The operator has complete control of the ignition, which is instantaneous.
    “The signal is made at such a height as to clear all ordinary obstructions to vision. The signal cases maybe loaded or unloaded at the will of the operator, in order to make any desired change in color or force of discharge.
    “Signals maybe examined thoroughly, taken apart and surveyed, and if found good the same parts may be returned to place without loss, change, or damage to the signal.
    “ The observer sees the whole combination forming a digit at once. The arrangement of colors, groups, and combinations is entirely at the will of the operator.
    “ Having thus explained my invention, that which I claim as new, and which I desire to secure by letters patent, is—
    “A percussion-capped signal cartridge or shell having a charge of gunpowder, and being provided with two or more signal balls directly ignited by the flame of the burning gunpowder, aiid showing their light from the time they leave the cartridge case and pistol until they are entirely consumed, substantially as and for the purpose specified.
    “ Edward W. Veey.
    “ Witnesses:
    “G. H. Evans.
    “W. E. Guy.”
    “ 1. A percussion-capped signal cartridge or shell, having a charge of gunpowder, and being provided with one or more signal balls, directly ignited by the flame of the burning gunpowder, and showing their light from the time they leave the cartridge case and pistol until they are entirely consumed, substantially as and for the purpose set forth.
    “2. The pyrotechnic signal herein described, consisting of a combustible material formed into signal masses or stars, capable of emitting colored masses of light when propelled by an explosive charge of gunpowder, in connection with a primed and charged cartridge shell, adapted for use in an ordinary firearm, as and for the purpose set forth.”
    
      Mr. F. P. Dewees (with whom was Mr. Leonard Myers) for the claimant.
    
      Mr. Charles G.Binney (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Davis, J.,

delivered the opinion of the court:

Compensation is asked for the alleged use in the Navy of a signal invented and patented by Henry H. Coston, assignor to plaintiff.

The petition in this court alleges that defendants, “ well knowingthat the said invention and the letters patent therefor belonged to your petitioner, at once and as early as the year 1877 made and used the said invention, and have continued to do so up to the present time, whereby the United States promised and agreed to pay her a just compensation for the manufacture and use of the said patented invention belonging to her.” The petition sets forth alleged dealings at various times with the Department of the Navy in relation to these signals (Coston was then a lieutenant in the Marine Corps), but it does not state an admission at any time by defendants that they were using the device covered by the Coston patent here under consideration. The petition therefore could be properly dismissed upon demurrer; but as proceedings in this court are not technical it was deemed wiser to proceed to trial upon the merits, as has been done.

There is no jurisdiction in this court over actions “sounding-in tort,” therefore there is no jurisdiction over an action for damages arising from infringement of a patent. To recover here the plaintiff, suing for the use of a patented invention, must show that the action is based upon a contract express or implied. '

It appears from the findings of facts that defendants never assumed to use the “Coston” signal, but always assumed that their signal was the invention of Very, one of their own officers.

In Schilling er's Case (155 U. S. R., p. 163) the Supreme Court (upon appeal from this court) held (after citing certain statutes) as follows: “Under neither of these statutes had or has the Court of Claims any jurisdiction of claims against the Government for mere torts; some element of contractual liability must lié at the foundation of every action.” The court then, citing the cases of Gibbons (8 Wall., 269, 275), Morgan (14 Wall., 531, 534), and Sill (149 U. S., 593, 598), said: “While the act of 1887 is broader than that of 1855, it is equally clear in withholding such jurisdiction. That this action is one sounding in tort is clear. It is in form one to recover damages. The petition charges a wrongful appropriation by the Government, against the protest of the claimants, and prays to recover the damages done by such wrong. The successive allegations place the parties in continued antagonism to each other; and there is no statement tending to show a coming together of minds in respect to anything. * * * The transaction, as stated in the petition and as disclosed by the findings of the court, was a tort, pure and simple.”

The case now at bar falls absolutely within the principle of this decision. The Navy Department never (in fact) used the Coston invention now sued upon, nor did that Department admit that it was using or had used that invention, nor did it make any promise in relation to compensation for the alleged use. On the contrary, defendants used Very’s invention as Very’s invention, and made a contract with Very for the use of his signal as his signal. The only relations sounding in contract presented by this record are between defendants and their officer Very. If defendants, then, can be sued at all for the use of the “ Coston ” invention it must be upon the theory that, the “Very” invention infringed the “Coston” patent. Such an action “sounds in tort” and of it this court has not jurisdiction.

Petition dismissed.  