
    KATE KEARNEY HENRY, ADMINISTRATRIX, v. THE UNITED STATES.
    [No. 13438.
    Decided May 25, 1903.]
    
      On the Proofs.
    
    An inventor brings his unpatented device to the attention of the Chief of Ordnance and requests that it be tested. The Chief orders the test made. Whether it was tested does not appear. Four years afterwards the inventor files his application for a patent. In the meanwhile the Government has been using the device under a license from another patentee. The primary question in the case is whether a contract can be implied.
    I.Something more than an infringement is necessary in a patent case to give this court jurisdiction — an implied contract.
    II.Where an officer takes private property for public use, conceding it to be private property, a contract will be implied; where he takes it claiming that it belongs to the Government, a contract will not be implied.
    III. Where the officers of the Ordnance Bureau manufacture sabots for cannon shot under a license from one patentee, a contract with another patentee can not be implied, though an action for infringement might be maintained by him against an individual or body corporate.
    IV. The law relating to the statute of limitations reviewed.
    
      The Reporters' statement of the case:
    The following are the facts of the case as found by the court:
    I. That the claimant is the widow of James L. Henry, deceased, who was a citizen of the United States, domiciled in the State of Maryland, who died on the 4th day of July, 1881, and that the said claimant is the legally appointed administratrix of the estate of the said J ames L. Henry, letters of administration on the said estate having been granted to her by the orphans’ court of Prince George County, in the State of Maryland, on the 16th day of August, 1881.
    II. That on the 8th day of January, 1857, the said James L. Henry filed in the Patent Office of the United States a caveat of a cannon shot or shell, invented by him, described as follows, to wit:
    
      “ I envelop the rear end of the cylindro-conical shot with a malleable band, of any proper metal, which is intended to fit snugly up to the shoulder (n a•) and be flush with or tit the bore; small holes (as at d d) may be cast in the shot, into which the band may be punched to receive it, or wedged.
    “The band might be shrunk on. Grooves or recesses (a e e) are cast in the shoulder part of the shot, three or more, opposite the grooves, as rifles in the bore, to allow the gas to enter freely to force that portion of the band immediately over them into the rifles.
    “To load this shot properly, the part of the band opposite these recesses should be partially raised (by driving a tool under it, or the like), so as to take the rifles, and insure the right position of the shot when rammed home.
    ‘ ‘ No further description is necessary; its operation is plain— the band may be shrunk on and left plain or wedged on. I claim surrounding the shot by a malleable metal band, fitted to it in any convenient manner (such as described being an example, in combination with the recesses opposite, or none, the grooves or rifles of the bore, as set forth. I claim forming a shoulder near the junction of the conical and cylindrical part of the shot, and turning off or leaving the part back of this of less diameter, on which the band is put. See model).
    “J. L. HeNüy.
    “Attest:
    “JOHN S. HoLLINGSHEAJ).
    “JOHNSON SlMONDS.”
    And that said caveat was accompanied with a model of said shot or shell.
    III. That at the time of filing said caveat in 1857, and up to 1861, the said Henry was an examiner in the Patent Office, and while so employed could not take out a patent.
    IV. September 1, 1859, the said claimant addressed to Oapt. D. N. Ingraham, Chief of the Bureau of Ordnance, the following letter:
    “ WASHINGTON, D. C., September Í, 1859.
    
    “Sib: After several years’experiment on a projectile for rifled cannon, I presented one to Captain Dahlgren a few days since. After examining it, he requested me to accept a few lines to the Department recommending ‘20 at Government expense,’ to be made at the yard.
    “I respectfully request that his note (herewith) maj^ receive your attention at your earliest convenience.
    “I have the honor to be, vours, very respectfully,
    “J. L. Henky.
    “Oapt. D. N. Ingraham,
    “ Chief of Bureun, <4e.”
    
    
      “WASHINGTON, September 1, 1859.
    
    “Dear Commodore: Mr. Henry has shown me a plan of shell for rifled cannon, which he tells me has been fired by an ordnance officer of the Ariny. The result seems to me such as Avould justify a trial here, and I would like to try about two of them, having them made for this Department.
    “I am, most trulj'. your obedient servant,
    “Jno. A. Dai-ilgren.”
    “Washington, D. C., September §3, 1859.
    
    “Dear Sir: Believing that your duties allow but little time to attend to mere requests, I beg a’ou to excuse the libertj^ I take in mentioning the shot this morning of which T recently spoke with you.
    “Very respectfully, your obedient servant,
    “ .1. L. Henry.
    .“Captain Ingraham.
    “ Chief of Ordnance Bureau, 11 S. ¿V."
    
    “Bureau oe Ordnance and Hydrography,
    
      uSeptember $3, 1859.
    
    “Sir: The commandant of the navy-yard, Washington, has been directed to have cast (upon your furnishing the model) such number of shot as will test the utility of jrour invention for naval purposes.
    “The cost is not to exceed $50.
    “ Respectfully, your obedient servant,
    “D. N. Ingraham,
    “ Chief of the Bureau.
    
    “James L. Henry, Esq..
    “ Washington* 7). C."
    
    Whether the shot so ordered were cast and tested, or whether the claimant furnished the model therefor, does not appear, nor does it appear what officer of the Army it was that claimant informed said Dahlgren had fired a shell for rifled cannon, or by what authority or for ivhat purpose said shell, if any, had been fired.
    V. That in 1861, the said Henry prepared an application for a patent for his invention of a projectile for rifled cannon, in which he described his said improvement specifically, which was signed and sworn to by him on the 11th day of July, 1861, but it does not appear that the said application was ever filed in the Patent Office..
    VI. In October, 1863, the said Henry filed an application for a patent for an improvement in subcaliber, projectiles for rifled cannon, the said application containing five claims. On December 13, 1864, letters patent of the United States, No. 45462, were granted to the said Henry upon the said application, but for three claims only, the other two claims having-been rejected for lack of novelty. The said letters patent arc made part of the petition herein marked Exhibit B.
    VII. That previous to the issue of said patent to the said Henry, to wit, August 20, 1861, a patent for a similar improvement in subcalibor projectiles had been granted to one Robert P. Parrott; that when the said Henry made application for a patent for his said improvement, a case of interference arose between the said Parrott and the said Henry; that thereupon such proceedings were had in the Patent Office of the United States, that on the 8th day of June, 1864, priority of invention was awarded to the said James L. Henry; that thereupon said Letters Patent No. 45462 were issued to the said James L. Henry, and that the caveat of said Henry was on file in the Patent Office when the patent to Parrott was granted.
    For more than two years prior to the application of said Henry for letters patent substantially .the same, if not the same, invention had been in use by the United States, the same having been manufactured by said Parrott, under a license from him therefor, on the order of the Ordnance Department under date of April 30, 1861, and had been tested and used, and their use was continued throughout the late civil Avar.
    VIII. Between the 13th day of December, 1864, and the 13th day of December, 1881, Avhen the patent expired, the United States purchased, manufactured, or used cannon shot on the heels of which were soft metallic rings or sabots for rifled guns as follows:
    Inches.
    32,710 projectiles, caliber. 3
    140 projectiles, caliber 3. 15
    1,636 projectiles, caliber. 3. 67
    15,000 projectiles, caliber 4.2
    15,000 projectiles, caliber. 4.5
    2,802 projectiles, caliber. 5.82
    230 projectiles, caliber 6 •
    2,565 projectiles, caliber 6.4
    3,650 projectiles, caliber 7
    6,386 projectiles, caliber 8
    
      Inches.
    50 projectiles, caliber. 9
    1.136 projectiles, caliber. 10
    90 projectiles, caliber. 11
    68 projectiles, caliber.'..:. 12
    80 projectiles, caliber. 12.25
    making a total of 81,543 projectiles manufactured, purchased, or used by the defendants, the aggregate weight of which was 3,582,068 pounds, but what number of such projectiles, if any, were manufactured or purchased prior to February 23, 1877, does not appear.
    Of the above number of projectiles the defendants in the years 1877 to 1881, inclusive, manufactured, purchased, and used with soft metal on their heels for the' purpose of expansion into the rifling grooves of the following types:
    1. 10 projectiles of the Amsterdam type, shown and described in United States Letters Patent No. 41668, February 23,1864, to John Amsterdam.
    2. 3,770 projectiles of the Butler type, shown arid described in Letters Patent No. 178595, June 13, 1876, to John G. Butler.
    3. 9 projectiles of the Eureka type, shown and described in Letters Patent No. 47078, March 28, 1865, to Clifford Arick.
    IX. Between December 13, 1864, and the close of 1876, the defendants manufactured, or purchased, projectiles of the types described in finding x, and also of other types, using-soft metel for the purpose of expansion into the rifling-grooves-, but it does not appear what number, if any, of the projectiles, so manufactured or purchased were used after February 23, 1877. The types of projectiles, in addition to those mentioned in finding x, were as follows:
    First. The Dana projectile, shown and described in Letters Patent No. 50692, October 21, 1865, to Edward A. Dana.
    Second. The Parrott projectile, shown and described in Letters Patent No. 33099, August 20, 1861, to Robert P. Parrott.
    Third.' The Sawyer projectile, shown in siege artillery in the campaigns against Richmond, by Gen. Henry L. Abbott, U. S. Army, printed by the Government Printing Office, Washington, D. C., in 1867.
    X. The projectile, shown and described in Letters Patent No. 33099, to Robert P. Parrott, was made at least as early as March 22, 1861.
    
      XI. The printed publication, Rifled Ordnance, second edition, published at London in 1857, contains the following-statement, accompanied by illustrations:
    "After repeated experiments (which occupied me some months), made for the purpose of obtaining a shell in which should be combined all the necessary qualifications in a manner adapted for practical use, I arrived at the form of shell shown in Plate I, figs. 2 and 8, which, in this instance, is three diameters long, but may be altered to any length, greater or less. Fig. 2 is a longitudinal section, and fig. 3 an external view. A is the bod}'- of the shell (of cast iron); B, an iron ferrule or ring, which is sufficiently loose to be moved up or down the body of the shell w'ith facility. C is a ring of lead cast on to the shell, and dovetailed on the bod3>- in two or three places. D is another ring of lead, or other suitable metal, also cast on to the body of the shell. The hinder part of the shell is formed in the manner shown in the engraving, with the view of throwing- the center of gravity as far forward as possible, as well as to allow of the use of a fuse. I had also other reasons for making it of this form, which would take up too much space to explain fully, as they are connected with a variety of experiments which I have ma.de.
    “The principal feature in this shell is the ferrule or iron ring, the purpose of which 1 will explain. In making experiments with shot more than 2 diameters in length I found a difficulty in procuring with them an expansion sufficiently even to cause their axis to coincide with the axis of the bore of the gun unless by adopting means unsuitable for practical purposes.
    •* * -X- # #
    ‘ • After many attempts I at length succeeded in effecting the above object by means of the ferrule B, -which acts in the following manner: Upon the explosion of the powder the lower ring D is caused to expand and fill the grooves, and at the same moment is driven, together with the iron ring B, in a forward direction. The latter, acting as a wedge upon the top ring C, causes it to expand sufficiently to fill the bore, thereby occasioning a simultaneous expansion at two points. The first effect, therefore, of the explosion of the powder upon the shot is to force its axis to coincide with the axis of the bore. It then drives it out in a perfectly straight direction. The freedom of expansion allowed to the powder by the formation of the hind part of the shell permits the first action to be accomplished before the whole body of the shell is sensibly moved from its place. Figs. 10 and 11, Plate II, represent the shell as it lies in the bore before and after the discharge.”
    
      XII. The state of the art in October, 1863, when Henry’s application for Letters Patent No. 45462 was filed, is further shown by the following patents, which are made a part of this record:
    British Letters Patent No. 87 of 1855, to F. Preston.
    French Letters Patent No. 49106, June 15,1861, to Bashley Britten.
    United States Letters Patent—
    No. 13679, October 16,1855, to A. Hotchkiss.
    No. 14315, February 26, 1856, to C. F. James.
    No. 1275, February 11, 1862, to C. F. James (reissue).
    No. 1599, October 28, 1856, to J. B. Read.
    No. 26016, November 8, 1859, to J. W. Cochran.
    No. 26017, November 8, 1859, to J. W. Cochran.
    No. 26904, January 24, 1860, to W. W. Hubbell.
    No. 29272, July 24, 1860, to B. B. Hotchkiss.
    No. 29995, September 11, 1860, to W. Rice.
    No. 32689, July 2, 1861, to J. Gault.
    No. 33099, August 20, 1861, to R. P. Parrott.
    No. 33100, August 20, 1861, to R. P. Parrott.
    No. 41668, February 23, 1864, to J. Amsterdam.
    XIII. The reasonable royalty for the use of subcaliber projectile is 1 cent per pound.
    
      Mr. John G. Fay for the claimant:
    1. The claimant contends that the United States, by their act in receiving from the claimant a consideration in money and their grant to him of the franchise for the exclusive manufacture of the article embraced in this suit, are estopped from setting up the want of novelty or patentability of the invention.
    It is not open to question that a grant is a contract. The Dartmouth College case (4 Wheaton, 656) long since settled that, and the long line of succeeding cases have placed grants, both by the United States and the States, within that clause of the Constitution that forbids the impairment of contracts^ (Mo Gee v. Mathis, 4 Wallace, 143; /Sinking' Fund cases, 99 U. S., 719). A grant in consideration of money paid by the grantee for the right to manufácture and vend a discovery is as mucli a contract as any other grant; in fact, it should be more so, because there is a sum of money paid to the United States in consideration therefor, and this exclusive right of manufacture and sale excludes as well the United States as any citizen thereof. (James v. Campbell, 104 U. S., 3§7.)
    That the assiguor of a patent when sued by his assignee is estopped from setting up the invalidity of the patent is well settled. (Time Tel. Go. x. ITeimler, 10 Fed. Rej>., 322; Gar-ran v. Bitrdsall, 20 Fed. Rep., 835; Gottfried v. Miller, 104 U. S., 521; Rumsey v. Bucle, 20 Fed. Rep., 697.)
    If the assignor may not evade his assignment, by what rule of law is the grantor permitted to ? Both have executed their solemn deed and both have received a stipulated compensation.
    (See also Walker on Patents, sec. 469; Oldham, v. Lany-mead, 3d Term Reports, 439; Thomas v. Quintard, 5 Duer, 80; Garvm' v. Jackson, 4 Peters, 1; Dundas v. Hitchcock, 12 Howard, 256; Gibson x. Lyon, 115 U. S., 439; Farrow x. Eclipse Bicycle Go., 16 D. C. Court of Appeals, 468.)
    The doctrine of estoppel is binding on the United States. (See The United States v. Barker, 12 Wheaton, 559; Brent x.The Bank of Washington, 10 Peters, 596; Smoot v. The United States, 15 Wallace, 37; Manufacturing Company x. The United States, 17 Wallace, 595.)
    
      The United States x. Bostwick, 94 U. S., 53 and 56; The United States x. Smith, 94 U. S., 214; Chicago, etc., Railway Company x. The United States, 104 U. S., 680; The United States x. Dantzler, 3 Wood, 719; The United States x. Beebe, 17 Fed. Rep., 40; The United States x. Ingate, 48 Fed. Rep., 251, all go to the effect that the United States has no special privileges. This court in the case of Palmer x. The United States, 19 C. Cls., R., 669, and same case, 20 C. Cls., R., 432, enforced the doctrine of estoppel against the United States.
    If, then, a patent is a grant and that grant is a contract, and the United States as a contractor is bound by all the rules «of law applicable to contracts between individuals, the doctrine of estoppel must apply.
    3. The claimant contends that the court has jurisdiction to entertain this suit upon either of three grounds: First, under an express contract; second, under the grant of jurisdiction in the Tucker Act, entitling a recovery to be had upon any right founded upon the Constitution, or third, the use of the device with the assent of the patentee under circumstances which would raise an implied promise to pajr a reasonable compensation.
    After the United States had entered into this contract by its patent not to manufacture this article or to use it, it seems to us to be perfectly clear that their use of it is a breach of contract. The authorities heretofore cited apply with equal force here.
    As to the second question, the claimant insists that this is a claim founded upon the Constitution of the United States. The Constitution provides that private property shall not be taken for public use without just compensation. We insist that if the claim made in the petition for compensation for the use of the patented invention is not founded upon the Constitution there can be no claim instituted in this court under that clause of its jurisdiction.
    There is nothing in this case that implies a tort. There is no claim that this was the wrongful appropriation of property in the sense of a tort.
    In the case of Shillinyer v. The United States (155 IT. S., 169) the court lays great stress upon the fact that the action was one sounding in tort; that the petition charged the wrongful appropriation of property by the Government against the' protest of the claimant, and the reporter, on page 165, in order to emphasize and illustrate the opinion of the court, prints in extenso the petition of the claimant, which bristles with allegations of wrongful and tortious acts. But even with these concessions by the claimant both Justice Harlan and Justice Shiras were unable to agree in the decision reached by the court in that case, and the claimant submits that upon a consideration of this case, freed from these allegations, the logic of Mr. Justice Harlan, in his dissenting opinion, is irresistible. In fact, this doctrine has received the indorsement of Justices Peckham, Brown, and Brewer ■ in the recent case of Lynah v. United States (188 U. S., 445), who, together with Justices Harlan and Shiras, would constitute a majority of that court.
    It seems to us that this doctrine is fully recognized in the case of The United States v. Great Falls Manufacturing Oo. (112 U. S., 645, 656); Call v. The United States (91 U. S,, 367); Ilolliday v. Benedict (113 U. S., 59); Great Falls Ma/nu-facturmg Oo. v. Attorney-General (24 U. S., 581).
    4. The use of the invention by the Government was not a tortious use by its officers.
    Henry was offering his invention to the United States. It was, in fact, an invention, as the court said in the case of James v. Oammel, which could only properly be used by the Government and the purpose of the inventor was to secure its adoption. His assent was pregnant in all proceedings.
    
      Mr. Charles O. Binney (with whom was Mr. Assistant Attorney-General Pradt) for the defendants.
   Peelle, J.,

delivered the opinion of the court:

This action is for the recovery of royalty under an implied contract for the use of an alleged improvement in subcaliber projectiles for which letters patent were granted to the claimant’s decedent December 13, 1864.

The action was originally prosecuted (as disclosed by the averments in the original petition filed February 23,1883), on the theory that the mere use by the United States of the improvement rendered them liable under that provision of the Constitution which prohibits the taking of private property for public use “ without just compensation.” That is to say, for the mere use of such property by the Government, whether authorized or not, a contract therebjr arose in law to make just compensation to the owner.

On January 25, 1886, an amended petition was filed, alleging, among other things, in substance, that the United States, with the assent of the claimant’s decedent, and subsequently With her assent as administratrix, had manufactured and used said improvement, by reason of which assent on their part “a contract was created between the parties by which the United States became liable to pay * * * a reasonable royalty for the use of said letters patent.”

The jurisdiction of this court, except under special acts, has never extended to cases arising in tort, and by the act of March 3, 1887 (24 Stat. L., 505), being the present jurisdictional act, cases “sounding in tort” are in terms excluded from our jurisdiction, and such has been the uniform holding of the Supreme Court and this court; so that, to entitle the claimant to recover in the present case it is incumbent upon her to show that the claim for which she seeks a recovery is one founded upon a contract, “express or implied, with the Government.”

But as the defendants raise the question of the statute of limitations, which is a bar in this court, whether pleaded or not, we will first consider that question; for, considering the validity of the patent and the creation of an implied contract to pay for the use thereof, there can be no recovery unless the same was used (during the life of the patent) within six years from the time of filing the original petition herein, as provided by Revised Statutes, section 1069, which, among other things, provides: “Every claim against the United States, cognizable by the Court of Claims, shall be forever barred unless the petition setting forth a statement thereof is filed in the court * * * as provided by law within six years after the claim first accrued * .*

In the case of Finn v. United States (123 U. S., 227, 232), where that section was under construction, the court, among other things, said: “As the United States are not liable to be sued, except with their consent, it was competent for Congress to limit their liability in that respect to specific causes of action brought within aprescribed period.” (Nichols v. United States, 7 Wall., 122, 126.) * * * “The duty of the court under such circumstances, whether limitation was pleaded or not, was to dismiss the petition, for the statute, in our opinion, makes it a condition or qualification of the right to a judgment against the United States that, except where the claimant labors under some one of the disabilities specified in the statute, the claim must be put in suit by the voluntary action of the claimant or be presented to the proper department for settlement within six years after suit could be commenced thereon against the Government * * *.” “ The general rule that limitation does not operate by its own force as a bar, but is a defense, and that the party making such a defense must plead the statute if he wishes the benefit of its provisions, has no application to suits in the Court of Claims against the United States: An individual may waive such a defense, either expressly or by failing to plead the statute, but the Government has not expressly or by implication conferred authority upon any of its officers to waive the limitation imposed by statute upon suits against the United States in the Court of Claims. Since the Government is not liable to be sued, as of right, by any claimant, and since it has assented to a judgment being- rendered against it only in certain classes of cases brought within a prescribed' period after the cause of action accrued, a judgment in the Court of Claims for the amount of the claim which the record or evidence shows to be barred by the statute would lie erroneous.”

The facts respecting the use of the patented device set forth in findings x and xi are substantially these: That between the 13th day of December, 1864, when the letters patent were issued, and the 13th day of December, 1881, when the patent expired, the United States purchased, manufactured, or used 81,543 connon shot or projectiles, on the heels of which were, soft metallic rings or sabots for rifle guns. But what number, if any, of such projectiles so manufactured or purchased were used after February 23, 1817, i. e., within six years from the date of filing said original petition, does riot appear.

In the orignal petition the claim is based on the use of the improvement by the Army and Navy, "while in the amended petition filed vJanuary 25, 1886, the claim is based on tiro manufacture and use. But if we should concede that the ■manufacture alone was the use for which royalties would become due, the facts found do not show what number, if any, of such projectiles were manufactured within six years prior to the filing of the petition, nor is it shown what number, if an3% of such projectiles were purchased or used during that period, and for that reason there can be no recovery.

In respect of an implied contract to pay for the use of a patented device, the current of judicial decisions is that where an officer of the Government takes and holds the possession of private property for public use, conceding it to be private property, an implied contract will arise therefrom to make compensation to the owner. On the other hand, whore such officer takes and holds the possession of such property under, a claim that it belongs to the Government, the United States can not be charged upon an implied contract to pay therefor. (Langford v. United States, 101 U. S., 341, 346; United States v. Palmer, 128 U. S., 262, 269; United States v. Berdan Fire Arms Co., 156 U. S., 552, and Sohillinger v. United States, 155 U. S., 163.)

The latest decision on the subject is that of the United States v. Lynah et al. (188 U. S., 445), wherein by reason of the construction by the Government across the bed of the Savannah River of certain dams and training walls, the natural flow of the river was hindred, thereby causing' its water to rise and overflow an adjacent rice plantation, rendering it unfit for cultivation.

The dams and training walls were conceded by the defendants to have been constructed by authority of the Government in the lawful improvement of the navigable river, and so the court in that respect said: “The action which was taken, resulting in the overflow and injuiy to these plaintiffs, is hot to be regarded as the personal act of the officers, but as the act of the Government.” In that case the numerous authorities on the subject are admirably collected, and what is decided in each case is clearly stated.

From the authorities referred to it will be seen that something more than a mere infringement is essential to give this court jurisdiction.

The question is, therefore, Did the Government use the patented device recognizing the claimant or her decedent as the rightful owner?

The facts and circumstances pertaining to the use, if any, of the invention of the claimant’s decedent are set-forth in finding vx, and are, in substance, that on September 1, 1859— prior to the application for a patent, but after the claimant’s decedent had filed his caveat in the Patent Office, where he was employed as an examiner — the claimant’s decedent addressed a communication to the Chief of the Bureau of Ordnance of the Navy Department, reciting in substance that after several years’ experiment on a projectile for rifled cannon he had presented one to Captain Dahlgren, who, after examining it, requested him to accept a few lines to the Department recommending that twenty of them be made at the navy-yard at Government expense. The few lines of Captain Dahlgren therewith inclosed of the same date recite that said Henry had shown to him a plan of shell for rifled cannon which he told him had been fired by an officer of the Army; that the result seemed to him to justify a trial, and he expressed the desire to- have two of them made for trial. Nothing, apparently, having been done with reference to it, said Henry, on September 23, 1859, again addressed a letter to Captain Ingraham, Chief of the Bureau of Ordnance, United States Navy, calling his attention to the shot of which he had spoken to him, in response to which Captain Ingraham informed him, under date of September 23, 1859, that the commandant of the navy-yard had been directed — upon his furnishing the model — to have such number of shots cast as would test the utility of his invention for naval purposes.

Whether the shot so ordered were cast and tested does not appear. All that took place between the claimant’s decedent and the ordnance officer respecting the test of his invention was nearly five years before the letters patent were issued to him. The use of the invention thereafter as the device of Parrott, for which he was granted letters patent, negatives, we think, any implied contract on the part of the Government to pay royalty to Henry for the use of his patented device.

What took place between the officers of the Government and Parrott in respect to the use of the invention which he claimed, can not avail the claimant in 'this action, nor can the court from the correspondence between her decedent and the Chief of the Bureau of Ordnance in September, 1859, respecting the manufacture and test of his invention, imply a contract to pay for the use thereof on the issuance of letters patent nearly five years later. “An inventor has no exclusive right before a patent has been issued.” (Kirk v. United States, 163 U. S., 49, 55, and authorities there cited.)

'On January 8, 1851, the claimant’s decedent filed a caveat in the Patent Office claiming to have invented a cannon shot or shell, which he described as set forth in finding hi, and it was doubtless the invention there described that he was seeking to have the Chief of the Bureau of Ordnance manufacture and test, while the patent granted to him, as shown by letters patent made a part of the petition herein, is quite different. But we will not dwell upon this branch of the case, for, conceding the device patented to be the same as the invention covered by the caveat, when the officers of the Government began the use of the Parrott device in August, 1861, no right of property therein was recognized in the claimant’s decedent. On the contrary, the Government had, before using the. device, acquired the right thereto through Parrott, the patentee, and to that extent, as against the claimant’s decedent, was claiming to be the owner. Hence we reach the conclusion from the facts and circumstances of this case that no implied contract arose to pay royalty for the use of the device for which letters patent were subsequently issued to said Henry.

For the reasons given the petition is dismissed.  