
    MARCONI WIRELESS TELEGRAPH CO. OF AMERICA v. SIMON.
    (Circuit Court of Appeals, Second Circuit.
    March 14, 1916.)
    No. 220.
    Appeal from the District Court of the United States for the Southern District of New York.
    John W. Griggs, Livingston Gifford, L. F. H. Betts, and James J. Cosgrove, all of New York City, for appellant. Walter H. Humphrey, of New York City, for appellee. Abraham M. Beitler, of Philadelphia, Pa., and C. V. Edwards, of New York City, amicus curiæ, for William Cramp & Sons Ship & Engine Bldg. Co. Frederick W. Winter, of Pittsburgh, Pa., amicus curiae, for National Electric Signaling Co.
    Before COXE, WARD, and ROGERS, Circuit Judges.
   PER CURIAM.

The decree of the District Court is affirmed, on the opinion of Judge Hough. 227 Fed. 906.

WARD, Circuit Judge

(dissenting). The Navy Department contracted with one Simon to construct radio apparatus for certain vessels of war. Thereupon the Marconi Company filed a hill against Simon, alleging that in so doing he was infringing its patent, and praying for an injunction and accounting. The complainant moved for a preliminary injunction, and the defendant moved that the bill be dismissed. The District Judge denied the motion for a preliminary injunction, and granted the motion to dismiss, on the ground that the act of June 25, 1910 (36 Stat. 851 [Comp. St. 1913, § 9465]), made the government a licensee of the complainant patentee, and that the defendant Simon, in making the patented apparatus for a licensee, was not an infringer. For the purposes of this appeal Simon’s apparatus, unless constructed under a license from the complainant, must be considered an infringement. A taking of property by eminent domain is an admission that the government is not the owner of the property taken and a promise to pay the owner is therefore implied. For such a taking by the government a patentee had previous to 1910 a right to recover in the Court of Claims (Rev. Stat. U. S. § 1059) and by the Tucker Act in the Circuit Court of the United States (Act March 3, 1887, c. 359, 24 Stat. 505). But the act of June 25, 1910, provided for an entirely different situation, viz. the government’s asserting its right to use the thing or process patented without the consent of the patentee. For this situation there had been no remedy for the patentee against the government. I think Congress did not intend to create the relation of licensor and licensee between the government and the patentee when the government claimed to be, acting within its rights, but merely to give the patentee what the title of the act correctly describes as additional protection, viz. a remedy in case of a tortious taking under a claim of right. That is the present case. Nor do I think that Congress intended to take away from patentees the right of suing independent contractors with the government. The case of officers of the government stands on a different ground because suing them is tantamount to suing the sovereign. Courts out of regard for public policy will no doubt refuse to interfere iq proper cases with government activities by enjoining independent contractors as a matter of discretion, just as the District Judge has done, but the bill should not be dismissed even if the injunction be denied. For these reasons I think that the decree, so far as it dismisses the bill, should be reversed.  