
    Samuel McKeever v. The United States.
    
      On the Proofs.
    
    
      An officer in the Army invents an improved cartridge-box. In one particular he has leen anticipated ly a prior inventor. Tie submits Ms box to the Ordnance Department; it is recommended by a military board and adopted by the Secretary of War. Thereupon the Ordnance Department proceeds to manufacture without purchasing the right, but with the knowledge amd assent of the patentee. Se brings his action to recover the implied license-fee. It appears that there is no established license-fee, but that two other parties have paid him twenty-five cents a box; which would be a reasonable royalty on an article of that cost if the patent covered it entirely ; but that in this case the box was in one particular covered by the prior patent. But it also appears that the claimant has produced about all the evidence on the question of damages that the nature of the case admits of, and the defendants none.
    
    I.The history of English patent law examined, and the fundamental distinction between it and American patent law stated.
    II.Neither the word “patent” nor the word “grant” is used in the Constitution. Thewordsused, “securing” “toinventorstheexclusiverighttotheir” “ discoveries,” do not imply that as to patented articles needed by the government the right shall not be exclusive.
    III.The government cannot make use of a patented invention without the license of the inventor or making him compensation therefor.
    IY. If a patented article was submitted by the inventor to the War Department and adopted by the Secretary of War, it will not bo presumed that a gratuitous license was intended by the one party or a tortious infringement by the other; and it will be held that the government manufactures under an implied license, and for a reasonable royalty.
    V. This court has jurisdiction of an action brought upon an implied license to manufacture a patented article, the manufacture by the government being with the patentee’s assent, and the damages sought a reasonable license-fée. Such a suit is an action upon an implied contract for the use of the invention.
    YI. When there is no established license-fee for the right to manufacture a patented article, and the claimant has produced all the evidence of it.s value that the nature of the case admits of, and the defendants have produced no evidence whatever, the court will compute the damages from suoli elements as (1) the manufacturer’s price of the article; (2) the percentage which ordinarily con stitutes a fair royalty; (3) the judgment of a competent exxiort familiar with the sale oi licenses for similar patented articles; (4) the price paid hy two individuals for licenses under this patent.
    VII. Where effect is given in this court to questionable evidencegby deducing from it a finding of facts, its sufficiency can he passed nponjby the Supreme Court; bui, where questionable evidence is excluded hy this court, the ruling cannot he reviewed in the court above.
    
      The Reporters’ statement of the case:
    The following are the facts as found by the court:
    I. On the 10th June, 1873, two patents were issued to the claimant, numbered respectively 139816, 139847, as the invention of an improvement in cartridge-boxes.
    II. On the 1st June, 1874, the Secretary of War, upon the recommendation of the Chief of Ordnance, convened a board of officers to consider, report upon, and recommend the proper equipment of infantry soldiers by the following order:
    “WAR DEPARTMENT,
    “ Ad.tutaNT-General’s Opeice,
    “ Washington, June 1,1874.
    “A board, to-consist of Lieut. Col. W. R. Shatter, Twenty-fourth Infantry; Lieut. Ool. A. McD. McCook, Tenth Infantry; Lieut. Col. Thomas 0. English, Second Infantry; Maj. Alexander Chambers, Fourth Infantry; Capt. M. H. Stacey, Twelfth Infantry, is appointed to meet at Fort Leavenworth, Kansas, on the 1st day of July, 1874, or as soon thereafter as practicable, to consider and report upon the subject of a proper equipment for the infantry soldier, and to recommend the adoption of an equipment best suited to troops serving as infantry, and in addition to determine on such material and supplies as may seem necessary for the efficient outfit of infantry troops in the field and garrison.
    “ The Chief of Ordnance is authorized to lay before the board all reports, patterns, &c., that may be essential to a proper understanding of the subjects submitted for its consideration, and the board is authorized to call on infantry officers for such further information as they may deem necessary. The board will make its report to the Chief of Ordnance.”
    III. Previous to this order, the claimant, on the 1st October, 1873, had addressed the following communication to the Chief of Ordnance and transmitted to Mm tlie cartridge-boxes therein referred to:
    “Mount Vernon Barracks,
    
      “Mount Vernon, Ala., October 1st, 1873.
    “ Major Stephen V. Benét,
    “ Orel. Dept. U. 8. Army :
    
    “Major: I have this-forwarded by Adams Express to your address two of my patent cartridge-boxes for presentation to the board. They are made for the new cartridge. You may find some slight imperfections in them, as they are the first made of this pattern, and was made in a great hurry. I was unable to attend to the maMng of them personally, having to leave the city of Mobile on account of yellow fever.
    “Please acknowledge receipt, and oblige,
    “Yours, truly,
    “SAM. McKEEVEB.
    “1st. Lieut., 2d Inf thy.”
    
    And the Chief of Ordnance had returned to the claimant the following reply:
    ' “ Ordnance Oeeice, Oct. 8,1873.
    “Lieut. S. McKeever, 2nd XJ. 8. Infantry,
    
    
      “Mount Vtrnon Barracks, Mount Vernon, Ala.:
    
    “Sir: The Chief of Ordnance instructs mo to acknowledge the receipt of your patent cartridge-boxes, for presentation to the next ordnance board, forwarded as per your letter of the 1st instant.
    “Itespectfully, your obedient servant,
    “S. V. BENÉT,
    “ Major of Ordnance.”
    
    On the 10th June, 1874, the Chief of Ordnance transmitted to the board of officers the foregoing letter of the claimant and one of the cartridge-boxes therein described by the following com- . munication:
    “Ordnance Oeeice, June 10,1874.
    “The President oe the
    “Board oe Infantry Equipments,
    
      u Fort Leavenworth, Ks.:
    
    “ Sir :
    
      41, jí, 4¿. 41. 4k 4k *}p «JF W TT *7f TV if-
    “I send also for consideration and expression of opinion the following letters from inventors & others on subjects coming within the province of the board. * * *
    “1104. Lieut. S. McKeever. — Cartridge-box.
    
      “I bave also caused to be .sent by express tbe following samples : * *
    “1104. Cartridge-box. — Lt. S. McKeever.
    * * ^ ^ # * *
    “Respectfully, your obed’t serv’t,
    “S. Y. BENÉT. ■
    
      “Acting Chief of Ordnance.”
    Subsequently tbe claimant requested that tbe other cartridge-box be likewise submitted to tbe board, wbieli was done by tbe Chief of Ordnance.
    IY. On tbe 24th November, 1874, tbe board on infantry equipments made a report to tbe Chief of Ordnance; so much of which as relates to or affects tbe claimant’s cartridge-box is in tbe following words:
    “ The board recommend for adoption tbe cartridge-box invented by Fust Lieut. Samuel McKeever, Second Infantry.
    “ It is made of leathei’, is 6§- inches long, 3£ inches wide, and 1£ inches thick. It is carried on tbe waist-belt by two loops, opens from tbe top, tbe outside half working on a binge formed by a brass rod running under tbe box and bolding it together. The cartridges are held in webbing loops, ten in each section of tbe box, and are readily extracted from tbe box, a bellows arrangement allowing tbe tops of tbe cartridges to incline forward when tbe box is open. It has been improved by tbe addition of a brass escutcheon, and by makingthe bellows of russet leather, which is stronger than the bind used by Lieutenant McKeever, and is not so liable to corrode tbe cartridges. This possesses all tbe merits of tbe thimble, or service, or Hazen’s belt, which has been highly recommended by many officers of tbe Army, with tbe additional advantages of protecting tbe cartridges from tbe danger of loss or exposure to dust or moisture.”
    This report was submitted to tbe General of tbe Army by tbe Secretary of War, who made an indorsement upon it; so much of which as relates to or affects tbe claimant’s cartridge-box is in tbe following words :
    “The braces, knapsack, haversack, and cartridge-box are all approved and recommended for adoption.
    “W. T. SHERMAN,
    “ General.”
    On tbe 4th January, 1875, tbe Secretary of War approved tbe report of tbe board on infantry equipments by tbe following „ order. (Tlie “ modification” mentioned in snob order referred to other things than the claimant’s cartridge-boxes:)
    “Chief of Ordnance:
    “The report of the board is approved, as suggested by the General of the Army, with the modifications recommended by him.
    “WM. W. BELKNAP,
    
      “Secretary of War.”
    
    
      Y. Immediately after the order of the Secretary of War, the Ordnance Department, without further communication with the claimant, proceeded to manufacture cartridge-boxes after the claimant’s design and covered by the specifications in his letters patent, at various arsenals of the government, as folloivs:
    
      
    
    VI. While the Ordnance Department was thus engaged in manufacturing cartridge-boxes after the claimant’s design, the following correspondence passed between the claimant and the Chief of Ordnance:
    “United States Barracks,
    
      “Mobile, Ala., February 23,1875.
    “General S. V. Benét,
    “ Chief of Ordnance:
    
    
      “ General : I have the honor to state that I have been indirectly informed that the late equipment board has recommended my cartridge-box for adoption in the Army, and that a number have been manufactured and distributed for trial. I would like to be informed if such is the fact, as it is a matter of interest to me. Will you please let me know at your earliest convenience ¶
    
    
      “I am, very respectfully, your ob’d’t serv’t,
    “ SAM’L McKEEVER,
    
      “1st Lieut, 2d Infantry.”
    
    
      “ORDNANCE OEEICE, WAR DEPARTMENT,
    
      “Washington, Febhy 26,1875.
    “Lieut. Sam’l McKeever,
    
      “2d U. S..Infantry, Mobile, Ala.:
    
    “ Sir : Answering your inquiry of 23d inst., I have to state that the board on infantry equipments recommended the adoption of tbe cartridge-box invented by you as per extract herewith accompanying; but owing to the meager appropriations made by Congress it is not likely the boxes will be made in any quantities for use in the held for some time to come. A supply sufficient for the corps of cadets at the Military Academy has been ordered to be made at the Watervliet Arsenal, and are now in process of manufacture.
    “Respectfully, your obedient servant,
    “S. V. BENET,
    ■ Brig. Gen., Chief of Ordnance.”
    
    “United States Barracks,
    “ Mobile, Alabama, March 5,1875.
    “Brig. Gen. S. V. Benét,
    “ Chief of Ordnance:
    
    “ General : I have the honor to acknowledge the receipt of your' communication of the 26th ult., for please accept my thanks. In reading the extract from the equipment board I was very much surprised to see the remark that I had made no provision for a screw-driver. If you will examine the box closely you will find that behind the upper row of cartridges there is a place left for a screw-driver. You can see it better by looking on the outside of box. I will send you a drawing of the screwdriver. It is made to suit the box. There are three different sizes to the screw-driver, and serves as a wrench in whatever way it is necessary to use it. If you were going to manufacture the box in large quantities, I think if I was present that I could give the workmen some ideas that would be of great advantage both as to saving time and material, as all the model boxes were made under my personal supervision.
    - “Please allow me to thank you for the courtesies you have, shown and extended to me on all occasions.
    “I am, very respectfully, your ob’d’t serv’t,
    “SAM’L McKEEYEE,
    •“ 1st Lieut., 2d Infa/ntry.”
    
    “ Ordnance Oeeioe, War Department,
    “ Washington, Alar eh 10, 1875.
    “ Lt. S. McKeever,
    “ 2nd Inf’y, Mobile Barracks, Mobile, Ala.:
    
    “ Sir: Answering your communication of 5thinst., I have to-síate that the absence of any provision for a screw-driver in the cartridge-box adopted by the board on infantry equipments was intentional. The description of the box in the extract sent you 26th. ulto. was of your box so modified, by the board.
    “Enclosed find extracts from, the journal of the board on the subject.
    “ Bespecfully, your obedient servant,
    “S. Y. BENET,
    
      “Brig. Gen., Chief of Ordnance.”
    [Extracts. ]
    “August 28,1874.
    * * * “A resolution was passed by the board requesting Col. P. Y. Hagner, comdg Watervliet Arsenal, to have constructed a McKeever cartridge-box, with the following modifications : To be lined with linen, loops to which the box is attached to the belt to be higher up (as marked), and a small exterior pocket properly secured to contain a screw-driver.” * * *
    
    “ Nov. 10, 1874.
    * * “ The board then proceeded, to vote that the following be recommended for adoption as the proper equipment for an infantry soldier:
    “III.* * * The cartridge-box invented by 1st Lt. Samuel McKeever, 2nd Infantry, as modified and improved by the board.” * * *
    “United States Barracks,
    
      “Mobile, Alabama, March 12,1875.
    “ Brig. Gen’l S. Y. Benet,
    “ Chief of Ordinance:
    
    “ General : I would most respectfully request that the act of Congress approved July 8, 1870, in regard to patents, be complied with in the manufacture and issue of my patent cartridge-box.
    “ The act referred to states that all articles made or vended under the protection of a patent must be marked by affixing thereto the word ‘ Patended,’ together with the day and year that the patent was granted. My patent bears date June 10th, 1873.
    “ I have the honor to be, vour most obed’t serv’t,
    "“ SAM’L McKEEYEB,
    “ 1st Lt., 2d Infantry.
    
    “ Please acknowledge receipt.”
    “ Ordnance Oeeice, War Department,
    
      “Washington, March 20,’75.
    “ Lieut. SAM’L McKeever,
    “ 2nd Infantry, U. S. Barradles, Mobile, Ala.:
    
    
      “ Sir : I have to acknowledge the receipt of your communication of the 12th inst., asking that when the cartridge-boxes recommended by the board on infantry equipments are made by this department the word ‘Patented,’together with the day and year of your patent, be affixed to the same.
    
      “ In reply, I have to state that the Department of Justice, on a similar application from another inventor, has heretofore decided adversely to the placing of the word ‘ Patented’ on certain manufactures of the Ordnance Department, and conceiving that your case comes within the same rule, the granting of your request must therefore be declined.
    “ Bespectfullv, your obedient servant,
    “S. Y. BENET,
    
      uBrig. Gen., OMef of Ordnance.”
    
    YII. The cartridge boxes manufactured by the defendants, as set forth in finding VI, are now used in the Army, to wit, by the cadets at West Point and by troops in garrison and in forts. Cartridge-boxes of the MeKeever pattern also continue to be the regulation box prescribed for use in the Army by the War Department. But no cartridge-boxes of any design are in fact used by that portion of the Army which is in field service on the plains, for the reason that the troops prefer and find more serviceable when in the field what are known as “ hunters’ belts.” A board of officers convened by the Secretary of War, by order of the 11th November, 1878, has recommended “that the Mc-Keever cartridge-box, patent 1874, be continued in use for service in garrison, and that a canvass belt with loops, of a pattern to be selected hereafter, be adopted for field service.” But the recommendation has not yet been acted upon by the War Department. What number of the boxes manufactured, as before stated, has been actually used, or what number is still retained in the defendants’ arsenals, has not been shown by either party.
    VIII. No agreement was made between the claimant and any of the defendants’ officers respecting a price to be paid to the claimant for a license to manufacture cartridge-boxes under his patent. The board on infantry equipments, which recommended the claimant’s invention for adoption in the Army, as set forth in Finding IV, acted in the belief, derived from their own impressions of the law, that the government would not be put to the additional expense of royalty for the use of an invention made by an officer of the Army. But that impression had no influence with them in regard to their decision in recommending the MeKeever box for úse; nor was this opinion or understanding mentioned in their report, nor is it shown that it was communicated to either the Secretary of War or the claimant.
    IX. The claimant has never manufactured for sale any articles containing Ms improvements, nor have such articles been manufactured under Ms patents, nor have licenses to manufacture been sold by him, except in the following instances:
    After the 18,813 cartridge-boxes had been manufactured by the defendants, as set forth in Finding V, two contracts were made for supplying the Marine Corps with similar cartridge-boxes.
    The first of these contracts was made in the latter part of 1877 or early in 1878, by and between Major Slack, quartermaster, commissary, and ordnance officer for the Marine Corps, and the firm of Walton Brothers, of New York. When entering into this agreement, Walton Brothers were ignorant of the fact that the McKeever improvement was patented; and the fact, if known to Major Slack, was not disclosed by him. Subsequently, and before performance, the claimant demanded a royalty, and Walton Brothers entered mto the agreement with him hereinafter set forth. Under this license they manufactured the boxes therein referred to, and paid the claimant the royalty of 25 cents per box therein named. The sum of 25 cents was considered a fair royalty by the firm for the right to manufacture such a box if covered by only one patent; but if covered by more than one, it would have been deemed more than a reasonable royalty for each patent right. In fulfilling their contract with the government Walton Brothers suffered a loss. The following is the agreement or license referred to:
    “ This agreement between Lieutenant Samuel McKeever, U. S. A., party of the first part, and the firm of Walton Brothers, of the city, county, and State of New York, party of the second part, witnesseth:
    
      u That whereas letters patent of the United States for improvements in cartridge-boxes were granted to the party of the first part, dated June 10, 1873; and whereas the party of the second part has manufactured or is desirous of manufacturing cartridge-boxes containing said patented improvements:
    “ Now, therefore, the parties have agreed as follows:
    
      “ I. The party of the first part hereby licenses and empowers the party of the second part to manufacture, subject to the conditions hereinafter named, at their factory in the city of Newark, State of New Jersey, and in no other place or places, 800 cartridge-boxes containing said patented improvements, exclusively for sale to the United States.
    “ ÍI, The party of the second part agrees to stamp on each and every cartridge-box manufactured by them, containing said pat-entecl improvements, the name of the patentee and date of patents, viz: ‘Sam’1 McKeever’s patent, Jan. 10, 1873,’ in plain, distinct, and permanent characters^ to be placed in a Conspicuous position.
    “ III. The party of the second part agrees to make full and triie returns to the party of the first oath, under oath, within ten days from the delivery to the United States of the whole or any portion of said lot of cartridge-boxes containing the patented improvements manufactured by said party of the second part, and in case any of said cartridge-boxes have been manufactured and delivered to the United States previous to the signing of this agreement,_then sworn returns of the same shall be made to the party of the first part within ten days from the date hereof.
    “ IV. The party of the second part agrees to pay to the party of the first part fifty cents as a license-fee upon each and every cartridge-box manufactured by said party of the second part containing the patented improvements: Provided, That if the said fee shall be paid within thirty days from the receipt by the party of the second part of payment for any portion of said lot of cartridge-boxes, and in case any cartridge-boxes containing said patented improvements may have been delivered to the United States and payment received for the same prior to the signing of this agreement, the said fee shall be paid within thirty days from the date hereof, then a discount of fifty per cent, shall be made from said fee for prompt payment.
    “ V. Upon a failure of the party of the second part to stamp the cartridge-boxes-, to make returns, or to make payment of license-fees as herein provided for ninety days after the delivery of any of said cartridge-boxes to the United States or the receipt of payment for the same, the party of the first part may ■ terminate this license by serving a written notice upon the party of the second part; but the party of the second part shall not thereby be discharged from any liability to the party of the first part for any license-fees due for cartridge-boxes manufactured at the time of the service of said notice.
    “ In witness whereof the parties above named have hereunto set their hands.
    “Signed at Washington, D. 0., J)ec. 27th, 1877.
    “ SAMUEL MoKEEVEE,
    “By PAINE & GEAFTON,
    
      “Attorneys in Fact.
    
    “WALTON BEOTHEES.
    “ New Yoeic, Jan’y 22, 1878.”
    The second contract was made in August, 1878, between Major Slack, before named, and one James H. Wilson,, of Philadelphia, for the manufacture of one thousand similar boxes of the McEIeever pattern, at $1.25 per box. The fact that the ■claimant’s improvement was patented was not disclosed to Wil•.son. Subsequently an agreement was entered into between him and the claimant, similar to that made with Walton Brothers. He paid the 25 cents royalty because it was demanded of him by the clamant as the price which he had fixed for licenses. Wilson made no inquiry as to what would be a reasonable royalty to be paid to the claimant; but regarded that fixed by the claimant as fair and reasonable, because it was 20 per cent, of the selling price of the article.
    It was shown on the trial, by testimony of an expert of large experience, who was a solicitor of patents, and had made a specialty of fire-arms, ammunition, and war-like appliances, and been employed largely by firms engaged in the manufacture of such articles, and was familiar with the business and acquainted with the royalties paid on such articles, that the sum of 25 cents was a fair royalty to be paid for this article as manufactured by the defendants; and the expert likewise based his judgment on the value of the article itself, though it was not shown that he knew what would be the exact and actual cost of manufacturing it.
    And the court further find that the cost of cartridge-boxes made after the claimant’s design, like those manufactured by the defendants, exclusive of a royalty, would be about $ 1.25 per box.
    And from the foregoing specific facts and circumstances, but without there being other evidence in the case, the court finds the ultimate fact that the sum of 25 cents per cartridge-box was a fair and reasonable royalty for the right to manufacture and use the 18,813 boxes manufactured by the defendants as aforesaid, the said sum of 25 cents nevertheless covering and including the z'ight to manufacture and use under all patents affecting the boxes so made, and not alone the claimant’s patents ; and the court further finds from the foregoing specific facts and circumstances, but without further evidence upon that point, that the sum of 20 cents per box was a fair and reasonable royalty to be paid to the claimant for the use of the improvements exclusively covered by his patent as embodied in the boxes manufactured as aforesaid by the defendants.
    X. The following are the specifications of the claimant’s patent No. 139,847, issued June 10, 1873, referred to in Finding I:
    
      “ Samuel McKeever, of United States Army, stationed at Mobile, Alabama. Improvement in cartridge-boxes.
    “Specifications forming part of Letters Patents No. 139,847, dated June 10, 1873 $ application filed June 2, 1873.
    
      uTo all tohom it may concern:
    
    “Be it known tliat I, Captain Samuel McKeever, of the United States Army, stationed at Mobile, in the county of Mo- > bile and State of Alabama, have invented a new and improved cartridge-box • and I do hereby declare the following to be a full, clear, and exact description of the same, reference being had to the accompanying drawing forming part of this specification, in which—
    “ Figure 1 is vertical section showing the box open. Fig. 2 is a front view.
    “ The invention relates to the construction of that class of cartridge-boxes which are made in two parts hinged together.
    “ The invention will first be fully described in-connection with all that is necessary to a full understanding thereof and then clearly pointed out in the claims.
    “In the drawing A A' represent the two parts of a cartridge-box, in which the cartridge-holders are attached thereto by leather or other flexible fabric. These two parts are connected by a pliable strip of leather, a, and provided with a pivot-rod, B, which is on the outside of this leather and about the middle thereof. These parts would turn on the leather hinge, but the latter would tend to bulge outward and work disadvantageously if the rod did not compel them to divide evenly over itself. On this rod the part A turns, and is made sufficiently higher than the one, A', to fold over it at the upper end and form a cover thereto. On one part, A', is a flap, C, which is slotted to fasten over a button, D, on the part A. By this improved construction I obtain a very strong and durable cartridge-box, and one which needs no slotting or lifting to enable it to swing open.
    “ Having thus described my invention, what I claim as new, and desire to secure by letters patent, is—
    “ 1. A cartridge-box formed of two parts hinged together, one made higher than the other, so as to fold over it at top and allow it to be latched in the manner described.
    “ 2. The flexible connection a combined with the rod or pivot B arranged across the middle thereof, as and for the purpose set forth.
    “ 3. The flap C and button D applied at the top of a two-part cartridge-box, as and for the purpose specified.
    “ SAMUEL McKEEVEB, .Oapt., United States Army.
    
    “ Witnesses:
    “B. B. Pierce.
    “James Gillette.”
    
      S. MCKEEVER.
    CARTRIDGE-BOXES.
    
      
    
    
      XI. The following are the specifications of the claimant’s patent No. 139,846, issued June 10,1873:
    “Samuel McKeever, of United States Army, stationed at Mobile, Alabama. Improvement in cartridge-boxes.
    “ Specification forming part of Letters Patent No. 139,846, dated June 10,1873,• application filed May 17, 1873.
    
      ilTo all whom it may concern:
    
    “Beit known that I, Samuel McKeever, of the United States Army, stationed at Mobile, in the county of Mobile and State of Alabama, have invented a new and useful improvement in cartridge-boxes; and I do hereby declare the following to be a full, clear, and exact description of the same, reference being had to the accompanying drawing forming part of this specification, in which—
    “Figure 1 is a vertical cross-section showing the box open. Fig. 2 is a perspective view of the box when closed.
    “This invention relates to the construction and arrangement of the parts which constitute a soldier’s cartridge-box.
    “It consists in making the box in two parts, that are pivoted together at the bottom so as to turn down and allow an important addition to the number of cartridges usually carried. It also consists in providing the movable part with a rigid cover, and in making slots where this part turns on the pivots of the other, so that it may be raised and lowered to bring the cover in place, and to admit of dispensing with the ordinary flap-cover. It also consists in a novel mode of securing the pockets to the inside of the box, so that the cartridges can be placed in a convenient position for rapid removal by the soldier.
    “In the drawing, B B' represent a cartridge-box made in two distinct and separate parts, connected by the slots b h on the one, and the broad-headed bolts or rivets b b on the other. These slots not only allow the part B' to turn upon the part B as a hinge-joint, but also allow the former to be lowered on the latter, so as to hold them fast together, or to be raised to admit of the former being turned on the pivot-bolts b b. Over the free end of the part B the leather is brought in a suitable curve, b, to form a cover, which will fasten over the part B, and effectually shield the cartridges from the weather.
    “By this construction I avoid the leather flap-cover, which is always in the way when the soldier is drawing out successive cartridges, and requires to be held up behind him by one hand when he is under inspection. By making the two parts independent, I also secure a convenient space for more than 50 per cent, additional cartridges, the usual number being twenty -four, while mine contains forty.
    “ 0 is a flexible strap, -which may be used to pass on the outside across the opening between the two parts, B B', at bottom, and to fasten on a button, O', for the purpose of holding the parts more compactly together. D D are the loops through which pass the usual strap-buckles about the soldier. BBEB are four rows of pockets placed one above another, closed at the bottom, and each of the rows, attached to the body of the cartridge-box by a pliable fabric, F.
    “By closing the pocket at the bottom I prevent the cartridge from slipping down until its flange rests on the upper end of a pocket, a position which renders it difficult to be Angered by the soldier when he wishes to remove it. By my mode of attaching the pockets the soldier, when about to begin the removal of cartridges, pulls a whole row laterally outward. This places the row in an oblique position, each cartridge leaning in a direction from the soldier’s body, and thus enabling him to take a direct hold with his fingers, and without any fumbling or unnecessary delay.
    
      u¥ ¥ are flat edges, that serve to support the upper row of cartridges in part B when the box is closed, and to prevent them from slipping out.
    “ Having thus described my invention, what I claim as new, and desire to secure by letters patent, is—
    “ 1. A cartridge-box made in two separate parts, connected by pivot-joints or hinges at the bottom, substantially as described.
    “2. A two-part cartridge-box, having a cover, ¥, and slotted at ¥ ¥ to slide as well as turn upon the pivot-bolts b b, as described, to allow the ordinary flap-cover to be dispensed with.
    “3. The pockets E, attached by a pliable fabric, F, to the body of cartridge-box, as set forth, to allow the cartridges to be turned with their heads outward and into an oblique position, where they may be conveniently seized by the soldier.
    “SAMUEL McKEEYEE.
    “Witnesses:
    “J. H. Wallace.
    “E. H. G BAND A.”
    
      S. WÍCKEEVER.
    
      
    
    
      XII. Tlie following are tbe specifications of certain prior inventors of improvements in cartridge-boxes to whom letters-patent were issued at the respective dates thereof:
    “William Freeborn, of Tivoli, N. Y. Letters Patent No.
    72,011, dated December 10, 1867. Improved cartridge-box.
    “ The schedule referred to in these letters patent and making-part of the same.
    “ To all whom it may concern:
    
    “ Be it known that I, William Freeborn, of Tivoli, Dutchess County, State of New York, have invented an improved cartridge-box 5 and I do hereby declare the follownig to be an exact description thereof, reference being had to the accompaying drawings and to the letters of reference marked thereon, making a part of this specification.
    “The nature of my invention consists in a square cartridge-box, made of leather or any suitable material, constructed with a series of round, fluted, orruffled holders, B (on the inside), made of any firm or flexible material, with one or more flaps in front, each flap having a series of holders, the flaps being buttoned to the sides of the box. After the cartridges have been taken out of the top rows the top flat is let down, so that easy access is had to the next row of cartridges below, and so with the next row as the second section or flap is turned down.
    “ The box is intended to carry metallic cartridges in the smallest space possible, free from any friction or rattling, and most convenient for the soldiers to carry and use.
    “A represents the square box, made of leather or any suitable material. B the round, fluted, or ruffled holders, made of any firm or flexible material, sewed or riveted on the inside of the box A, in which the metallic cartridges are placed. C 0 represent two flaps or falling sides, with a series of holders, B, on each flap. These flaps (one or more) are unbuttoned at their sides, and let down for the purpose of extracting cartridges from the lower rows of holders. D D are tongues attached to flaps C C, that button on to the buttons E E at the sides of the box A. F represents the ordinary falling cover of the box.
    “Figure 1 is a perspective view of this cartridge-box when open.
    “Figure 2 exhibits it closed.
    “What.I claim as my invention, and desire to secure by letters patent, is—
    “ The square box A, made of leather or any suitable material, when constructed with a series of round, fluted, or ruffled holders, B (on the inside), made of any firm or flexible material, a series of holders, B, being attached to each flap, C, in front, and the flaps buttoning- to the sides of the bos A, as herein described and for the purpose set forth.
    “WM. FBEEBQBN.
    “Witnesses:
    “ J. FRANKLIN BEIGART.
    “Edm. F. Brown.”
    “Josias B. King, of Washington, District of Columbia, assignor to William M. Tileston, of same place. Letters Patent No. 109,365, dated November 15,1870. Improvement in cartridge-boxes.
    “ The schedule referred to in these letters patent and making part of the same.
    
      uTo all whom it may concern:
    
    “ Be it known that I, Josias B. King, of the city and county of Washington, in the District of Columbia, have invented a new and improved cartridge-box; and I do hereby declare the following to be a full, clear, and exact description of the same,, reference being- had to the accompanying drawing making a part of this specification, in which—
    
      “ Figure 1 is a view in perspective of the box when closed;
    “ Figure 2 is a front elevation of the box when open; and
    “ Figure 3 a side elevation of the same when closed.
    “ This invention consists of a plate of leather, or other suitable material, made in one or more pieces, and provided with rows of loops for holding cartridges, the plate and loops being so arranged relatively to each other that the former may be folded together in such manner as to form a box that incloses and protects the cartridges, the rows of which lie in a compact body within the box when the same is thus formed.
    “ Deferring to the drawing—
    “A is the plate, the same being preferably formed of one piece, that may be cut of suitable size out of leather or other material.
    “ Parallel rows of loops a and 6 are secured to one side of the plate A, said rows being placed at a distance apart depending on the length of the cartridges to be used, and each row containing- as many loops as may be required.
    “A stiff strip of leather, c, is secured to the plate A between and parallel with the rows of loops, the function of said strip being to stiffen that part of the plate to which it is applied, in order that it may serve as a bottom to the box when the plate is folded up.
    “A third row of loops, d, is secured to the outside of the plate A, opposite the row 6, and the cartridges that are inserted in the row d point in the contrary direction to those in the row 6.
    “When the plate A is folded together the cartridges in the rows a and & are brought side by side, the points of one row being next to tbe heads of the other, both to attain compactness of packing and also to prevent concussion between the heads of the two rows, and the injuries or explosions that might result therefrom.
    “ The upper part of the plate A folds as a flap, /, over the cartridges of the row d.
    
    “A strip of leather, e, having a slit cut in it, is secured to the flap /, and when the plate is folded together the slit is passed over the stud h that projects from the part forming the bottom of the box, by which means the flap is fastened.
    “ Small flaps i are formed at the extremities of that part of the plate A which bears the rows of loops b and d, and when the plate is folded together the flaps i are turned in so as to cover the end cartridges of the row b.
    
    “ Studs n extend outward from the flaps i, and strips m, provided with slits and secured to the outside of the plate A at suitable points, are fastened over the studs n when the plate is folded together.
    “ The invention herein described is superior to the ordinary cartridge-box by reason of the substitution of loops for the tin boxes that hold the cartridges, and the consequent reduction in expense, weight, and size. It is, therefore, not only a better device for the soldier to carry upon his person, but also for transportation by the quantity in wagons or cars.
    “ The stiffening-strip c may be secured to the outside of the plate A, if preferred.
    The fastening-strips may be struck out of the same piece with the plate A, so as to avoid securing said strips and piale together.
    “ The expense of constructing this cartridge-box is still further lessened from that of the ordinary box by reason of the plate being struck out of one piece of leather, and its capacity for compact packing is increased by its capability of being laid out flat in the vehicle that transports it.
    “ The ordinary cartridge-box can be altered to this form at a small expense.
    “ Having thus described my invention,
    “What I claim as new, and desire to secure by letters patent, is—
    “ 1. The plate A, whether made in one or more pieces, and provided with rows of loops for holding cartridges, substantially as described.
    “ 2. The plate A, provided with rows a b of loops on one side and a row or rows, d, on the other side, so arranged as to fold compactly together and be covered by the plate, substantially as specified.
    “ JO SI AS E. KING.
    “ Witnesses:
    “Eobt. B. Patton.
    “Jno. White.”
    
      “Felix Chillingworth, of Springfield, Mass. Improvement in cartridge-boxes.
    “ Specification forming part of Letters Patent No. 91,419, dated June 15,1869; antedated June 7,1869.
    
      “To all whom, it may concern:
    
    
      “ Be it known that I, Felix Chillingwortb, of the city of Springfield, in the county of Hampden, in the State of Massachusetts, have invented a new and improved cartridge-box; and I do hereby declare that the following is a full and exact description thereof, reference being had to the accompanying drawings and to the letters of reference marked thereon.
    “ The nature of my invention consists in providing a cartridge-box with two compartments, so constructed as to give the inspecting officer a view of the lower compartment without moving the top; also to enable the soldier to use the cartridges from either.
    “To enable others skilled in the art to make and use my invention, I will proceed to describe its construction and operation.
    “I construct my cartridge-box with a hinge or joint at the bottom, as shown at A in the accompanying drawing, to which is attached the lower front of the box B, having the compartment 0 fastened to the inside of the same, and operated by the strap D, which is unbuttoned at knob E, drawn up at opening F, and buttoned to knob G- to open it. It is operated in reverse order to close and fasten it in place.
    • “ The top compartment H is formed by lining the top part of front I, crossing at J, to the back of box K, to which it is stitched or riveted.
    “ The wool L is sewed to that part of flap M which comes in contact with the cartridges, and is placed there to prevent them from falling out when the flap is unfastened. This lining also serves to prevent the cartridges from being exploded by any sudden concussion on the top of the box.
    “ The paper cases N NI make with raised bottoms, O, so as to elevate each alternate cartridge one above another by means of pieces O O put in the case, or by bending up the bottom P to produce the same effect.
    “I am aware that the pocket or body of a cartridge-box has been lined with sheepskin, but not the cover. I am also aware that the cartridges have been so arranged that those composing one row are elevated above those in the other series; but as these features form no part of my invention, I do not claim them.
    “ What I claim as my invention, and desire to secure by letters patent, is—
    “ 1. A cartridge-box having two compartments, C and H, one above another, the lower one of which is hinged at A, and operated by means of the strap D, all constructed and operating substantially as herein described and set forth.
    “ 2. A cartridge-box containing the compartments C H, the lower being hinged at A, the strap D, buttons E G, flap-lining L, and openings F Q, all constructed and arranged substantially as herein set forth.
    “FELIX CHILLIXGWOET.il.
    “Witnesses:
    “A. G. Bennett.
    “J. G. Flagg-.”
    
      Mr. B. F. Grafton for the claimant:
    The caséis one of implied contract, and the action is sustained by the decision of the Court of Claims in Burns’ Oase (4 C. 01s. E., 113), as well as by that of the Supreme Court in Burns’ Oase (12 Wall., 246), and it encounters no opposition in the opinion of the Court of Claims in Pitcher’s Oase (1 C. 01s. E., 7).
    Even if this were merely a case of the talcing of private property for public use, and not, as it in fact is, a case of implied contract resting on the use of private property, with the authority of the owner, the action would be sustained, as we have seen, by the opinion of the Supreme Court in Burns’ Case, and would encounter no opposition in the opinion of the Court of Claims either in Burns’ Case or in Pitcher’s.
    In Straughan’s Oase (1 C. Cls. E., 324), the court held that “A government is never guilty of a tort. Between a government and its own citizens, acts tortious between individuals are deemed to be founded on an implied contract or a public necessity, and not on a malicious motive.”
    McKeever’s invention was not used without his consent. It was used with his consent. There is no tort in the case. It is not a case of a waiver of tort and implied contract, but it is, from first to last, an implied contract, and nothing else.
    
      Mr. John 8. Blair (with whom was the Assistant Attorney-General) for the defendants:
    1. The letters patent do not exclude the United States by their officers, agents, or employés from the manufacture and use of plaintiff’s invention.
    2. If this position is not correct and the officers of the United States have infringed his rights, his remedies are exclusively against said officers and not in the Court of Claims.
    3. There could be no waiver of the. tort so as to give the court jurisdiction, and the law will not raise an implied contract that would transfer to the court jurisdiction placed elsewhere by-statute.
    4. The conduct of the parties implies not a contract but a gratuitous license from plaintiff.
    5. If we concede that there is an implied contract to pay-plaintiff what his invention has been reasonably worth to the United States and that the court has jurisdiction, the evidence shows that the invention has hot been useful to the United States in any degree. *
    
    Besides being the judgment of the final court of Great Britain,, it is eminently worthy of notice that this limitation on the rights; of xiatentees has, without a dissenting voice, been sanctioned twice by the Queen’s Bench (an interval qf ten years having ■ elapsed between its decisions), once by the Court of Appeals, and finally by the House of Lords. The Lord Chancellor, Lords Hatherly, Penzance, O’Hagan, and Selborne, Chief-Baron Kelley, Judges James, Hellish, Grove, Heller, Lush, Archibald,, Crompton, Blackburn, and Shee have without hesitation or* question announced their adhesion to the doctrine enunciated, by Ooclcburn, Oh. J., in 1865.
   Pott, J.,

delivered the opinion of the court:

This is an action brought by a patentee to recover his royalty upon certain cartridge-boxes covered by his letters patent, which were manufactured by the defendants’ Ordnance Department., under an implied license from the jiatentee.

The learned counsel for the defendants resists a recovery upon the ground that letters x>atent do not exclude the government from the free use of a patented invention. He cites, to sustain the proposition, the English cases of Feather v. The Queen (6 B. & S., Q. B., 237) and Dixon v. The London Small Arms Company (10 Law Rep., Q; B., 130, 1874 —’75; 1 Law Rep., Q. B. Div., 384, 1875-’76; 1 Law Pep. ax>peal cases, 632., 1875-’76), and it may be conceded that such is the law of England. The resulting question is wdiether that is likewise the law of this country.

Invention in the useful arts seems to have been i>eculiarly a product of the Anglo-Saxon mind. But the common law, which, dealt with things tangible and material, did not recognize prop-erty in the mind-work of the inventor, and no English statute attached the legal quality of a right to an invention or created .ia remedy for the protection of the inventor. If the court of 'chancery had existed with anything like its modern jurisdiction, it is probable that inventors would have gone there for xelief, and that their devices would have been protected upon the same principle that courts of equity have since maintained a person’s right to his trade-mark; but there being neither a xemedy at law nor relief in equity, inventors naturally sought the only approximation to redress that was within their reach, viz, the protection afforded by a royal patent. The first known instance of this, according to Ooryton (Ooryton Patents, p. 4, note), was the case in the reign of Edward III, where a patent was issued for the invention of the pliilosoiiher’s stone, which is cited by Sir F. Moore in his report of the Case of Monopolies (Moore, 675). The invention we now regard as a superstition, 'but the application was referred by the King to a commission, which reported favorably upon it, and the patent issued apparently upon what we now regard as sound doctrine, that the invention ivas ncw and useful. The right to create general monopolies by means of royal patents was universally regarded during the Middle Ages as an attribute of sovereignty, and thus inventions came to be first mingled and ultimately classed with monopolies.

During’ the reign of Elizabeth it was the policy of the Crown to raise as little revenue as possible by direct taxation, and as much as possible by the sale of monopolies. In the forty-fourth year of her reign, the burdens borne by the nation through this method of indirect taxation had become so intolerable that they produced an outbreak in Parliament; and the extraordinary extent to which the system had been carried is nowhere so well stated as in the report of the debate on the bill entitled “An act for the explanation of the common law in certain eases of letters patents,” moved b3 Mr. Lawrence Hyde on the 20th November, 1601, a debate in which both Sir Walter Raleigh and “Mr. Francis Bacon” participated.

Sir Robert Wroth said: “There have been divers patents .granted since the last Parliament; these are now in being, viz: the patents for currants, iron, powder, cards, ox shin-bones, train -oyl, transportation of leather, lists of cloth, ashes, anise-seed, vinegar, sea-coals, steel, aquavitse, brushes, pots, salt-peter, lead, accidences, oyl calumet stone, oyl of blubber, fumathos or dried piltchers in tbe smoak, and divers others.” * * * u Upon tbe reading of tbe patents aforesaid, Mr. Hackwell, of Lincoln’s Inn, stood up and asked thus: Ms not bread there?’ ‘Bread,’ quoth one. ‘Bread,’quoth another. ‘ This voice seems strange,’ quoth another. ‘ This voice seems strange,’ quoth a third. ‘ No,’ quoth Mr. Hackwell, ‘if order be not taken for these, bread will be there before the next Parliament.’ ” And Sir Edward Hobbie “informed the House of the great abuse of the patentee for salt in his country”; that “where salt (before the patent) was wont to be sold for sixteen pence a bushel, it is now sold for fourteen or fifteen shillings a bushel.” And Mr. Spicer Burgess, of Warwick, most accurately defined a monojmly to be a restraint of anything public in a city or commonwealth to a private use.” (Sir Simonds D’Ewes’ Journals of Parliament.)

On a subsequent day, the Queen being pleased, in the language of the speaker of the house of commons, “to lay the axe of her princely justice at the root of the tree,” signified, through him, to Parliament that some of the obnoxious patents “ should be presently repealed, some suspended, and none put in execution but such as should first have trial according to the law for the good of the people.” And in consequence of this assurance the bill “for the explanation of the common law in certain cases of letters patents” was laid aside.

But in the following year, 1002, there came before Chief Justice Popham and all the judges what has ever since been known as the great Case of Monopolies, D’Arcy v. Allen (Moore, 671; Noy, 179; 11 Co., 86), in which the distinction is clearly taken between patents “where any man by his own charge and industry or by his own wit and invention doth bring any new trade into the realm, or any engine tending to the furtherance of a trade that never was used before,” and patents to create a monopoty of things public and restrain them to a private use. And in 1623 (the abuse of patents having been revived) there was enacted the Act concerning Monopolies (21 Jac., I, cap. 3).

This celebrated statute continued to define the law of England concerning patent rights for inventions when the decisions in Feather v. The Queen and Dixon v. The London Small Arms Compcmy (supra) were rendered. It prohibits almost every conceivable form of monopoly, but declares two notable exceptions: 1st, that its restrictions “shall not extend to any letters patent or grants of privilege heretofore made or hereafter to be made of, for, or concerning printing ”; which I take to be the statutory germ of our modern law of copyright; 2d, by providing that its restrictions (§§ 5, C) “shall not extend to any letters patent and grants of privilege of the sole working or making of any manner of new manufactures within this realm to the true and first inventor and inventors.” But it neither recognizes an invention as property nor declares the right of a true and first inventor to acquire a patent. In a word, it left the law concerning inventions substantially as it was declared to be by the decision in the Case of Monopolies, neither adding anything to the rights of the inventor nor taking away his existing privilege of receiving a grant or patent from the Crown. Therefore it is as historically clear as it is authoritatively settled by the decisions of the English courts that a patent in England was nothing more than • a grant dependent in contemplation of law upon royal favor, and subject to the general implication of all grants wherein the contrary was not expressed, that they shall not exclude a user by the Grown.

In this country, on-the contrary, our organic law recognizes in the clearest terms that mind-workwhichwe term inventions. What immediate reasons operated upon the framers of the Constitution seem to be unknown, but it is plain that they had a (dear apprehension of the English law, on the one hand, and a just conception, on the other, of what one of the commentators on the Constitution has termed “a natural right to the fruits of mental labor.” Instead of placing our patent system upon the English foundation of executive favor and conferring that prerogative of the Crown upon the President, they transferred all authority to the legislative department of the government (the department which regulates rights), by placing it among the specially enumerated powers of Congress.

It is a noticeable fact, which, however, seems to have received very little attention, that neither the word “patent” nor the word “grant” is used in the Constitution. (Art. 1, § 8.) The words which it docs employ, moreover, are unmistakably clear in the intent of its recognition. The language of the English law is, in substance, that the Crown may grant or confer upon the inventor a patent, subject to the conditions and limitations which attach by implication to grants from the Crown. The language of the Constitution, on the contrary, confers upon Congress the power of “ securing ” “ to inventors the exclusive right to their” “discoveries.” Congress are not empowered to grant to inventors a favor, but to secure to them a right. And the term “to secure a right” by no possible implication carries with it the opposite power of destining the right in whole or in part by appropriating it to the purposes of government without complying with that other condition of the Constitution, the making of “just compensation.” Neither does the term “ the exclusive right” admit of an implication that with regard to such patentable articles as the government may need the right shall not be exclusive. The transfer of the power from the executive to the legislature; the abandonment of the terms “grant” and “'patent”; the substitution of the words “secure,” “right,” and “ exclusive ”; the absence of an express reservation which at common law attaches to favors of the Crown or is inferable from the terms “grant” and “patent,” are facts which combine to demonstrate that the framers of the Constitution designed to place the work of the inventor among legal rights, which, when properly “secured” in a manner to be provided by law, should become property in the eye of the law and be respected as such by the government as by the citizen.

Pursuant to the plain intent of the Constitution, Congress have never sought to attach such a condition to the issuing of a patent; private acts have been passed remitting claims for the use of patented inventions to this court for adjudication; statutes have been enacted prohibiting or regulating the use of patented articles in the government service (12 Stat. L., 91,104, § 3; Rev. Stat., § 1537); appropriations have been made to pay inventors the royalty justly due for their property thus taken for public use; the executive departments have freely resorted to patented articles for the purposes of the government, and have made them the subject of express contracts. The course of the legislature and the practice of the executive alike forbid the assumption that this government has ever sought to appropriate the property of the inventor, or that it has ever asserted an inherent right to do so analogous to that reserved in Great Britain by the Crown.

The decisions of the judiciary, so far as they have gone, also seem to be in harmony with the action of the other departments of the government.

In McClurg v. Kingsland (1 How., 202), the Supreme Court held that the repeal of a patent law could liave “no effect to impair the right of property then existing in a patentee,” and that “a patent must, therefore, stand as if the acts [repealed] remained in force.” In Burns’ Case (12 Wall., 246) it was held that the inventor’s license to the government to use his patented invention was a valid consideration to support an action . on an express contract for the royalty. > In Cammeyer v. Newton (94 U. S., 225), in delivering the opinion of the court, Mr. justice Clifford says, “ The rule of law is well settled that an invention so secured is property in the holder of the patent; and that as such the right of the holder is as much entitled to protection as any other property, during the term for which the franchise or the exclusive right or privilege is granted.” And alluding to the previous decision in Burns’ Case, he adds (p. 234): “Agents of the public have no more right to take such private property than other individuals under that provision [Patent Act 1870, 16 Stat. L., 198, § 22], as it contains no exception warranting any such invasion of the private rights of individuals. Conclusive support to that proposition is found in a recent decision of this court, in which it is held that the government cannot after the patent is issued make use of the improvement any more than a private individual, without license of the inventor or making him compensation.”

The counsel for the defendants also insists that the action of the government in resorting to the claimant’s invention was either a tort or a user under a gratuitous license from him. We are unable to adopt either of these extreme views. When a vendible article, such as ordinarily is the subject of bargain and sale, is offered by a producer to a consumer, though with no price specified, and is accepted and used by the latter, it is not to be supposed, on the one hand, that the offer was intended as a gift inter vivos, nor implied, on the other, that the taking was with a tortious intent. In this case the Secretary of War had convened one of those military boards for the selection of arms and ordnance before which inventors and manufacturers are accustomed to appear and present their devices or manufactures with a view to an ultimate sale. The claimant transmitted to the proper and responsible officer of the defendants, their Chief of Ordnance, two specimens of his invention, accompanied by a letter, in which he expressly described them as his “patentcai-tridge-boxes.” Tlie Chief of Ordnance acknowledged: tbeir receipt, using the same term, “your patent cartridge-boxes.” He then transmitted the boxes and the letter to the board, likewise designating the claimant as the inventor.” The board recommended for adoption “ the cartridge-box invented ” by the claimant. The Secretay of War, with the advice of the General of the Army, approved the report of the board; and the Ordnance Department immediately, and without further communication with the claimant, proceeded to manufacture cartridg’eboxes after his design. When the matter indirectly came to.his hearing, the claimant wrote to' the Chief of Ordnance for information, saying that it was a matter of interest to him-.. The Chief of Ordnance replied in the affirmative, adding “but,, owing to the meager appropriations made by Congress, it is not likely that the boxes will be made in any quanties for use in the held for some time to come.” The claimant replied, expressing his thanks, and tlie manufacture continued. If the Quartermaster-General had appointed a board to select a wood-lot for the fuel of the army, and a farmer had written to him recommending his wood, and the board had reported in favor of itf and the Quartermaster Department had proceeded to cut and use the wood, can it be supposed that this would be deemed a tortious taking on the part of the Quartermaster-General or a-gratuitous license on the part of the farmer? Yet this is a mere paraphrase of the facts in this case. The claimant had gone to the expense of turning his invention into property; it Avas an article salable almost exclusively to the gwernment; his offer imported a desire to sell to almost the only purchaser of such, articles; the defendants’ officers considered and acted upon his offer, and adopted and used Ms design. If they proceeded and he allowed them to proceed without the formality of an express license or the precaution of an express consideration, the omission did not change the character of the transaction, for the law supplies by implication a price in giviug what the license was reasonably worth.

The counsel for the defendants has also argued that this court is without jurisdiction of an action upon a patent right except, in the limited class of cases where jurisdiction may be entertained by State courts, because the law has placed the jurisdietion elsewhere.

The answer to this proposition seems to be that an exclusive jurisdiction of all cases against tbe government upon contract, express or implied, lias been given to tbis court, and that a claimant is absolutely without redress in the circuit courts. It is true that in Nicoll & Co.’s Case (7 Wall., 122) the Supreme ■Court held that this court was without jurisdiction, because a remedy given by statute against collectors of customs in the circuit courts was exclusive; but that decision went upon the ground that the law had established an exclusive system for the refund of taxes and had given the claimant a remedy which he might have pursued. So in the case of Be Bode v. Regina (3 Clarke, H. L. Cases, 468) the House of Lords held that the action would not lie against the Crown under a petition of right to recover a certain fund, because the act of Parliament which created the fund meant to provide for the application of the whole fund and leave no part to be dealt with except under its enactments. Any claimant, therefore, upon the fund,” the court says, “ must proceed according to the provisions of the statute, and has no other remedy.” So, too, of the abandoned and captured property cases, the Supreme Court has held that the statutory right being expressly coupled with a specific remedy of which the claimant might have availed himself, the remedy was exclusive. (Haycraft’s Case, 22 Wall., 81.)

But all of these decisions go upon the express ground that the party has a remedy elsewhere. In the present case the claimant has confessedly no remedy in the circuit court against the government, and is without a remedy to recover for his property taken for public use, unless the act creating this court gives him one. That act was passed long after the establishment of the patent system; it' is comprehensive in terms; it makes no exception either as regards the kind of property which maybe the subject of an implied contract or as regards the jurisdiction of other courts over suits between ordinary litigants. Where, as in this case, there is clearly an implied contract between the government and the citizen, and the suit is brought entirely upon that agreement, and the claimant is without judicial redress elsewhere, we perceive no reason why we should en-graft an exception upon the statute which Congress have not placed there.

Concluding that the claimant is entitled to recover upon an implied contract for the use of his invention, we now come to the question of damages.

The rule which the court adopts as the measure of these damages is the fair and reasonable valué of a license to manufacture and use under the claimant’s patent, being such a royalty as it may reasonably be presumed the defendants would have been willing to pay and the claimant to accept if the matter at the outset had gone to an express agreement. But while the rule is simple, and one with which no person would probably quarrel, the elements by which we are to estimate these damages are, from the necessities of the case, so meager as to have caused the court considerable embarrassment, and to have occasioned doubts in the minds of some of its members whether the damages can be anything more than nominal. And as to nominal damages, it may be noted the Supreme Court has held that they cannot be recovered against the government in this court. (Grant’s Case, 7 Wall., 331.)

The elements from which the court must estimate damages in this case are simply these: It appears (1) that the manufacturer’s price of the article, apart from royalty, is about $1.25 per box; (2) that 20 per cent, of the manufacturer’s selling price is ordinarily considered by manufacturers and patentees a fair royalty where the patent substantially covers the article sold, but not where it is in part made under two patents and embodies the improvements of two inventors, to each of whom a royalty will be properly due: (3) that in this case the box manufactured by the defendauts was not made exclusively under the claimant’s patent, but involved the right of another inventor, inasmuch as one of the claimant’s improvements was itself an improvement (for reasons hereafter stated) of the improvement of another patentee; (4) that in the judgment of a competent expert, familiar with inventions of this nature and well acquainted with prices paid by manufacturers for licenses, 25 cents a box ivas a fair and reasonable royalty for the right to manufacture and use the article in question, it being assumed, however, by him that the claimant’s patent covered the article exclusively, and that the manufacture did not involve an obligation to another inventor ; (5) that the claimant has not manufactured under his patent, and has sold licenses in but two instances, and then to a very limited extent, and amid circumstances which did not ipso facto raise a presumption that the price charged for the license would be its ordinary market value; (6) that in one of these instances the Arm of Walton Brothers, of New York, being iii ignorance of the claimant’s patent, entered into a contract to supply tlie Marine Corps with 800 cartridge-boxes similar to those manufactured at the defendants’ arsenals, and subsequently, but before delivery, on being informed of the claimant’s patent, paid him the royalty, which he then fixed, of 25 cents a box ; that the firm would have made no profit on the article manufactured by them, and that they deemed the price charged to be a fair royalty for the right to manufacture and sell a patented article of that value, but were ignorant of the fact that the cartridge-box involved the improvement of another patentee; (7) that a similar contract was made with James H. Wilson, of Philadelphia, to supply the Marine Corps with 1,000 cartridge-boxes, he likewise being ignorant of the existence of the claimant’s patent, and likewise paying the same royalty, and in the same belief and for the same reasons.

It is apparent here that the claimant has produced about all the evidence that the nature of his case admits of; and it is to be noted that the defendants have produced no evidence' whatever to controvert it. The claimant perhaps might have produced experts to estimate the value of the other inventor’s original improvement, but the manufactured article has been before us, and it is manifest that the testimony of such witnesses would have been entirely conjectural, and would amount to nothing more than substituting their judgment, from an inspection of the article, for that of the court.

The rate of damages in patent cases may now be said to be generally (1) that the plaintiff may recover in equity the profits which the infringer has made from the use of the invention, or (2) that he may recover at law the profits which he, the plaintiff, has lost by reason of the defendant’s infringement; and that these profits lost, where it can properly be done, will be regarded as simply the fee which would have been charged if the infringer had procured a licence. But in cases where the plaintiff has evinced an intention to exercise an exclusive user of his invention, and in cases where the sales of licenses have been too few to establish a criterion of their actual or market value, courts have sought for other elements or evidences to determine the profits lost. In Suffolk Company v. Hayden (3 Wall., 15) Mr. Justice Nelson said: “ The question of damages under the rule given in the statute is always attended with difficulty and embarrassment both to the court and jury. There being no establisbecl patent or license fee in the case, in order to get at a fair measure of damages, or even an approximation to it, general evidence must necessarily be resorted to. And what evidence could be more appropriate and pertinent than that of the utility and advantage of the invention over the old modes or devices that had been used for working out similar results % With a knowledge of these benefits to the persons who have used the invention and the extent of the use by the infringer, a jury will be in possession of material and controlling facts that may enable them in the exercise of a sound judgment to ascertain the damages, or, in other words, the loss to the patentee or owner, by the piracy instead of the purchase of the use of the invention.” In Cowing v. Rumsey (8 Blatch., 36) Mr. Justice Woodruff said: “ The patentee may sue at law for damages which he has sustained; and those damages he is entitled to recover, whether the defendant has made any profits or not. In such an action it is precisely what is lost to the plaintiff, and not what the defendant has gained, which is the legal measure of the damages to be awarded. Under this rule it may often be entirely proper to prove the profits of the ordinary use of the invention and demand existing in the market, evidenced by sales made, and so, as an element of consideration, show the profits realized by the defendant, in order to furnish to the jury all proper materials for determining how much the plaintiff has lost.” And in Philp v. Nock (17 Wall., 450) Mr. Justice Swayne said, Where the plaintiff has sought his profit in the form of royalty, paid by his licensees, and there are no peculiar circumstances in the case, the amount to be recovered will be regulated by that standard. If that test cannot be applied, he will be entitled to an amount which will compensate him for the injury to which he has been subjected by the piracy.”

It is true that the established price of a license, or the profits lost by the patentee as a manufacturer, are the ordinary criteria for determining his damages in a suit at law; yet, nevertheless, where he has clearly suffered a material loss by the defendants’ use of his invention, and has produced all the evidence which the nature of his case admits of to establish the amount, there has never yet been a case in which his recovery has been restricted to nominal damages. Moreover, if such were the law, it is manifest that an ordinary infringer would occupy a defensive position as strong as that which the government holds in this case. If the firm of Walton Brothers had refused to pay to the claimant his royalty, they might now be saying to another tribunal, “ The patentee cannot recover our profits, for we made none. He cannot recover a license-fee, for he has not established the value of Ms licenses. He cannot recover his own profits as a manufacturer, for he does not manufacture nor seek to manufacture the patented article. He is without legal redress, and we are free to pirate his invention in the same manner, and forestall Mm in the market, until we render his patent practically worthless.” It is not to be supposed that those decisions which hold a patentee to proof of his actual damages were ever intended to be pushed to this extreme result.

Furthermore, if this court now admits this questionable evidence, and gives effect to it after it is admitted, by deducing from it such facts as a jury might deduce, the sufficiency of the evidence to sustain the finding may be made a matter of review in the Supreme Court on a proper statement of the facts. (Pugh’s Case, 99 U. S., 265.) But if this court, with this evidence before it, should refuse to find the damages, it is not perceived how the question could be reviewed ,• for the appellate court can neither deduce facts from the evidence nor instruct this court as to what deduction should be drawn from it. (Childs, Pratt & Fox Case, 7 C. Cls. R., pp. 158, 209, erroneously reported as United States v. Adams, 9 Wall., 661.) In cases where this court exhausted the function of a jury, and found, as it were, a verdict for the plaintiff, the Supreme Court has been enabled to pass upon the legal question whether the evidence ivas sufficient to sustain the judgment. • (C. C. Clark’s Case, 96 U. S., 37; Intermingled Cotton Cases, 92 id., 651; Moore’s Case, 91 id., 270.) But it is not until this court has exhausted the function of a jury that the question of law involved can be presented to the court above for review. In a word, the Supreme Court cannot do the work of a jury, and will not render decisions upon hypothetical cases. If this case were being tried at nisi prius, the court might exclude the evidence and direct a verdict for the defendant, and the error might then be presented to the court above by a bill of exceptions. But circumstanced as this court is, the only means in its possession for presenting such questions to the Supreme Court is to admit the questionable evidence as a decision of law, and then to draw from it whatever deductions of fact the court, sitting as a jury, may think that it establishes. The Supreme Court will then be in a position to say whether the evidence should or should not have been admitted; whether it does or does not sustain the judgment.

We proceed now to state the theory upon which we compute the claimant’s damages.

It is conceded that the cartridge-boxes manufactured by the defendants were made in substantial conformity with the specifications of the claimant’s patent; but the counsel for the defendants has nevertheless brought in three prior patents, all of which he insists are more or less utilized in the manufactured article. In other words, that the gross amount of the royalty, the sum of 25 cents, is due not to the claimant alone but likewise in part to the other throe inventors.

The first of these patents is that issued to William Freeborn, December 10,1867. In it the cartridges are attached to both the front and back of the box. But they are all placed in the box in the same position, that is to say, with the fulminate up. The box is operated by raising a flap, which brings into view the upper tier or doublerow of cartridges. When this tier is emptied, a section of the front of the box, by unbuttoning a strap at eacli end, drops down, thus bringing into view the second tier of cartridges. When the second tier is in like manner exhausted, a second section of the front of the box may be in like manner unbuttoned and dropped, and a third tier be brought into view.

In the claimant’s box there is no flap to be raised. The cartridges attached to the front of the box are placed fulminate down. When the box is opened it divides from top, to bottom like a modern traveling-valise, the front falls down, thereby reversing its cartridges, bringing them fulminate up, and the entire contents of the box, by the single operation of unbuttoning a single button, are brought within the soldier’s reach. We perceive nothing in common between the two boxes, except the mechanical arrangement of attaching the cartridges to both the front and back of the box. The object which Freeborn had in view' was to rfeduce the thickness or clumsiness of the ordinary cartridge-box, and the means by which he attained that end was the successive bringing into view of tiers of cartridges by the process of dropping successive sections of the front of the box. The object which the claimant had in view was to dispense with the flap of the ordinary cartridge-box, and by the single operation of unbuttoning a single strap to bring the entire contents of the box within the reach of the soldier’s grasp. The mechanical appliances were to some extent the same, but the objects to be attained and the means for obtaining them were substantially different and distinct.

The second patent produced is that issued to J. E. King, November 15, 1870. This invention is not properly a box, but a scroll having cartridges attached to it, much as razors, combs, &c., are attached to a traveling dressing-case, which, when closed, i. e., rolled up, somewhat resembles a box. The peculiarity of it is that at the lower end of the scroll there is a double row of cartridges, the one attached to the outside and the other to the inside of the scroll, the one row with fulminate up, the other with the fulminate down. When the scroll is rolled up so as to form a box, it contains but a single tier of cartridges, which, however, is three deep; that is, contains three rows. The box is operated by raising a flap, by removing the cartridges from the two rows in which the fulminate is up, and then, by unbuttoning two straps and opening the scroll, reversing the third row, and thus bringing the remaining row of cartridges fulminate up. The only thing in common between this device and that of the claimant is that of placing a portion of the cartridges with the fulminate down when the box is closed. But the object of the two inventors and the means of attaining their objects are different and distinct.

The third patent is that issued to T. Chillingworth, June 15, 1869. There is one device in this invention which conflicts with one device in the claimant’s, and it is this: The lower tier of cartridges may be thrown forward, that is to say, inclined outward, so as to come within the more ready grasx> of the soldier. In the Chillingworth invention this is accomplished by a hinge attached to the outer lower edge of the tier, and is operated by unbuttoning a strap below and a strap above, and with the latter drawing the lower tier over. In the claimant’s invention it is accomplished by a bellows arrangement, something like that of the musical instrument known as an accordeon, and the device is substantially self-operating, requiring no loosening of straps to incline the tier, and no rebuttoning of them when the box is closed.

We therefore regard Chillingworth as the first inventor of this device, and the claimant’s invention as an improvement upon his. On the one hand, this fact did not authorize the de-leudante to use tbe claimant’s improvement free of compensation ; on tbe other, it precludes tbe claimant from recovering as if be were tbe sole inventor. It is manifest that tbe invention of Cbillingwortb is a trivial element in tbe cartridge-box actually made; but inasmuch as both of tbe parties are subject in this element of tbe box to tbe prior right of Cbillingwortb, and tbe defendants now appear to be liable to him for such damages as be may have sustained, we deduct on account of bis invention tbe sum of 5 cents per box, and allow to tbe claimant 20 cents per box.

Tbe court is not agreed as to tbe extent to which tbe claimant should recover, but a majority of tbe judges, for tbe purpose of intelligibly presenting tbe entire case to tbe Supreme Court, concur in tbe following judgment:

That tbe claimant recover a license-fee of 20 cents a box on tbe 18,813 cartridge-boxes manufactured by tbe defendants, amounting in tbe aggregate to tbe sunvbf $3,762.60.

Hunt, J.,

concurring:

I concur in tbe opinion about to be read, by Judge Davis, except as to tbe admissibility and effect of tbe claimant’s evidence as to bis damages. Under tbe circumstances, I think tbe evidence was tbe best that tbe nature of tbe case admits of, and that it is not excluded under any principle of law. Standing uncontradicted in tbe record, I think we are bound to give it effect, and that it establishes the claimant’s demand for damages. I concur in tbe conclusion of Judge Nott.

Davis, J.,

dissenting :

As tbe defendants manufactured and used tbe claimant’s improvement with bis consent, their acts were not tortious, but permissory; and unless tbe permission was intended and understood to be gratuitous, tbe claimant is entitled to recover tbe value of tbe invention to tbe extent of tbe defendants’ use of it, so far as be establishes that value by competent proof. In ascertaining it, tbe rules of law and tbe modes of applying them to tbe evidence are intermingled to such an extent, that it appears to me to be tbe duty of an inferior court to present tbe evidence on tbe point of value as facts, and tbe fact resulting from it as a mixed question of fact and law, in order that either party feeling aggrieved may have the action of the court reviewed.

In practice, courts ordinarily resort to one of two standards in order to ascertain the value of an invention; 1st, the profits to be derived from the manufacture and sale of the patented article; or, 2d, the royalty fixed by the patentee and voluntarily paid by licensees. In the present case it is impossible to apply the first measure, because no sales of the manufactured article have taken place; and I think it is equally impossible to apply the second, because no voluntary purchase, of licenses have been made.

The claimant has granted but two licenses. The circumstances under which those were made preclude the idea of free action on the part of the licensee. If this were a jury case it Avould be the duty of the court to instruct the jury that, as the sales were made under duress, they are no evidence of the value which the purchaser attached to the royalty. Even if they had been voluntarily made by the purchasers, without the duress caused by the necessity of fulfilling their contracts, they are not sufficiently numerous to warrant us in accepting them as the measure of the damages to be imposed upon the defendants for their use of the claimant’s invention prior to the alleged sales. The character and standing of the parties to this transaction preclude the possibility of collusion; but it is plain that if such sales can be received as evidence of the just value of a license, so far as the opinion of this court can do it, the door is thrown open for fraud in futrue transactions between less reputable parties.

The claimant further oilers in proof the opinion of witnesses as to the probable value of the royalty on the claimant’s invention, derived from a knowledge of royalties on similar improvements fixed by inventors and paid by the public. This evidence is inadmissible, and in' my opinion, we are not warranted in forming any conclusion from it. The market value of a license is a fact, not an opinion. It is the price which the public is willing to pay and does .pay for the privilege of manufacturing and selling the patented article. To substitute for this ascertained or ascertainable fact the opinion of any one, no matter how learned in patents, as to what the public may at some future time be willing to pay for it when it shall be offered for sale, is wandering too far into the region of guesses.

Tbe proof which the claimant offers on this point is also uncertain and inconclusive. It is, in effect, that the combined improvements which go to mate up the McKeever box, as compared with the old cartridge-box, are worth as an entirety 25 cents a box. It appears that other patented inventions, prior to McKeever’s, enter into his combination. Among the features claimed by him are a box in two separate parts hinged together, and cartridge-pockets attached by a pliable fabric to the body of the box in a manner to allow the cartridges to' fall into an oblique position. A cartridge-box in two parts hinged together was patented to Felix Ohillingworth on the 15th June, 1869. The cartridge-box of Josias E. King, patented on the loth November, 1870, is also in two piarts. The carriage of the cartridge in pockets of a flexible material is set forth in the specification of William Freeborn, dated December 10, 1867, and in the patent of Josias E. King, already referred to. The presentation of the cartridge in an oblique position for the benefit of the soldier is set forth in Chillingworth’s claim as one of the advantages obtained by his invention. We have no means of determining whether these prior inventions, which are incorporated into the claimant’s manufactured article, have or have not a money value. It was for the claimant to furnish light on this point. This proof, even if admitted (and I have already said it is inadmissible), only shows that the value of the entire royalty on all patented improvements used in his cartridge-box is 25 cents. If he were permitted to go thus far, he would be bound, in a suit founded on contract, to go further, and show what part of the 25 cents is due to him. Any other rule can, at the best, be applicable only to cases of tortious infringement of his rights.

Both parties have further offered proof as to the amount of benefit which the defendants have derived from the claimant’s Invention. In the absence of an established patent or license fee, and of all proof as to profits derived or derivable from the use of the invention, evidence of this kind is the best that can be procured. In the language of the late Mr. Justice Nelson, “What evidence can be more appropriate and pertinent than that of the utility and advantage of the invention over the old modes or devices that had been used for working out similar results ? ” (Suffolk Company v. Hayden, 3 Wall., 320.)

The proof on this point shows, first, that on the recommendation of tbe board ou infantry equipments the McKeever cartridge-box was adopted for infantry use ou the 30th December, 1874; second, that between that date and June 30,1877, 18,813 boxes were manufactured at different arsenals; and, third, that this box, being found to be unserviceable in the field, the hunter’s belt was substituted for all cartridge-boxes then, and the use of the claimant’s box is now confined to garrison service and dress duty. In other words, it proved to be valueless as a receptacle for cartridges for use on the field of battle, but ornamental as a neatly-shaped leathern box to be worn at dress parade.

The defendants, who had on hand 18,000 manufactured boxes of this kind, are now using them for the latter purpose. There are some facts found which would warrant a jury in finding that, when the defendants’ agents approved and manufactured the cartridge-boxes, they thought that they were to do it without the payment of a royalty, but there is nothing to show that the claimant authorized or contributed to this impression; and apart from his long silence while they are manufacturing, and his delay in fixing an amount for the royalty, there is nothing to indicate that he shared in the impression. On the case as it stands, the claimant would be entitled to recover the value of the benefit which the defendants derived from the use of his invention if he had proved it. But he furnishes no data by which this value may be measured. The case, therefore, comes within the principle of New York v. Ransom (23 How., 487), where it is said that “actual damages should be actually proved, and cannot be assumed as a legal inference from facts which /afford no data by which they can be calculated. If the plaintiff fails to furnish any evidence of the prope rdata for a calculation of his damage, he should not expect that a jury should work out a result for him by inferences or presumptions founded on subtile theories.”

In my opinion tbe claimant is entitled to recover only nominal damages.

Drake, Oh. J., concurred in the dissenting opinion read by Davis, J.  