Opinion of the Court.

275 U.S.

brief with respect to the Act, it is more than a waiver of immunity and effects an assumption of liability by the Government.

Under the Act of 1910, the remedy of the owner of a patent where the United States had used the invention without his license or lawful right to use it, was to sue for reasonable compensation in the Court of Claims, and that remedy was open to Lenke for the cargo beams covered by his patent installed and used by the United States before July 1, 1918.

The evidence does not show at what time during the year 1918 the beams were installed. The first finding is that Lenke wrote to an officer in the Quartermaster's Department on duty at the Army supply base at Brooklyn, on December 31, 1918, complaining that the Lenke cargo beam was being used by the Government at that supply base without permission from the patentee, but nothing happened but a fruitless correspondence.

The findings of the Court of Claims show that, on January 1, 1919, 810 of the beams had been installed at the instance of the Government, but how many were installed after July 1, 1918, when the law in question was passed, has not been found by the Court of Claims.

On September 29, 1920, the Lenke patent was assigned by Lenke to one Thomas E. Chappell, who in turn on March 7, 1921, assigned it to the plaintiff company, in accordance with the statute, and the assignment in each case covered all rights of action for past infringements of the patent and all rights to recoveries by suit for damages, profits and royalties for infringements of every kind whatsoever.

It is settled that, but for the Act of 1918, the two assignments vesting title in the Anchor Company would enable it to recover from the contractor for all his infringements (Crown Die & Tool Co. v. Nye Tool & Machine Works, supra; Gordon v. Anthony, 16 Blatchf. 234, Fed.

331

Opinion of the Court.

Cas. No. 5,605; Waterman v. Mackenzie, 138 U. S. 252, 256, 261; Galer v. Wilder, 10 How. 476, 494; Robinson on Patents, vol. 3, sec. 937, p. 122). If now section 3477 applies and these assignments are rendered void, the effect of the Act of 1918 is to take away from the assignee and present owner not only the cause of action against the Government, but also to deprive it of the cause of action against the infringing contractor for injury by his infringement. The intention and purpose of Congress in the Act of 1918 was to stimulate contractors to furnish what was needed for the War, without fear of becoming liable themselves for infringements to inventors or the owners or assignees of patents. The letter of the Assistant Secretary of the Navy, upon which the Act of 1918 was passed, leaves no doubt that this was the occasion for it. To accomplish this governmental purpose, Congress exercised the power to take away the right of the owner of the patent to recover from the contractor for infringements. This is not a case of a mere declared immunity of the Government from liability for its own torts. It is an attempt to take away from a private citizen his lawful claim for damage to his property by another private person which but for this Act he would have against the private wrongdoer. This result, if 3477 Rev. Stats. applies and avoids the assignment, would seem to raise a serious question as to the constitutionality of the Act of 1918 under the Fifth Amendment to the Federal Constitution. We must presume that Congress in the passage of the Act of 1918 intended to secure to the owner of the patent the exact equivalent of what it was taking away from him. It was taking away his assignable claims against the contractor for the latter's infringement of his patent. The assignability of such claims was an important element in their value and a matter to be taken into account in providing for their just equivalent. If section 3477 applied, such equivalence was impossible.

Opinion of the Court.

275 U.S.

It is our duty in the interpretation of federal statutes to reach a conclusion which will avoid serious doubt of their constitutionality. Phelps v. United States, 274 U. S. 341. Moreover, we should seek to carry out in our dealing with the Act of 1918 and Revised Statutes 3477 the very important Congressional purpose of the former, as already explained, in the promotion of the War, as a special legislative intent. It is our duty to give effect to that special intent although it be not in harmony with a broad purpose manifested in a general statute avoiding assignment of claims against the Government, enacted some eighty years ago. In re Rouse, Hazard & Co., 91 Fed. 96, 100, 101; Townsend v. Little, 109 U. S. 504, 512; Washington v. Miller, 235 U. S. 422, 428. This is in accord with general rules of interpretation, as shown in these authorities, and reconciles section 3477 Revised Statutes and the Act of 1918, if we hold, as we do, that section 3477 does not apply to the assignment of a claim against the United States which is created by the Act of 1918 in so far as the Act deprives the owner of the patent of a remedy against the infringing private contractor for infringements thereof and makes the Government indemnitor for its manufacturer or contractor in his infringements.

Such a conclusion requires us to reverse the case and remand it to the Court of Claims for additional findings to show how many of the patented beams were made by contractors and furnished to the United States after the passage of the Act of July 1, 1918, and what would have been a reasonable royalty therefor.

The question of the amount of or the rule for measuring the recovery we do not decide, but leave that for further argument and consideration by the Court of Claims, because of the novel and only parcial application of § 3477 Rev. Stat.

Reversed and remanded.

Argument for the United States.

UNITED STATES v. MURRAY.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE EIGHTH CIRCUIT.

COOK v. UNITED STATES.

CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE FIFTH CIRCUIT.'

Nos. 394, 539. Argued November 22, 23, 1927.-Decided January 3, 1928.

When a person sentenced to imprisonment by a District Court has begun to serve his sentence, that court has no power under the Probation Act of March 4, 1925, to grant him probat.un even though the term at which sentence was imposed had not expired. P. 352. 19 F. (2d) 826, affirmed.

The first of these cases came here by a certificate from the Circuit Court of Appeals for the Eighth Circuit, propounding a question arising upon review of an order of the District Court placing a convict on probation after he had begun service of his sentence. The entire record was ordered up.

The second case came up by writ of certiorari (post, p. 516) to a judgment of the Circuit Court of Appeals for the Fifth Circuit which reversed a similar order of probation.

Assistant Attorney General Willebrandt, with whom Solicitor General Mitchell and Louise Foster, Attorney in the Department of Justice, were on the brief, for the United States.

The Murray case is not moot if the defendant may be recommitted to jail to serve the remainder of the sentence, because the order for probation was void.

The limitation on the power of a federal court to alter a sentence after execution has commenced, has not been

changed by the Probation Act. Stewart v. United States, 300 Fed. 769; United States v. Howe, 280 Fed. 815; Ex parte Lange, 18 Wall. 163; Miller v. Snook, 15 F. (2d) 68; Archer v. Snook, 10 F. (2d) 567.

Neither the language of the Act when considered as a whole, nor the declared purpose of Congress in passing it, is consistent with the granting of probation after commitment. Mouse v. United States, 14 F. (2d) 202; Archer v. Snook, 10 F. (2d) 567; House Report No. 1377, 68th Congress, 2d Sess., p. 2.

The decisions support the contention of the United States. Nix v. James, 7 F. (2d) 590; Kriebel v. United States, 10 F. (2d) 762; Evans v. District Judge, 12 F. (2d) 64; Ackerson v. United States, 15 F. (2d) 268; United States v. Chafina, 14 F. (2d) 622; Davis v. United States, 15 F. (2d) 697; Archer v. Snook, 10 F. (2d) 567; Mouse v. United States, 14 F. (2d) 202; United States v. Young, 17 F. (2d) 129; United States v. Davis, 19 F. (2d) 536; People ex rel. Paris v. Hunt, 201 App. Div. (N. Y.) 573, affirmed, 234 N. Y. 558; State v. Ensign, 38 Idaho, 539; State ex rel. Reid v. District Court, 68 Mont. 309; State ex rel, Bottomly v. District Court, 73 Mont. 541; State ex rel. Zabel v. Municipal Court, 179 Wis. 195.

The expiration of the term at which sentence was imposed or mandate of appellate court received may not deprive the district court of power to grant probation, provided the convict has not been committed. Nix v. James, 7 F. (2d) 590; Kriebel v. United States, 10 F. (2d) 762; Evans v. District Judge, 12 F. (2d) 64; Ackerson v. United States, 15 F. (2d) 268.

No appearance for Murray.

Mr. Herbert C. Wade, with whom Mr. Sam J. Callaway was on the brief, for petitioner Cook.

The provisions of the Probation Act are plain and unambiguous and empower the courts of original jurisdiction