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Lengerke & Detmold, of New York, providing for procuring from them the right to manufacture and use a breech-loading magazine arm, certain features of which are covered by United States letters patent owned by them, on the payment of a license fee therefor.
"2. The appropriations which it is believed authorize the proposed contract are as follows: Manufacturing, repairing, procuring, and issuing arms at the
national armories (Stats. at Large, vol. 32, p. 942).......... $1,700,000 Manufacturing, repairing, procuring, and issuing arms at the national armories (Stats. at Large, vol. 33, p. 275).
1,700,000 “These appropriations are available until exhausted, not exceeding two years. (Stats. at Large, vol. 25, p. 833.)
REPLACING ORDNANCE AND ORDNANCE STORES.
"Hereafter all moneys arising from disposition authorized by law and regulation of serviceable ordnance and ordnance stores shall constitute one fund on the books of the Treasury Department, which shall be available to replace ordnance and ordnance stores throughout the fiscal year in which the disposition was effected and throughout the following year.' (Stats. at Large, vol. 33, p. 276.)
63. The letters patent enumerated and referred to in the proposed contract were originally taken out by Mr. Paul Mauser, but articles of assignment have been furnished by the Patent Office showing that Messrs. Von Lengerke & Detmold are the owners and are also entitled to all rights and claims which may have arisen under them prior to the transfer to them.
**+. The contract provides for a license fee of $200,000, parable at the rate of 50 cents per arm manufactured, but it is provided in the contract that in case the Government shall manufacture a less number of arms than 400,000 the license fee will be correspondingly reduced, but that for all arnis manufactured in excess of 100,000 no license fee will be paid. It is possible, but not probable, that payments of the license fee might extend beyond the date of expiration of the patents.
7. The contract also provides that in case all the arms for which the license fee will be paid can not be manufactured under the present appropriations, the United States shall have the right to renew the agreement under the same terms and conditions.
“8. The contract also provides that the contracting parties shall pay all judgments against the United States on account of any suits or claims which may be made by any persons for infringement of their patents in the manufacture and use of
the breech: loading arm and cartridge clip, as covered by the
"9. A bond will be required from the contracting parties
From this communication it appears that your Department
If the said owners of the said letters patent have thereunder the exclusive right to manufacture, use, and sell the improved devices to be used in the arms to be manufactured and used by the United States, I am of opinion that, under the appropriations specitied, you are authorized to enter into a contract with them for the purpose specified, and to provide therein for the payment of reasonable compensation for said license.
But there is one feature of the proposed contract that is not free from doubt. If the contract provided for the payment of a royalty for the manufacture and use of improved devices for which one letters patent only had been granted, I do not think you would be authorized to provide therein for the
payment of the royalty for the manufacture and use of the devices after the expiration of the terın of the patent. In the case presented seven distinct letters patent are specified, wbich were granted on six different dates. It is presumed that each letters patent was granted for a term of the same length, beginning on the date when granted. The terms of
six of the letters patent will therefore expire at different times. The improved devices for which the several letters patent were granted may also have different values. If, under this state of facts, the royalty which it is proposed to pay is the aggregate value of all the improved devices for which the seven letters patent were granted, I do not think the terms of the contract submitted would authorize the payment of the full amount of the royalty after the expiration of the term of one or more of the letters patent, and in such case the terms of the contract do not provide what amount of royalty should then be paid.
It may be, however, that in fixing the amount of the royalty allowance was made for the differences in the time of expiration of the terms of the letters patent and for the difference in the value of the improved devices, and that the amount agreed upon is deemed appropriate compensation to be paid for the manufacture and use of the improved devices during the varying terms of the several patents until the expiration of the term of the patent of latest date. If so, I think this intention should be made clear in the terms of the contract.
There is another feature of the proposed contract which requires particular consideration. In paragraph 5 of the communication of the Chief of Ordnance he says:
“5. The contract also provides for making payment of the license fee for all arms manufactured subsequent to March 16, 1904. The reason for the insertion of this date in the contract is that on that date this Department addressed a letter to the Waffenfabrik Mauser, the owners of the letters patent de scribed and referred to before the transfer was made to Messrs. Von Lengerke & Detmold, in which letter reference was made to the making of an agreement providing for the payment of royalties in case any of the features of the magazine arm now being manufactured by the Government was covered by any of the letters patent owned by the Waffenfabrik Mauser."
The letter to the Waffenfabrik Mauser, to which he refers, is as follows:
“1. As an examination would seem to indicate that some of the features of the cartridge slip recently adopted for the United States Army may be covered by your United States letters patent Nos. 102605, 482376, and 547932, it is requested that your attorney in this country call at this office for the purpose of determining what, if any, of its features are cor
ered by your patents, and if so, to arrive at an agreement as to the royalties which should be paid therefor.”
In paragraph 6 the Chief of Ordnance further says:
“6. It is the understanding of this Department that the writing of this letter constitutes an implied contract under which a license fee may be paid the owners of the letters patent enumerated and referred to, and the proposed contract accordingly makes provision for this payment. A copy of the letter referred to is inclosed."
I do not concur with the Chief of Ordnance in the opinion that the letter to the Waffenfabrik Mauser, referred to by him, constitutes an implied contract for the payment of a royalty for the manufacture and use of the improved devices for which the letters patent mentioned therein were granted. This letter suggests that some of the features of the “cartridge clip" which had been "recently adopted” for the Army "may be covered” by those patents. It does not indicate whether any of the cartridge slips had been manufactured or not. It then requests that an attorney of the Waffenfabrik Mauser call for the purpose of investigating the question of infringement, and, if it should be found that there was, “to arrive at an agreement as to the royalties which should be paid therefor.”
The letter and the facts presented leave in doubt the question whether the proposed agreement for compensation had reference to cartridge clips which had been manufactured or were to be manufactured. In the former case no compensation would be authorized, for the infringement would be in the nature of a tort, for which the Government would not be liable. In the case of Russell v. United States (182 U. S., 535), which was a case of the infringement of a patent by the manufacture and use by the United States of the KragJorgensen rifle, the Supreme Court said:
"If petitioners have suffered injury it has been through the infringement of their patent, not by a breach of contract, and for the redress of an infringement the Court of Claims has no jurisdiction. This doctrine may be technical. If the United States was a person, on the facts of this record, it could be sued as on an implied contract, but it is the prerogative of a sovereign not to be sued at all without its consent or upon such causes of action as it chooses. It has not chosen to be sued in an action sounding in tort.
Until an agreement has been entered into for compensating an owner of a patent for the manufacture and use of any device for which such patent has been granted the manufacture and use thereof is an infringement, and if the infringement is by the United States compensation can not be recovered for the injury.
I am therefore of opinion that you are not authorized to to enter into a contract to pay royalty for the prior manufacture and use by the United States of any of the devices referred to.
COMPUTING MONTHLY PAYMENTS OF RENT.
The provision in the act of April 28, 1904, for computing payments oi
annual or monthly compensation of officers, agents, and employees of the United States, has no application to contracts for the payment
of monthly rental for leased premises. In computing the time between two specified dates the general rule is to
exclude the first and include the last date. The word “month," when used in a contract, in the absence of an ex
pressed intention to the contrary, means a “calendar” month; and a "calendar month” is a month as expressed in the calendar regardless of the number of days it may contain.
(Assistant Comptroller Mitchell to Col. F. L. Denny, quarter
master, Marine Corps, February 28, 1905.) I am in receipt of your communication of the 18th instant, inclosing contract for rent of room as a recruiting office for the United States Marine Corps in Kansas City, Mo., from December 21, 1904, to June 30, 1905, and submitting for my decision the question of whether the rent for the period from December 21 to 31 thereof should be computed as eleven thirty-firsts of a month or as ten-thirtieths, the latter fraction you state being obtained by holding each month to consist of thirty days as in the computation of the compensation of employees.
The computation of the annual compensation of employees on the basis of thirty days to the month is in pursuance of an act of Congress specifically providing therefor (act of April 28, 1904, 33 Stat., 513). Said act is confined to the computation of the compensation of officers, agents, and employees of