Belknap v. Schild/Dissent Harlan

Mr. Justice HARLAN, dissenting.

I am unable to concur in the disposition which has been made of this case.

As stated in the opinion of the majority, this court has frequently held that the United States has no more right than any private person to use a patented invention without license of the patentee, or without making or securing compensation to him. It is not claimed that the defendants used the plaintiff's patent under a license from him, or that compensation or provision for compensation has been made. The government is therefore under an implied obligation to compensate the plaintiff. That obligation arises from the constitution which declares that private property shall not be taken for public use without just compensation. Upon this point, the court in U.S. v. Great Falls Manuf'g Co., 112 U.S. 645, 657, 5 Sup. Ct. 306, said: 'Such an implication being consistent with the constitutional duty of the government, as well as with common justice, the claimant's cause of action is one that arises out of implied contract, within the meaning of the statute which confers jurisdiction upon the court of claims of actions founded 'upon any contract, expressed or implied, with the government of the United States." The same principle was recognized in Great Falls Manuf'g Co. v. Attorney General, 124 U.S. 581, 597, 8 Sup. Ct. 631; U.S. v. Alexander, 148 U.S. 186, 191, 13 Sup. Ct. 529, and Schillinger v. U.S., 155 U.S. 163, 174, 175, 15 Sup. Ct. 85. In this view (the defendants being public officers, who derive no personal advantage from the use by the government of the plaintiff's invention), the prayer for an injunction might well have been denied upon the ground that there was an adequate and complete remedy by a suit against the United States as upon implied contract. But the court does not proceed distinctly on that ground.

If the plaintiff cannot sue the United States to recover compensation for the use of his invention, actually appropriated by the government for public use, then the only adequate remedy for him would be an injunction against the individual officers, who are proceeding without his license, and without any provision having been made for his being compensated. This must be so, unless the court is prepared to hold that there is no remedy, under the constitution, for the protection of private rights against illegal invasion by officers of the government. In U.S. v. Lee, 106 U.S. 196, 1 Sup. Ct. 240, this court said that when the citizen, 'in one of the courts of competent jurisdiction, has established his right of property, there is no reason why deference to any person, natural or artificial, not even the United States, should prevent him from using the means which the law gives him for the protection and enforcement of that right'; that 'no man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.' If the United States may appropriate to public use the invention of a patentee, without his consent, and without liability to suit, as upon implied contract, for the value of the use of such invention; if, as the court holds, a public officer, action only in the interest of the public, is not individually liable for gains, profits, and advantages that may accrue to the United States from such use; and if the officer who thus violates the rights of the patentee cannot be restrained by injunction,-then the government may well be regarded as organized robbery, so far as the rights of patentees are concerned.

Instead of leaving open the question whether the United States was liable to suit, as upon implied contract, the prayer for injunction, if denied, should have been denied upon the ground, and only upon the ground, that the plaintiff had a complete and adequate remedy by a suit against the government.