Page:Howell v. Miller.pdf/6

134 under its orders, according to plans and specifications adopted by the bureau of yards and docks,—a board in the naval service of the government. Schild, claiming that the gate had been made in violation of a patent granted to him by the United States for an improvement in caisson gates, brought his suit against Belknap and others, who held and exercised, respectively, at the time, offices at the navy yard at Mare Island, Cal. Part of the relief prayed was that the defendants be restrained by injunction from using the caisson gate containing the plaintiff’s patented improvement, and that such caisson gate be destroyed, or delivered up to the plaintiff. The supreme court, after an extended review of the previous cases relating to suits against the United States or against a state, said that “the exemption of the United States from judicial process does not protect their officers and agents, civil or military, in time of peace, from being personally liable to an action of tort by a private person, whose rights of property they have wrongfully invaded or injured, even by authority of the United States”; and “such officers or agents, although acting under the order of the United States, are therefore personally liable to be sued for their own infringement of a patent.” It then proceeded to show that the circuit court erred in awarding an injunction against the use by the defendants of the caisson gate in question. Reaffirming the principle announced in a former case (Patterson v. Kentucky, 97 U. S. 501, 506), that the right of property in the physical substance which is the fruit of discovery is altogether distinct from the right in the discovery itself, the court said:

After referring to Vavasseur v. Krupp, 9 Ch. Div. 351, 358, 360, the court proceeded: