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3. Jurisdiction; Patent Causes
There have been numerous attempts to recover for patent infringement up to the time of the passage of the Act of June 25, 1910.29 Since patent infringement in its very nature is a tort, in many of the cases it was not possible for the patentee to recover against the United States government.30 In other cases the claimant has been able to work out a theory of implied contract, and to recover for the use of his patented device, not on the basis of an infringement, but on the basis of a meeting of the minds between the government and the patentee.31
Patent jurisdiction in the Court of Claims is now determined by the law of July 1, 1918,32 which amended the original Patent Act of June 25, 1910.83 This act permits recovery for infringement of a patent, but provides that the benefits of the act shall not be extended (third proviso) to any patentee who is an employee of the government who makes the claim, or his assignee, nor to the benefit of any employee of the government who made an invention while in the employment of the government, nor to the assignee of such employee. In this connection attention is called to Moore v. United States,34 which denied recovery to an inventor who devised out of working hours, but during the period he held government employment.
4. Jurisdiction; Claims Referred to Congress
In recognition of the right to petition to Congress in respect to clains having no legal standing, Congress enacted a law in 1883 35 which provides that claims growing out of the Civil War for property taken and used by the Army and Navy be referred to the Court of Claims by the various committees of Congress, for findings of fact and for the information of Congress.
The present act providing for reference by either house of Congress of claims to the Court of Claims is set forth in section 151, Judicial Code.36
Heads of Executive Departments may refer cases to the Court of Claims for their guidance.37 There are other statutory provisions covering jurisdiction of the Court of Claims. 38
Recent legislation growing out of the war has resulted in increasing the ju- diction of this cours, such as je beter te the Cent 1 and other war amerzen, ezation
29 36 Stat. 851.
30 James v. Campbell, 104 U. S. 356, 26 L. Ed. 786; Shavor v. U. S., 4 Ct. Cl. 440 ; Dashiell v. U. S., 36 Ct. Cl. 115.
31 McKeever Case, 14 Ct. Cl. 396; Butler Case, 23 Ct. Cl. 335; Pasqueau v. U. S., 26 Ct. Cl. 509 ; Société Anonyme des Anciens Etablissements Cail v. U. S., 43 Ct. Cl. 25; Id., 224 U. S. 309, 32 S. Ct. 479, 56 L. Ed. 778.
32 40 Stat. 705 (Comp. St. Ann. Supp. 1919 § 9165).
38 Judicial Code, $$ 146, 147, 149, 153, 154, 162, 180, 184 (36 Stat. 1137, 1138, 1138, 1138, 1138, 1139, 1141, 1142 [Comp. St. 88 1137, 1138, 1140, 1144, 1145, 1153, 1171, 1175]).
Caims against the government sannst be assigne. Tie tarate of imitations for bringing actions in the Court si Claims is six years." Cams may be forleitert for fraud.
5. Rules of the United States Court of Claims
1. The clerk's office will be open every day, except Sundars. Saturdays, and legal holidays, from 9am to 4:30 p. 1. C Satiria's the rice will be dicsed at 3 p. m. and during the Christmas cidays at 1 3. 77.
2. When the court is in sessicri, both the chief cierk and be assistant cierk wiil ke at the cffice during office hours.
3. The chief clerk shall exercise general supervisice over the cerk's cmice and the business and clerical force therein. There shall be accurately kept by the chief clerk op, under his direction, by the assistant cerk and other empicvees, all dockets, notice book, calendars, and such books and dockets as are or may be required to be kept. He shall have charge of a prizorg and she giving of notice under the rules and he shall prepare repcrts to Congress.
4. The assistant clerk shall assist the chief clerk in the discharge of his duties, and shall perform such work incident thereto as the chief clerk may from time to time direct. And the chief clerk and assistant clerk shall discharge such other duties as may be prescribed by law or any rule of the court.
5. In the absence of either the chief or the assistant clerk his duties will be performed by the other,
6. Attorneys and Counsel. -Suits may be commenced by the claimant in person or an attorney of this court. If the clairiant is represented by an attorney, an employment in writing must be filed with the clerk, and its execution must be proved or acknowledged before an officer authorized to take acknowledgment of deeds,
7. Any person of good moral character who has been admitted to practice in the Supreme Court of the United States, or in the highest court of the District of Columbia, or in the highest court of any state or territory, may be admitted, on motion in open court, to practice as an attorney of this court.
29 Art Aug. 10, 1917 (10 stat, 276, 279, 242, $ 12, 16 (Comp. St. 1915, Comp. St. Ann. Supp. 1915, $$ 311.5J), 311.5/U]),
40 Act March 2, 1919 (40 Ntat. 1272 (Comp. St. Ann. Supp. 1919, $$ 311514/158311.514/15e)).
41 Act June 3, 1916, “National Defense Art" (39 Stat. 213) ; Act Aug. 29, 1916 (39 Stat. 619, 615): Act March 4, 1917 19 Htat. 1193) ; Act June 15, 1917 (10 Stat. 182, 183); Act Oct. 6, 1917 (10 Stat, 313, 3:32) ; Art March 1, 1918 (10 Stat. 438 (Comp. St. $ 81460]); Act March 21, 1918 (40 Stat. 431, 474); Art April 22, 1918 (10 Stat. 5:35 (Comp. St. $$ 31151/18d311551/100); Art April 26, 1915 (10 Stat. 537, 53% (Comp. St. § 2804bbbbb]); Act May 16, 1918 (10 Stat, 550, 551); Act July 1, 191% (10 Stat. 720, 738); Act July 8, 1918 (10 Stat. 420); Joint Resolution July 16, 1918 (40 Stat. 904 [Comp. St. Ann. Supp. 1919, § 3115*X]); Art July 18, 1918 (10 Stat. 015); Act Oct. 5, 1918 (10 Stat. 1009 [Comp. St. Ann. Supp. 1911), $$ 3115%* 3115%uul); Act Nov. 4, 1918 (10 Stat. 1022); Act Nov. 21, 1918 (40 Stat. 101N).
42 R. 8. & 3177 (l'omp. St. $ 6383).
He may also be admitted by an order at chambers on its being shown by affidavit or otherwise that he is qualified as above provided.
8. There shall be but one attorney of record for the claimant in any case at any one time. A firm of attorneys will be regarded as the attorney of record.
9. A claimant may change his attorney on such conditions as the court may prescribe. The moving party must produce the consent of the attorney of record or his duly authorized representative or must certify or show by affidavit that the attorney of record has been notified of the filing of the motion. If no objection to the substitution be filed by the attorney of record within ten days thereafter, the motion will be allowed.
If the attorney of record resides at a distance, the court will not act on the motion until a reasonable time has elapsed for his objection to be filed.
The motion when submitted must be accompanied either by a power of attorney from the claimant containing a power of substitution or by the certificate of the attorney of record that the substitution is made with the knowledge and assent of the claimant.
10. Petitions, pleadings, and motions on the part of the claimant must be signed by the attorney of record; pleadings and motions on the part of the United States by the proper Assistant Attorney General. 11. Should any Indian or Indians interested desire to appear in
action under Act of March 3, 1891, chapter 538 (1 Supp. R. S. [2d Ed.] 913), and defend by an attorney employed by them, application therefor shall be made to the court showing such interest, the name of the Indian or Indians interested, of the attorney employed, and the approval of the Commissioner of Indian Affairs in that behalf, whereupon the court will make an order allowing such appearance and defense by the attorney employed.
12. Counsel other than the attorney of record may be heard on either side at the trial or at any stage of the proceedings, but shall not be entitled to file pleadings, give notices, or make motions.
13. Attorneys of record, or the claimant if he appear in person, on appearing in a suit will register with the clerk of the court a post office address to which all notices required by these rules or ordered by the court may be sent.
14. Attorneys for claimants in Indian depredation cases desiring the court to make an allowance of attorney's fees for prosecuting the claim shall, on or before the submission of the cause, file a written statement of their employment, giving the date thereof, showing the services performed, and, if any, what unusual services have been rendered or expenses incurred by them.
15. The Petition.-Suits shall be commenced by petition, verified in the manner provided by law, and filed in the office of the clerk, with one extra copy in print or typewriting. The clerk will note thereon the day of filing, and will cause a copy to be forwarded to the Attorney General. Within twenty days thereafter the claimant shall have printed thirty copies of such petition, retaining ten copies for the trial record and filing the remaining copies in the clerk's office, unless the court, on motion, for good and sufficient cause, waives the printing of the petition.
Ten of said copies shall be for the Attorney General.
The petition must comply with section 159 of the Judicial Code and must set forth:
(1) The title of the action, with the full Christian and surnames of all the claimants.
(2) A plain, concise statement of the facts, giving venue and date, free from argumentative, irrelative, and impertinent matter.
(3) In cases transmitted by the head of a department or by either house of Congress a copy of the order of transmission and a definite statement of the amount for which he demands judgment or the relief for which he prays.
16. If the claim be founded upon an act of Congress or upon a regulation of an executive department, the act and the section thereof upon which the claimant relies must be specified and the particular regulation of the department must be stated in terms.
17. If the claim be founded upon an express contract with the United States, the substance of such contract must be set forth in the petition and, if it be in writing, the original or a copy must be annexed thereto. If it be founded upon an implied contract, the facts upon which the claimant relies to prove a contract must be specified. If it consists of several matters or items, each must be separately stated.
18. If upon the face of the petition it does not appear when the claim first accrued, the court may require the claimant to make the petition definite and certain in that regard, and in default thereof may dismiss the suit.
19. Verification of Petition.-If the petition be verified by anyone other than the claimant, a power of attorney authorizing him to prosecute the suit or make the verification must be annexed to the petition and filed therewith.
In all cases where a petition is dismissed, and the court has jurisdiction so to do, a formal judgment shall be entered against the claimant in favor of the United States.
20. Petition in Indian Depredation Cases.—The petition must set forth:
(1) The title of the action, with the full Christian and surnames of all the claimants, and the name of the band, tribe, or nation of defendant Indians.
(2) The residence of each of the claimants and the damages sought to be recovered.
(3) A plain, concise statement setting forth the facts and circumstances upon which such claims are based, giving place and date, the persons, classes of persons, tribe or tribes or band of Indians by whom the alleged illegal acts were committed, the property lost or destroyed and the value thereof, and any other facts connected with the transaction and material to the proper adjudication of the case, free from argumentative and impertinent matter.
(4) Whether the claim has been examined, approved, and allowed by the Secretary of the Interior or under his direction, and if so, for what amount, the date thereof, and a brief reference to the official letter, report, or document showing such action, and a statement as to whether claimant elects to reopen the case and try the same before the court or desires judgment for the amount so allowed.
21. Petitions in Departmental and Congressional Cases.-After the filing of a case transmitted to the court by the head of an executive department or by Congress or either house thereof any person directly interested in the case may appear as a party therein by filing his petition, under oath, in accordance with rules 15 and 16. Such petition shall be filed within six months from the filing of the case in this court, and shall not be filed thereafter except by leave of court.
22. Any person claiming to be indirectly interested in any question involved in such case may appear and be heard on the one side or the other, as his interest may require, upon filing a petition, under oath, setting forth specifically and concisely how he claims to be interested, and submitting the questions raised to the decision of the court.
23. If no claimant directly or indirectly interested appears and files his petition within six months, the Attorney General, upon thirty days' notice to the parties who appear by the papers transmitted to be interested therein, may set the case down for trial upon such evidence as he may submit. Where such case was transmitted by the head of an executive department the court will proceed to try the case upon the statement made by the head of such department.
24. Amendment to Petition. When the claimant cannot state his case with the requisite particularity without an examination of papers in one of the executive departments and has been unable to obtain a sufficient examination of such papers on application, he may file a petition stating his claims as far as is in his power and specifying as definitely as he can the papers he requires, and thereafter may file a motion for a call upon the proper department for such information or papers as may be deemed necessary, and when the same are furnished the petition may be amended and take the place of the original petition.
25. A claimant desiring to amend his petition or to introduce new parties may do so at any time before he has closed his testimony, without special leave, by filing an amended petition embodying the amendments desired and serving a copy thereof on the Attorney General. But any such amendments or the right to introduce new parties shall be subject to the objection of the defendants either before or at the trial. Any subsequent amendments must be by leave of court.
26. The court, or in vacation the chief justice, and in his absence the senior judge present, may, on motion, require a claimant to make his petition more specific or to make and file a duly verified bill of particulars within a time fixed, and in case of failure so to do the petition may be dismissed.
27. Executors, Administrators, etc.-If the claimant be an executor, administrator, guardian, or other representative appointed by a judicial tribunal, a duly authenticated copy of the record of the appointment must be filed with the petition.
28. If the claimant die pending the suit, his death may be suggested on the record, and his proper representative, on filing a duly authenticated copy of the record of his appointment as executor or administrator, may be admitted to prosecute the suit without special leave, but subject to the objection of the defendants, either before or at the trial. If the suggestion of death be made when
' the case is called for trial, the court may allow time within which a personal representative may be appointed to appear. It is the duty of the claimant's attorney to suggest the death of a claimant when the fact becomes known to him.