Opinion of the Court.

liability of the United States." If the facts disclosed a case of unauthorized wrongs done to the plaintiffs by the revenue officers of the United States, the question, by the very terms. of the act, would still remain, whether the United States were liable, in law, for such damages as the plaintiffs had sustained. There would seem to be no escape from the conclusion that Congress intended that the liability of the government should be determined by the settled principles of law. The only right waived by the government was a defence based upon the statute of limitations. Erwin v. United States, 97 U. S. 392; Tillson v. United States, 100 U. S. 43; McClure v. United States, 116 U. S. 145.

It is said that the act, professedly for the relief of the plaintiffs, would be unavailing, unless it is so construed as to relieve them from the operation of the rule laid down in Gibbons v. United States. A satisfactory answer to this suggestion is that if Congress intended to do more than give the plaintiffs an opportunity, in an action for damages brought in the Court of Claims, to test the question as to the liability of the United States, upon the law and facts, for the alleged wrongs of their officers, that intention would have been expressed in language not to be misunderstood. It is as if the plaintiffs asserted before Congress the liability, in law, of the government for the damages they sustained, and Congress permitted them to invoke the jurisdiction of the Court of Claims in order that there might be a judicial determination of the question by that tribunal, with the right of appeal "as in ordinary cases against the United States in said court."

According to this construction of the act, the plaintiffs were not entitled to judgment against the United States in any sum; for, if Collector Bailey and other revenue officers did nothing more than the law authorized them to do, neither they nor the government would be liable in damages; while, if they acted illegally, they would be personally liable in damages; not the government.

The judgment is reversed, with directions to render judgment in favor of the United States.

MR. JUSTICE MILLER and MR. JUSTICE FIELD dissented.

Citations for Appellants.

HURLBUT v. SCHILLINGER.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

No. 215. Argued March 19, 1889. - Decided April 22, 1889.

Reissued letters patent No. 4364, granted to John J. Schillinger, May 2, 1871, for an "improvement in concrete pavements," on the surrender of original letters patent No. 105,599, granted to said Schillinger, July 19, 1870, were valid.

The proper construction of the claims of the reissue stated, in view of a disclaimer filed March 1, 1875.

The questions of utility, novelty and infringement considered.

The entire profit made by the defendant from laying his pavement was given to the plaintiff, because it appeared that it derived its entire value from the use of the plaintiff's invention; that if it had not been laid in that way it would not have been laid at all; and that the profit made by the defendant was a single profit derived from the construction of the pavement as an entirety.

IN EQUITY, to restrain alleged infringement of letters patent and for damages. Decree in favor of the complainants. Respondent appealed. The case is stated in the opinion.

Mr. L. L. Bond, (with whom was Mr. E. A. West on the brief,) for appellants, cited: Smith v. Nichols, 21 Wall. 112; Roberts v. Ryer, 91 U. S. 150, 159; Heald v. Rice, 104 U. S. 737, 755; Atlantic Works v. Brady, 107 U. S. 192; Railroad Co. v. Sayles, 97 U. S. 554; Duff v. Sterling Pump Co., 107 U. S. 636; Carver v. Hyde, 16 Pet. 513; Burr v. Duryee, 1 Wall. 531; Fuller v. Yentzer, 94 U. S. 288; Brooks v. Fiske, 15 How. 212; Snow v. Lake Shore Railway Co., 121 U. S. 617; Ashcroft v. Railroad Co., 97 U. S. 189; Mathews v. Machine Co., 105 U. S. 54; Bridge v. Excelsior Co., 105 U. S. 618; Neacy v. Allis, 13 Fed. Rep. 784; McCormick v. Talcott, 20 How. 402; Schillinger v. Gunther, 2 Ban. & Ard. Pat. Cas. 544; S. C. 3 Ban. & Ard. Pat. Cas. 491; Schillinger v. Greenway Brewing Co., 17 Fed. Rep. 244; California Stone Paving Co. v. Perine, 8 Fed. Rep. 821; California Stone Paving Co. v.

Opinion of the Court.

Freeborn, 17 Fed. Rep. 735; Schillinger v. Middleton, 31 Fed. Rep. 736; Cammeyer v. Newton, 94 U. S. 225; Bates v. Coe, 98 U. S. 31; Garretson v. Clark, 111 U. S. 120; Black v. Thorne, 111 U. S. 122; Brown v. Piper, 91 U. S. 41; Vance v. Campbell, 1 Black, 427; Agawam Co. v. Jordan, 7 Wall. 583; Blanchard v. Putnam, 8 Wall. 420; Slawson v. Grand Street Railroad, 107 U. S. 649; Terhune v. Phillips, 99 U. S. 592; Gill v. Wells, 22 Wall. 1, 29; Guidet v. Brooklyn, 105 U. S. 650; Phillips v. Detroit, 111 U. S. 604; New York Belting Co. v. Sibley, 15 Fed. Rep. 386; Tyler v. Welch, 3 Fed. Rep. 636; White v. Gleason M'f'g Co., 17 Fed. Rep. 159; Dunbar v. Myers, 94 U. S. 187; Atlantic Giant Powder Co. v. Hulings, 21 Fed. Rep. 519; Union Cartridge Co. v. U. S. Cartridge Co., 112 U. S. 624; Hollister v. Benedict M'f'g Co., 113 U. S. 59.

Mr. George W. Hey, for appellees, cited: Schillinger v. Gunther, 14 Blatchford, 152; S. C. 17 Blatchford, 66; California Stone Paving Co. v. Perine, 8 Fed. Rep. 821; Schillinger v. Brewing Company, 24 O. G. 495; Kuhl v. Mueller, 21 Fed. Rep. 510; California Stone Paving Co. v. Freeborn, 17 Fed. Rep. 735; California Stone Paving Co. v. Molitor, 113 U. S. 613; Grant v. Raymond, 6 Pet. 218; Ames v. Howard, 1 Sumner, 482, 485; Blanchard v. Sprague, 3 Sumner, 535, 539; Davoll v. Brown, 1 Woodb. & Min. 53, 57; Parker v. Hayworth, 4 McLean, 370; Le Roy v. Tatham, 14 How. 156, 181; Warswick M'f'g Co. v. Steiger, 17 Fed. Rep. 250; Tilghman v. Proctor, 125 U. S. 136; Brady v. Atlantic Works, 3 Ban. & Ard. Pat. Cas. 577; Cox v. Griggs, 2 Fish. Pat. Cas. 174; Hays v. Sulsor, 1 Fish. Pat. Cas. 532; Bell v. Daniels, 1 Fish. Pat. Cas. 372; Wayne v. Holmes, 2 Fish. Pat. Cas. 20; Serrell v. Collins, 1 Fish. Pat. Cas. 289; Curtis on Patents, § 338; Lowell V. Lewis, 1 Mass. 184.

MR. JUSTICE BLATCHFORD delivered the opinion of the court.

This is a suit in equity, brought in the Circuit Court of the United States for the Northern District of Illinois, by John J. Schillinger and Elmer J. Salisbury against J. B. Hurlbut,

Opinion of the Court.

founded on the alleged infringement of reissued letters pat ent, No. 4364, granted to John J. Schillinger, May 2, 1871, for an "improvement in concrete pavements," on the surrender of original letters patent No. 105,599, granted to said Schillinger, July 19, 1870. The defences set up in the answer are the invalidity of the reissue, want of utility in the invention, want of novelty and non-infringement.

The bill was filed in October, 1882. Salisbury having died, the suit was, so far as his interest was concerned, revived in March, 1884, in the name of Olive G. Salisbury, as administratrix. The interest of Salisbury was that he was the exclusive licensee under the reissued patent for the State of Illinois. Issue having been joined, proofs were taken on both sides, and on the 15th of May, 1884, the court entered an interlocutory decree, adjudging that the reissued patent was valid, that the defendant had infringed it, and that the administratrix of Salisbury recover profits and damages from the 26th of August, 1882, the date of the license to Salisbury. The decree also ordered a reference to a master to take an account of the profits and the damages.

The master took proofs, and on the 30th of September, 1884, filed his report, to the effect that between August 26, 1882, and May 20, 1884, the defendant had laid 70,909 feet of pavement by the use of the plaintiff's patent, for which he should be held to account; and that the plaintiffs had shown an established license fee of five cents a square foot, or $3545.45, as damages, which amount he reported. He also reported that the defendant's profits had amounted to four cents a square foot. The defendant excepted to this report, and, on a hearing, the court held that the evidence did not establish a fixed license fee as a royalty, and that the proper amount of recovery was the defendant's profits, at the rate of four cents a square foot, or $2836.36; and it entered a final decree, on the 16th of November, 1885, for that amount. The defendant has appealed from that decree.

The specifications, claims and drawings of the original and the reissued patents are as follows, the specifications and claims being placed in parallel columns, the parts of each

Opinion of the Court.

which are not found in the other being in italic, and the drawings of the original and the reissue being the same: