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the officer requested that his resignation be withdrawn and his separation has not been effected. The officer's request was based on the fact that a few days after he submitted his resignation the President approved the report of a selection board, which pursuant to Section 309 (c) (2) of the Officer Personnel Act of 1947, as amended (34 USC 306d(c)(2)), reported that the officer's reports and records indicated his unsatisfactory performance of duty in his present grade and in its opinion indicated that he would not satisfactorily perform the duties of a higher grade. Section 312(h) of the Officer Personnel Act, supra (34 USC 410j (h)) provides that the officers whose names are reported in accordance with Section 309 (c) (2), supra, shall be honorably discharged on 30 June of the fiscal year in which their names are so reported with a lump-sum payment computed on the basis of two months' active-duty pay for each year of commissioned service but not to exceed a total of two years' active-duty pay. Held: An officer's offer to resign may be revoked by him prior to its acceptance. After acceptance and before it has taken effect, it may be modified, or withdrawn entirely, by consent of both parties. Since the officer's separation proceedings have not been completed his resignation has not been effected. The provisions of Section 312(h), supra, are not construed as prohibiting the Secretary from accepting resignations of officers to be effected at any time prior to 30 June of the fiscal year in which their names are so reported, nor as requiring that he cancel his acceptance of a resignation submitted prior to the date the officer is so reported and accepted subsequent to that date but prior to 30 June of the appropriate fiscal year. Therefore, the decision as to whether or not to permit the officer to withdraw his resignation is a matter solely within the discretion of the Secretary. Op JAGN 1954/261. 30 November 1954.

§ 147. Discharge, Dismissal, and Elimination
from Active List

§ 147.1. Generally.

Article I, Sec 8, Clause 14, of the Constitution of the United States vests in the Congress the power "To make rules for the Government and Regulation of the Land and Naval Forces." Under the foregoing grant of power, the full power of legislation in the matter of increase and reduction of the Army is with Congress and there is no breach of contract between the government and Army officers where pursuant to the Constitutional authority of the Congress that body sees fit, because of changed conditions in the armed forces and the needs of the nation, to reduce the period of service of officers of the armed forces. (Citing Street v. U. S., 133 US 299, 33 L ed 631, 10 S Ct 309.) JAGA 1954/7460. 27 August 1954.

Under sec 309 (c) (2) of the Officer Personnel Act of 1947, as amended, 61 Stat 649, 34 USC 306d (c) (2), which provides that the selection board shall report the names of any officers among those eligible for consideration and of less than twenty years' service whose reports and records in its opinion indicate their unsatisfactory

performance of duty in their present grade and in its opinion indicate that they would not satisfactorily perform the duties of a higher grade, the twenty years' service should be computed, in the cases of Reserve officers and those temporary officers not holding permanent appointments in the Regular Navy, on the basis of the actual number of years the officer has served as a commissioned officer above the grade of commissioned warrant officer, either on active or inactive duty. Op JAGN 1954/262. 3 December 1954.

§ 147.41. Retired or severance pay.

In computing severance pay of Regular Army officers eliminated from the active list in accordance with the provisions of sec 106, Army and Air Force Vitalization and Retirement Equalization Act of 1948 (62 Stat 1082, 10 USC 585), a period of time spent on the temporary disability retired list is included in determining length of service upon which base and longevity pay is based, but may not be included in computing the number of years of active federal service by which such pay is multiplied. (Citing JAGA 1953/8504, 9 Nov 1953; JAGA 1953/2709, 27 Mar 1953; JAGA 1952/8218, 15 Dec 1952, 3 Dig Ops Res F 841; 31 Comp Gen 213, 215. JAGA 1954/6082. 20 July 1954.

PATENTS, COPYRIGHTS, AND LITERARY

PROPERTY

§ 1. In General.

§ 29. Infringement.
§ 33. Remedies.

§ 1. In General

The Department of the Army and the British Joint Services Mission entered into an agreement whereby the United States government was granted a nonexclusive, irrevocable, nontransferable, royalty-free license to an invention, the consideration for such license being the acceptance by the Department of the Army of an obligation to file and prosecute the United States patent application free of cost to the United Kingdom and to assume full responsibility for payment of all costs associated with such filing and presentation. The Commissioner of Patents refused to process the patent application until either the filing fee pay was paid or an assignment to the government conveying the entire right, title and interest to the invention covered thereby was received in the Patent Office. Held: The services rendered in instances similar to that here involved appear to be merely those rendered to a nongovernmental interest at the request of a government agency and not services rendered to the government agency. Accordingly, since the services to be rendered are not those rendered by the Patent Office to another government agency, and as the fees to be paid constitute, so far as the Department of the Army is concerned, part of the consideration for the license, the fees may properly be paid. (Distinguishing MS Comp. Gen B-111648, 32 Comp Gen 392, 11 March 1953, amplified by MS Comp Gen B-111648, 33 Comp Gen 27, 13 July 1953, 3 Dig Ops, Patents § 1.) MS Comp Gen B-119641, 34 Comp Gen 340. 20 January 1955.

§ 29.1. Generally.

§ 29. Infringement

A petition in a patent case alleged that one of the plaintiffs was the inventor of a collapsible military pontoon bridge for which he was issued letters patent on 15 July 1947 on an application filed 21 December 1942. Under one count compensation was sought for unlicensed use by the United States of a patented invention. Under another count compensation was sought for unauthorized use before the patent was issued but while the application was pending. Under still another count compensation was sought on the basis of an implied in fact contract. In this connection the plaintiffs alleged that after an appeal by the government by newspapers and radio to submit plans of inventions of a military character to the War Department and not file the same in the Patent Office, the inventor, in 1940, submitted drawings and specifications of his pontoon bridges to the Army. A letter attached to the petition and signed by the Adjutant General

stated that the plaintiff-inventor's device did not possess sufficient value for military purposes to warrant further consideration by the War Department. Nevertheless, the plaintiffs alleged that the government, after it had been supplied with drawings and descriptions of the plaintiff-inventor's invention, used the invention both before and subsequent to the date of issuance of the patent. Plaintiffs alleged that certain articles appearing in printed publications contained illustrations and descriptions showing plaintiff-inventor's invention and use thereof by the Army. One of these articles appeared in a newspaper dated 20 December 1941. Held: The plaintiffs cannot be compensated for unauthorized use prior to the time the invention was patented but while the application for a patent was pending since, until the Patent Office has completed its examination and determined that a patentable invention exists and the patent issues, the applicant has established no monopoly to the invention. In accordance with the patent statutes, when an inventor is given a monopoly as to his invention by the issuance of a patent, such monopoly is limited to a period of seventeen years. To award compensation for the use of an invention when the application is still pending would extend the period beyond seventeen years. The only exception to this rule is where publication or disclosure of the invention by the grant of a patent might be detrimental to the national security, in which case the Commissioner of Patents must order the invention to be kept secret and withhold the grant of a patent for such period as the national interest requires. In this case there is no indication of such a secrecy order. Neither can the plaintiffs recover on the theory of an implied in fact contract or an express contract since there are no facts showing that anyone having authority to bind the United States by contract promised to pay the plaintiffs compensation for the information submitted to the War Department or for the use of the unpatented devices described therein. In fact, the correspondence attached to the petition indicates the government's nonacceptance of the plaintiff-inventor's invention.

Nor can the plaintiffs recover compensation for unlicensed use of the patented invention since plaintiff-inventor's patent is invalid. R. S. sec 4886, Title 35, sec 31, US Code (1940 ed), in force at the time the application was filed and during its pendency, provides that an inventor may obtain a patent on his invention if it is new and useful, not known or used by others in this country, before his invention or discovery thereof, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, or more than one year prior to his application, and not in public use or on sale in this country for more than one year prior to his application unless the invention is proved to have been abandoned. Under this statute the plaintiff-inventor's patent is invalid because of the 20 December 1941 newspaper publication describing the use of a bridge, asserted by the plaintiffs in their sworn statement of facts to be the patented invention, which date of 20 December 1941 was more than one year prior to the filing of the patent application. Gearon et al v. U. S. (Ct Cl No. 159–53, 1953) 115 F Supp 910, 121 F Supp 652, cert den 75 S Ct 364.

§ 33.1. Generally.

§ 33. Remedies

An author brought an action against the United States in a district court, alleging that the government was publishing books and pamphlets compiled largely from his copyrighted books.

Held that:

-Section 1338, Title 28, USC, providing for original and exclusive jurisdiction in district courts of any civil action arising under an act of Congress relating to patents, copyrights and trade marks is merely a general provision vesting jurisdiction over certain types of actions and does not contain any consent by the United States, express or implied, permitting the institution of suits against it for copyright infringement.

- Section 1346 (a) (2), Title 28, USC, commonly known as the Tucker Act, gives consent to the filing of actions against the government not exceeding $10,000 in amount, not sounding in tort. However, an action for copyright, like patent, infringement is one sounding in tort. (Citing Schillinger v. U. S., 155 US 163, 39 Led 108, 15 S Ct 85; Farnham v. U. S., 240 US 537, 60 L ed 786, 36 S Ct 427; Lanman v. U, S., 27 Ct Cl 265.)

- the Tucker Act did not confer on the district courts jurisdiction over any suit which could not be maintained in the Court of Claims and since the Court of Claims has no jurisdiction over suits against the United States for copyright infringement, the district courts have no jurisdiction of such suits under that Act. (Citing U. S. v. Sherwood, 312 US 584, 85 L ed 1058, 61 S Ct 767.) (No claim was made or considered under the Federal Tort Claims Act, Section 1346(b), Title 28, USC.) Turton v. United States (CA 6th 1954), 212 F2d 354.

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