structed 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:
“Title in the thing manufactured does not give the right to use the patented invention; no more does the patent right in the invention give title in the thing made in violation of the patent.”
After referring to Vavasseur v. Krupp, 9 Ch. Div. 351, 358, 360, the court proceeded:
“In the present case, the caisson gate was a part of a dry dock in a navy yard of the United States, was constructed and put in place by the United States, and was the property of the United States, and held and used by the United States for the public benefit. If the gate was made in infringement of the plaintiff’s patent, that did not prevent the title in the gate from vesting in the United States. The United States, then, had both the title and the possession of the property. The United States could not hold or use it except through officers and agents. Although this suit was not brought against the United States by name, but against their officers and agents only, nevertheless, so far as the bill prayed for an injunction, and for the destruction of the gate in question, the defendants had no individual interest in the controversy. The entire interest adverse to the plaintiff was the interest of the United States in property of which the United States had both the title and the possession. The United States were the only real party, against whom alone in fact the relief was asked, and against whom the decree would effectively operate. The plaintiff sought to control the defendants in their official capacity, and in the exercise of their official functions, as representatives and agents of the United States, and thereby to defeat the use by the United States of property owned and used by the United States for the common defense and general welfare; and therefore the United States were an indispensable party to enable the court, according to the rules which govern its procedure, to grant the relief sought: and the suit could not be maintained without violating the principles affirmed in the long series of decisions of this court, above cited.”
