The appeal is from an order of the District Court dismissing appellant’s suit against the United States for alleged infringement of letters patent (No. 1,910,-476) covering an identification device. It consists of a circular metal case, somewhat like a watch case, enclosing paper or parchment upon which may be written personal information concerning the carrier. The patent was issued to James M. Rulong, who assigned it to appellant in exchange for all of its stock, which he now holds. The appeal is in forma pauperis and Ru-long, who is not an attorney, appeared for appellant.
The claimed infringement is alleged to have been made pursuant to authority of J. Edgar Hoover, as Director of the Federal Bureau of Investigation. Appellant asserts that after the patent was issued, repeated efforts were made to secure an arrangement for use and adoption of the device by the Bureau, with appropriate compensation, but were unsuccessful. Nevertheless it is charged that the Bureau has infringed appellant’s patent by making and distributing a device which has that effect. Appellant seeks reasonable compensation and an order restraining further infringement until damages are assessed and arrangements for royalties for continued use are made.
The only question we need to consider is whether the District Court has jurisdiction of the cause. The Government asserts that exclusive jurisdiction of claims of the character in suit has been conferred upon the Court of Claims by the Act of Congress approved June 25, 1910, 36 Stat. 851, c. 423, as amended July 1, 1918, 40 Stat. 705, c. 114, 35 U.S.C.A. § 68, which as amended, and so far as is material, provides : “Whenever an invention described in and covered by a patent of the United States shall be used or manufactured by or for the United States without license of the owner thereof or lawful right to use or manufacture the same, such owner’s *896 remedy shall he by suit against the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such use and manufacture. The Court of Claims shall not entertain a suit or award compensation under the provisions of this section where the claim for compensation is based on the use or manufacture by or for the United States of any article owned, leased, used by, or in the possession of the United States prior to June 25, 1910. In any such suit the United States may avail itself of any and all defenses, general or special, that might be pleaded by a defendant in an action for infringement, as set forth in this chapter, or otherwise. * * * ”
We think the Government’s position is right and the order must be affirmed.
The suit is for unlicensed use of a patent. It is against the United States. Its consent to be sued is essential to jurisdiction. The statute has given consent to suit in the Court of Claims. It is “for the recovery of his reasonable
and entire
compensation for such use * * (Italics supplied) This clearly shows that the remedy is exclusive. Consequently the District Court was without jurisdiction. Cf. Crozier v. Fried. Krupp Aktiengesellschaft, 1912,
But appellant says that its case falls within Sperry Gyroscope Co. v. Arma Engineering Co., 1926,
Appellant also says that to deny it relief in the District Court will be in effect to permit its property to be taken by eminent domain without just compensation. It bases this upon the fact that the Court of Claims has denied relief in a suit brought there, substantially identical with the present one except that acts of infringement, by other governmental agencies, were set forth. Identification Devices, Inc., et al. v. United States, 1939,
Other contentions need not be considered
The order is affirmed.
Notes
Whether or not the decision is technically res judicata of the issues involved here, it would be strongly persuasive that the complaint does not state a claim upon which relief can be allowed, one of the grounds upon which the motion to dismiss was granted.