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323

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Page Emergency Price Control

Act, 1942........... 531

$ 204 ...... Erdman Act, 1898......... Fair Labor Standards Act,

1938, § 16.......... Federal Employers' Liability

Act............ 430, First Deficiency Appropria

tion Act, 1936....... Food and Drugs Act, 1906,

$$ 2, 12..........: Food, Drug, and Cosmetic

Act, $$ 201, 301, 303,
305 .......

277 Harter Act, 1893.......... 249 Hepburn Act............. 356 Immigration Act, 1924..... 81 Immigration and Deporta

tion Act, 1918....... 118 Interstate Commerce Act.

.. 368, 508, 685

Railway Labor Act-Contd.

$$ 8, 9................ 297

oš 10 ........ 297, 323, 338 Revenue Act, 1913. 489 Revenue Act, 1918......... 277 $ 403 ............

256 Revenue Act, 1921, § 403... 256 Revenue Act, 1924.

...... 256 § 900... Revenue Act, 1926. $ 274 ......

418 § 302 ................

410 8 303 .....

256 88 900, 901, 1001, 1003.. 489 Revenue Act, 1928, S$ 272... 489 Revenue Act, 1932,

§ 601 .......

Š 803 .......
Revenue Act, 1934, SS 602,

60212 ........
Revenue Act, 1936.
§ 23 ...

516 $$ 41-43

516 § 162 .

Š 60242
Revenue Act, 1938, §
Revenue Act, 1942.

8 116 .......
& 403 .........

.......

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17 ..............

685 Judiciary Act, 1925....... 577 Motor Carrier Act, 1935.... National Industrial Recovery

Act, Title II, $$ 1,

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206 .....

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Securities Act, 1933, &$ 2, 5,

17 ................. Selective Training and Serv

ice Act, 1940, $$ 3, 5,
10, 11...

.. 549 Shipping Act, ss 1, 15-18,

31 ..

.... 338

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Nationality Act, 1940, 88 305,

338 ...
National Labor Relations

Act ........
Natural Gas Act, 1938, S$ 1,

2,4–11, 14, 17, 19.... 591 Naturalization Act, 1790... 118 Naturalization Act, 1795... 118 Navigation Rules for Har

bors, Rivers, and In-
land Waters, Arts. 15,

27 ................. 462 Newlands Act, 1913........ 323 Norris-La Guardia Act.. 293, 297 Probation Act, $$ 1,2...... 264 Railway Labor Act.

88 1-3 ....... 297, 323, 338 $$ 5,7............ 297, 323

552826_44_ 5

297

451 ... Tariff Act, 1930, $$ 401, 450,

451 .... Transportation Act, 1920... 356

$ 204 ................

Title III............. Transportation Act, 1940... Treasury and Post Office De

partments Appropria

tion Act, 1944....... 561 Urgent Deficiencies Act,

1913 .......... 577, 591

20... 356

(B) STATUTES OF THE STATES AND TERRITORIES.

Page

Page California.

New York.
Deering (1931), 1 Gen.

Civil Practice Act, § 876. 293
Laws, Act 261...... 81 | North Carolina.
Harbors and Navigation

Code, 1939, $ 8081 (rr). 430
Code, $8 3080, 3084.. 577

Ohio.
District of Columbia.

Page's Gen. Code,
Code, 1940, § 47–2404.. 698

§ 1465–68. ......... 430 Florida.

Oregon.
Constitution, Art. IX,

Code, (1935, Supp.),
§ 6.......

228

$ 49–1813a.......... 430 1941 Stats., $ 440.09.... 430

5 Comp. Laws Ann., Georgia.

1940, $ 61–102. ...... 81 Code, 1933, § 114-411... 430 Louisiana.

Pennsylvania. 1940 Acts, No. 157,

1885 Laws, No. 32. ..... 591 $$ 8, 9..............

South Carolina.
Gen. Stats., Tit. 34, c. 15,

Code, 1942, § 7035–39.. 430 $$ 4391 - 4394,4398,

kas.
4407–4409, 4427.....

Rev. Civ. Stats., Tit.
Workmen's Compensa-

130, Art. 8306,' $$ 1,
tion Law............ 430

3–19; Art. 8307, Š 5; Maryland.

Art. 8308, § 18...... 430 Flack's Code Ann. (1939

Workmen's Compensaed.), Art. 101, $ 80

tion Law........... 430 (3)................. 430

Virginia. Minnesota.

Code, 1942, § 1887 (37). 430
Blue Sky Laws........ Washington.
Montana.

Remington's Rev. Stats.,
Rev. Code, 1935, § 5702.

$$ 10581–10582...... 81 Nebraska.

West Virginia.
Constitution, Art. III,

Rev. Code, 1943, c. 11,
§ 1.......

Art. 13, $$ 2, 3...... (C) PROCLAMATIONS.

...... 118

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CASES ADJUDGED

IN THE SUPREME COURT OF THE UNITED STATES

AT

OCTOBER TERM, 1942.

MARCONI WIRELESS TELEGRAPH COMPANY OF

AMERICA v. UNITED STATES.*

CERTIORARI TO THE COURT OF CLAIMS.

No. 369. Argued April 9, 12, 1943.—Decided June 21, 1943. 1. The broad claims of the Marconi Patent No. 763,772, for improvements in apparatus for wireless telegraphy-briefly, for a structure and arrangement of four high-frequency circuits with means of independently adjusting each so that all four may be brought into electrical resonance with one another-held invalid because anticipated. P. 38.

Marconi showed no invention over Stone (Patent No. 714,756) by making the tuning of his antenna circuit adjustable, or by using Lodge's (Patent No. 609,154) variable inductance for that purpose. Whether Stone's patent involved invention is not here determined. 2. Merely making a known element of a known combination adjustable by a means of adjustment known to the art, when no new or

unexpected result is obtained, is not invention. P. 32. 3. As between two inventors, priority of invention will be awarded

to the one who by satisfying proof can show that he first conceived

of the invention. P. 34. 4. Commercial success achieved by the later inventor and patentee

cannot save his patent from the defense of anticipation by a prior inventor. P. 35.

*Together with No. 373, United States v. Marconi Wireless Telegraph Company of America, also on writ of certiorari, 317 U. S. 620, to the Court of Claims.

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either on all tree in its discretion and reope

5. In the exercise of its appellate power, this Court may consider any

evidence of record which, whether or not called to the attention of the court below, is relevant to and may affect the correctness of its decision sustaining or denying any contention which a party has made before it. P. 44. 6. Although the interlocutory decision of the Court of Claims in this

case that Claim 16 of Marconi Patent No. 763,772 was valid and infringed was appealable, the decision was not final until the conclusion of the accounting; hence, the court did not lack power at any time prior to entry of its final judgment at the close of the accounting to reconsider any portion of its decision and reopen any part of the case, and it was free in its discretion to grant a reargument based either on all the evidence then of record or only the evidence before the court when it rendered its interlocutory

decision, or to reopen the case for further evidence. P. 47. 7. The judgment of the Court of Claims holding valid and infringed

Claim 16 of Marconi Patent No. 763,772 is vacated and remanded in order that that court may determine whether to reconsider its decision in the light of the Government's present contention that Claim 16, as construed by the Court of Claims, was anticipated by the patents to Pupin, No. 640,516, and Fessenden, No. 706,735.

P. 48. 8. A defendant in a patent infringement suit who has added non

infringing and valuable improvements which contributed to the making of the profits is not liable for benefits resulting from such

improvements. P. 50. 9. Disclosure by publication more than two years before application

for a patent bars any claim for a patent for an invention embodying

the published disclosure. P. 57. 10. Invalidity in part of a patent defeats the entire patent unless the

invalid portion was claimed through inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, and is

disclaimed without unreasonable neglect or delay. P. 57. 11. Fleming Patent No. 803,864 held invalid by reason of an improper disclaimer. P. 58.

The specifications plainly contemplated the use of the claimed device with low as well as high frequency currents, and the patent was invalid for want of invention so far as applicable to use with low frequency currents; the claim was not inadvertent, and the

delay of ten years in making the disclaimer was unreasonable. 12. That the patentee's claim for more than he had invented was

not inadvertant, and that his delay in making disclaimer was unreasonable, were questions of fact; but, since the Court of Claims in Opinion of the Court.

its opinion in this case plainly states its conclusions as to them, and those conclusions are supported by substantial evidence, its omission

to make formal findings of fact is immaterial. P. 58. 13. The disclaimer statutes are applicable to one who acquires a

patent under an assignment of the application. P. 59. 99 Ct. Cls. 1, affirmed in part.

Writs of certiorari, 317 U. S. 620, on cross-petitions to review a judgment in a suit against the United States to recover damages for infringement of patents. See 81 Ct. Cls. 741.

Mr. Stephen H. Philbin, with whom Messrs. Abel E. Blackmar, Jr. and Richard A. Ford were on the brief, for the Marconi Company.

Assistant Attorney General Shea, with whom Solicitor General Fahy and Messrs. Clifton V. Edwards, J. F. Mothershead, Joseph Y. Houghton and Richard S. Salant were on the brief, for the United States.

MR. CHIEF JUSTICE STONE delivered the opinion of the Court.

The Marconi Company brought this suit in the Court of Claims pursuant to 35 U. S. C. $ 68, to recover damages for infringement of four United States patents. Two, No. 763,772, and reissue No. 11,913, were issued to Marconi, a third, No. 609,154, to Lodge, and a fourth, No. 803,684, to Fleming. The court held that the Marconi reissue patent was not infringed. It held also that the claims in suit, other than Claim 16, of the Marconi patent No. 763,772, are invalid; and that Claim 16 of the patent is valid and was infringed. It gave judgment for petitioner on this claim in the sum of $42,984.93 with interest. It held that the Lodge patent was valid and infringed, and that the Fleming patent was not infringed and was rendered void by an improper disclaimer. The case comes here on certiorari, 317 U. S. 620, 28 U. S. C. $ 288

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