PATENTS Applications for patents, 1367. Remedy for unlicensed use of inventions by Procurement of patents by War Department, 1367. Applications for patents.—All applications for patents shall be completed and prepared for examination within six months after the filing of the application, and in default thereof, or upon failure of the applicant to prosecute the same within six months or such shorter time, not less than thirty days or any extensions thereof, as shall be fixed by the Commissioner of Patents in writing to the applicant after any action therein, of which notice shall have been given to the applicant, they shall be regarded as abandoned by the parties thereto, unless it be shown to the satisfaction of the Commissioner of Patents that such delay was unavoidable: Provided, however, That no application shall be regarded as abandoned which has become the property of the Government of the United States and with respect to which the head of any department of the Government shall have certified to the Commissioner of Patents, within a period of three years, that the invention disclosed therein is important to the armament or defense of the United States: Provided further, That within ninety days, and not less than thirty days, before the expiration of any such three-year period the Commissioner of Patents shall, in writing, notify the head of the department interested in any pending application for patent, of the approaching expiration of the three-year period within which any application for patent shall have been pending. R. S. 4894; sec. 1, act of July 6, 1916 (39 Stat. 348); sec. 1, act of Mar. 2, 1927 (44 Stat. 1335); act of Aug. 7, 1939 (53 Stat. 1264); 35 U. S. C. 37. This section has been amended as above. 1368. Withholding of patents in interest of national defense. Whenever the publication or disclosure of an invention by the granting of a patent might, in the opinion of the Commissioner of Patents, be detrimental to the public safety or defense he may order that the invention be kept secret and withhold the grant of a patent for such period or periods as in his opinion the national interest requires: Provided, That the invention disclosed in the application for said patent may be held abandoned upon it being established before or by the Commissioner that in violation of said order said invention has been published or disclosed or that an application for a patent therefor has been filed in a foreign country by the inventor or his assigns or legal representatives, without the consent or approval of the Commissioner of Patents. When an applicant whose patent is withheld as herein provided and who faithfully obeys the order of the Commissioner of Patents above referred to shall tender his invention to the Government of the United States for its use, he shall, if and when he ultimately receives a patent, have the right to sue for compensation in the Court of Claims, such right to compensation to begin from the date of the use of the invention by the Government: Provided, That the *, Secretary of War or the Secretary of the Navy or the chief officer of any established defense agency of the United States, as the case may be, is authorized to enter into an agreement with the said applicant in full settlement and compromise for the damage accruing to him by reason of the order of secrecy, and for the use of the invention by the Government. Act of Oct. 6, 1917 (40 Stat. 394); sec. 1, act of July 1, 1940 (54 Stat. 710); 35 U. S. C. 42. This section has been amended as above. By section 2 of the amending act it is to remain in force for a period of two years from July 1, 1940. 1370. Remedy for unlicensed use of inventions by United States. Notes of Decisions In general. (2d paragraph.)-Change citation to read: Manufacturers' Aircraft Assn. v. U. S. (1933), 77 Ct. Cl. 481; certiorari denied (1934), 291 U. S. 667. The United States having adopted and used plaintiff's patented invention and having obtained the benefits of its advantages could not deny its utility when plaintiff sought to recover reasonable and entire compensation under statute for appropriation of right or license to use invention. 35 U. S. C. A., sec. 68. Olsson v. U. S. (1938), 87 Ct. Cl. 642; certiorari denied (1939), 307 U. S. 621. Statute restricting patent infringement suits involving apparatus manufactured for or sold to United States to Court of Claims is not unconstitutional, as taking property either without due process of law or without adequate compensation. 35 U. S. C. A,, sec. 68. Pierce v. Submarine Signal Co. (D. C., 1939), 25 F. Supp. 862. Amount of recovery.-United States statute authorizing owner of invention to sue the United States to recover compensation for unlicensed use of invention, basis for fixing amount to be paid for use is an implied agreement by the United States to pay reasonable and entire or just compensation for the value to the owner of the property right or license appropriated by the United States. 35 U. S. C. A., sec. 68. Olsson v. U. S. (1938), 87 Ct. Cl. 642; certiorari denied (1939), 307 U. S. 621. Patents by officers and employees.-Where one in the service of the Government is assigned the duty of developing a particular mechanism and he does so during his working hours, using the facilities and materials of his employer, incurring no expense, and he subsequently procures a patent for the mechanism so developed, he may not recover from his employer compensation for its manufacture and use. George B. Gates v. U. S. (1938), 87 Ct. Cl. 358. 1371b. Procurement of patents by War Department. This provision has been repeated in modified form in subsequent appropriation acts. section 1, act of April 26, 1939 (53 Stat. 604). See 1376a. Base pay and allowances; warrant officers, Army Mine Planter Service. * * And provided further, That the pay and allowances of warrant officers of the Army Mine Planter Service shall be as now prescribed by law, and warrant officer, second assistant engineers, shall receive pay and allowances, and be entitled to other privileges as now prescribed by law for warrant officer, second mates. * Act of Oct. 15, 1940 (54 Stat. 1177); 10 U. S. C. 276. The above is added as a new paragraph of this section. For pay and allowances of temporary warrant officers, Army Mine Planter Service, see 29, ante. 1380. Base pay; enlisted men.--The monthly base pay of enlisted men of the Army and the Marine Corps shall be as follows: Enlisted men of the first grade, $126; enlisted men of the second grade, $84; enlisted men of the third grade, $72; enlisted men of the fourth grade, $60; enlisted men of the fifth grade, $54; enlisted men of the sixth grade, $36; enlisted men of the seventh grade, $30; except that the monthly base pay of enlisted men with less than four months' service during their first enlistment period and of enlisted men of the seventh grade whose inefficiency or other unfitness has been determined under regulations prescribed by the Secretary of War, and the Secretary of the Navy, respectively, shall be $21. Sec. 12(a), act of Sept. 16, 1940 (54 Stat. 895); 37 U. S. C. 13a, * The original text of this section, based on section 9, act of June 10, 1922 (42 Stat. 629); 37 U. S. C. 13, should be omitted as repealed by section 12(f), act of September 16, 1940. It is superseded by the above provision, effective October 1, 1940. 285291-41-SUPP. I-13 1395. Retired pay; members of Army Nurse Corps. * * * That pursuant to regulations to be prescribed by the Secretary of War or the Secretary of the Navy, as the case may be, when a member of the Army Nurse Corps or of the Navy Nurse Corps shall be found by a board of medical officers to have become disabled in line of duty from performing the duties of a nurse, and such findings are approved by the head of the department concerned, she shall be retired from active service and placed upon the Nurse Corps retired list of the appropriate department in the grade to which she belonged at the time of her retirement and with retired pay at the rate of 75 per centum of the active-service pay received by her at the time of her transfer to the retired list : Provided, That any person who served as a member of the Army Nurse Corps, or of the Navy Nurse Corps during the World War and continuously thereafter until May 13, 1926, and who was, prior to June 20, 1930, separated from said corps by reason of physical disability incurred in line of duty, shall, upon her application therefor, be entitled to be placed upon the retired list of the Nurse Corps of which she was a member, as provided in this Act, her retired pay hereunder becoming effective on the date of receipt by the Secretary of War or the Secretary of the Navy, as the case may be, of such application or the date of enactment of this amendment whichever is the later. Act of June 20, 1930 (46 Stat. 790); act of Oct. 17, 1940 (54 Stat. 1192); 10 U. S. C. 937; 34 U. S. C. 436. The second paragraph of the original text has been amended as above. 1396. Retired pay; enlisted men. The pay for specialists' rating received by an enlisted man of the Army or the Marine Corps at the time of his retirement shall be included in the computation of his retired pay. Sec. 12 (b), act of Sept. 16, 1940 (54 Stat. 895); 37 U. S. C. 13a. The above provision is added as a new paragraph of this section. By section 12(f), act of September 16, 1940, it is effective October 1, 1940. 1399. Longevity pay of officers; service counted. Notes of Decisions Service 88 clerk. (2d paragraph.)— Change citation to read; Scholl v. U. S. 1401. Longevity pay; warrant officers. (1936), 82 Ct. Cl. 606; certiorari denied (1936), 299 U. S. 592. By 340a, ante, warrant officers may count active commissioned service in the Army of the United States for all purposes. * * 1404. Longevity pay; enlisted men.Enlisted men of the Army and the Marine Corps shall receive, as a permanent addition to their pay, an increase of 10 per centum of their base pay and pay for specialists' ratings upon completion of the first four years of service, and an additional increase of 5 per centum of such base pay and pay for specialists' ratings for each four years of service thereafter, but the total of such increases shall not exceed 25 per centum. * * Sec. 12(a), act of Sept. 16, 1940 (54 Stat. 895); 37 U. S. C. 13a. The original text of this section, based on section 9, act of June 10, 1922 (42 Stat. 629); 37 U. S. C. 13, should be omitted as repealed by section 12 (f), act of September 16, 1940. It is superseded by the above provision, effective October 1, 1940. 1405. Longevity pay of enlisted men; commissioned service counted. By 348b, ante, enlisted men may count active commissioned service in the Army of the United States for all purposes. 1415. Additional pay for flying. ** aviation increase to commissioned and warrant officers of the Army, including not to exceed eighty-six medical officers, $3,242,593, none of which shall be available for increased pay for making aerial flights by non-flying officers at a rate in excess of $720 per annum, which shall be the legal maximum rate as to such officers, and such nonflying officers shall be entitled to such rate of increase by performing three or more flights within each ninety-day period, pursuant to orders of competent authority, without regard to the duration of such flight or flights; * * Sec. 1, military appropriation act of June 13, 1940 (54 Stat. 354). The fifth paragraph of this section, as repeated in the appropriation act for the fiscal year 1941, has been modified as indicated above. The appropriation in the third supplemental national defense appropriation act of October 8, 1940 (54 Stat. 966), is not subject to the limitation on the number of medical officers entitled to aviation increase. Notes of Decisions Continuation when incapacitated.-An | became entitled by virtue of assignment to Army officer, who, by reason of an airplane accident, was physically unfit for duty as an airplane pilot, but was assigned to duty as an observer and participated as such in aerial flights, is entitled to the 50 percent additional flying pay provided by statute. "Nonpiloting duty" is not the equivalent of "nonflying duty." Assignment to duty determines an officer's pay status. Park Holland v. U. S. (1939), duty "requiring him to make regular and frequent flights," due to a particular aviator but not actually received, was "pay" within congressional definition rather than a mere allowance, so as to warrant recovery of war risk insurance on ground that premium was covered by pay due, notwithstanding Treasury decision defining "pay" as excluding "aviation increase." Act July 24, 1917, sec. 6, 40 Stat. 245; War Risk Insurance Act, secs. 13, 22, as added by Act Oct. 6, 1917, sec. 2, Nature of additional pay.-The statutory 40 Stat. 399, 402. U. S. v. Jones (C. C. A.. 25 percent increase in pay to which soldier | 1938), 100 F. (2d) 65. 88 Ct. Cl. 341. 1420. Additional pay; officers providing own mounts. The third paragraph of this section has been repeated in subsequent appropriation acts. 1439. Additional pay; enlisted men rated as air mechanics. The pay of air mechanics was increased by 1380, ante. * The pay for 1440. Additional pay; enlisted men rated as specialists.specialists' ratings, which shall be in addition to monthly base pay, shall be as follows: First class, $30; second class, $25; third class, $20; fourth class, $15; fifth class, $6; sixth class, $3. Sec. 12(a), act of Sept. 16, 1940 (54 Stat. 895); 37 U. S. C. 13a. * * The original text of this section, based on section 9, act of June 10, 1922 (42 Stat. 629); 37 U. S. C. 13, should be omitted as repealed by section 12(f), act of September 16, 1940. It is superseded by the above provision, effective October 1, 1940. 1462. Allowances to enlisted men on discharge; clothing. The second paragraph of this section has been repeated in subsequent appropriation acts. 1466. Allowances to prisoners. The third and fourth paragraphs of this section have been repeated in subsequent appropriation acts. |