117 C. Cls.

PATENTS-Continued

sentative of the plaintiff to a Government agency,
November 26, 1943, asserting that certain devices
which the Government had caused to be manufac-
tured and was using were covered by plaintiff's
patents, does not of itself show that the asserted
cause of action in the instant case arose some time
before February 3, 1944.

Id.

Limitation of Actions 49 (1).

XI. Section 1498, 28 U. S. C., is, in effect, an eminent
domain statute, which entitles the Government to
manufacture or use a patented article or device but
with liability to pay compensation to the owner of
the patent. Before the enactment of the Act of 1910
(36 Stat. 851), which, as amended, is now 28 U. S. C.
1498, the Court of Claims held that action by the
Government which, if it had been done by a private
person, would have constituted an infringement of a
patent, was a tort for which the Government had
not, up to that time, consented to be sued. It was
not then possible to sue the United States for the
manufacture or use of a patented device unless there
could be spelled out of the circumstances a contract
implied in fact to pay the owner of the patent. After
the Act of 1910, it was held (Crozier v. Krupp, 224
U. S. 291) that even though there was no express or
implied license authorizing the Government to use
the patent, its use was not tortious and the officer
making the use could not be enjoined from doing so.
The use was a taking, made lawful by the 1910 Act
which provided the procedure whereby the owner
of the patent would be compensated. However, the
fact that 28 U. S. C. 1498 is, in effect, an eminent
domain statute does not answer the question pre-
sented by the instant case. Id.

XII. In the case of infringement of a patent by the Govern-
ment, which is "taking" a license by eminent
domain, it is not possible at the time of the first
taking "to ascertain the scope and duration of the
interest taken," and the "right of action" does not
accrue at that time for all future infringements by
the Government. Id.

117 C. Cls.

PATENTS-Continued

XIII. The Court concludes that the right of action or claims
sought to be enforced in the instant suit, for actions
of the Government after February 3, 1944, did not
accrue before that date and are not barred by the
statute of limitations.

Limitation of Actions

Id.

49 (1).

XIV. The conclusion of the Court on this issue is in line with
decisions arising before the Act of 1910, in which
cases liability was based upon a contract, as well
as in other cases arising since the Act of 1910, in
which the Court has, by dictum, recognized the rule.
After reconsideration, the Court in the instant case
adheres to the doctrine enunciated in those cases.
See Fauber v. United States, 93 C. Cls. 11, and other
cases cited. Id.

Limitation of Actions 49 (1).

PAY AND ALLOWANCES.

I. An officer of the Regular Army who served on active
duty as such from November 1, 1918, to April 1,
1926, when he was retired for physical disability in
the grade of first lieutenant; and who, upon recall
to active duty in 1942, was advanced to the tempo-
rary grade of major; and who, subsequently on
December 26, 1944, under the provisions of section
4 of the Act of June 29, 1943, was advanced to the
grade of major on the retired list for additional
physical disability incurred while serving tempo-
rarily in that grade during the period January 12,
1942, to March 24, 1945, is entitled to have counted
his inactive service on the retired list from April 1,
1926, to January 12, 1942, in computing his retired
pay upon reversion to inactive status March 24,
1945. Carroll, 53.

II. The court holds that under the provisions of section 15
of the Pay Readjustment Act (56 Stat. 359) as
amended (56 Stat. 1037), and the provisions of
section 4 of the Act of June 29, 1943 (57 Stat. 249),
plaintiff is entitled to recover for the difference
between the retired pay of a major with more than
24 years' service and the retired pay of a major with
more than 9 years' service from March 25, 1945, to
the date of judgment. Id.

Army and Navy 13 (12).

117 C. Cls.

PAY AND ALLOWANCES-Continued

III. In a suit by a Naval Reserve Officer on the honorary
retired list of the United States Naval Reserve to
recover retirement pay for disability alleged to have
been incurred in line of duty while on extended
active service in the Navy, it is held that under the
provisions of the Naval Aviation Personnel Act of
1940, as amended (34 U. S. C. 855 (c)-1), the
plaintiff is not entitled to recover. (See 109 C. Cls.

IV. Upon the evidence it is shown that plaintiff is suffering
from Paget's disease, which generally occurs after
the age of 40, and is a disease of the adult bone
structure, entailing great pain and for which no cure
is known. At the time of plaintiff's examination
for discharge from active service, in 1944, and
transfer to the inactive list, it is shown by the
evidence that no positive evidence of Paget's disease
was shown, and plaintiff was found to be fit for
active duty and for release from active duty,
respectively. Id.

Army and Navy 13 (12).

V. Where, because of the absence of X-rays prior to 1944,
it is impossible to ascertain whether plaintiff incurred
Paget's disease before or after his entry upon active
duty in 1942; and where no evidence is presented to
show that the disease was incurred while on active
duty; there is no presumption that plaintiff incurred
Paget's disease while on active duty from 1942 to
1944. Id.

VI. Where it is shown by the evidence that the plaintiff
was not incapacitated at the time he was placed on
the inactive list in 1944; and where he was able to
discharge the duties of a Government non-service
position until 1947; it is held that the evidence is not
sufficient to bring the plaintiff under the provisions
of the Act of 1940, so as to entitle him to disability
benefits. Id.

Army and Navy 13 (12).

VII. From a careful examination of the record, the Court
concludes that the plaintiff was not treated unjustly
at the time of his discharge in 1944. He was
observed and examined on his own request for a

117 C. Cls.

PAY AND ALLOWANCES-Continued

kidney condition and while otherwise sympton-free,
X-rays of plaintiff's bone structure revealed some
characteristics of Paget's disease which were con-
sidered to be non-significant. Plaintiff's case was
considered on the merits in 1946 and a decision of the
Naval review board was reached in line with the
general policy of equal treatment of officers so
situated. This action cannot be considered arbitrary
or discriminatory. Id.

Army and Navy 13 (12).

VIII. Under the 1940 Act (34 U. S. C. 855) incapacity to

perform duties of the office must occur while the
officer is on active duty. Proceedings to establish
disability rights must be commenced within six
months of release from active duty. Id.

Army and Navy 13 (12).

IX. Plaintiff, an unmarried officer of the Coast Guard,
without dependents, who for the periods in question,
was assigned to duty as an aviator, piloting land-
based Coast Guard aircraft at San Francisco and
Brooklyn, and was engaged in antisubmarine war-
fare, sues for rental allowance which was denied to
him by a ruling of the Comptroller General. It is
held that plaintiff is entitled to recover. See Schuh v.
United States, 107 C. Cls. 88. Defendant's counter-

claim is denied. Lawrence, 644.

Army and Navy

13 (10).

X. Under Executive Order No. 9255, issued pursuant to

Section 6 of the 1942 Act, providing that "the term
'sea duty' shall mean service at sea by an officer on a
vessel under orders," etc., the plaintiff, who was not
performing service at sea on board a vessel, was not
on sea duty as regards rental allowance. The reason
for the nonpayment of rental allowance to a bachelor
officer, without dependents, on sea duty on a vessel
under orders is because such officer is furnished
quarters on board the vessel on which he is serving.
Id.

Army and Navy 13 (10).

XI. An officer stationed on land and engaged in antisub-
marine duty at sea, and receiving pay for sea duty
under Section 2 of the Pay Readjustment Act of 1942
(56 Stat. 359, 360) is nevertheless entitled, under

117 C. Cls.

PAY AND ALLOWANCES-Continued

Section 6 of the Act, to receive the rental allowance of
his rank, where Government quarters are not
furnished.

Id.

XII. The amendment of Section 6 of the Pay Readjustment
Act of 1942 by the Act of March 6, 1943, which
provided that no rental allowance shall accrue to an
officer having no dependents while on sea duty
"except for temporary periods of sea duty not ex-
ceeding three months" does not indicate that Congress
ratified the ruling previously made by the Comp-
troller General that no quarters or rental allowance
could be furnished or allowed to an officer without
dependents whose station was on land and who was
engaged in antisubmarine aviation duty. There is
nothing in the legislative history of the Amendatory
Act of 1943 to show that Congress intended to deny
payment of the rental allowance provided by Sec-
tion 6 to a land-based officer engaged in aviation sea
duty as defined by the Secretary of the Navy under
Section 2. Id.

PRESIDENT (THE), AUTHORITY OF.

See Navy Officer Discharged.

PROCEDURAL REQUIREMENTS.

See Veterans Preference Act I, II, III, IV, V, VI, VII.
PROCEDURE.

See Jurisdiction II.

"QUESTIONS OF LAW."

See Contracts XIV.

RADAR.

See Patents I, II, III, IV, V, VI, VII, VIII.

REIMBURSABLE ITEMS.

See Contracts LIX, LX, LXI, LXII, LXIII, LXIV, LXV, LXVI,
LXVII, LXVIII, LXIX.

RENTAL OF PROPERTY BY GOVERNMENT.

I. In a suit to recover damages for the alleged breach of
covenants by the United States to maintain the
plaintiff's premises in good condition and to restore
the premises to the same condition as that existing
at the time the defendant entered upon the property,
in accordance with the terms of the lease, and the
modifications and renewals thereof; upon a careful
evaluation of the facts and authorities and in accord-
ance with what the court concludes was the reason-