Squier v. American Telephone & Telegraph Co., 7 F.2d 831 (2d Cir. 1925)

*832 William H. Davis, R. Randolph Hicks, and Samuel E. Darby, Jr., all of New York City, for appellant.

Charles Neave, William R. Ballard, and C. C. Rose, all of New York City, for appellee.

Before ROGERS, HOUGH, and MANTON, Circuit Judges.

HOUGH, Circuit Judge (after stating the facts as above).

As above noted, we express no opinion as to defendant's well-urged proposition that plaintiff's patent is no more than a restatement of what other and earlier inventors long ago told the world, nor, in respect of the differing and irreconcilable opinions of Judge Advocates of different years, need we go further than to say that, while we should, if it were necessary, prefer the earlier opinion as better reasoned on the wording of the statute, we think this case was rightly decided below, even if the later views of statutory meaning are correct.

Plaintiff's position is that he swore in his application that "any person in the United States" might use his asserted invention without paying anything therefor because in brief he thought he was compelled so to do. He acted under a mistake of law, the yoke of which error was not lifted from his neck until 1918-20, when light broke on the Department of Justice, in the manner and to the extent above noted. We have assumed for argument's sake that there was a mistake of law made by the Judge Advocate General of 1910 when he construed the act of 1883, but it does not at all follow that this plaintiff acted on or was guided by the same mistake in openly and spontaneously dedicating his work to the public, as he plainly did. In brief, if we assume, though not find, the law to be as plaintiff asserts, plaintiff's own acts and words still prevent his recovery.

It is first observable that nothing compelled Maj. Squier to take out a patent of any sort; any patent seeking was voluntary. *833 Next, it is undisputed that he could have sought an ordinary patent at his own expense; he had done so before repeatedly, and nothing but his own preference or a sense of duty, wholly uninfluenced by the act of 1883, would or could lead to proceeding under the statute. Further, had he taken out an ordinary patent, his rights thereunder in respect of the United States were clear enough under Salomons v. United States, 137 U.S. 342, 11 S. Ct. 88, 34 L. Ed. 667, and Gill v. United States, 160 U.S. 426, 16 S. Ct. 322, 40 L. Ed. 480, both well-known rulings before 1910.

But there were special reasons why a man trained from youth to government service would in his better moments at all events be more than willing, would indeed ardently desire, to devote what he had discovered to public service, and indignantly decline to make money therefrom. Such an invention as is here asserted was conceivably possible from a genius brain, but for most even first-rate men an investigation of existing plants and trial of existing apparatus was to say the least desirable, and Maj. Squier had those advantages at public expense; again, the whole appropriation was evidently a chance to advertise and aggrandize the Signal Corps, and that both plaintiff and his military superiors intended throughout to exploit this departmental pride is perfectly plain.

Thus, after proclaiming an intent to give the invention to the public in the application itself, the patentee approved published statements by the Chief Signal Officer to the same effect; he personally communicated similar declarations to the daily press, and addressed a technical association in words that can only mean the same thing. Pride in the army and his own corps and a very human liking for the "lime light" all combined to produce in Maj. Squier a desire, quite sincere at the time, to do exactly what the subtitle on his patent indicated and have it "dedicated to the public."

Of course the very existence of this suit shows that the fit of public spirit has passed; but what controls the interpretation of this patent is the intent of the patentee when he received it, not his present opinion that he would have thought differently, about what he wished to do, had he been better instructed as to what he might have done. We are satisfied that plaintiff wished and was proud to be generous in 1911; that he now regrets that generous emotion is immaterial.

Decree affirmed, with costs.