# Schillinger v. United States

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Schillinger v. United States, 155 U.S. 163 (1894), is an 1894 decision of the United States Supreme Court, holding (7–2, per Justice Brewer) that a suit for patent infringement cannot be entertained against the United States, because patent infringement is a tort and the United States has not waived sovereign immunity for intentional torts. Warning: template has been deprecated.

## Dissenting Opinion

    Harlan
United States Supreme Court
155 U.S. 163
Schillinger v. United States
This was a petition in the court of claims by John J. Schillinger and others against the United States to recover damages for the wrongful use of a patented invention. The court of claims dismissed the petition. Petitioners appeal.
On July 19, 1870, a patent was issued to John J. Schillinger for an improvement in concrete pavement. The claim of the patent was in these words:
'The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose described.'
A reissue was granted May 2, 1871. The claims in the reissue were thus stated:
'(1) A concrete pavement laid in detached blocks or sections, substantially in the manner shown and described.
'(2) The arrangement of tar paper, or its equivalent, between adjoining blocks of concrete, substantially as and for the purpose set forth.' On February 27, 1875, Schillinger filed in the patent office a disclaimer; which, after stating the language of the specification disclaimed, added: 'Your petitioner hereby disclaims the forming of blocks from plastic material without interposing anything between their joints while in the process of formation.'
Thereafter the archetect of the capitol invited proposals for a concrete pavement in the capitol grounds, and on September 2, 1875, entered into a contract with G. W. Cook for the laying of such pavement. It does not appear that in the proposals, specifications, or contract there was in terms any reference to or description of the Schillinger patent.
Frederick Law Olmsted was the person who prepared the plans and specifications, and in the contract it was provided as follows:
'The pavement to be laid with free joints, in the best manner, the courses running diagonally, and arranged around the curved parts to the satisfaction of the said Fred. Law Olmsted.
'It is understood and agreed by the party of the second part that in the event of any legal proceedings being taken by other parties against the contractor of the United States for the infringement of any patent or claimed patent during the execution of the work the contractor shall hold the United States harmless; and, if said proceedings tend to create delay in the prosecution of the work, the United States shall have the right to immediately employ other parties to complete the same, and the contractor shall reimburse the United States in any extra amount it may have to pay for such completion over and above the amount which the contractor would have been entitled to for the same work.'
This is the only language found in the contract which in any manner suggests the use, or possibility of use, of the Schillinger patent. The contract price was 28 1/2 cents per square foot. Certain of the claimants who had acquired by assignment the right to use the Schillinger patent in the District of Clumbia were bidders for such contract, and proposed to do the work in accordance with the Schillinger patent at 45 cents per square foot. Cook proceeded to perform the contract, finished it, and received payment between October, 1875, and july, 1881.
On March 22, 1887, these claimants filed their petition in the court of claims, asserting full ownership of the Schillinger patent, and seeking to recover from the United States damages for the wrongful use thereof in the construction of this pavement. The court of claims held (24 Ct. Cl. 278) that there was no contract, either expressed or implied, on the part of the government for the use of such patent, and on that ground dismissed the petition as outside of the jurisdiction of the court.
From that judgment the claimants appealed to this court.
Mr. Justice Harlan and Mr. Justice Shiras, dissenting. 24 Ct. Cl. 278, affirmed.
John C. Fay, Eppa Hunton, and V. B. Edwards, for appellants.
Assistant Attorney General Conrad for the United States.
Mr. Justice BREWER, after stating the facts in the foregoing language, delivered the opinion of the court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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