Opinion
No. 49461.
April 8, 1952.
Edward S. Irons, Washington, D.C. (Hamer H. Jamieson, Los Angeles, Cal., on the briefs), for plaintiff.
H. L. Godfrey, Washington, D.C. with whom was Holmes Baldridge, Asst. Atty. Gen., for defendant.
Before JONES, Chief Judge, and LITTLETON, WHITAKER, MADDEN and HOWELL, Judges.
This case was formerly before the Court on defendant's motion for summary judgment on the ground that plaintiff's action was barred by the statute of limitations. Plaintiff in his petition had alleged that the defendant had purchased and used some of the instruments embodying his invention prior to the six-year period of limitation, but he alleged that it had continued to use them within the six-year period.
We held that the defendant was liable for all uses within the six-year period and, since uses within that period were alleged, we denied the motion for summary judgment.
Defendant has now filed a motion for rehearing, in which it points out that the Commissioner's pretrial memorandum, to which no objection is taken, shows that all the pumps purchased by defendant were purchased prior to the six-year limitation period. Hence, it says that, since they were purchased and held for use prior thereto, plaintiff is barred by the statute of limitations from claiming compensation for whatever infringement there may have been.
We think defendant's position is correct.
Defendant purchased certain pump-type fire extinguishers, said to embody plaintiff's invention. It hung these up or otherwise had them available for use in case of a fire. This was before the statutory period of six years. No purchase of such fire extinguishers thereafter is shown.
It thus appears that whatever infringement there was, it was done more than six years before the petition in this case was filed. Any further use of these fire extinguishers within the six-year period would not subject the defendant to liability. Its infringement, if any, took place when it purchased the extinguishers and had them available for use when needed.
This is what we held in Olsson v. United States, 87 C.Cls. 642, certiorari denied, 307 U.S. 621, 59 S.Ct. 792, 83 L.Ed. 1500, rehearing denied 307 U.S. 650, 59 S.Ct. 1030, 83 L.Ed. 1529, and we reaffirm that holding. We did not intend to hold to the contrary in our former opinion in the instant case.
Defendant's motion for rehearing is denied, but its motion for summary judgment is now allowed and plaintiff's petition is dismissed.
JONES, Chief Judge, and HOWELL, MADDEN, and LITTLETON, Judges, concur.