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Home > Journals > Michigan Law Review > MLR > Volume 62 > Issue 2 (1963)

 

Abstract

An army officer invented a radar system before World War II but was prevented from patenting it by his superior officers for security reasons. In 1945 his application for a patent was rejected because it was not filed within the time limit embodied in section 102(b) of the Patent Code.1 Congress, in 1950, enacted Private Law 10082 to waive the statutory time limit for the officer's patent application. The act provided that a patent should issue from the 1945 application if the invention .met all the other statutory requirements of the Patent Code. The act provided also that the patent right should not be enforced against those using or manufacturing the device before the patent was issued except to the extent of payment by the users of reasonable royalties. The patent issued in 1957 and plaintiff, as assignee of the patent, brought this action for infringement against the defendant, who had manufactured the patented device before passage of Private Law 1008 and was continuing that manufacture at the time of the suit. Defendant moved for a declaration of invalidity of the private law and for a permanent injunction restraining enforcement. Before a three-judge district court, held, motion denied. Under prior legislative and judicial practice, the concept of exclusiveness reflected in the patent clause of the Constitution has been shown to be flexible enough to include protection for intervening rights. However, the rights of the public to an invention in the public domain have never been considered as vested rights and may be rescinded discriminatorily if there exists a state of facts that reasonably justifies it. Radio Position Finding Corp. v. Bendix Corp., 205 F. Supp. 850 (D. Md. 1962), aff'd per curiam, 371 U.S. 577 (1963).

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