## Facts

- John J. Schillinger held (and later assigned) a patent covering improvements in concrete pavement, including concrete pavement laid in detached blocks and the use of tar paper (or equivalent) between blocks.
- The Architect of the Capitol contracted with a private contractor to install concrete pavement on the Capitol grounds under government plans and specifications.
- The government contract did not require use of Schillinger’s patented method and included a clause requiring the contractor to indemnify the United States if patent infringement proceedings were brought.
- Schillinger and co-claimants alleged the Capitol grounds pavement used their patented invention without compensation and against their protest, and sought damages measured by the government’s “saving or profit.”
- The Court of Claims dismissed for lack of jurisdiction, finding no express or implied contract by which the United States agreed to use the patent.

## Issues

1. Whether an action seeking compensation from the United States for unauthorized use of a patent falls within the Court of Claims’ jurisdiction over claims founded on the Constitution or on an express or implied contract, or instead is a claim “sounding in tort” (patent infringement) outside its jurisdiction.
2. Whether the alleged government use of a patented invention through a contractor can be treated, on the petition’s theory and facts, as an implied contract or constitutional taking rather than tortious infringement.

## Decision

- The Supreme Court affirmed the dismissal by the Court of Claims.
- The Court held the Court of Claims lacked jurisdiction over “a mere tort” claim against the United States.
- The petition, as pleaded, stated a claim for patent infringement sounding in tort, not a contract claim (express or implied) and not a constitutional takings claim.

## Legal Principles

- The United States may not be sued without its consent; Congress may define the scope of any consent, and courts may not extend jurisdiction beyond the statute’s terms.
- Under the jurisdictional statute governing the Court of Claims, claims “sounding in tort” are excluded even if framed as seeking compensation from the government.
- Patent infringement is an unauthorized invasion of a legal right and is treated as a tort, not as a claim arising from agreement.
- Government acceptance of work performed under a contract does not, without more, create an implied contract with a patentee to pay for unlicensed use of a patented invention.
- A petition alleging wrongful, uncompensated use of a patent and seeking damages for the user’s benefit is tort-like in character; a different question might arise only where the pleadings and facts establish governmental appropriation consistent with a compensable taking or implied contractual obligation.

## Conclusion

The Court concluded that the claim was, in substance, patent infringement sounding in tort, and therefore outside the Court of Claims’ jurisdiction absent a clear statutory waiver permitting suit against the United States for such infringement.


Schillinger v. United States, 155 U.S. 163 (1894)