LITTLETON, Judge.
This case is. before the court on the defendant’s motion to dismiss the plaintiff’s petition on the ground that the complaint fails to state a claim upon which relief can be granted.
The plaintiff filed its petition against the United States pursuant to the provisions of 28 U.S.C. § 1498,
claiming that the defendant had infringed three
of the plaintiff’s patents
in that the Atomic Energy Commission had caused to be made and had used G-107 Line Recorders,
which embodied the plaintiff’^ inventions, without a license from the plaintiff to make or use devices covered by plaintiff’s patents. The plaintiff seeks reasonable compensation
for the alleged infringement of its patents.
The defendant moved to dismiss the plaintiff’s petition on the ground that the Atomic Energy Act of 1946
prevents a patent from conferring any rights with respect to any invention or discovery used in the production of fissionable material and that “used” also includes the right to manufacture the inventions which are used in the production of fissionable material.
In answer to the defendant’s contentions, the plaintiff says that the G-107 Line Recorders were not used in the production of fissionable material and even if they were so used, the right to use as granted by the Act does not include the right to manufacture the invention.
The issue presented for decision in this case is whether the G — 107 Line Recorders were used in the production of fissionable material within the provisions of Sections 11(a) (2) and 11(b) of the Atomic Energy Act of 1946
and if so, does “used” also include the right to manufacture the inventions.
The plaintiff tells us that the G-107 Line Recorder is a mass spectrometer and is solely an analytical instrument. It can perform no function other than the analysis of gases. Therefore the instruments cannot be used in the production of fissionable material. Equipment used in the production of fissionable material within the meaning of Section 11(a) (2) of the Act is confined to the actual production facilities which function “to manufacture * * * to separate * * * or to produce”
and does not include auxiliary equipment, such as mass spectrometers, which are incapable of producing atomic energy. Plaintiff concludes that the phrase “used in the production of fissionable material” must be limited to equipment capable of actually producing fissionable material and not extended to include the mass spectrometers.
On the other hand, the defendant states that the G-107 Line Recorders are permanently and physically incorporated in the gaseous diffusion cascades in Atomic Energy Commission plants.
Those not in actual use in the cascades are being used to train maintenance personnel to qualify them for maintenance work on the Line Recorders, used in research and development directed to the improvement of the gaseous diffusion process for the separation of uranium isotopes, to monitor gaseous reactants and reaction products in the auxiliary feed facilities of the gaseous diffusion cascades, and a few of the Line Recorders are maintained as spares for replacements
in
the above operations. The defendant further states that all of the Line Recorders incorporated in the gaseous diffusion cascades were uniquely designed for use in gaseous diffusion cascades for the separation of uranium isotopes -and that the Line Recorders incorporated in -the gaseous diffusion cascades form an integral'part of the instrumentation system for the control of the cascades and are used to monitor the operation of the cascades thereby furnishing essential information to the operators- of the cascades. This information permits correction of malfunctioning of units of the cascades and thus secure the optimum rate of production of the uranium isotope of mass 235 having the required - chemical and isotopic purity and that the uranium isotope of mass 235 could not be produced with the required chemical and isotopic purity at the present production rates in the existing, gaseous diffusion cascades without the use of the Line Recorders.
The separation of uranium isotopes by diffusion results in a concentration of the isotope Uranium 235 which is a fissionable material as defined in Section 5(a) of the Act.
Defendant urges that this constitutes a production of fissionable material within the meaning of the Act.
We think that the phrase .“used in the production of fissionable material” is not limited to equipment actually capable of producing fissionable material but also includes equipment such-as
these Line
Recorders which are permanently and physically incorporated in the gaseous diffusion cascades. The Line Recorders form an integral part of the instrumentation system used to control the cascades. The uranium isotope of mass 235 could not be produced at the present production rates in the existing gaseous diffusion cascades with the required chemical and isotopic purity if it were not for the use of Line Recorders. Certainly these Line Recorders-are-used in the production of fissionable-material within the meaning of Sec
tions 11(a) (2) and 11(b) of the Atomic Energy Act of 1946.
The plaintiff also contends that even assuming that the Line Recorders are “used in the production of fissionable material” or “used in the conduct of research”, and such use alone is non-infringing, the plaintiff still has a good cause of action for the infringing manufacture of the Line Recorders under Section 1498 of the Judicial Code.
Section 1498 of Title 28 of the United States Code allows the owner of a patented invention which is manufactured by or for the United States without a license or lawful right, to sue the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such manufacture by the United States.
Section 1498 is not applicable to the case at bar. The Atomic Energy Act prohibits recovery. The Atomic Energy Act prevents any patent rights from accruing to a patentee if his invention is used in the production of atomic energy. See Fletcher v. United States Atomic Energy Commission, 89 U.S.App.D.C. 218, 192 F.2d 29, certiorari denied 342 U.S. 914, 72 S.Ct. 361, 96 L.Ed. 684. Private patents are eliminated from the atomic energy field.
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LITTLETON, Judge.
This case is. before the court on the defendant’s motion to dismiss the plaintiff’s petition on the ground that the complaint fails to state a claim upon which relief can be granted.
The plaintiff filed its petition against the United States pursuant to the provisions of 28 U.S.C. § 1498,
claiming that the defendant had infringed three
of the plaintiff’s patents
in that the Atomic Energy Commission had caused to be made and had used G-107 Line Recorders,
which embodied the plaintiff’^ inventions, without a license from the plaintiff to make or use devices covered by plaintiff’s patents. The plaintiff seeks reasonable compensation
for the alleged infringement of its patents.
The defendant moved to dismiss the plaintiff’s petition on the ground that the Atomic Energy Act of 1946
prevents a patent from conferring any rights with respect to any invention or discovery used in the production of fissionable material and that “used” also includes the right to manufacture the inventions which are used in the production of fissionable material.
In answer to the defendant’s contentions, the plaintiff says that the G-107 Line Recorders were not used in the production of fissionable material and even if they were so used, the right to use as granted by the Act does not include the right to manufacture the invention.
The issue presented for decision in this case is whether the G — 107 Line Recorders were used in the production of fissionable material within the provisions of Sections 11(a) (2) and 11(b) of the Atomic Energy Act of 1946
and if so, does “used” also include the right to manufacture the inventions.
The plaintiff tells us that the G-107 Line Recorder is a mass spectrometer and is solely an analytical instrument. It can perform no function other than the analysis of gases. Therefore the instruments cannot be used in the production of fissionable material. Equipment used in the production of fissionable material within the meaning of Section 11(a) (2) of the Act is confined to the actual production facilities which function “to manufacture * * * to separate * * * or to produce”
and does not include auxiliary equipment, such as mass spectrometers, which are incapable of producing atomic energy. Plaintiff concludes that the phrase “used in the production of fissionable material” must be limited to equipment capable of actually producing fissionable material and not extended to include the mass spectrometers.
On the other hand, the defendant states that the G-107 Line Recorders are permanently and physically incorporated in the gaseous diffusion cascades in Atomic Energy Commission plants.
Those not in actual use in the cascades are being used to train maintenance personnel to qualify them for maintenance work on the Line Recorders, used in research and development directed to the improvement of the gaseous diffusion process for the separation of uranium isotopes, to monitor gaseous reactants and reaction products in the auxiliary feed facilities of the gaseous diffusion cascades, and a few of the Line Recorders are maintained as spares for replacements
in
the above operations. The defendant further states that all of the Line Recorders incorporated in the gaseous diffusion cascades were uniquely designed for use in gaseous diffusion cascades for the separation of uranium isotopes -and that the Line Recorders incorporated in -the gaseous diffusion cascades form an integral'part of the instrumentation system for the control of the cascades and are used to monitor the operation of the cascades thereby furnishing essential information to the operators- of the cascades. This information permits correction of malfunctioning of units of the cascades and thus secure the optimum rate of production of the uranium isotope of mass 235 having the required - chemical and isotopic purity and that the uranium isotope of mass 235 could not be produced with the required chemical and isotopic purity at the present production rates in the existing, gaseous diffusion cascades without the use of the Line Recorders.
The separation of uranium isotopes by diffusion results in a concentration of the isotope Uranium 235 which is a fissionable material as defined in Section 5(a) of the Act.
Defendant urges that this constitutes a production of fissionable material within the meaning of the Act.
We think that the phrase .“used in the production of fissionable material” is not limited to equipment actually capable of producing fissionable material but also includes equipment such-as
these Line
Recorders which are permanently and physically incorporated in the gaseous diffusion cascades. The Line Recorders form an integral part of the instrumentation system used to control the cascades. The uranium isotope of mass 235 could not be produced at the present production rates in the existing gaseous diffusion cascades with the required chemical and isotopic purity if it were not for the use of Line Recorders. Certainly these Line Recorders-are-used in the production of fissionable-material within the meaning of Sec
tions 11(a) (2) and 11(b) of the Atomic Energy Act of 1946.
The plaintiff also contends that even assuming that the Line Recorders are “used in the production of fissionable material” or “used in the conduct of research”, and such use alone is non-infringing, the plaintiff still has a good cause of action for the infringing manufacture of the Line Recorders under Section 1498 of the Judicial Code.
Section 1498 of Title 28 of the United States Code allows the owner of a patented invention which is manufactured by or for the United States without a license or lawful right, to sue the United States in the Court of Claims for the recovery of his reasonable and entire compensation for such manufacture by the United States.
Section 1498 is not applicable to the case at bar. The Atomic Energy Act prohibits recovery. The Atomic Energy Act prevents any patent rights from accruing to a patentee if his invention is used in the production of atomic energy. See Fletcher v. United States Atomic Energy Commission, 89 U.S.App.D.C. 218, 192 F.2d 29, certiorari denied 342 U.S. 914, 72 S.Ct. 361, 96 L.Ed. 684. Private patents are eliminated from the atomic energy field.
Therefore the Act protects the Government from liability when it uses a patented invention in the production of atomic energy. Although the Act does not specifically exempt the manufacture for use, we think that the manufacture for use of a patented invention, which is used in the production’ of atomic energy, is also protected. It is inconceivable that Congress would exempt the Government from liability for the use of a patented invention and at the same time permit the Government to be liable for the manufacture of the exempted item. The bare right to use the patented invention without the corresponding right to manufacture or have manufactured the invention is valueless.
We hold therefore that the plaintiff's patents conferred no rights with respect to the inventions which were used or manufactured to be used in the specified instances in this case. The plaintiff obtained no rights under the patents insofar as and to the extent that the patented items were used by the defendant. It follows then that there can be no recovery.
The defendant in this case filed an affidavit in support of its motion to dismiss. Rule 16(b) permits us to consider this motion as a motion for summary judgment as provided in Rule 51.
On the basis of the petition and documents before the court, we hold that there is no genuine issue as to any material fact alleged and that upon the facts before the court summary judgment must be granted as a matter of law. The plaintiff’s petition is dismissed.
It is so ordered.
JONES, C. J., and LARAMORE, MADDEN and WHITAKER, JJ.., concur. .