Petition by the Commissioner of Internal Revenue to review a decision of the United States Board of Tax Appeals, opposed by the Stephens-Adamson Manufacturing Company.
Before EVANS and SPARKS, Circuit Judges, and BARNES, District Judge.
Petitioner argued that because the patent was not issued until 1918, the only basis for computing its depreciation was its cost, and, as its cost was nothing, the substantial allowances made by the Board of Tax Appeals for depreciation were unauthorized.
Article 167, Regulations 45 of the Treasury Department, reads as follows: "Art. 167. Depreciation of patent or copyright. -- In computing a depreciation allowance in the case of a patent or copyright, the capital sum to be replaced is the cost (not already deducted as current expense) of the patent or copyright or its fair market value as of March 1, 1913, if acquired prior thereto. * * *"
Three questions are presented, which may be stated thus:
(1) Is an invention for which an application for a patent is pending March 1, 1913 "property," as that term is used in section 202(a), Revenue Acts of 1918 and 1921 (40 Stat. 1060; 42 Stat. 229) and section 204(a), Revenue Acts of 1924 and 1926 (26 USCA § 935 and note), so that its fair market value may be used as a basis of computing depreciation or exhaustion for each of the years in question?
(2) Does the fact that respondent paid nothing for the invention and the application for a patent, which were acquired prior to March 1, 1913, and which ripened into a patent grant subsequent to said date, prevent respondent from securing an allowance for the exhaustion of said patent?
(3) Assuming questions (1) and (2) are answered in favor of respondent, what was the fair market value of the invention and the application for a patent on March 1, 1913?
The first two questions will be considered together. The word "property," as used in the above referred to sections of the Revenue Acts, should not be given a narrow or technical meaning. In Lynch v. Alworth-Stephens Co., 267 U.S. 364, 369, 45 S. Ct. 274, 275, 69 L. Ed. 660, the court said: "The general provision * * * is that the deduction from gross income shall include a reasonable allowance for the 'exhaustion * * * of property.' There is nothing to suggest that the word 'property' is used in any restricted sense."
The ruling of the Treasury Department, article 167, Regulations 45, confirms our impression that the rights accruing to the inventor by reason of the issuance of a patent are within the meaning of the word "property," as that term is used in the statute. As we understand petitioner, he does not dispute the soundness of this conclusion. He makes an attempted distinction between the property of one who owns a patent and the rights of one who has merely a pending application for a patent. Such a distinction, it seems to us, goes to the value of the property right rather than to its existence. That one who has secured through assignment the application for a patent, or who has himself made a discovery of a patentable article, has a property right therein, is established by the fact that he may (35 USCA § 47) sell and assign his application for a patent. Gayler v. Wilder, 10 How. 477, 13 L. Ed. 504; Cook v. Sterling Electric Co. (C.C.) 118 F. 45. We think it a fair definition to say that what may be sold and assigned is property. It what likewise been held that an application for a patent passed to the trustee in bankruptcy under section 70a of the Bankruptcy Act (11 USCA § 110(a). In re Myers-Wolf Manufacturing Co. (C.C.A.) 205 F. 289.
Petitioner relied largely upon Durham v. Seymour, 161 U.S. 235, 16 S. Ct. 452, 454, 40 L. Ed. 682. He points to the following language appearing in the opinion:
"Whether the alleged invention were patentable or not was the question, and that question had no relation to its value in money. If the invention were not patentable, Durham had suffered no loss; if the invention were patentable, it was not material whether it had or had not a money value. * * *
The matter in dispute must have actual value, and that cannot be supplied by speculaton on the possibility that, in a given case, an ...