The national Republican., 1866-12-20

No. 70. The steamer PstsfhoG, Ae., appellant,
va The United statss. TIE argument Of this saass
~ continued By Mr. Coasy and Mr: Ashton N
The sprsllss, and ooneluded By Mr.. A. =. Smith fcr
The New York bank ,az sasss viii bs arst for sr.
gunsnt to.nonow. Msssn 0llliman, Burfil1 aad
Evsrts represent the haaks, aad0 01sssrs. 0'Connor
and Parker the Commisssnsf Of Taxes for the city
and county Of New York.
Patsnfss aud bhs Assi9ss ofths Whole Infsrsa p
The ESset ofa Smrsndsr-D. ?. Holloway, Com
nsisnoner of Patents, Plasnfif in Error, 10. A.
drstc Whiisiy.-Ths defendant in error is the Is.
signss Of sectional interest In patent granted TO
Jonsthan Hainss On The 4th Of September, 1855,
g,s,: Il 10 4.
ritesy embraced In the patent except the State Of
Ohio and the northern part of the State Of illinois,
and in sueh territory he Is the assignee Of all the
IN My, 1858, hs applied 70 the Commissioners 81
Patent, foI rs.:a; .hs p..:n. .sss,dns 70
sssIgssss Of The ststs of 0hio and Of ths northern
half Of Illinois did not join In the application, and
the Commissioners, aftsr Thorough Investigation Of
the case decided that the applicant not being the
assignee Of the whole interest," in the patent, was
not entitled to the reissue asked for.
Court Of ths District u 0oiunbis granted psrsnp.
tory mandamas .'commanding the respondent, the
Commissonsr Of Patents, 70 refer said application
10 The proper sxsminsr, or othsrwiss examine or
cause to bs examined according to law" i.
Th: proceedings vssss .hsn removed to this court
the important question srislns In the case l.
whether the thirteenth section Of the patent sot Of
1885. authorising . passntss and his assigns, In
certain cases, 10 rsisus patent applies to the
siguss Of sectional interest only. Similar ques.
tons constantly sziss In The Patsut Once and the
Ak.a L. a.
shall receive an authoritative construction Il 10
conceded that the sxtsnhon Of the right Of reissue
Is necessary and convenient 10 the assigusss Of
sectional intsrsss TO the owner Of the whole In.
tsrssti that their rights may be impaired and even
lost for the want Of suoh power,
Bat the objections 10 such . construction OF the
statute srs, Arst, that u may lad 70 q many df.
srsnt patents for the sane Invention - the patsntss
should graht sectional interests In Il and second,
that the original patent must bs surrendered upon
reissue. Thus, In Mo6att vs. Carr Il Black. 31s J
this oourt held that - surrender Of the patent to
the patent Il 10 legal cancellation Of the patent
and hsnee ssn no more BE- foundation for . right
sfter the surrender than could an act Of Congress
which had been repealed" II the patent es can.
cs1lsd BY one assignee, how suit be maintained
upon II BY another who has not Joined In the 70.
issue! Or, Il The sectional assisnse does not hap.
pen 70 posssss the patent, how can hs surrender Il
to bs canosllsd? ..r.-t. ...r..
In the third place. the omission in tie 18th SEQ.
tiou Of the act to mention the grantees Of sectional
interests As II does In other sections In connection
with the requirements Of surrender Of the patent
would seem to imply that II was not the intention
Of the act to extend Its provisions beyond the pat
entes and the assignee Of the whole interest.
The plaintiff in error therefore makes two points.
That the Commsslonsr Of Patents decided cor.
reoty that the defendant In error was not entitled
to reissue Of the patent. That II his decision was
erronsous mandatcns does not lie to correct II.
The Commissioner had already done what the writ
commanded him to do; any further aotion, such ss
sending the case to an examiner, would have beer
useless and absurd
The dsfsndsut In error contends that there must
be some power TO issue this writ in case like the
prsssnt. II II based upon the fundamental prin.
oipls that thsrs should bs remedy To enforce every
right. II there was no means Of compelling ths
public servants to obey the public will A. declared
In the laws the people would be slaves to their owr
servants and arbitrary decisions would prevail over
| law and jpsties. Nowhere In tho country 10 there
30 great need Of the writ Of mandamHs a. In tn,
District Of Columbis, who're all the Departments o.
the General aovsrnnsnt have their Offices, and
where the rights Of the people are so liable to In
fringement, and this court In Kendall's case, Il;
Peters, 524,) decided that II the power 10 issue
n.andasnas In case like the present exists any
whero It Is vested In the Circuit Court Of the Dis
triot Of Columbis, that being the highest court o
This is proper case for the writ The law eI
pressly commsnds the Commissioner TO do the &c
now required Of him, and the Commissioner objects
as has been seen, asserting that the legal question
alone without appeal, and refusing to put the cas-
upon the hlss Of the Patent Office In such form ths
bis refusal TO grant the reissue would give the ap
plicant an appeal to Justice of the Supreme Cour
Of the District Of Columbia.
The object Of applying for the writ was, that th,
| Nnr, Halo, s.kk k.n A.. 4
case. Before the examination can bs made tb
case must be duly fled; and then, II the Commis
.Eoner refuses the patent for any reason, the In
Sured party Is entitled to an appeal; but as long
the applicant Is kept entirely out ofMs Pafen
Office hs 10 subject TO the absolute will of the Com
missioner. which arbitrarily dsprivss him Of hi
right Of appeal.
Tho grantee Of an exclusive territorial interes
in patsnt has legal right 10 apply for Q rsissu
Of such patent; because II cannot be doubted tha
the design Of Congress in establishing the rsissu
was to create o remedy for the cure Of all defect
fraud and natural justice demands that any defso
in the instrument Of grant given by the publ
should be promptly corrected, the inventor havinI
executed bis part Of the contract and therefore on
titled to like execution on the part Of tho public
1t was on this view that four years before the pas
Marshsll decided Grant ct al, vs.. Raymond,
Peters, 2lS, 249that pstentse, irrespective Of an.
statutory provisions was Of natural right entitled
to surrender a defective patent and obtain . nev
patent, with tho corrections necessary to fully pro
tect the invention.
Upon the authority Of this decision this cour
should give the reissue statute such an equitabl,
construction that II will harmoniss with the gene
raj intent and policy Of our patent system, as OK
empliAed In the whole body Of the patent law, ant
In long course Of enlightened decisions thereon.
But the 18th section Of the aet Of 1885, which
first established the reissue as now granted, pro
vidss: "Apd In case Of his tthe patentee'sl death
or any assignnsnt by him made Of the Original
patent similar right should vest in his executors
administrators or as,ignees,"
This statute, therefore, grants unequivooaly I,
one assigned the same right to q reissue that I
grants 70 the patentee. II Il had been the intsn
tion Of Congress to restrict this right to the as
signee Of the choie interest alone, Il wsuld hav
been very easy to use words Of limitation, or t,
have used the restrictive and defnitive articl
"the, instead Of the distributive pronoun "any,
before the word assignment.
Elisha Foote, for plaintiff In error; SIS. Fisher
for defendant In error,
UNITED STATES COURT OF CLAIMS
wKDSEsDAr, December 10.