New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1885-10-05
GARLAND'S PREDICAMENT.
NO LAW OR FACTS TO SUPPORT HIS CASE.
r.. n. DIcKERsoN ON THE JUaTsDICTfoN-rHE
COURTS IN PATENT CASES

on the question whether there s any authority for the
Attorney General of the United States to institute pro-
coedngs to annu letters patent. either because tho
patentee Is not the hrst inventor, for any other
reason. that in my opinion, there Is no SUCH
authority and give my reasons. In England a
patent is granted by the Crown exercise OF pre-
rogatlve and not GAS right. In the grant the Crown
reserves the right express to revoke 1t at any
time II the grant is contrary to law or preudlca or
announcement to Her Majestys subjects - and naccord-
ance with that provision the law officers OF the Gro wn
proceed at their discretion against any patent In this
country however the Constitution of the United states
recognizes absolute right OF the first inventor to
be secured" in the enjoyment Of his invention for a
limited time and Congress required to make laws In
accordance Herewith.
The first act was IN 1890 and it authorized the grant
OF patent any upon the filing of descrip-
ton Of the invention just as 1t was In England; and
there WIS no tribunal established to examine such
applications and to reject those In which 1t appeared
that the invention not with the applicant.
The fifth section of that statute provided that within
year after issuing the said patent but not afterward
upon the oath OF affirmation Of any person before
United States Court that any patent which shall DO
Issued In pursuance OF this act obtained surrep-
titlousy or by false suggestion. and motion made to
the court, the court was empowered to repeal such
patent This powor eminently included the Attorney
General and expired in year. after which there was
no authority TO proceed against the patent
The act Of 93 reenactcd the fifth section Of the act Of
90, but extended the time to three years." within
which "a proceeding to annul the patent must be taken
Itaso in the sixth section Introduced another proceed
ing for annung the patent which operative durng
its entire term. This proceeding took effect however,
only case OF suit by the patentee against an in
iringcr who should set and maintain as defence that
the paientee had fraudulenty obtained his patent or
that the thing patented was not originally discovered
by the patentec." In which 1t provided that
l.oiar TO-
the law was such that the Attorney General any
person might against patent within three years
after the grant and nave 1t annnled for any reason
which would have been good objection TO granting it,
and In addition thereto II the patenee had committed a
fraud or was 10 fact the first Inventor, his patent
might be declared void by the court In any suit In which
he attem pied TO enforce II.
In 1886 the Patent Ohce was created as tribunal
t. try the question primarily whether applicant
the first not and II that tribunal found III his
favor he entitled to patton, aud could enforce his
right to It by judicial proceeding against the Commits
sioner Of Patents if lac refused This act repealed
the two provisions Of the law above referred to-
and from day TO this authority has ever been
rycn 10y statute to any 10 proceed against patent
for its aunulmen, except in the where the Com
missioner Of Patents has granted two patents for the
Same invention 10 different persons. one Of which may
patcnicc. But nfnngcrs have constantly been impor
tuning Congress for iaw authorizing tue Attorney-Gcn
the United States against patenioes To whom the United
states had granted patents after judicial investigation;
the object beng to array tho department OF Jgstcc ON
side of infrngcrs aud To ctnvcrt the Attorney
Generals Office into instrument IN their hands for re-
ycrsing the decisions OF the Patent ONCE Congress hhs
always refused to introduce chnos into te patent system
in defence OF inringers - whom the law
has afforded every defence against patent erptdtoan
one who Is not the nrst inventor Horace Day made
cfta, efforts 10 obtain such law that might have the
United states attack Mr. Goodyear, who male the great
invention which has rendered his immortal: ami
thef mfr of "a Il
Congress for long tine IN the same direction. hut
without success The Committee OF the House. however.
reIred lat year there such power residing
the Attorney GeLcral, unless new act Tcrc passed
authorizing IT, aid rrconirnr ldod such "A bill which OF
The pressure OF the infringers uTon the Attorney
Generals Office however. BaS been great time 10
time that. Mr. GoOde correctly states there have
suits FOR the purpose OF annullng patents
by the United states The hrst one Was br ought IN
Massachusetts against Professor Hosfords very yaiu
able super phosphate paten aud Judre- shepley aud
Knowles delivered an exhaustive opinion turning tue
Attorney General ont of conr ana deciding tlat there
Was such jurisdiction. Tor any reason ~liateFer
tAn'y Gen. Va. Rumfori. Ban AMI y. 2"f
The inlrngers were not content Vita ilr. however,
and other Attorney Generals repeated tue eApcr,menL
The next case which raised the question Wa tno n"i
states vs.. Doughty. blatchtori. az. ana tho biil
was turned out Of court on demurrer because not
properly presented. The jurisdictonal point Was not
passed upon
that case alleged that the parntcc had that hc
believed himself to b. the Inventor OF the patented sub
iecf and did not know believe that II had been In
public sale in the United States Tor more than
statements were false to his knowledge" Upol lie
murret Judge Wallace contrary 10 the decision OF Judges
state gave jurisdiction 10 the United States. but
that such a bill conid only be brought oct ween the
sovereignty making the grant aud tue grantee. The
United states proceeded with that suit. proved it,
al egations and TIE Defendant having offered lao ttst
mony to deny thein decree was entered "hhuns the
The next case the United states Frazer. % Fed
eral Reporter lO6. That presents precisely the
stats OF facts In tue pretended suit OF tue United states
Va Bell The court says that this hill prepared
It firm nl
their specially aud submitted 10 the Atorney-en-
cra who trilsmitic. IL TO tse District Attorney mere
To Indemnify the United states against all cost and
expenses account OF this proceeding" Upon tLat
state OF facts tbs hill dismissed by tue Circuit Court
In the seventh Circuit as not inhlhanabe ana the court
except aucsions OF fact ~ to Infringement to tue
OF Attorney Genera instead Of leaving 1t In the
hands OF the persons directly Interested Patcntces.
rule. have trouble enough Ia establish their patents
without being In peril ut TIM during the fo OF their
patents OF su, IN the name OF the United states.
rought at the instance OF interested parties at not
found by any nor Judgment oi decree sustaining the
atcnt"
cidcd last December b. Judge Wallace, The same judge
who maintained the jurisdiction uIOn the peculiar facts
Bell has done. had brought suit In the courts and his
patent hal been aincd and rs In tue present case
infringcrs hal induced the Attorney General To bring
his suit Ia try those question, over again In tho name OF
the United States Upon that state OF facts Judge Wal
lace remarks At most the allegations show that there
was novelty In the invention. and increniaily that
c knowing the prior state Of the art. which public
KNOWLEDGE, must nave WIS no All
facts alleged to show want Of novelty 10 have
considered in the Of Colgate against tue |
" estern Union Telegraph Company, where they
set up In the and where the patent
tanned This branch OF the BILL therefore. does
uuire much consideration. and he dismissed the bill
demurrer The decision l. not yet reported but Ia file
and OF Is known to the Department OF Justice |
which instituted the suit
Tho question whether there is any such right on tho
mart of the Attorney General has been before the
Supreme Court OF tho United States The Of MOwry
vs. Whitney, referred 10 by Mr.. Goode authority
private suit by infrnger TO repeal the patent
uler wi he culDlnrl. a.
statute 93 In force and he had roceedcd within
hree years Of the date Of the patent On demurrer the
5unIene Of the United States dismissed tile DILL.
the decision Of that question: however the learned
Judge writing the opinion made dica the effect
bring such bill and upon these dicta the Attorney
General founded his Rumford when the question
had TO be decided The Judges that
reviewed the dcta OF the supreme COnr In the Whitney
case and decided that there such jurisdiction
iinlG