the secretary would be bound, upon proper application, in every such instance, to inquire into, and if necessary redress, the alleged grievance. And hence the official duty of direction and supervision on the part of the secretary implies a correlative right of appeal from the commissioner, in every case of complaint, although no such appeal is expressly given. Such, indeed, is the practical construction put by the secretary himself upon his own powers and duties; for the rules governing appeals to the secretary of the interior in patent cases, made part of the return here, assume the equal right of all parties to the proceeding, whether ex parte or otherwise, to obtain his review of the action of the commissioner,*not only in the final judgment, but upon all interlocutory questions material to the matter, to the decision of which exceptions have been duly taken during the progress of the inquiry. It is further to be observed, in the same connection, that if the power and duty of the secretary, in directing and superintending the performance by the commissioner of his duties, and those of all other subordinates in the bureau, may be exercised in the form of appeal, it may also be exercised in any other mode, in the discretion of the secretary, suitable to the end in view; for, if directing and superintending include review by appeal after a decision, they may as well embrace dictating, either in advance of action or from time to time, during its course and progress. So that it follows, in every case of an application for a patent, or for a reissue, or for an extension, or in cases of an interference, the secretary may direct the matter to be heard before himself, and thereupon further direct what decision shall be rendered in each. matter by the commissioner, so as to meet his approval. This right of interposition, at any stage of the proceeding, is explicitly maintained in the opinion of attorney general of August 20, 1881, which was made the basis for the reversal of the previous practice of the department in this particular, as will appear by the following extract: "From the right and power of the secretary to withhold his signature from the patent, unless he is satisfied of the claimant's title thereto, plainly follows an equal right to direct the commissioner, while the proceedings are pending, to receive an amendment which will open up a line of evidence that may throw light on that title."

We are led, therefore, immediately to inquire whether such a construction of phrases, employed in establishing the organization of the patent-office as a bureau in the department of the interior, is justified by a view of the whole legislation in pari materia, and consistent with the integrity of the system of the statutes in relation to letters patent for new and useful inventions. The general object of that system is to execute the intention of that clause of the constitution, art. 1, § 8, which confers upon congress the power "to pro-❤ mote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." The legislation based on this provision regards the right of property in the inventor as the medium of the public advantage derived from his invention; so that in every grant of the limited monopoly two interests are involved: that of the public, who are the grantors, and that of the patentee. There are thus two parties to every application for a patent, and more, when, as in case of interfering claims or patents, other private interests compete for preference. The questions of fact arising in this field find their answers in every department of physical science, in every branch of mechanical art. The questions of law necessary to be applied in the settlement of this class of public and private rights have found a special branch of technical jurisprudence. The investigation of every claim presented involves the adjudication of disputed questions of fact, upon scientific or legal principles, and is, therefore, essentially judicial in its character, and requires the intelligent judgment of a trained body of skilled officials, expert in the various branches of science and art, learned in the history of invention, and proceeding by fixed rules to systematic conclusions.

Accordingly, it is provided in the statutes (Rev. St. § 4893) that, on the filing of any application for a patent, the commissioner shall cause an examination to be made of the alleged new invention or discovery, and if, on examination, it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the commissioner, not the secretary, shall issue a patent therefor, although it must be signed by the secretary. The claim is examined in the first instance by a primary examiner assigned to the class to which it belongs. If twice rejected by him, the applicant is entitled (Rev. St. § 4909) to appeal from his decision to that of the board of examiners in chief, constituted a tribunal for that purpose; and from their decision, if adverse, he may appeal to the commissioner in person. Rev. St. § 4910. If dissatisfied with his decision, the party, except in cases of interference, in respect to which another provision is made, hereafter to be considered, may appeal to the supreme court of the District of Columbia. Rev. St. 4911. To that appeal the commissioner is a formal party, the court acting only on the evidence adduced before him, and confining its revision to the points set forth in the reasons of appeal. A certificate of its proceedings and decision is to be returned to the commissioner, and entered of record in the patent-office, and shall govern, so the statute says, the further proceedings in the case, but without precluding, it continues, any person interested from the right to contest the validity of such patent in any court wherein the same may be called in question.

It is evident that the appeal thus given to the supreme court of the District of Columbia, from the decision of the commissioner, is not the exercise of ordinary jurisdiction at law or in equity on the part of that court, but is one step in the statutory proceeding under the patent laws whereby that tribunal is interposed in aid of the patent-office, though not subject to it. Its adjudication, though not binding upon any who choose, by litigation in courts of general jurisdiction, to question the validity of any patent thus awarded, is, nevertheless, conclusive upon the patent-office itself; for, as the statute declares, (Rev. St. § 4914,) it "shall govern the further proceedings in the case." The commissioner cannot question it. He is bound to record and obey it. His failure or refusal to execute it by appropriate action would undoubtedly be corrected and supplied by suitable judicial process. The decree of the court is the final adjudication upon the question of right. Everything after that dependent upon it is merely in execution of it. It is no longer matter of discretion, but has become imperative and enforceable. It binds the whole department, the secretary as well as the commissioner; for it has settled the question of title, so that a demand for the signatures necessary to authenticate the formal instrument and evidence of grant may be enforced. It binds the secretary by acting directly upon the commissioner; for it makes the action of the latter final by requiring it to conform to the decree.

Congress has thus provided four tribunals for hearing applications for patents, with three successive appeals, in which the secretary of the interior is not included, giving jurisdiction, in appeals from the commissioner, to a judicial body, independent of the department, as though he were the highest authority on the subject within it. And to say that, under the name of direction and superintendence, the secretary may annul the decision of the supreme court of the district, sitting on appeal from the commissioner, by directing the latter to disregard it, is to construe a statute so as to make one part repeal another, when it is evident both were intended to co-exist without conflict. The inference is that an appeal is allowed from the decision of the commissioner refusing a patent, not for the purpose of withdrawing that decision from the review of the secretary, under his power to direct and superintend, but because, without that appeal, it was intended that the decision of the commissioner should stand as the final judgment of the patent-office, and of the executive department, of which it is a part. As already stated,

the case of interferences is expressly excepted by section 4911 from the appeals allowed to the supreme court of the district. Further provision, covering such and also all other cases in which an application for a patent has been refused, either by the commissioner of patents or by the supreme court of the district, is found in Revised Statutes, § 4915. It is thereby provided that the applicant may have remedy by bill in equity. This means a proceeding in a court of the United States having original equity jurisdiction under the patent laws, according to the ordinary course of equity practice and procedure. It is not a technical appeal from the patent-office, like that authorized in section 4911, confined to the case as made in the record of that office, but is prepared and heard upon all competent evidence adduced, and upon the whole merits. Such has been the uniform and correct practice in the circuit courts. Whipple v. Miner, 15 Fed. Rep. 117; Ex parte Squire, 3 Ban. & A. 133; Butler v. Shaw, 21 Fed. Rep. 321. It is provided that the court, having cognizance thereof, on notice to adverse parties and other due proceedings had, may adjudge that such applicant is entitled, according to law, to receive a patent for his invention, as specified in his claim, or for any part thereof, as the facts in the case may appear. And such adjudication, if it be in favor of the right of the applicant, shall authorize the commissioner to issue such patent on the applicant filing, in the patent-office, a copy of such adjudication, and otherwise complying with the requirements of law. And in all cases where there is no opposing party, a copy of the bill shall be served on the commissioner, and all the expenses of the proceeding shall be paid by the applicant, whether the final decision is in his favor or not.

It thus appears that, as, in cases of other applications for a patent refused by the commissioner, the judgment, on a direct appeal, of the supreme court of the district is substituted for, and becomes the decision of, the patent-office, so here, in cases of interference, where the commissioner has rejected an application for a patent, the decree of the circuit court of the United States governs the action of the commissioner, and requires him, in case the adjudication is in favor of the complainant, to issue the patent as decreed to him. It certainly cannot be successfully claimed that, to a writ of mandamus issued out of a court of competent jurisdiction, commanding the commissioner of patents to record and execute the judgment of the supreme court of the district, reversing on an appeal his decision refusing a patent in any case other than an interference, or the decree of a circuit court of the United States in any case under section 4915, Rev. St., requiring a patent to be issued to the claimant, it would be a sufficient answer that he had been directed by the secretary of the interior not to do so. If not, it must be and is because the decision of the commissioner, as originally rendered, or that correction of it, required by the judicial proceedings, specified in the two sections of the statutes referred to, is final and conclusive upon the department. This conclusion is strengthened by the provisions of section 4918, Rev. St. It is there enacted that in case a patent is actually, though erroneously, issued, interfering with another, any person interested in any one of them, or in the working of the invention claimed under either of them, may have relief against the interfering patentee, and all parties interested under him,*by suit in equity against the owners of the interfering patent; and the court, on notice to adverse parties and other due proceedings had according to the course of equity, may adjudge and declare either of the patents void in whole or in part, or inoperative or invalid, in any particular part of the United States, according to the interest of the parties in the patent or the invention patented; of course, without prejudice to the rights of any person, except the parties to the suit, and those deriving title under them, subsequent to the rendition of the judgment. Thus, every case is fully provided for, both when the commissioner wrongfully refuses to issue a patent, and when, in case of interference, he erroneously issues one; and that, by means of judicial proceedings, through tri

bunals distinct from and independent of the patent-office, the integrity and force of whose judgments would be annulled, if not regarded as conclusive upon the commissioner, notwithstanding any power of direction and superintendence on the part of the secretary, which is therefore necessarily excluded.

The law gives express appeals from the decision of the commissioner, or, in cases where technical appeals are not given, other modes of review by judicial process. It gives no such appeal from him to the secretary. If it exists, it is admitted it is only by an implication which discovers an appeal in the power of direction and superintendence. That power does not necessarily, ex vi termini, include a technical appeal; and the principle applies that where a special proceeding is expressly ordained for a particular purpose it is presumably exclusive. It is clear that when the appeal is expressly authorized from the commissioner to the court, either directly or by means of an original suit in equity, another appeal to the secretary on the same matter is excluded; and no reason can be assigned for allowing an appeal from the commissioner to the secretary in cases in which he is by law required to exercise his judgment on disputed questions of law and fact, and in which no appeal is allowed to the courts that would not equally extend it to those in which such appeals are provided, for all are equally embraced in the general authority of direction and superintendence. That includes all, or does not extend to any. The true conclusion, therefore, is that in matters of this description, in which the action of the commissioner is quasi judicial, the fact that no appeal is expressly given to the secretary is conclusive that none is to be implied.

The conclusion is confirmed by a review of the history of legislation on the point. The first statute on the subject of patents-Act of 1790, c. 7, (1 St. 109)-authorized their issue by the secretary of state, the secretary for the department of war, and the attorney general, or any two of them, "if they shall deem the invention or discovery sufficiently useful and important." The act of 1793, c. 11, which next followed, (1 St. 318,) authorized them to be issued by the secretary of state upon the certificate of the attorney general that they are conformable to the act. The ninth section of the statute provided for the case of interfering applications, which were to be submitted to the decision of arbitrators chosen one by each of the parties, and the third appointed by the secretary of state, the decision or award of two of whom should be final as respects the granting of the patent.

This continued to be the law until the passage of the act of 1836, c. 357, (5 St. 117,) creating in the department of state the patent-office, “the chief officer of which shall be called," it says, "the commissioner of patents," and "whose duty it shall be, under the direction of the secretary of state, to superintend, execute, and perform all such acts and things touching and respecting the granting and issuing of patents for new and useful discoveries, inventions, and improvements as are herein provided for, or shall hereafter be by law directed to be done and performed," etc. By that act it was declared to be the duty of the commissioner to issue a patent if he "shall deem it to be sufficiently useful and important, "-the very discretion previously vested in the three heads of departments by the act of 1790; and, in case of his refusal, the applicant was (section 7) secured an appeal from his decision to a board of examiners, to be composed of three disinterested persons, appointed for that purpose by the secretary of state, one of whom, at least, to be selected, if practicable and convenient, for his knowledge and skill in the particular art, manufacture, or branch of science to which the alleged invention appertained. The decision of this board being certified to the commissioner, it was declared that "he shall be governed thereby in the further proceedings to be had on such application." A like proceeding, by way of appeal, was provided in cases of interferences. By the sixteenth section of

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the act a remedy by bill in equity, as now given in sections 4915 and 4918, Rev. St., was given as between interfering patents, or whenever an application shall have been refused on an adverse decision of a board of examiners. By the eleventh section of the act of 1839, c. 88, (5 St. 354,) as modified by the act of 1852, c. 107, (10 St. 75,) it was provided that in all cases where an appeal was thus allowed by law from the decision of the commissioner of patents to a board of examiners, the party, instead thereof, should have a right to appeal to the chief justice or to either of the assistant judges of the circuit court of the United States for the District of Columbia; and by section 10 the provisions of the sixteenth section of the act of 1836 were extended to all cases where patents are refused for any reason whatever, either by the commissioner or by the chief justice of the District of Columbia, upon appeals from the decision of the commissioner, as well as where the same shall have been refused on account of or by reason of interference with a previously existing patent.

In this state of legislation the patent-office, by the act of 1849, c. 108, (9 St. 395,) was transferred to the department of the interior, the secretary of which, it was enacted, "shall exercise and perform all the acts of supervision and appeal, in regard to the office of commissioner of patents, now exercised by the secretary of state;" which language, so far, at least, as appeals, strictly socalled, are concerned, was without force, as no appeals had ever been given from any decision of the commissioner to the secretary of state, unless that can be called so, which, by section 7 of the act of 1836, (5 St. 120,) was to be determined by a board of examiners, appointed, pro re nata, by the secretary of state, and for which, as we have seen, an appeal to the chief justice of the circuit court of the District of Columbia had been substituted by the act of 1839. 5 St. 354. The act of 1861, c. 88, (12 St. 246,) created the office of ex-* aminers in chief, "for the purpose of securing greater uniformity of action in the grant and refusal of letters patent," "to be composed of persons of competent legal knowledge and scientific ability, whose duty it shall be, on the written petition of the applicant for that purpose being filed, to revise and determine upon the validity of decisions made by examiners when adverse to the grant of letters patent; and also to revise and determine, in like manner, upon the validity of the decisions of examiners in interference cases, and when required by the commissioner, in applications for the extension of patents, and to perform such other duties as may be assigned to them by the commissioner; that from their decisions appeals may be taken to the commissioner of patents in person, upon payment of the fee hereinafter prescribed; that the said examiners in chief shall be governed in their action by the rules to be prescribed by the commissioner of patents." The act of July 8, 1870, (16 St. 198,) revised, consolidated, and amended the statutes then in force on the ubject, and the substance of its provisions, material to the present inquiry, have been carried into the existing Revision.

It will be observed that the judgment and discretion, vested by the original patent law of 1790, in a majority of the three executive officers, the secretary of state, the secretary for the department of war, and the attorney general, who were authorized to cause letters patent to issue, "if they shall deem the invention or discovery sufficiently useful and important," was transferred by the act of 1836, § 7, to the commissioner of patents, it being made his duty to issue a patent for the invention, "if he shall deem it sucffiiently useful and important;" and is continued in him by section 4893, Rev. St.,—the language being that he shall cause an examination to be made of the alleged new invention, "and if on such examination it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the commissioner shall issue a patent therefor." It thus appears, not only that the discretion and judgment of the commissioner, as the head of the patent-office, is substituted for that of the head of the de