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De Florez v. Raynolds.
who, at the time of petitioning, had resided for two years within the United States, and it was required that the invention should not have been known or used before the application. By the Act of July 13th, 1832, (+ Id., 577,) the privilege was extended to every alien who, at the time of petitioning, should be resident in the United States, and should have declared his intention, according to law, to become a citizen thereof. These prior Acts were all of them repealed by $ 21 of the Act of July 4th, 1836, (5 U. S. Stat. at Large, 125.) By that Act, ($ 5,) patents were to be granted "for a term not exceeding fourteen years.” Any inventor could obtain a patent, whether an alien or a citizen. It was required that the invention should not, at the time of his application for a patent, be in public use or on sale, with his consent or allowance, as the inventor. The Commissioner could not grant the patent if it appeared to him, ($ 7,) that the invention“ had been invented or discovered by any other person in this country, prior to the alleged invention or discovery thereof by the applicant, or that it had been patented or described in any printed publication in this or any foreign country, or had been in public use or on sale with the applicant's consent or allowance, prior to the application.” It was further provided, as follows, (S 8:) "Nothing in this Act contained shall be construed to deprive an original and true inventor of the right to a patent for his invention, by reason of his having previously taken out letters patent therefor in a foreign country, and the same having been published, at any time within six months next preceding the filing of his specification and drawings. And, whenever the applicant shall request it, the patent shall take date from the time of the filing of the specification and drawings, not, however, exceeding six months prior to the actual issuing of the patent. The effect of this legislation was to allow an inventor to take out a patent in a foreign country, for his invention, and, subsequently, to obtain a patent for it here, provided he filed his specification and drarvings on his application here, within six months after the taking out of his foreign patent. By
De Florez v. Raynolds.
$ 6 of the Act of March 3d, 1839, (5 U. S. Stat. at Large, 354,) it was provided as follows: “No person shall be debarred from receiving a patent for any invention or discovery, as provided in the Act approved on the fourth day of July, one thousand eight hundred and thirty-six, to which this is additional, by reason of the same having been patented in a foreign country more than six months prior to his application: Provided, That the same shall not have been introduced into public and common use, in the United States, prior to the application for such patent: And provided, also, That in all such cases every such patent shall be limited to the term of fourteen years from the date or publication of such foreign letters patent.” The effect of this provision was to allow an inventor to take out a patent here for an invention which he had previously patented in a foreign country, no matter how long previously, but the duration of the patent granted here was limited to the term of 14 years from the date or publication of such foreign patent. Then came the Act of March 20, 1861, (12 U.S. Stit. at Large, 246,) the 16th section of which provided as follows: "All patents hereafter granted shall remain in force for the term of seventeen years from the date of issue; and all extension of such patents is hereby prohibited." Section 17 of the same Act, repealed all Acts and parts of Acts, theretofore passed, which were inconsistent with the provisions of that Act. Under this state of legislation, the original patent and the re-issued patent in this case were granted.
The view urged by the plaintiffs is, that, by $ 16 of the Act of 1861, all patents thereafter granted were to remain in force for 17 years from the date of issue; that the provision of $ 6 of the Act of 1839 was inconsistent with this new provision, and was, therefore, repealed; and that, consequently, the plaintiffs' patent does not expire until June 28th, 1881.
By $ 22 of the Act of July 8th, 1870, (16 U. S. Stat. at Large, 201,) now § 4,884 of the Revised Statutes, every patent is to be granted for the term of 17 years. It cannot
De Florez v. Raynolds.
be antedated. By section 25 of the same Act, now $ 4,887
§ of the Revised Statutes, it is provided as follows: “No person shall be debarred from receiving a patent for his invention or discovery, nor shall any patent be declared invalid, by reason of its having been first patented, or caused to be patented, in a foreign country; provided the same shall not have been introduced into public use in the United States for more than two years prior to the application, and that the patent shall expire at the same time with the foreign patent, or, if there be more than one, at the same time with the one having the shortest term; but in no case shall it be in force more than seventeen years.” These provisions of the Act of 1870 apply only to patents granted after that Act was passed, and do not apply to this case. Moreover, $ 111 of that Act, in repealing the Acts of 1836, 1837, 1839 and 1861, provides, that such repeal shall not affect, impair or take away any right existing under any of said laws.
It is quite apparent, that the idea running through $ 16 of the Act of 1861 is, that no patents thereafter granted should be extended, but, that, instead thereof, their original terms. of duration should be seventeen years, instead of fourteen years with a privilege of extension for seven years more, which had been the prior law. The language is, that “all patents hereafter granted shall remain in force for the term of seventeen years from the date of issue;" not that they shall, by their terms and on their face, be granted for seventeen years from a date, but that they shall remain in force” for the term specified. It was not improper, under this provision, to grant them for seventeen years from a date, as came to be the practice. But, the text is, that, whatever be the term on their face, they shall remain in force for the term of seventeen years from the date of issue. What is “the date of issue?” Under $ 8 of the Act of 1836, in force when the Act of 1861 was passed, and when the patents in this case were issued, the patent could“ take date” from a date earlier, though not exceeding six months earlier, than “ the actual issuing of the patent.” The actual date of issuing was one
De Florez v. Raynolds.
thing, one date. The date from which the patent took date, or its term began to run, was another thing, another da te. The latter date may very properly be called “the date of issue.” Such latter date need not necessarily be a date expressed on the face of the patent. Under § 6 of the Act of 1839, such latter date is “the date or publication" of the foreign patent. Looking at the state of legislation before 1861, and at the evident scope of g 16 of the Act of 1861, as aimed at extensions of patents, it would be reasonable to say, that “the date or publication” of the foreign patent, spoken of in § 6 of the Act of 1839, might be regarded, in reference to patents issued under such § 6, as the one in this case was, as date of issue” intended by § 16 of the Act of 1861—the date from which, under such circumstances, the United States' patent is to take its departure—and that as, before, in practice, United States' patents were granted for fourteen years, and patents for inventions previously patented abroad to the same inventor were before limited to fourteen years from the date or publication” of the foreign patent, so, now, under the new system introduced by the Act of 1861, such a patent, still to be granted otherwise in accordance with the provisions of the Acts of 1836 and 1839, was to remain in force for seventeen years from the date or publication” of the foreign patent, while other United States' patents were to remain in force for seventeen years, instead of fourteen years, from their “date of issue,” the privilege of having them “take date" from a date not exceeding six months prior to the actual issue, as the “date of issue,” under 8 8 of the Act of 1836, being still preserved, and such patents expiring seventeen years from such “date of issue” and not seventeen years from the actual issuing. There is nothing in these views that is inconsistent with, or does violence to, the language of § 16 of the Act of 1861, and they are in harmony with the course of legislation. Contrary views would determine that there was, by § 16 of the Act of 1861, a sudden, unexpressed and only implied change of the policy of 8 6 of the Act of 1839, then in force for twenty.two years, such policy making
De Florez v. Raynolds.
the terms of patents like those in the present case take date from the date or publication of the foreign patent, and run from that time for the same time other United States' patents run from their time of beginning to run; and such contrary views would establish an enlargement of term by the Act of 1861, in favor of an invention previously patented abroad, such enlargement remaining in force till 1870, and then curtailed, in 1870, so as to be more narrow than under the Act of 1839, and to make the United States' patent expire at the same time with the foreign patent having the shortest term.
No argument can be drawn in favor of the plaintiffs' view, from the fact, that, in § 16 of the Act of 1861, the expression is, "all patents hereafter granted.” Literally, such expression covers future patents granted as re-issues. By § 13 of the Act of 1836, (5 U. S. Stat. at Large, 122,) which continued in force after the Act of 1861 went into force, a re-issue is authorized, and the re-issued patent is there called “a new patent,” and is authorized to be issued only “for the residue of the period then unexpired for which the original patent was granted.” Yet, it never was or could be supposed that, under 16 of the Act of 1861, a re-issued patent was to be granted for seventeen years from the date of the actual issuing of such re issued patent, or for any other term than the residue of the seventeen years granted by the original patent. The expression “date of issue,” as before defined, controls re-issues under said § 16, and the re-issue of an original seventeen years' patent is to run for seventeen years from the date when the original term of seventeen years began to run, which date is to be considered the date of issue,” under $ 16, for the purposes of a re-issue. So, again, “all patents," literally, includes design patents, granted under $ 11 of the Act of 1861. Yet, it never was or could be supposed that $ 16, though later in place in the Act than $ 11, varied the terms detined in § 11 for the duration of design patents, namely, three and one-half years, seven years, or fourteen years; or, that the provision in said § 16, as to extension, ap