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De Florez v. Raynolds.

plied to “all patents," when § 11 had authorized the extension of design patents, for seven years.

We are not referred to any judicial decision where the question now considered was directly involved, which holds to the contrary of the construction we thus give to § 16 of the Act of 1861.

In Weston v. White, (13 Blatchf. C. C. R., 364,) the United States' patent was granted August 6th, 1867. A prior English patent for the same invention had been granted to the patentee, and had been published October 22d, 1859. The question arose, in May, 1876, whether the United States' patent had expired October 22d, 1873, at the expiration of 14 years from October 22d, 1859, or whether, under $ 16 of the Act of 1861, it remained in force in May, 1876. If it should expire October 22d, 1876, (being 17 years from October 22d, 1859,) or, if it should remain in force till August 6th, 1881, (being 17 years from August 6th, 1867,) it remained equally in force, in either case, in May, 1876. It was necessary, in May, 1876, only for the Court to decide that the patent had not, under $ 6 of the Act of 1839, run out in 14 years from October 22d, 1859, and the question, whether it would run out October 22d, 1876, or not till August 6th, 1884, was not directly involved, nor does it seem to have been argued or considered, except as may be inferred from the fact, that the Court says that the patent would not expire until October 22d, 1876, and further says, that the effect of the 16th and 17th sections of the Act of 1861 was, that patents issued after the passage of the Act of 1861, and falling within the proviso of $ 6 of the Act of 1839, would run for 17 years from the date or publication of the foreign patent. The case was one in the Circuit Court of the United States for the District of Connecticut, before Judge Shipman.

In Badische Anilin and Soda Fabrik v. Hamilton Mfg. Co., (13 Off. Gaz. of Pat. Off., 273,) before Judge Shepley, in February, 1878, in the Circuit Court of the United States for the District of Massachusetts, the decision was, that $ 25 of the Act of July, 1870, now $ 4,887 of the Revised Statutes,

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De Florez v. Raynolds.

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did not apply to a re-issue granted by the United States, in April, 1871, of a patent originally granted by the United States in October, 1869, and that, therefore, the re-issue did not expire in December, 1871, when the prior foreign patent, taken in June, 1869, expired. Nothing was said as to whether it would expire in June, 1883, or in June, 1886, or in October, 1886, or in April, 1888.

In Goff' v. Stafford, (14 Of. Gaz. of Pat. Off., 748,) before Mr. Justice Clifford and Judge Knowles, in October, 1878, in the Circuit Court of the United States for the District of Rhode Island, the United States' patent was granted October 3d, 1865, for 17 years from that day. An English patent had been previously granted to the same patentee for the same invention. The English patent was dated June 13th, 1863, and was for 14 years, it was sealed December 8th, 1863, and the complete specification was filed December 12th, 1863. The question arose as to whether the United States' patent had expired. It had expired December 12th, 1877, if it remained in force for only 14 years from December 12th, 1863. If it remained in force for 17 years from December 12th, 1863, or for 17 years from October 3d, 1865, it was equally in force in October, 1878, for the purposes of the injunction which the Court granted. The only question raised, in pleading or argument, seems to have been, as to whether the patent had expired. When, in the future, it would expire was not directly involved. The contention of the defendant in the case seems to have been, that, because of the Act of 1870, the United States' patent had expired when the foreign patent expired, namely, June 13th, 1877. The Court held, that the Act of 1870 did not apply to the case, because the patent was granted before that Act was passed. But, Mr. Justice Clifford, in the decision, went on to say, that the patent would remain in force for 17 years from the time it was granted,” because it was granted under the Act of 1861. He seems to have meant, for 17 years from October 30, 1865. We cannot re

3d gard the case, in that respect, as a decision on a point necessarily involved. With the highest regard for all the judicial

VOL. XVII.- 29

De Florez v. Raynolds.

views of so eminent a Judge as Mr. Justice Clifford, particularly as to questions arising under the law of patents, our examination of the question directly involved in the present case has led us to different views, and to the belief that such question was not argued before, or fully considered by, the Court in Rhode Island, because not directly involved in the

case.

The views announced in this decision, which are concurred in by both of the Judges, lead to the conclusion, that the motion of the defendants must be granted, so far as to direct that the decree be amended by inserting a finding that the plaintiffs’ re-issued patent is valid, for the purposes of the injunction granted, only for the term of 17 years from November 27th, 1862, without holding whether, for the purposes of the accounting ordered, it is valid for as long a term as that, and that the defendants be permitted to amend their answer, by setting up said French patent and the two certificates of addition ; and that said decree and the proofs be opened, in order to allow them to introduce the same in evidence, and to allow either party to introduce any relevant testimony in respect to the same and their contents; and that the provision for the injunction, and the injunction, be now vacated and discharged.

We fix the date of November 27th, 1862, and not the date of February 20th, 1863, because we regard it as the clear intention of the provisions of law limiting the duration of a United States' patent patenting an invention previously patented abroad to the same inventor, to give to the patentees specified term from the date at which his foreign patent had effect as a foreign patent in his favor. In this case, such date was November 27th, 1862, and not February 20th, 1563. This view is not necessarily applicable to a case where a foreign patent to one inventor is set up to defeat a United States' patent to a different inventor. In such case, the manifest intention of the law is, that the foreign patent shall apply only as of a date when the invention was published, or was accessible to the public, and not as of an earlier date, froin which the in

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The United States y. Millinger.

ventor may have enjoyed the benefit of the foreign patent, as a patent. The language of 16 of the Act of 1861, in saying that the 17 years is to run from “the date of issue,” is a marked departure from the expression,“ date or publication” of the foreign patent, in § 6 of the Act of 1839, and, in reading the two sections together, full effect must be given to the new expression.

W. K. Hall and J.J. Marrin, for the plaintiffs.

E. Wetmore, for the defendants.

THE UNITED STATES

V8.

Moritz MILLINGER AND OTHERS.

A judgment entered in 1872, on an assessment of damages, on a default, was

opened in 1880, to allow evidence to be given of payments made by one of the defendants, or out of his property, which should have been allowed, and

deducted from the assessment, when the judgment was entered. (Before SHIPMAN, J., Southern District of New York, February 23, 1880.)

SHIPMAN, J. The default in this case was taken in the year 1872, and judgment was thereupon rendered against the defendants. The only tenable reason for opening the judgment is, that, in the assessment of damages, credits were omitted from the amount of the plaintiffs' original claim, presumably by inadvertence and mistake. The Court has power to open a judgment rendered upon default, for the purpose of correcting errors of fact in the amount of the judgment, arising from the inadvertent omission of the plaintiff to give credits and allow payments made by the defendant, or out of

Cooke v. Seligman.

his property, upon the claim of the plaintiff, which should have been deducted at the time of the assessment of damages. (Crookes v. Maxwell, 6 Blatchf. C. C. R., 468.) The defendant is open to the charge of laches, (Avery v. United States, 12 Wall., 304,) but, under all the circumstances of the case, I am inclined to open the judgment for one purpose only. The judgment is opened only for the purpose of a re-assessment of damages, and of allowing the defendant to give evidence of payments made by Millinger, or out of his property, which should have been allowed and have been deducted from the face of the assessment, but not for the purpose of giving evidence of other defences to the plaintiffs' claim than those of payments which had been made by Millinger, or by Millinger's property, upon the assessment, prior to the date of the judgment. Let there be a reference to ascertain and report the amount of such payments thus inadvertently omitted in the computation of the amount due at the date of the judg. ment.

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E. B. Hill, (Assistant District Attorney,) for the United States.

Roger M. Sherman, for the defendants.

JOHN COOKE

V8.

JOSEPH SELIGMAN AND OTHERS. IN EQUITY.

Where one of the defendants in a suit is, on the averments in the complaint in

the State Court, an unnecessary and improper party, and no real and actual party, and the plaintiff is an alien, and the other defendants are all citizens of various States of the United States, the case is one removable into this Court under the first clause of 8 2 of the Act of March 3d, 1876, (18 U. S. Stat, al

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