Bate Refrigerating Co v. Sulzberger
| Decision Date | 04 March 1895 |
| Docket Number | No. 687,687 |
| Citation | 15 S.Ct. 508,157 U.S. 1,39 L.Ed. 601 |
| Parties | BATE REFRIGERATING CO. v. SULZBERGER et al |
| Court | U.S. Supreme Court |
[Syllabus from pages 1-3 intentionally omitted] James C. Carter, Charles E. Mitchell, and J. J. Storrow, for appellant.
Wheeler H. Peckham, Edmund Wetmore, and Leonard E. Curtis, for appellees.
B. F. Lee filed briefs for Chemical Rubber Co.
B. H. Briston and W. H. Kenyon filed beiefs for Harrison International Tel. Co.
Chas. H. Aldrich filed briefs for Milo G. Kellogg.
[Argument of Counsel from pages 3-17 intentionally omitted]
This case is before us upon a certificate made under the sixth section of the act of March 3, 1891 (26 Stat. 826, c. 517), providing that a circuit court of appeals may, in any case of which it has appellate jurisdiction, certify questions or propositions of law for the proper decision of which it desires the instruction of this court.
On the 1st day of December, 1876, John J. Bate made application to the United States for letters patent for an improvement in processes for preserving meats during storage and transportation.
Pending this application, two foreign patents were granted for the Bate invention.—one, for the term of 14 years, by the British government, to William Robert Blake, on a communication from Bate under date of January 29, 1877, which patent was sealed July 13, 1877, and the complete specifications of which were filed July 26, 1877; the other, for
the term of 5 years, by the government of the dominion of Canada, to Bate himself, under date of January 9, 1877.
After these foreign patents were issued, namely, on the 20th day of November, 1877, Bate received a patent from the United States, expressed to be for the term of 17 years, and assigned it to the Bate Refrigerating Company, the plaintiff in this suit.
The present suit was brought by that company July 25, 1892, for an injunction against the infringement of the American patent, as well as for an accounting. It was heard in the circuit court on pleas to the bill, and a decree was passed dismissing the suit. From that decree an appeal was taken to the circuit court of appeals.
Both foreign patents for the Bate invention having expired before the expiration of the 17 years specified in the United States patent, the following questions arose in and have been certified by the circuit court of appeals: Whether the invention for which the patent from the United States was issued had been 'previously patented in a foreign country,' within the meaning of those words in section 4887 of the Revised Statutes; and whether the American patent expired, under the terms of that section, before the expiration of 17 years from its date.
The Revised Statutes of the United States provide that any person inventing or discovering any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement thereof, 'not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned,' may obtain a patent therefor, which shall contain a grant of the exclusive right for the term of 17 years to make, use, and vend such invent on or discovery throughout the United States and the territories thereof, and bear date as of a day not later than six months from the time at which it was passed and allowed, and notice thereof sent to the applicant or his agent. Sections 4884-4886.
By section 4887 it is provided that
Other sections prescribe what the application for a patent shall contain, the nature of the oath or affirmation to be made by the applicant, and the time within which an application shall be completed and prepared for examination. Sections 4888, 4892, 4894.
The plaintiff insists that an invention patented or caused to be patented in a foreign country before being patented in this country should not be deemed to have been 'previously patented in a foreign country,' within the meaning of section 4887, unless the foreign patent was granted prior to the application for the American patent.
The defendants contend that the respective dates of the American and foreign patents, and not the date of the American application, determine the question whether an invention patented here has been 'previously patented in a foreign country.'
Counsel for the respective parties have deemed it necessary to refer very fully to the principal statutes relating to patents for inventions. In our consideration of the case the same method will be pursued, reserving any observations we may make upon the words of particular acts until we shall have given an outline of the history of such legislation by congress as is supposed to bear upon the questions certified.
The first act of congress passed under the authority given by the constitution to promote the progress of science and useful arts by securing for limited times to authors and in-
ventors the exclusive right to their respective writings and discoveries was approved April 10, 1790. 1 Stat. 109, c. 7. The persons to whom, under that act, patents could be issued, were those inventing or discovering any useful art, manufacture, engine, machine, or device, or any improvement therein 'not before known or used.' The applicant was required, at the time the patent was granted, to deliver to the secretary of state such specification in writing, containing a description of the invention or discovery,—accompanied, when necessary, with drafts or models, and explanations of the thing invented or discovered, as would distinguish the invention or discovery from other things 'before known and used,' and enable one skilled in the art or manufacture to make, construct, or use the same, 'to the end that the public may have the full benefit thereof after the expiration of the patent term.' Sections 1, 2.
The act of February 21, 1793, which took the place of the act of 1790, made no material change, except to restrict the right to a patent to citizens of the United States, and to provide that the invention or discovery sought to be patented should be one 'not known or used before the application.' 1 Stat. 318, c. 11. In Pennock v. Dialogue, 2 Pet. 1, 19, 21, Mr. Justice Story, speaking for the court, said that the addition made by the act of 1793 of the words 'before the application,' after the words 'not known or used,' in the act of 1790, was made ex industria with the intention 'to clear away a doubt, and fix the original and deliberate meaning of the legislature,' which was that the invention hould be one not known or used by the public before the application.
Then came the act of April 17, 1800, which extended the provisions of the act of 1793 to all aliens residing for two years in the United States, and who should make oath or affirmation that the invention, art, or discovery for which a patent was asked had not 'been known or used either in this or any foreign country.' That act further provided that any patent for an invention, art, or discovery, subsequently found to have been 'known or used previous to such application for a patent,' should be void. 2 Stat. 37, c. 25.
The provisions of the act of 1800 were extended by the act of July 13, 1832, to every alien who, at the time of petitioning for a patent, was a resident of this country, and had declared his intention, according to law, of becoming a citizen of the United States. But every patent granted under the latter act was to become void if the patentee failed for one year after its date to introduce into public use in the United States the invention or improvement for which his patent was issued, or in case the invention or improvement should, for any period of six months after such introduction, not continue to be publicly used and applied in the United States, or in case of his failure to become a citizen of the United States at the earliest period within which he could become such citizen. 4 Stat. 577, c. 203.
On the 4th day of July, 1836, congress passed an act entitled 'An act to promote the progress of useful arts, and to repeal all acts and parts of acts heretofore made for that purpose.' 5 Stat. 117, c. 357.
By the fifth section of that act it was provided that every patent should be for a term of 14 years.
The sixth section described those entitled to receive patents, namely, 'any person or persons having discovered or invented any new and useful art, machine, manufacture, or composition of matter, or any new and useful improvement in any art, machine, manufacture, or composition of matter, not known or used by others before his or their discovery or invention thereof, and not, at the time of his application for a patent, in public use or on sale, with his consent or allowance, as the inventor or discoverer.'
The seventh section prescribed an examination of the alleged new invention or discovery, and provided: 'If, on any such examination, it shall not appear to the commissioner that the same had been invented or discovered by any other person in this country prior to the alleged invention or discovery thereof by...
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...C.J.); United States v. Hartwell, 73 U.S. (6 Wall.) 385, 18 L.Ed. 830 (1868); Bate Refrigerating Co. v. Sulzberger, 157 U.S. 1, 34, 15 S.Ct. 508, 515, 39 L.Ed. 601 (1895) (opinion of Harlan, J.); Caminetti v. United States, 242 U.S. 470, 485, 37 S.Ct. 192, 194, 61 L.Ed. 442 (1917); Packard ......
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