United States v. Blasius, No. 453

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Writing for the CourtHAYS, ANDERSON and FEINBERG, Circuit
Citation397 F.2d 203
PartiesUNITED STATES of America, Appellee, v. Harold Lawrence BLASIUS, Appellant.
Docket NumberDocket 32117.,No. 453
Decision Date08 July 1968

397 F.2d 203 (1968)

UNITED STATES of America, Appellee,
v.
Harold Lawrence BLASIUS, Appellant.

No. 453, Docket 32117.

United States Court of Appeals Second Circuit.

Argued April 25, 1968.

Decided July 8, 1968.

Certiorari Granted November 18, 1968.


Louis Grossman, New York City (Grossman, Grossman & Feigen, Robert S. Feigen, New York City, and Peyton

397 F.2d 204
Ford, Washington, D. C., on the brief), for appellant

Charles J. Fanning, Asst. U. S. Atty., Southern Dist. of New York (Robert M. Morgenthau, U. S. Atty., John R. Wing and Pierre N. Leval, Asst. U. S. Attys., Southern Dist. of New York, on the brief), for appellee.

Before HAYS, ANDERSON and FEINBERG, Circuit Judges.

Certiorari Granted November 18, 1968. See 89 S.Ct. 375.

ANDERSON, Circuit Judge:

In 1950 Harold Lawrence Blasius, through taking and passing a prescribed examination, became a Registered Patent Agent, recognized to practice before the Patent Office. From then until June 30, 1959 he solicited patent business through advertising in various periodicals and by other means. On July 1, 1959 a new rule of the Patent Office, which prohibited advertising by Registered Patent Attorneys and Patent Agents, became effective. Blasius, however, persisted in advertising because he was of the opinion that its discontinuance would be fatal to his business. Because of his violations of the rule Blasius' recognition was withdrawn and on February 9, 1961 he was ordered excluded from practice. The exclusion order of the Patent Office provided that he could apply for reinstatement after a year if, during that time, he had ceased all advertising. But he made no effort to take advantage of the proviso and continued to advertise in such nationally circulated magazines as Popular Science, Popular Mechanics and Mechanix Illustrated and to send out letters of solicitation by mail.

On October 8, 1963 an information was filed against Blasius charging him with fifty-two counts of violations of Title 35 U.S.C. § 33.1 Fifty of these concerned advertisements in the above mentioned magazines and two were based upon solicitation letters sent to individuals.2 In all of them Blasius held himself out as qualified to prepare applications for patent. Counts 1, 2 and 13, all of which concerned magazine advertisements, were dismissed at the end of the Government's main case. The jury returned verdicts of guilty on all the remaining counts and judgments of conviction were entered thereon against Blasius on December 7, 1967. The court fined the defendant $300 on each of the forty-nine counts. From these judgments Blasius has appealed.3 We affirm.

397 F.2d 205

His principal point on appeal is that as long as he did not hold himself out as recognized to practice before the Patent Office he could not be charged with a violation of Title 35 U.S.C. § 33. He asserts that Congress never intended, and that the statute, as written, never contemplated, making it an offense for a person, not so recognized, merely to hold himself out as being qualified to prepare applications for patent. In support of his position he relies upon the recent case of Hull v. United States, 390 F.2d 462 (D.C.Cir. 1968). The defendant in that case had never been, nor had she ever sought to be, recognized to practice before the Patent Office. She gave assistance to applicants for patents but did not hold herself out to be a registered Patent Office practitioner. She was convicted by the trial judge, sitting without a jury, through an interpretation of § 33 which, in effect, held that because she was not recognized to practice before the Patent Office, she was forbidden by § 33 to hold herself out as being fitted or competent to prepare patent applications. The Court of Appeals for the D.C. Circuit found that this was error and remanded for a new trial in the light of its interpretation of § 33, which was that there could be no conviction under the section unless the accused had misrepresented his or her status as a registered practitioner and that there could be no finding of guilt for "the mere rendering of service by one who does not pretend to that status."

It held, however, that the misrepresentation as to status need not be explicit and interpreted the second clause of § 33 to cover speech or behavior or both which implies registration with the Patent Office.4 In the course of its reasoning the court noted that the Reviser's note to § 33 says that it was based on Title 35 U.S.C. (1946 ed.) § 11a5 (May 9, 1938 c. 188; 52 Stat. 342) and that "`the language has been considerably simplified and the upper limit of the penalty is increased.'" It also cited from the legislative history of § 33, pages 6 and 15 of the House Report No. 1923, May 12, 1952, 82nd Congress 2d Sess. and pages 4, 5 and 15 of the Senate Report No. 1979, 82nd Congress 2d Sess. Taking these together it concluded that § 33 was intended to mean exactly what its predecessor § 11a meant, no more and no less, except for the increase in penalty and that therefore the legislative history of § 11a governed the interpretation of § 33. The court recited and analyzed this legislative history in some detail.6

In our opinion, however, the provisions of § 33 are perfectly clear. It must be assumed "that the legislative purpose is expressed by the ordinary

397 F.2d 206
meaning" of words used in the statute. Richards v. United States, 369 U.S. 1, 9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). See Green v. King Edward Employees' Federal Credit Union, 373 F.2d 613, 615 (5 Cir. 1967); Heli-Coil Corp. v. Webster, 352 F.2d 156, 167 (3 Cir. 1965); United States v. New England Coal and Coke Co., 318 F.2d 138, 142 (1 Cir. 1963), and where they have a basic and usual sense, they require no resort to legislative history. United States v. Oregon, 366 U.S. 643, 648, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961); American Community Builders, Inc. v. Commissioner of Internal Revenue, 301 F.2d 7, 13 (7 Cir. 1962). The proper function of legislative history is to solve and not to create an ambiguity, Railroad Comm. of State of Wisconsin v. Chicago, B. & Q. R. Co., 257 U.S. 563, 589, 42 S.Ct. 232, 66 L.Ed. 371 (1922); Commissioner of Internal Revenue v. Estate of Ridgway, 291 F.2d 257, 260 (3 Cir. 1961); Montgomery Charter Service, Inc. v. Washington Metropolitan Area Transit Commission, 117 U.S.App. D.C. 34, 325 F.2d 230, 233 (1963). Suffice it to say in general that the history of the legislation discloses a continuing effort on the part of Congress for the protection of the public to restrict to those who have met the standards of professional skill and ethics set up by the Patent Office,7 the rendering of advice and assistance in the presentation and prosecution of applications for patents

It seems to us, from the context in which the word "qualified" is used in the statute, that it carries its primary and more ordinary meaning of possessing particular skill or "know-how" in performing certain tasks or functions8 rather than the more legalistic meaning, less familiar to the general public, which is having formal legal authority to perform particular tasks or functions, such as an executor who has qualified or one who has become licensed or registered or certified by a governmental body to do certain things.

The original draft of § 33 submitted to the Judiciary Committee of the House of Representatives in 1950 provided:

"Whoever, not being recognized to practice, or having been withdrawn or been disbarred or excluded from practice, before the Patent Office, holds himself out or permits himself to be held out as authorized to represent applicants for patent in their business before the Patent Office, shall be fined not more than $500."

See Proposed Revision and Amendment of the Patent Laws, Preliminary Draft with Notes, Committee on the Judiciary, House of Representatives, Jan. 10, 1950. This was rejected. In July of 1950, Representative Bryson submitted H.R. 9133, 81st Cong., 2d Sess. (1950) which read as follows:

"Whoever, not being recognized to practice before the Patent Office holds himself out or permits himself to be held out as so recognized, shall be fined not more than $1,000."

This was also rejected. The third draft submitted by Representative Bryson in April of 1951, H.R. 3760, 82nd Cong., 1st Sess. (1951), was...

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57 practice notes
  • U.S. v. Russell, No. 3:07CR31 (AHN).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 22 Agosto 2007
    ...the well-settled presumption against construing a statute in a way that renders one of its terms ineffective. United States v. Blasius, 397 F.2d 203, 207 n. 9 (2d Cir. 1968). Indeed, if Congress had intended the construction Russell urges, it could have used such limiting language. It did n......
  • Ecological Rights Foundation v. Pacific Lumber Co., No. C-97-0292 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 19 Agosto 1999
    ...that there is a presumption against construing a statute as containing superfluous or meaningless words, see United States v. Blasius, 397 F.2d 203, 207 n. 9 (2d Cir.1968), cert. dismissed, 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557 (1969), this Court concludes that the phrase "on his own ......
  • In re Law, Bankruptcy No. 2-83-03621.
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    ...be contrary to established rules of statutory construction. See Jackson v. Kelly, 557 F.2d 735 (10th Cir.1977); United States v. Blasius, 397 F.2d 203 (2d Cir.1968), cert. denied 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557. See Section V(a), 12 See Collier on Bankruptcy, Appendix 2, XIX (15......
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    • U.S. Court of Appeals — Second Circuit
    • 19 Mayo 1980
    ...224, 23 S.Ct. 42, 47 L.Ed. 100 (1902); Platt v. Union Pacific R. R. Co., 99 U.S. 48, 58, 25 L.Ed. 424 (1878); United States v. Blasius, 397 F.2d 203, 207 n.9 (2d Cir. Finally, we think that HEW's understanding of the requirements of the waiver statute is in conflict with other significant f......
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57 cases
  • U.S. v. Russell, No. 3:07CR31 (AHN).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 22 Agosto 2007
    ...the well-settled presumption against construing a statute in a way that renders one of its terms ineffective. United States v. Blasius, 397 F.2d 203, 207 n. 9 (2d Cir. 1968). Indeed, if Congress had intended the construction Russell urges, it could have used such limiting language. It did n......
  • Ecological Rights Foundation v. Pacific Lumber Co., No. C-97-0292 MHP.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Northern District of California
    • 19 Agosto 1999
    ...that there is a presumption against construing a statute as containing superfluous or meaningless words, see United States v. Blasius, 397 F.2d 203, 207 n. 9 (2d Cir.1968), cert. dismissed, 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557 (1969), this Court concludes that the phrase "on his own ......
  • National Petroleum Refiners Association v. FTC, No. 72-1446.
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    • United States Courts of Appeals. United States Court of Appeals (District of Columbia)
    • 27 Junio 1973
    ...language of the statute. See Bird v. United States, 187 U.S. 118, 124, 23 S.Ct. 42, 47 L.Ed. 100 (1902); United States v. Blasius, 2 Cir., 397 F.2d 203, 207 n. 9 (1968), cert. dismissed, 393 U.S. 1008, 89 S.Ct. 615, 21 L.Ed.2d 557 (1969). "In the absence of an unmistakable directive," we ca......
  • U.S. v. Rone, Nos. 77-3964
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    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • 13 Junio 1979
    ...history is inappropriate. The proper function of legislative history is to solve, and not create, an ambiguity. United States v. Blasius, 397 F.2d 203, 205-06 (2d Cir. 1968). Notwithstanding the facial clarity of § 1962(c), an examination of the legislative history reveals nothing contrary ......
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