Opinion of the Court.

1870. This invention was patented in England, France, and Belgium on October 17, 1856, prior to the grant of the American patent, and the English patent had already expired. This point is fatal to the present application." Com. Dec. 1870, p. 131.

We have not been referred to any ruling of the Patent Office, after the passage of the act of 1870, in conflict with or different from that of Commissioner Fisher, except one made by Commissioner Paine in 1880. But in reference to the latter ruling and the construction of the act of 1870 under which the Commissioner of Patents had uniformly proceeded, Commissioner Marble, in a letter to the Secretary of the Interior, under date of March 17, 1882, said: "As will be seen by Col. Mason's communication, the construction now put upon the statute is the construction which it has received since it was enacted, except during a short interval of the term of my predecessor, Mr. Commissioner Paine. I may state, however, that Mr. Commissioner Paine addressed to me a letter within one month after he had retired from office, stating that he believed his construction of section 4887 was erroneous."

It is appropriate now to inquire as to the course of judicial decision upon the question before this court.

That question was directly presented in Bate Refrigerating Co. v. Gillett, 13 Fed. Rep. 553, 555, which case related to the patent here involved. Bate's application in Canada having been made after his application in this country, and the Canadian patent having been issued before the American patent was issued, the principal question was whether the invention was patented in Canada previous to the issuing of the patent in the United States in the sense in which the words "previously patented" were used in section 4887 of the Revised Statutes.

Referring to that section, Judge Nixon said: "The phraseology here used materially differs from the previous legislation on the subject. The power of the Commissioner of Patents is defined and abridged. Where a foreign patent has been granted for the same subject-matter, he is expressly required to limit the term of the domestic patent to the period of time

Opinion of the Court.

that the foreign patent has to run; or, if there be more than one, then to make it expire at the same time with the one having the shortest term. We do not see how any language could have been employed that would more clearly express the legislative design that the life of the domestic patent should expire with the term of any outstanding foreign patent. But the counsel for the complainant contended on the argument that the present case did not fall within the limitation of the statute because the application for the United States patent was filed antecedent to the application for or the grant of the Canadian patent. We are at a loss to understand what the time of filing the application for the patent has to do with the matter. It is true that the eighth section of the act of 1836 and the sixth section of the act of 1839 made the date of filing the specifications and drawings in the one case and the date of the application for the home patent in the other the point of time from which to reckon the six months intervening between the issue of the foreign and domestic patent. It is also true that by section 4886, and the first clause of section 4887, of the Revised Statutes, an inventor is required to file an application for his patent within two years after his invention or discovery has been in public use or on sale, from all of which the late Commissioner of Patents (Paine) was led to the opinion that the word 'previously' used in the last clause of section 4887 had reference to the time prior to the filing of the application rather than to the time prior to the granting of the patent. See 17 O. G. 330. But this seems to be wresting the language of the section from its plain and obvious meaning, and we are not able to follow the reasoning by which such an interpretation is reached."

This decision was followed in Gramme Electrical Co. v. Arnoux &c. Electric Co., (1883) 17 Fed. Rep. 838, 840, which turned upon the construction of section 25 of the act of 1870. One of the questions in that case was whether an American patent dated October 17, 1871, and the application for which was made August 17, 1870, was limited as to its term by the term of an Austrian patent issued after the American application was made, but before the American patent was issued.

Opinion of the Court.

Mr. Justice Blatchford, referring to section 25 of the act of 1870, said: "It is contended that under the foregoing provisions [patent] No. 120,057 expired either on December 30, 1871, or on December 30, 1880, the date of the expiration of the Austrian patent, accordingly as that patent is to be regarded as a patent for one year or for ten years. To this the plaintiff replies that the application for No. 120,057 was filed before the application for the Austrian patent was filed. But the date of the application for No. 120,057 cannot affect the question. Under the act of 1870 a patent takes effect from the time when it is granted and cannot be antedated. The meaning of section 25 of the act of 1870 is that the United States patent shall expire at the same time with the foreign patent having the shortest time to run, which was. granted before the United States patent was granted, and not that it shall expire at the same time with the foreign patent having the shortest time to run, which was granted before the time when the application for the United States patent. was made. Bate Refrigerating Co. v. Gillett, 13 Fed. Rep. 553."

There is nothing in the opinion delivered by Mr. Justice Blatchford which, in our judgment, justifies the suggestion that he felt constrained by principles of comity to follow the decision of Judge Nixon without considering the question upon its merits. He seems to have expressed his mature judgment as to the scope and meaning of the act of 1870.

The case of Bate v. Gillett came before Mr. Justice Bradley at the circuit in 1887, and what he said is reported in 31 Fed. Rep. 809. Referring to the construction given by Judge Nixon to section 4887, he observed that if the question were an open one he would have some hesitation, as it was one of considerable doubt. Expressly stating that he had not come to any decided conclusion on the subject, he declined, while sitting at the circuit, to modify the decision of Judge Nixon, and gave to it full effect. This court would undoubtedly attach great value to the deliberate judgment of Mr. Justice Bradley upon the question now before it indeed, upon any question.

Opinion of the Court.

In Edison Electric Light Co. v. U. S. Electric Lighting Co., (1888) 35 Fed. Rep. 134, 137, 138, the subject was carefully considered by Judge Wallace. In that case, which was a suit for the infringement of a patent, he said, after quoting section 4887 "The real inquiry is whether the section limits the term of a domestic patent to the term of a foreign patent when the application for the foreign patent is not made until subsequent to the application in this country, but the foreign patent issues before the domestic patent. If it were proper to treat this question as an original one, it would be necessary first to inquire whether there is any ambiguity in the language of the statute. If there is not, the duty of the court is to give effect to its obvious meaning, notwithstanding it may be thought to make an unreasonable and harsh innovation upon the preexisting privileges of our own inventors. It is not only the safer course to adhere to the words of a statute, construed in their ordinary import, instead of entering into any inquiry as to the supposed intention of Congress, but it is the imperative duty of the court to do so. Where the meaning of the Revised Statutes is plain the court cannot look to the sources of the revision to ascertain whether errors have or United States v.

have not been committed by the revisers.

Bowen, 100 U. S. 508. There is no practical difference in the phraseology of section 4887 and that of section 25 of the act of July 8, 1870, from which the section is reproduced." Referring to the above cases at the circuit, he remarked that question should not be considered as an original one.

the

In Bate Co. v. Hammond, 35 Fed. Rep. 151, Judge Colt followed the decision in Bate Co. v. Gillett. And a like ruling was made by Judge Coxe in Accumulator Co. v. Julien Electrical Co., 57 Fed. Rep. 605.

In view of this history of the question presented by the certificate of the Circuit Court of Appeals, what is the duty of this court? In Andrews v. Hovey, 124 U. S. 694, 717, it was said that the construction of a statute of the United States concerning patents for inventions cannot be regarded as judicially settled when it has not been so settled by the highest judicial authority which can pass judgment upon the

VOL. CLVII-3

Opinion of the Court.

question. "Nor," the court further said, "is this a case for the application of the doctrine that, in cases of ambiguity, the practice adopted by an executive department of the government in interpreting and administering a statute is to be taken as some evidence of its proper construction. The question before us as to the validity of a patent, by reason of preexisting acts or omissions of the inventor, of the character of those involved in the present case, is not a question of executive administration, but is properly a judicial question. Although it may be a question which, to some extent, may come under the cognizance of the Commissioner of Patents, in granting a patent, yet, like all the questions passed upon by him in granting a patent which are similar in character to the question here involved, his determination thereof, in granting a particular patent, has never been looked upon as concluding the determination of the courts in regard to those questions respecting such particular patent, and, a fortiori, respecting other patents." The appellant, therefore, properly insists that the determination of the present question shall not be deemed absolutely concluded either by the practice that has obtained in the Patent Office since the passage of the act of 1870 nor by decisions in the inferior courts of the United States.

If section 4887 of the Revised Statutes is so worded as to express clearly the intention of Congress, the court must give effect to that intention. But even if the statute be not so explicit as to preclude construction; if upon applying to it the established rules of interpretation; if looking at it in the light of previous legislation on the subject; if there be reasonable ground for adopting either one of two constructions; this court, without departing from sound principle, may well adopt that construction which is in harmony with the settled practice of the executive branch of the government, and with the course of judicial decisions in the Circuit Courts of the United States; especially, if there be reason to suppose that vast interests may have grown up under that practice and under judicial decisions, which may be disturbed or destroyed by the announcement of a different rule.