ference in the form in which it now appears, must be taken as it reads, according to which the dependence of domestic on foreign patents for the same invention, previously granted abroad, is entirely removed and done away with. And this is to be interpreted liberally. As resolved by the Convention of Turin, in September, 1902, a few days after the treaty went into effect in the United States:

The independence of patents proclaimed by the additional act of Brussels ought to be construed in the broadest terms, and particularly in such manner that the term of a patent shall not in any case be dependent upon the term of another patent.

Nor is this to be confined, as conceived by our delegates, to such subsequent incidents as nullities and lapses by reason of the nonpayment of renewal fees or nonworking; an attempt to so limit it having been expressly disapproved by the conference. And, it having been in terms provided that the article should "apply to patents in existence at the time of its being put in force," subsisting patents, including the one in suit, were freed from their previous dependency, equally with those granted afterwards; no saving distinction being made between them.

The article must also be regarded as self-executing. A contrary opinion was given by the Attorney-General as to the treaty of 1883. 19 Opinions, 275. And this was followed by the Patent Office, as the correct construction, afterwards. Ex parte Zwack & Co., 76 O. G. 1855; Butterworth v. Boral, 97 O. G. 1596. It was accepted, also, by the Court of Appeals of the District of Columbia in interference proceedings, carried up from the Commissioner of Patents. Parker v. Appert, 75 O. G. 1201; Rousseau v. Brown, 104 O. G. 1120. In United Shoe Company v. Duplessis Shoe Company, 155 Fed. 842, 84 C. C. A. 76, also, it was held by the Court of Appeals of the First Circuit, that, although article 4 bis on its face was self-executing, it was controlled by implication by the passage by Congress of Act March 3, 1903, c. 1019, 32 Stat. 1225 (U. S. Comp. St. Supp. 1907, p. 1003), to give effect to it. But neither of these views in my judgment can be sustained. Having respect to their terms, it can not be said that either the treaty of 1883 or the additional Act of 1900 required legislation here to make it effective. They both undertake in the most direct and positive way to say what shall and what shall not be as to the matters with which they deal, and. being ratified in that form, nothing further, by our laws, was necessary to put them into operation. They can not be treated as mere agreements by the high contracting parties to bring the domestic laws of each into

conformity with them by subsequent action. That resulted by virtue of their own force and vigor.

A treaty is a law of the land, as an Act of Congress is, whenever its provisions prescribe a rule by which the rights of the private citizen or subject may be determined. Head Money Cases, 112 U. S. 580, 598, 5 Sup. Ct. 247, 28 L. Ed. 798. By article 2 of the treaty of 1883, the subjects or citizens of each of the contracting states shall enjoy, in all other states of the union, so far as concerns patents for inventions, etc., the advantages that the respective laws thereof then or shall afterwards accord to their own citizens or subjects, in consequence of which they shall have the same protection as the latter and the same legal recourse against all infringements of their rights, upon condition of complying with the formalities imposed upon citizens or subjects. And by article 3 subjects or citizens of states not forming part of the union, who are domiciled or have [bona fide, according to the additional Act of 1900] industrial or commercial establishments in the territory of one of the states of the union, are assimilated in this respect to actual subjects or citizens. By article 4 any one who shall have regularly deposited an application for a patent of invention, etc., in one of the contracting states shall enjoy, for the purpose of making a deposit in other states and under reserve of the rights of third parties, a right of priority during the periods thereinafter mentioned; that is to say, four months in case. of designs, and six months (made twelve by article 4 of the additional act) for general inventions. By article 5 the introduction by the patentee into countries where the patent has been granted of articles manufactured in any other of the states of the union shall not entail a forfeiture; subject, however, to the obligation of the patentee to work his patent. conformably to the laws of the country. And so on, in practically every article; the same being true, also, of the different articles of the additional act, including article 4 bis, by which the independence of foreign and domestic patents is declared and made to apply to those in existence.

It is idle to suggest, in the face of these provisions and others of like character that could be quoted, that the treaty, as well as the additional act by which it was supplemented, was inoperative and lay fallow until Congress, by statute, was moved to give life to it. There is nothing to the contrary in article 17, as argued, which merely refers to the formalities required to ratify, peculiar to each country, such as a confirmation in the United States by the President and Senate. And if there was any doubt therefrom, as to the intention that it should be self

executing, it is disposed of by article 18, immediately following, where it is provided that the treaty shall go into effect within a month after the exchange of ratifications, and remain in force as to each country until a year after it shall be there denunciated. It is to be remembered, also, that the patentee here was a French subject, whose property rights were being thus protected and provided for. It is not as though he were a citizen of the United States, dependent on the domestic law, if that makes any difference. And if the contemporaneous construction given to the treaty by the executive branch of the government, following the opinion of the Attorney-General, is insisted on, what is to be said of the contrary view taken by the French and the Italian governments, which is entitled to equal respect this being a treaty?

While, then, it would be our duty, if it were possible, having regard to the terms of the treaty, to abstain from giving retroactive effect to it, there is nothing by which it can be so limited; and existing patents must therefore be held to have been unfettered, and enlarged accordingly. The authority to so extend the terms of such patents can not well be doubted. It could have been done by special Act of Congress as to any specific invention, a course that was not infrequently indulged in formerly. 22 Am. & Eng. Ency. Law (2d ed.) 285; 30 Cyc. 918. There was also at one time a general statute by which, upon a proper showing, it could be allowed by the Commissioner. And there was nothing, therefore, to prevent it from being similarly accomplished by an enactment which should apply impartially to all in the same situation, as provided by the treaty. The construction, that the public had a right to have the monopoly brought to an end, in the case of this or any other invention, according to the terms imposed on the patent by the state of the law at the time it was granted, has nothing to stand upon. Congress has the power to revise and extend a patent, even after it has expired and the invention gone into public use. 22 Am. & Eng. Ency. Law (2d ed.) 385. And much more is this admissible as to patents still existing. The policy of the law at present is against the extension of patents, which Act March 2, 1861, c. 88, 12 Stat. 246, expressly prohibited. But that is not controlling; the law-making powers having authority to change their mind upon the subject, if they see fit to do so.

It is said that, if article 4 bis is held to be retroactive and self-executing, it revives and reinstates every patent which previous to that time had expired by reason of the limitation imposed by the term of a foreign. patent. But that does not necessarily follow. It was only existing

patents that were affected by article 4 bis, and not those which had already terminated. Besides that, if this was the purpose, there was nothing, as we have just seen, but the wish of Congress to stand in the way of it.

It is further said, however, that Act March 3, 1903, c. 1019, 32 Stat. 1225 (U. S. Comp. St. Supp. 1907, p. 1003), having been passed for the avowed object of effectuating the provisions of the treaty, Congress, in so undertaking to act, in effect declared against the self-executing character of the treaty, and that the construction so put upon it is to be respected, if, indeed, it is not controlling. This is the view taken in United Shoe Company v. Duplessis Shoe Company, 155 Fed. 842, 84 C. C. A. 76, referred to above. But it was recognized in that case that article 4 bis, and, if so, the whole treaty, was self-executing on its face, and it is giving altogether too much force to the action of Congress to have it do away with this simply by implication. If the engagement between the high contracting parties, who entered into the treaty, was, by its terms, immediate and unqualified, which is not only demonstrated above, but is there conceded, no legislative declaration afterwards, on the part of one of them, is competent to qualify it. No doubt the treaty could be denunciated or superseded by appropriate action; but it is not to be set aside or deprived of its inherent force because of acts based upon the assumed necessity for bringing the statute law into harmony with its provisions.

But it is further said that, the Act of 1903 coming after the treaty and being confined to giving effect to a part only of its provisions, Congress having deemed it advisable to go no further in that direction, the treaty is to that extent abrogated; the act as so passed being inconsistent with it. There can be no question that, as declared in the Cherokee Tobacco Case, 11 Wall. 616, 621 (20 L. ed. 227), "a treaty may supersede a prior Act of Congress, and an Act of Congress may supersede a treaty." And so far as this is the necessary result of the act in the present instance, being later than the treaty, this effect must be given to it. The Act of 1903, however, is somewhat peculiar. It is not confined to the purpose expressed in the title, but undertakes to amend, not only section 4887, but sections 4892, 4896, and 4902, also, only the first of which has anything to do with the present subject. And as to section. 4887 it simply re-enacts it as amended by Act March 3, 1897, c. 391, § 3, 29 Stat. 692, except that it enlarges the time after which an application for a patent filed abroad shall debar the obtaining of a patent here

for the same invention from seven months to twelve months, this period in the case of designs being fixed at four months; and except, also, that it provides in a new and distinct paragraph that an application filed here. within the period so limited, after an application for the same invention filed abroad, shall have the same force and effect as if filed here at the time it was filed there, provided similar privileges are afforded by such foreign country to citizens of the United States by law or treaty; and provided, further, that no patent shall be granted for an invention patented or described in a printed publication in this or any foreign country more than two years before the filing in this country, or which had been in public use or on sale in this country for a like previous period.

But it is difficult to see, upon the most liberal construction, how, as so enacted, it can be given the restrictive effect that is now claimed for it. It is true that it provides for but a small part of that which is covered. by the treaty, and if legislation was necessary to give effect to the treaty there would not be much left to it. But that, as we have seen, is not the case. The treaty, if uncontrolled, is self-executing. It is only as Congress in this abbreviated fashion has apparently seen fit to proceed upon a different assumption that any doubt is cast upon it. A repeal by implication is never favored, even between statute and statute; and much more is not a treaty, which has been mutually agreed to, to be overturned. by a later statute, which is the individual act of one of the parties. To sustain that view in any case there must be such a clear repugnancy that treaty and statute can not stand together, which, in the present instance, will hardly be contended for. The only inconsistency, as just stated, is that, where one deals with the subject comprehensively, the other does so restrictedly, which is not sufficient; there being nothing to convince. that this was the purpose.

It is said that this is shown by the title, which commits the act to the carrying out of the treaty, which must thus be regarded as the only means appropriate for doing so. Dallemagne v. Moisan, 197 U. S. 169, 25 Sup. Ct. 422, 49 L. Ed. 709. The title of an act may no doubt be resorted to under proper circumstances, to explain or give character to the body of it. But that it should be allowed controlling force, under the showing that is made here, is entirely unwarranted. Only about onetenth of the act in question has anything to do with the title; the rest of it, as we have seen, being entirely unrelated, except as it deals with the general subject of patents. And with the little heed that is so paid to it