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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 No doubt the treaty could be denunciated or superseded by appropriate action; but it is not to be set aside or deprived of its inherent force because of acts based upon the assumed necessity for bringing the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 impiication 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 repugnaney 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 oue. tenth 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

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in the body, it would be straining a point to accord to the title the predominant part that is now urged for it. The title being disposed of, there is nothing in the act itself to in any way disturb us. It did not undertake to undo what had been done by the treaty. At most it merely neglected to take such steps as would have brought the statute law into complete conformity with its provisions. But the treaty was not dependent upon this. It went into effect of its own force some six months before. And it is not to be set aside in any such indirect and inconclusive manner after that. It is also further to be observed that, even if the Act of 1903 is held to have superseded or abrogated the treaty, the treaty having gone into effect in this way meantime, the patent in suit and others similarly situated were thereby freed from their dependency upon corresponding foreign patents, and they could not be put back by the act into their former position, which would offend against the principle of nonretroactivity contended for, even more seriously than anything which is now complained of.

Taking treaty and acts of Congress together, therefore, the case stands this way: By section 4887, Rev. St., a domestic patent for the same invention previously patented abroad was made dependent on the term of such foreign patent, by which it was limited. The Act of March 3, 1897, removed this restriction, but provided (section 8) that it should not apply to patents granted prior to January 1, 1898, nor tr applications filed before that on which patents were subsequently granted. This prevented the patent in suit, for the time, from having the benefit of this legislation, having been applied for December 29, 1897, two days within the period fixed by the proviso. Then the additional act of Brussels of 1900 was ratified, by which, according to article 4 bis, there was a complete unfettering of foreign and domestic patents for the same invention; and this by express terms was made to apply to existing patents. Such was the state of the law, and such the position of the patent in suit, when the Act of March 3, 1903, came into existence. As just stated, this could not undo what had already been done, nor put back the patent into its former dependent condition. Having become entitled to the full term of seventeen years accorded to patents generally, it could not thereafter be again restricted. Nor did the Act of 1903 indeed, undertake to do so. It simply re-enacted section 4887, as amended by the Act of 1897, leaving out the limitation which time and treaty had doubly disposed of, and introducing certain provisions in conformity with the treaty. It is only by reading into this record that which is not to be found there, and has

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no rightful place in it — that the treaty was not retroactive, and was not self-executing, contrary to the plain effect of it -- that the patent can be cut down or made dependent again upon the terms of the French patent.

For both reasons, therefore, which were discussed at the argument, the plea interposed in the court below, in my judgment, was bad, and should have been overruled; and the decree sustaining it must be reversed in consequence.

IN RE MITCHELL

District Court for the Southern District of New York, June 30, 1909

171 Federal Reporter, 289 On Application for Admission to Bail Pending Extradition Proceedings.

HAND, District Judge: In this case the petitioner applies for bail under special circumstances. He has been arrested on extradition papers which have been issued from Canada and under which he is charged with what, in the State of New York, would be larceny. A warrant has been issued by Commissioner Alexander, and he is at present in the Tombs prison awaiting the final determination upon his extradition. The warrant was issued against him Thursday, June 24th, which was just upon the eve of a trial in the Supreme Court of the State of New York, in this county, in which he is the plaintiff and the moving parties in the extradition proceedings are the defendants. The trial commenced on the 25th, and I then issued a habeas corpus ad testificandum, upon which he appeared in court on the 25th and testified. The suit involves a very large sum of money; indeed, from the papers, I understand that it involves all the fortune of the prisoner. The application is made to enlarge him upon bail for the reason that at present he is entirely unable to consult with his counsel and prepare for the remainder of the trial, which will consume, probably, the 28th, 29th, and 30th days of June. The application is opposed by the Canadian agent with much vigor, who contends that I have not the power to grant bail in such cases. My understanding of Wright v. Henkel, 190 U. S. 40, 23 Sup. Ct. 781, 47 L. Ed. 948, is that the existence of the power was distinctly affirmed by the Supreme Court. The court at the same time clearly indicates its

1 (AMERICAN JOURNAL OF INTERNATIONAL LAW, vol. 1, p. 202.]

judgment that the power should be exercised only in the most pressing circumstances, and when the requirements of justice are absolutely peremptory; but still I can not read that opinion without recognizing that the court understood the power to exist.

The petitioner also relies upon Pettit v. Walshe, 194 U. S. 205, 24 Sup. Ct. 657, 48 L. Ed. 938, which construed the proviso of the sundry civil act of 1894 (Act Aug. 18, 1894, c. 301, 28 Stat. 416 [U. S. Comp. St. 1901, p. 717]) as applying to extradition cases. 1 do not, however, interpret that proviso or the opinion as indicating that the Supreme Court in any sense meant to do more than say that section 5270 of the Revised Statutes (U. S. Comp. St. 1901, p. 3591) was modified pro tanto by the sundry civil act, and only to the extent of providing that the extradited person must be brought before the nearest commissioner. We should not interpret that opinion as independently recognizing the right to take bail, but that right must depend entirely upon Wright v. Henkel, supra. In several cases in this district commissioners and judges have issued bail under similar circumstances, and while I quite agree with the learned counsel for His Majesty's government that the right is a dangerous one, and ought to be exercised with great circumspection, it seems to me that the hardship here upon the imprisoned person is so great as to make peremptory some kind of enlargement at the present time, for the purpose only of free consultation in the conduct of the civil suit upon which his whole fortune depends. Those special circumstances alone move me to allow him to bail, and his enlargement is to be limited strictly to the period of that suit. As soon as that is terminated he must be returned to the Tombs prison to await the determination of the commissioner upon the extradition proceedings. Until, however, that suit is terminated, I will order him released upon bail in the sum of $3,000. I am also moved to this disposition from the fact that he has long known of these proposed proceedings and has made no effort to avoid them or

to escape.

Let an order be entered to that effect.

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