OPINION

OF THE

SOLICITOR OF THE

DEPARTMENT OF THE INTERIOR.

1918.

[Opinion of the Solicitor of the Department of the Interior.]

IN RE OATHS IN ALIEN ENEMY COUNTRIES.

250 O. G., 513.

OATHS IN ENEMY COUNTRIES-POWER TO ADMINISTER AND PROVE AUTHORITY. Held that the Spanish diplomatic and consular officers in charge of the interests of the United States in enemy countries are not vested with power to administer oaths or to prove the authority of officials of the enemy countries under section 4892, Revised Statutes.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SOLICITOR, Washington, D. C., March 29, 1918.

The honorable the Secretary of the Interior.

MY DEAR MR. SECRETARY: I have considered the question submitted by the Commissioner of Patents, in his attached letter to you of February 23, 1918, whether an oath of an applicant for patent who is an enemy or ally of an enemy, taken in an enemy country before a Spanish diplomatic or consular officer, or as to which oath the authority of the person before whom it was taken was certified to by such an officer, can be regarded as a sufficient compliance with the provisions of section 4892, Revised Statutes.

Said section 4892, Revised Statutes, provides:

The applicant shall make oath that he does verily believe himself to be the original and first inventor or discoverer of the art, machine, manufacture, composition, or improvement for which he solicits a patent; that he does not know and does not believe that the same was ever before known or used; and shall state of what country he is a citizen. Such oath may be made before any person within the United States authorized by law to administer oaths, or, when the applicant resides in a foreign country, before any minister, chargé d'affaires, consul, or commercial agent holding commission under the Government of the United States, or before any notary public, judge, or magistrate having an official seal and authorized to administer oaths in the foreign country in which the

applicant may be, whose authority, shall be proved by certificate of a diplomatic or consular officer of the United States.

Section 10 (a) of the "Trading with the Enemy Act" of October 6, 1917, provides:

An enemy, or ally of enemy, may file and prosecute in the United States an application for Letters Patent, or for registration of trade-mark, print, label, or copyright, and may pay any fees therefor in accordance with and as required by the provisions of existing law and fees for attorneys or agents for filing and prosecuting such applications. Any such enemy, or ally of enemy, who is unable during war, or within six months thereafter, on account of conditions arising out of war, to file any such application, or to pay any official fee, or to take any action required by law within the period prescribed by law, may be granted an extension of nine months beyond the expiration of said period, provided the nation of which the said applicant is a citizen, subject, or corporation shall extend substantially similar privileges to citizens and corporations of the United States.

Upon the suspension of diplomatic relations between the United States and the German Empire, preliminary to the existing state of war between those powers, and again upon the declaration by the United States of a state of war with the Austro-Hungarian Empire, the diplomatic and consular interests of the United States within the countries of those powers, respectively, were placed by the United States in the charge of the diplomatic and consular officers of the Kingdom of Spain accredited to those countries, who accepted and are now acting under such delegation of this nation's diplomatic and consular functions within those warring countries. In my opinion this cannot be considered to have vested in those Spanish officials powers other than of a strictly diplomatic or consular character. In this instance the power in question is not one necessarily a part of the diplomatic or consular function and in the absence of special legislation to that effect (sec. 4892, Rev. Stats.) would not be one of the ordinary functions of the office. I do not believe that an officer of another Government, merely out of comity and for the time being performing the duties of an officer of the United States, can be considered as possessing, under this section, notarial powers in patent matters, as conferred on certain officers "holding a commission under the Government of the United States."

66

The proviso in the last sentence of said section 10 (a) of said " Trading with the Enemy Act" is, in my opinion, applicable only to the granting of an extension of nine months following the period of six months after the expiration of war and is not attached as a condition to the privilege extended to enemies and enemy aliens by the first sentence of said section. So construed said proviso has no bearing upon the question under consideration.

In my opinion, therefore, such patent applications as are referred to by the Commissioner of Patents in his letter fall within the scope of

the privilege accorded by said section 10 (a) of the "Trading with the Enemy Act" (such privilege is not conditioned upon the reciprocal extension of similar privileges to citizens and corporations of the United States), but the oath accompanying such applications by enemies and enemy aliens cannot be considered to comply with the provisions of section 4892, Revised Statutes, if taken before the Spanish diplomatic or consular officer accredited to such country and in charge, during the war, of the diplomatic and consular interests of the United States therein.

Cordially yours,

CHARLES D. MAHAFFIE,

Solicitor.

[Opinion of the Solicitor of the Department of the Interior.]

IN RE PRACTICE OF OFFICERS BEFORE PATENT OFFICE.

66

Decided September 19, 1918.

254 O. G., 865.

1. ATTORNEYS-PRACTICE BEFORE PATENT OFFICE-ENLISTED MAN NOT BARRED. An enlisted man in the Army or seaman in the Navy is neither an officer clerk in the employ of the Government" within the terms of section 113 of the Penal Code (35 Stats. 1088-1109) and may continue to practice as an attorney before the Patent Office.

nor a

2. SAME--SAME-COMMISSIONED OFFICERS NOT TO RECEIVE COMPENSATION FOR SUCH SERVICES.

Commissioned officers of the Army and Navy may not be permitted to practice before the Patent Office if they receive or agree to receive compensation for such services.

3. SAME-SAME-APPLICATIONS FOR THE BENEFIT OF THE UNITED STATES MAY BE PROSECUTED BY A PERSON IN THE MILITARY OR NAVAL SERVICE. If an application for patent is being prosecuted for the benefit of the United States, the statute does not prohibit a person in the military or naval service from appearing as attorney, provided he is not to receive for his services any compensation in addition to his military pay.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SOLICITOR, Washington, D. C., September 19, 1918.

The honorable the Secretary of the Interior.

DEAR MR. SECRETARY: My opinion has been requested as to the questions presented in a communication from the Commissioner of Patents, dated August 15, 1918, as to whether

persons who have entered and are actually engaged in the military or naval service of the United States, whether as officials or privates.

are ineligible to practice as attorneys representing applicants for patent before the United States Patent Office. The Commissioner further states:

It is also asked that the requested opinion specify if it makes any difference as to the application of the statute whether the application for patent being prosecuted by a person in the military or naval service is or is not assigned to the United States or any person as trustee for the United States.

Section 1782, Revised Statutes, cited by the Commissioner, has been replaced by section 113 of the Penal Code, act of March 4, 1909, (35 Stat., 1088-1109,) which provides:

Whoever, being elected or appointed a Senator, Member of or Delegate to Congress, or a Resident Commissioner, shall, after his election or appointment and either before or after he has qualified, and during his continuance in office, or being the head of a Department, or other officer or clerk in the employ of the United States, shall, directly or indirectly, receive, or agree to receive, any compensation whatever for any services rendered or to be rendered to any person, either by himself or another, in relation to any proceeding, contract, claim, controversy, charge, accusation, arrest, or other matter or thing in which the United States is a party or directly or indirectly interested, before any Department, court-martial, Bureau, officer, or any civil, military, or naval commission whatever, shall be fined not more than ten thousand dollars and imprisoned not more than two years; and shall, moreover, thereafter be incapable of holding any office of honor, trust, or profit under the Government of the United States.

The above statute makes it penal for

the head of a Department, or other officer or clerk in the employ of the United States

to receive compensation or agree to receive compensation for services before any Bureau of the Government.

66

An officer of the United States is one who holds his place by virtue of appointment by the President or one of the courts of law or by the head of a Department authorized by law to make such an appointment. (United States v. Germaine, 99 U. S., 508.) The various officers of the Army and Navy are prescribed by statute. The term officers," as used in the statutes, may have reference to commissioned officers only-that is, officers who hold as evidence of their right to office a commission signed by the President and sealed with the seal of the United States and attested by the Secretary of War or the Secretary of the Navy-or it may be used to apply to all other than enlisted men without being limited to persons holding commissions. (5 Corp. Jur., 309.)

Commissioned officers of the Army and Navy are undoubtedly officers of the United States and are within the inhibition of the above statute. Certain minor officers, particularly in the Navy, may be officers within the meaning of some statutes and not officers within the meaning of others. (See United States v. Mouat, 124 U. S., 303;