CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES,

AT

OCTOBER TERM, 1894.

BATE REFRIGERATING COMPANY v. SULZBERGER.

CERTIFICATE FROM THE CIRCUIT COURT OF APPEALS FOR THE SECOND CIRCUIT.

No. 687. Argued November 15, 16, 19, 1894.- Decided March 4, 1895.

The provision in Rev. Stat. § 4887 respecting a "patent granted for an invention which has been previously patented in a foreign country" refers to foreign patents granted previously to the issue of letters patent for the same invention by the United States, and not to foreign patents granted previously to the application for the American letters.

When such foreign letters issue before the United States letters issue, the American patent is so limited as to expire at the same time with the foreign patent having the shortest term, but in no case is it to be in force more than seventeen years.

When the language used in a statute is plain and unambiguous, a refusal to recognize its natural obvious meaning may be justly regarded as indicating a purpose to change the law by judicial action, based upon some supposed policy of Congress.

United States v. Bowen, 100 U. S. 508, cited approvingly to the point that "the Revised Statutes must be treated as the legislative declaration of the statute law on the subjects which they embrace on the first day of December, 1873," and that “when the meaning is plain, the courts cannot look to the statutes which have been revised to see if Congress erred in that revision, but may do so when necessary to construe doubtful language used in expressing the meaning of Congress." 1

VOL. CLVII-1

Statement of the Case.

THE certificate of questions sent up in this case was as follows:

"A decree dismissing the bill in this cause after a hearing upon the setting down of pleas thereto having been made in the Circuit Court for the Southern District of New York, and an appeal having been taken therefrom to this court, and the cause having come on for final hearing, certain questions of law arose concerning which this court desires the instruction of the Supreme Court of the United States for its proper decision. The facts out of which the questions arose appear from the bill and pleas thereto on file in the cause and are as follows:

"On the first day of December, 1876, John J. Bate applied for letters patent for an improvement in processes for preserving meats, etc., and after sundry proceedings in the United States Patent Office, including an appeal to the examiners-inchief, as well as a subsequent contested interference with a patent to one Ezekiel S. Halsted, a patent was issued to said Bate on the 20th day of November, A.D. 1877, the grant being in terms for seventeen years. Afterwards, on the 22d day of November, 1877, said John J. Bate assigned said patent to the Bate Refrigerating Company, the assignment being duly recorded on the 23d day of November, 1877.

"After the application had been filed in the United States Patent Office and before the patent was issued two foreign patents were granted for the same invention, to wit, one patent granted by the British government to William Robert Lake on a communication from said Bate dated January 29, 1877, for the term of fourteen years from said date, said patent being sealed July 13, 1877, and the complete specification being filed July 26, 1877, and the said invention was patented or caused to be patented by the said Bate; the other of said patents granted by the government of the Dominion of Canada to the same John J. Bate under date of January 9, 1877, for five years. Both foreign patents expired before the expiration of the seventeen years specified in the grant of the United States patent to Bate. The bill was filed July 25, 1892, and prayed for an injunction against infringement and for an account.

Argument for Appellant.

"Upon these facts this court desires instruction upon questions of law for the proper decision of said cause, namely, whether the invention for which the United States patent aforesaid was issued to said John J. Bate had been 'previously patented in a foreign country' within the meaning of those words in section 4887 of the Revised Statutes, and whether the said patent expired under the terms of said section before the expiration of the term of seventeen years from its date, and to that end hereby certifies said questions to the Supreme Court."

Mr. Charles E. Mitchell, (with whom was Mr. James J. Storrow on the brief,) for appellant.

Mr. Benjamin F. Lee by leave of court filed a brief on behalf of the Chemical Rubber Company in support of the contention of the appellant.

Mr. Wheeler H. Peckham and Mr. Edmund Wetmore for appellees. Mr. Leonard E. Curtis was on their brief.

Mr. B. H. Bristow and Mr. William H. Kenyon by leave of court filed a brief on behalf of the Harrison International Telephone Company in support of the contention of the appellees.

Mr. Charles H. Aldrich by leave of court filed a brief on behalf of Milo G. Kellogg in support of the contention of the appellees.

Mr. James C. Carter closed for appellant.

I. The defendants, in support of their contention that "previously patented" means patented before the issue of the American patent, put themselves upon what is called the rule of literal, grammatical interpretation, and insist that such meaning is the necessary import of the language; and that it would therefore be to no purpose to show that such a construction would make the law a piece of senseless and mischiev