Mr. Ewing's Remarks.

May it please the Court:

It is a privilege and an honor to speak for the Patent Bar of Judge Lacombe. There are many who knew him more intimately than I. There are many who appeared more often before him. But during the entire period of his service upon the Bench of this Honorable Court I was a member of the Bar of the Court and I was a close and sometimes a keenly interested observer of the method and the spirit which he brought to the discharge of the great duties that rested upon him.

No lawyer who presented a case to him ever brought to the task greater industry and enthusiasm than he to the prompt disposition of the cases. The crowded calendar was a grief to him; it rested upon his conscience. I had a long talk with him at the time of his retirement. He referred to the conditions as deplorable. Many a man would have done his day's work and laid the responsibility at someone else's door, but with him it was & matter that he took personally to himself. He talked with me about the growth of the business in the court. He took down one of the first volumes, a thin volume, of opinions for a year. He said there was a time when one had a chance to study the cases and write opinions that were satisfactory; and with a modesty that was very engaging in one who had become so eminent, he spoke of the training he had had from Judge Shipman and Judge Wallace. Then he took down one of the later volumes of opinions and referred to its bulkiness. There was an air of sadness that he felt himself no longer equal to the task that the work of this Court laid upon him The feeling was rooted in his deep sense of duty. Whe he retired and went into practice he was approachable, he labored hard, he charged lightly; his work was but a continuation of the public service which he had rendered in this Court.

On the Bench he was not suave; he was not always attentive. I remember an argument in which I took part

with Mr. Mitchell. Mr. Betts was the opposing Counsel. As we left the courtroom Mr. Mitchell said that the decision was going against us. Surprised and somewhat disturbed, I asked him his reason, and he said because Judge Lacombe went to sleep during Mr. Betts' closing argument, and added "He only does that when he has made up his mind to decide the case in Betts' favor."

On a former occasion one of his great associates, the late Judge Coxe, referred to his remarkable grasp of the questions of mechanics that arise in patent cases, what may be called the physical meaning of the disputes. The Judges leaned on him. They learned to accept his judgment. He had the capability and he made it his business to know what the instrumentalities involved. meant in industry. That was the first inquiry with him. I remember his saying to me once that he tried in patent cases to show that it was worth while to prepare and present illuminating records because they would be thoroughly examined. All this was but an exhibition of his profound respect for business concerns that were developing and supplying the market with new and serviceable commodities. At an argument he followed the points and noted them down. He marked the records and the briefs with different colored pencils, systematically. He was somewhat brusque because he was making thrusts at the argument to bring out one's best statement, and if the statement was a good one, even though somewhat heated, down it went in his notes and might appear in his opinion.

Judge Lacombe knew no easy way to decide cases. He sought none. At the arguments and in his study he strove with passionate energy to learn what the controversies meant to the litigants and to the lawyers who represented them. He wrote no "paper" opinions. When he decided a case he disposed of the substantial contentions of the parties. This gave to his opinions. vitality. In the reports he has left a monument which the flood of years cannot wholly wear away.

APPELLATE JURISDICTION OF U. S. SUPREME COURT AND U. S. CIRCUIT COURT OF APPEALS.

By KARL FENNING, Assistant Commissioner of Patents.

By the Act of Feb. 13, 1925, Congress has codified and amended the law with reference to appeals to the Supreme Court of the United States and to the United States Circuit Courts of Appeals. The appellate jurisdiction of these courts has been controlled by a number of statutes spread through the various volumes of the Statutes at Large. Now, for the first time since the passage of the Judicial Code in 1911, there have been collected in one place all the statutes giving authority to the Supreme Court to consider appeals from the various lower tribunals. Apparently, the only thing omitted from the Act of Feb. 13, 1925, is the jurisdiction of the Supreme Court to review cases in the Court of Customs Appeals.

It will be remembered that in The Baldwin Company v. R. S. Howard Company, 256 U. S., 35; 1921 C. D., 359; 286 O. G., 865, the Supreme Court indicated that it had no jurisdiction to take up either by appeal or by writ of certiorari from the Court of Appeals of the District of Columbia a case coming to that court by direct appeal from the decision of the Commissioner of Patents, on the ground that the decision of the Court of Appeals in that class of cases was not final. This was brought about by the fact that the jurisdiction of the Supreme Court on appeal or on certiorari from the Court of Appeals of the District of Columbia was controlled by sections 250 and 251 of the Judicial Code, which limited such jurisdiction to cases in which the judgment or decree of the Court of Appeals of the District of Columbia was final.

The Act of Feb. 13, 1925, however, is broader in its terms. The new law amends sections 239 and 240 of the Judical Code to read:

Sec. 239. In any case, civil or criminal, in a circuit court of appeals, or in the Court of Appeals of the District of Columbia, the court at any time may certify to the Supreme Court of the United States any questions or propositions of law concerning which instructions are desired for the proper decision of the cause; and thereupon the Supreme Court may either give binding instructions on the questions and propositions certified or may require that the entire record in the cause be sent up for its consideration, and thereupon shall decide the whole matter in controversy in the same manner as if it had been brought there by writ of error or appeal. Sec. 240. (a) In any case, civil or criminal, in a circuit court of appeals, or in the Court of Appeals of the District of Columbia, it shall be competent for the Supreme Court of the United States, upon the petition of any party thereto, whether Government or other litigant, to require by certiorari, either be fore or after a judgment or decree by such lower court, that the cause be certified to the Supreme Court for determination by it with the same power and authority, and with like effect, as if the cause had been brought there by unrestricted writ of error or appeal.

(b) Any case in a circuit court of appeals where is drawn in question the validity of a statute of any State on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is against its validity, may, at the election of the party relying on such State statute, be taken to the Supreme Court for review on writ of error or appeal; but in that event a review on certiorari shall not be allowed at the instance of such party, and the review on such writ of error or appeal shall be restricted to an examination and decision of the Federal questions presented in the

case.

(c) No judgment or decree of a circuit court of

appeals or of the Court of Appeals of the District of Columbia shall be subject to review by the Supreme Court otherwise than as provided in this section.

On its face it would seem that this is an enlargement of the discretionary power of the Supreme Court to take up cases on certiorari and likewise an enlargement of the right of the Court of Appeals of the District of Columbia to submit questions or propositions of law to the Supreme Court. Irrespective of whether the decision of the Court of Appeals of the District of Columbia is final or not, it would seem that the new law gives the Supreme Court authority to take up "any case" in the Court of Appeals of the District of Columbia by certiorari, and it would also seem that the Court of Appeals of the District of Columbia is given authority "in any case" to certify a question or proposition of law to the Supreme Court with a request for instructions. Just how far this law will go as a practical matter is of course to be determined by the courts themselves, but at least it would seem possible now to have a patent or trade mark matter from the Patent Office go through the Court of Appeals of the District of Columbia to the Supreme Court for determination as was the practice in suitable cases prior to the decision of the Supreme Court in the Baldwin case cited above. The new law goes into effect three months after approval or May 13, 1925.

It will be seen that the right of appeal to the Supreme Court from a Circuit Court of Appeals has been very much limited so as to include only cases under sec. 240 (b).

It is interesting to note that under the new law the Supreme Court may take up a case by certiorari either before or after a judgment or decree by the lower court, and section 8 (b) of the new law indicates that the application for certiorari may be made at any time prior to the hearing and submission in the court below if the case is to come up before judgment or decree.