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never have. The court should be clearly satisfied that the referee was in error before assuming to reverse his findings on the facts. I am not so satisfied.
But there is another serious obstacle in the path of the petitioners. Assume the questions of fact to be found in their favor; assume that by reason of their negligent or disingenuous acts, the respondents are liable as partners to those who trusted the bank, believing them to be directors,—is an appeal to a court of bankruptcy the correct remedy? There were many other creditors who did not rely upon respondents, and who never heard of them as being identified with the bank in any way. Should the respondents be held liable to them? And yet, when once declared bankrupts on the ground that they were partners transacting business under the firm name of "The Waverly Bank,” the door is opened to every provable debt. They must pay not only creditors of the bank who assert that they were misled, but also those who have no conceivable claim upon them. To illustrate: If A. falsely tells B. that he is a partner in the firm of C. & Co., and B. gives C. & Co. credit, relying upon A.'s representation, A. is most certainly liable to B., and as to him is estopped from denying the partnership. But C. & Co., have a hundred other creditors who never heard of A. or of his declarations. Is he liable to them also ? Most certainly not. And yet, if on B.'s petition it is judicially established that A. is a member of the firm of C. & Co., and they as partners are adjudicated bankrupts, all the creditors of the firm stand in as favorable a position as B. They can all collect their demands of A. The bankrupt law was never intended to work such injustice. The partnership must be actual, not constructive.
If the petitioning creditors can succeed in establishing the alleged acts of omission or commission on the part of the respondents, their remedy is perfect in the state courts. The report of the referee should be confirmed.
BATE REFRIGERATING Co. v. GILLETT and others.
(Circuit Court, D. New Jersey. August 4, 1882.)
1. PATENTS FOR INVENTIONS-FOREIGN PATENT PREVIOUSLY GRANTED - REV.
ST. $ 4587.
Section 4887 of the Revised Statutes expressly requires the commissioner of patents, where a foreign patent has been issued for the same subject matters, to limit the term of the domestic patent to the period of time that the foreign patent has to run; or if there be more than one, then to make it expire at the same time with the one having the shortest term; and the priority of such patent is to be determined, not by the dates of the applications for the foreign and do
mestic patents, but by the dates on which the letters patent were granted. 2. SAME-CANADIAN PATENT ACT.
Under sections 16 and 18 of the Canadian patent act, a patent takes effect not
from its delivery to the patentee, but when it is signed, sealed, and registered. 3. SAME-EXTENSION OF FOREIGN PATENT.
An extension of the term of a foreign patent will not operate to extend the term of the domestic patent; such patent expires when the original foreign
patent expires. 4. SAME-VALIDITY OF DOMESTIC PATENT.
Whether the United States patent is void ab initio in this case, because the term was 'not limited on its face to expire with that of the foreign patent. not decided.
On Petition to Dissolve Injunction.
Nixon, D. J. On the fourteenth of November, 1881, a decree was entered in the above case, sustaining the validity of complainant's letters patent, and ordering an account and an injunction against the defendants, restraining them from further infringement.
The defendants now file a petition setting forth that the letters patent, for the infringement of which the suit was brought, were the letters patent of the United States, numbered 197,314, granted to John J. Bate, of the city of Brooklyn, New York, on the twentieth of November, 1877, for the term of 17 years from that date, for "improvements in the process for preserving meats during transportation and storage;" that prior thereto, to-wit, on the ninth of January, 1877, letters patent of the dominion of Canada, No. 6,938, were granted to the said Bate for the same invention or discovery, for the term of five years from January 9, 1877; that the said term for the foreign patent expired on the ninth of January, 1882, by reason whereof the letters patent of the United States, No. 197,314, expired
at the same time as the said Canadian letters patent, as provided for by section 4887 of the Revised Statutes.
The petition further alleges that the invention or discovery of Bate having previously been patented by him in the dominion of Canada, the said letters patent of the United States should have been so limited as to expire with the same time as the foreign Canadian patent, and that the granting of the patent in the United States for the term of 17 years from the twentieth of November, 1877, was in direct violation of section 4887 of the Revised Statutes, by reason whereof the same were and are null and void. The prayer of the petition is that the injunction heretofore ordered and issued may be dissolved.
Are either of these reasons sufficient to justify the court in recalling the injunction ?
The affidavits used at the hearing of the motion disclosed the following facts: The inventor, Bate, filed an application for United States letters patent on the first of December, 1876. action was taken by the office in Washington, to-wit, on the nineteenth day of the same month and year, he caused a like application to be filed in the department of agriculture at Ottawa, in the dominion of Canada, on which letters patent were granted, the certificate of which was dated January 11, 1877.
But the fifteenth section of the Canadian patent act, in force when the patent was issued to Bate, provides
“That an applicant shall also deliver to the commissioner, unless specially dispensed from so doing for some good reason, a neat working model of his invention, on a couvenient scale, exhibiting its several parts in due proportion, whenever the invention admits of such model."
In this case the model was not dispensed with, but was required, and notice was sent to the solicitor of the inventor that the patent was withheld until it was furnished. It was not forwarded until the eighteenth of June, 1878, when the model reached the patent-office in Canadır, and on the twenty-sixth of the same month the letters patent were mailed to the solicitor. In the mean time the United States office had granted letters patent for 17 years for the same invention, which bear date at the time of their issue, to-wit, November 20, 1877.
The case obviously turns upon the question whether the invention was patented in Canada previous to the issuing of the patent in the United States, in the sense in which the word patented is used in sec.
tion 4887 of the Revised Statutes—the limitation of the statute being applicable only in such a case.
The provisions of the section are as follows:
“No person shall be debarred from receiving a patent for His invention or discovery, nor shall any patent be declared invalid by reason of its having been first patented, or caused to be patented, in a foreign country, unless the same has been introduced into public use in the United States for more than two years prior to the application. But every patent granted for an invention which has been previously patented in a foreign country, shall be so limited as to expire at the same time with the foreign patent; or, if there be more than one, at the same time with the one having the shortest term; and in no case shall it be in force more than 17 years.”
The phraseology here used materially differs from the previous legislation on the subject. The power of the commissioner of paten is defined and abridged. Where a foreign patent has been granted for the same subject matter, he is expressly required to limit the term of the domestic patent to the period of time that the foreign patent has to run; or, if there be more than one, then to make it expire at the same time with the one having the shortest term. We do not see how any language could have been employed that would more clearly express the legislative design that the life of the domestic patent should expire with the term of any outstanding foreign patent.
But the counsel for the complainant contended on the argument that the present case did not fall within the limitation of the statute, because the application for the United States patent was filed antecedent to the application for or the grant of the Canadian patent. We are at a loss to understand what the time of filing the application for the patent has to do with the matter. It is true that the eighth section of the act of 1836, and the sixth section of the act of 1839, made the date of filing the specifications, and drawings in the one case, and the date of the application for the home patent in the other, the point of time from which to reckon the six months intervening between the issue of the foreign and domestic patent. It is also true that by section 4886, and the first clause of section 4887, of the Revised Statutes, an inventor is required to file an application for his patent within two years after his invention or discovery has been in public use or on sale, from all of which the late commissioner of patents (Payne) was led to the opinion that the word “previously” used in the last clause of section 4887 had reference to time prior to the filing of the application, rather than to time prior to the
granting of the patent. See 17 0. G. 330. But this seems to be wresting the language of the section from its plain and obvious meaning, and we are not able to follow the reasoning by which such an interpretation is reached.
It was further insisted that the grant of the Canadian patent was to be determined, not by its date or issue, but by the time of its delivery to the patentee; that although dated January 9, and issued January 11, 1877, it was not delivered until June 26, 1878, a long time after the date of the American patent. Hence, it was said, “the invention had not been previously patented in a foreign country" when the patent was granted here. But this position will not stand the test of analysis or examination. It appears upon the face of the Canadian patent that it was granted and dated on the ninth and issued on the eleventh of January, 1877, and was to continue in force for five years from its date. By the eighteenth section of the Canadian patent act it is provided that
“Every patent and instrument for the extension of time, as aforesaid, shall, before it is signed by the commissioner, or any other member of the privy council, and before the seal hereinbefore mentioned is affixed to it, be examined by the minister of justice, who, if he finds it conformable to law, shall certify accordingly, and such patent or instrument may then be signed and the seal atlixed thereto, and, being duly registered, shall avail to the grantee thereof."
The invention is patented so as to be available to the patentee when signed, sealed, and registered. Owing to the neglect of the inventor in not forwarding a model to the office, it was not delivered to him until June, 1878, but it was no less a patent, securing to him the benefits of the invention and protecting him against infringement. This becomes manifest by referring to section 16 of the act, wherein it is enacted that “the patentee shall have the exclusive right, privilege, and liberty of making, constructing, and using, and vending to others to use, the said invention for the period mentioned from the granting of the same. Again, the proofs of the complainant show that the patent was absolutely granted as early as January, 1877, although the delivery was withheld owing to the laches of the grantee. The certificate of the assistant patent clerk of the Canadian office, the affidavit of Mr. Simpson, the solicitor employed by Mr. Bate to procure the letters patent, and the notice sent by the deputy commissioner, all reveal upon their face that the requirements of the Canadian law had been fully met, and that the invention had been in fact patented before the model was required.