Page:Federal Reporter, 1st Series, Volume 8.djvu/833

NESW AMBBICAN FILE CO. V, NIOHOLSON FILE CO. 819 �foreign patent, should lose this right merely beoause the invention was free in foreign countries, when all inventions are free there, if the inveutors do not choose to patent them. They contented themselves with declaring that if an inventer had a monopoly abroad, the orig- inal tenn here should coineide with what they assumed to be the term there. �In the Eevision of 1870, section 25, it is enacted that no persou shall be debarred from receiving a patent for bis invention, nor shall any patent be declared invalid by reason of its haviijg been first pat- ented in a foreign country, provided it shall not have been introduced into public use in the United States for more than two years prior to the application, and that the patent shall expire at the same time with the foreign patent; or, if there be more than one, at the same time with the oue having the shortest term; but in no case shall it be in force for more than 17 years. 16 St. 201. �We have already said that this same statute reserved to all invent- ors, whose patents had been granted before March 2, 1861, the right to apply for an extension. See sections 63-67. The able and leamed commisioner of patents, Mr. Fisher, who was in office for a short time af ter the statute wa.s passed, held that, notwithstanding the broad language of sections 63 to 67, and though section 25 was not, in his opinion, retroactive, yet the lawof 1870 had introduced a new policy to make all this class of patents free here when they became so abroad ; and theref ore, in the exercise of his discretion, he would not extend a patent which would expire abroad contempo- raijeously with its expiration here. Re Mushet, Com. Dec. 1870, p. 106; Re Ward, Id. 126;\K« J5oj/«r, Id. 130. The defendants insist that the commissioner was not only wise in this use of his discretion, if he had any, but that he had none to extend such a patent after 1870. We cannot admit the cogency of this reasoning. �There can be no reasonable doubt that congress, in the statute of 1870, intended to leave patents granted before March 2, 1861, exactly where they were. They used apt language for this purpose, and if the commissioner had power to extend any such patent before 1870, he had exactly the same afterwards, for it is entirelyclear that sec- tion 25 is not retroactive. The intent of congress is fully carried out; because, for all patents since March 2, 1861, there can _be no exten- sion, and theref«i-e, if they expire at the end of the earliest foreign patent, that js the end of them. The fallacy lies in applying to old patents a poHcy which is, in terms, confined tp new qnes. The pat- en|;-offioe reyersed its decision in the same year, a^ter^Mp. Fisher had ��� �