Page:Federal Reporter, 1st Series, Volume 8.djvu/834

FEDERAL REPORTER. �retired from olBce, and the reasoning of the later opinion appears to us Sound. Re Apperly, Corn. Dec. 1870, p. 163. Even if the office should be thought to have exercised its discretion improvidently in this case, we have no power to reverse the decision. �Bernot's patent was granted in 1860, while the statute of 1839, § 6, (5 St. 354,) was in operation ; it should, therefore, have been lim- ited to 14 years from August 31, 1854, the date of the French pat- ent. This was not done. If the private act of congress had not been passed, the patent would have expired August 31, 1868, becauae the law considered that to be done which should have been done, and read the statute into the patent. O^Reilly v. Morse, 15 How. 62. In that event, an extension could have been grainted before the etid of August, 1868, but not afterwairde. ' Re Gesaner, Corn. Dec. 1871, p. 48. This decision is cited in the defendant's supplemental brief, as if it coincided with Mr. Fisher's ruling against extending a patent which is about to expire dbroad. This is a misreading. The patent had expiired two years before the application, by the expiration of the foreign patent, under the decision in Morse v. O'Reilly, which is cited by the comuiissioner as his authority in the premises. ' �Again, it is contended that the private act of congress inerely cured the defect arising out of the grant of the French patent, omitting, by inadvertence or design, aH mention of the English patent, aiid there- fore the American patent expired in 1869. If we were dealing with a patent issued since 1870, it would be true that if, by any means, the French grant, and that only, were removed from the case, the patent would yet expire with the English' grant ; but, as we have said; the law of 1839 required the comthissioner to limit Bernot's patent, not to the shortest term of any foreign patent, which might be 3 or 5 or 10 years, nor to any term of foreign patents at all, but to 14 years from the date of the foreign patent, and, if there were two, the term should begin to run from the earlier, — in this case, the French patent, — and the existence of the later or English patent was immaterial; and when congress said that Bernot's patent ought to have been limited to 14 years from the date of the French patent, they stated the case with entire accuracy, and mentioned the only defect that existed. �Finally it was argued that the act of congress was a special exer- cise of sovereign power, giving a prolongea term to the Bemot patent ; and that, as the act itself does not provide for an extension, there can be none, any more than there could be if the act had authorized an entirely new patent, which authority, being granted af ter the pol- ��� �