to congress have been fruitless for relief, yet, so far as we can discover, the executive departments must still turn for that purpose in that direction, and not to the courts.

The second ground of complaint of the United States is stated in the following language:

"On September 3, 1880, Berliner filed an application which professed to be a division of his application of June 4, 1887, on which division a patent was granted November 2, 1880, numbered 233,969, which patent was assigned to the Bell Company on April 1, 1881. It is alleged in the bill that this patent covers the invention described and claimed in the patent in suit No. 463,569, and that it exhausted the authority of the commissioner in respect to that invention, and that the commissioner was therefore without jurisdiction to issue the subsequent patent."

At the bar the United States rested on this point on Miller v. Manufacturing Co., 151 U. S. 186, 14 Sup. Ct. 310, already referred

to.

The principle of this decision is evident, and was stated as early as 1865, in Suffolk Co. v. Hayden, 3 Wall. 315; and it appears from the record that it was recognized by the patent office before Miller v. Manufacturing Co. was decided. We may remark that the facts in the case at bar on their face are not like those of Miller v. Manufacturing Co., as here the two patents claimed to interfere were not issued to the same applicant; and the acquirement, after it issued, by the American Bell Telephone Company of the Berliner patent of November 2, 1880, would not necessarily estop the assignee. Nevertheless, as this point is not made in the answer, it may be that the case raises an estoppel, of which the parties were aware, not brought to the attention of the court. Therefore, we are compelled to investigate this question independently of this suggestion. This statement of the issue renders it unnecessary to refer to the pleadings, except to so much of the answer of the American Bell Telephone Company as alleges that the question now raised by the United States was, in the progress of the application for the patent for the Berliner microphone, made the subject of special consideration by the examiner and the board of examiners in chief. The examiner on this point decided against the American Bell Telephone Company, as assignee of Berliner, but the board reversed the examiner; so that, in consequence thereof, the patent now in dispute was duly and formally issued. The examiner and the board had before them all the facts bearing on this branch of the case which we now have, and understood the law as stated anew in Miller v. Manufacturing Co.; so that the patent was issued under no mistake of either law or fact. The most that can be claimed by the United States is that the officials of the patent office, having all the law and facts before them, erred in the exercise of their free judgment in the determination that the earlier patent did not cover the invention described and claimed in the later one. Even were this so, the result was not a mistake in the sense of the law in its application to the cancellation of deeds and other instruments; but it was merely an erroneous determination of the ultimate fact deduced from the primary facts, all of which were known. As we are clear that this proposition of the United States cannot be sustained on the law, even admitting the facts to be as claimed,

we will not undertake to determine the question of the substantial identity of the respective claims of the two patents, or any of them. We prefer to leave that without prejudice, in the event it hereafter involves other individual or corporate rights.

As we have already said, U. S. v. American Bell Tel. Co., 128 U. S. 315, 9 Sup. Ct. 90, came before the court as a pure case of intentional, positive fraud, and the court there was careful to say, on pages 355 and 356, 128 U. S., and page 90, 9 Sup. Ct., as follows:

"It may be possible that a patent would not be absolutely void where the patentee was not really the first inventor, and the act of congress made provision that any man sued for an infringement of such patent might prove that the patentee was not the original discoverer or inventor. But we do not decide here whether a patent is absolutely void because the patentee is not the first inventor, nor whether a court of equity should set aside a patent where the party had obtained it without fraud or deceit, believing himself to be the first inventor. It is sufficient for the present case, in which, on demurrer, we wish to decide nothing more than is necessary to determine whether the defendants should be called to answer the bill, to say that the charge here is that he knew he was not the first inventor, and that his efforts to procure the patent were fraudulent, because he was aware that he was obtaining a patent to which he was not in law or equity entitled."

Therefore, it must be said that U. S. v. American Bell Tel. Co. does not in terms reach the case at bar. Nevertheless, the principles underlying the assumption of jurisdiction in that case, coupled with other decisions of the supreme court, especially those touching bills in equity to set aside patents under the land laws of the United States (U. S. v. San Jacinto Tin Co., 125 U. S. 273, 285, 8 Sup. Ct. 850), seem to support jurisdiction on the same basis which supports the ordinary bill in equity brought to cancel an instrument obtained through fraud, accident, or mistake, and to give the United States the same broad relief which would be given to an individual. reference to this proposition, we agree with the United States that a bill of this nature would lie in a case of "mistake," as that word is properly understood in the branch of the law touching this topic, except so far as the peculiar provisions of the patent statutes may limit the general rule. We are also clear that such a bill would lie where there was a clear exercise of excess of power, still using these terms in the proper sense as relating to this branch of jurisdiction.

In

It is hardly claimed that the circumstances of the case at bar show "mistake" in the proper sense of the word in this connection, and the facts to which we have referred make clear that such a proposition could not be maintained if made. Ordinarily, the mistake which the equity courts relieve is something substantially different from mere error of judgment, based on full knowledge of the facts and law; and, although there may be exceptional cases arising from extreme circumstances, it could not be claimed that this is one of them. The main question, therefore, is whether the issuing of the second patent to the same applicant for the same invention, under such circumstances that it was not clearly manifest the inventions were the same, and that there might be a reasonable difference of opinion on the point of identity, involved, in the view of the

We

statutes touching patents, such an excess of power as would justify a court in equity in rescinding the second patent thus issued. cannot put the case more strongly than this in favor of the United States, because, at the best, it must be admitted by the United States that there is a reasonable doubt on the point of identity. It will be seen that this question opens a broad field, because if this court can be called on in equity, on the suggestion of the United States, to rescind a patent merely on this ground, it may in the same way be required to investigate every question which lies behind the issue of a patent, including those of novelty, usefulness, public use, and anticipation. The distinction which the United States seek to make between the case at bar and cases which might involve the other issues, as of novelty, usefulness, public use, and anticipation, are clearly not well founded. Some extreme supposed examples which the counsel put do not help in sustaining these distinctions, but only illustrate the fact, which must be freely admitted, that, with reference to any of these various topics, there may be such exceptional cases as to show a clear error, within the meaning of this branch of the law, thus involving an excess of power. Such examples, for instance, as that of the commissioner issuing two patents to the same applicant in identically the same terms, are easily disposed of without involving any general principles.

We are satisfied that the statutory provisions touching the patent office are sui generis, and contain in themselves peculiarities, which render inapplicable certain rules and decisions otherwise of an analogous character. This fact is well noted in Orchard v. Alexander, 157 U. S. 372, 385, 386, 15 Sup. Ct. 635. Section 4911 of the Revised Statutes provides that if an applicant, except a party to an interference, is dissatisfied with the decision of the commissioner, he may appeal to the supreme court of the District of Columbia; and section 4914 provides that the decision of that court shall govern the further proceedings in the case. Section 4915 also provides that if the patent is refused, either by the commissioner or by the supreme court of the District of Columbia, the applicant may have remedy by a bill in equity, the details of which need not be further explained, except to say that, as we have already said, it was decided in Gandy v. Marble, 122 U. S. 432, 7 Sup. Ct. 1290, the twoyears limitation found in section 4894 applies to it. There can be no question that the special and summary appeals thus provided for in behalf of an applicant for a patent reach the case where a second patent is refused, for the reason which, it is claimed in this case, renders the patent in issue void. Butterworth v. Hoe, 112 U. S. 50, 63, 5 Sup. Ct. 25. The statute thus gives the applicant a remedy of a special and summary character, which he can avail himself of when all the facts are fresh and the parties cognizant of them are at hand. Of course, fraud always vitiates, and every special remedy is subject to that general rule; but to assume in this case jurisdiction to annul this patent for the reason we are now considering is to deprive applicants for patents of resort to the special tribunal, under special circumstances, given them by the statute.

This we have no right to do, even though the same statute has not given the United States the same summary appeal. The proceedings in the supreme court of the District of Columbia are between the United States and the applicant, and, by express provision, do not preclude individuals interested to contest a patent. Those under section 4915 have a like limited effect, although they may extend so far as to bar a person holding an alleged interfering patent. Thus, congress has established a special system, ending in a judicial determination, for the purpose of deciding, as between the applicant and the United States, the very issue now before us. We cannot disregard the implied command of the law that we shall not interfere, by any general rules of jurisprudence, with special rights thus expressly provided for. Orchard v. Alexander, already referred to, on pages 385 and 386, 157 U. S., and page 635, 15 Sup. Ct., recognizes this principle, in that it substantially declares that the statute provision to which we have just referred deprives the secretary of the interior of the jurisdiction with reference to the patent office which he possesses with reference to proceedings in the general land office; and, by parity of reasoning, the same provisions likewise clip our jurisdiction.

A further examination of the statute brings out even a more positive conclusion touching this issue. Section 4916 of the Revised Statutes, touching reissues, provides that "whenever any patent is inoperative or invalid," for the reasons therein stated, "the commissioner shall * * cause a new patent to be issued

to the patentee," and so on. By the frame of this statute, the jurisdiction of the commissioner depends nominally on the fact that the patent is inoperative or invalid. As against alleged infringers, and as between alleged interfering patents, the statute has been strictly construed, so far as the powers of the commissioner are concerned, although we are not aware that any issue touching them has arisen as between the United States and a patentee. The expressions cited by the United States from Seymour v. Osborne, 11 Wall. 516, 545. even if applicable to a suit in behalf of the United States, may well be understood to rest on the peculiar form of this section in this particular. But section 4893, authorizing the original issue of patents, is framed in an entirely different manner, and reads:

"On the filing of any such application and the payment of the fees required by law, the commissioner of patents shall cause an examination to be made of the alleged new invention or discovery; and if, on such examination, it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the commissioner shall issue a patent therefor."

The language is quite positive in making the power of the commissioner to issue a patent dependent on the result of his own examination; that is, on facts as he finds them, and not on facts as they actually exist. Therefore, it is not easy to understand how the determination and act of the commissioner in issuing any patent which, on examination as required by that section, seems to him to be suitable to be issued, can be ultra vires, though, as already said, there may be cases of such glaring error appearing on the face of the transaction as to be exceptional and outside of the ordinary rule.

In several late cases the nature and effect of the determinations of the commissioner based on this section have been stated by the supreme court, although not in such connection as to directly settle the question we are now considering. In Morgan v. Daniels, 153 U. S. 120, 124, 14 Sup. Ct. 772 (a bill in equity resting on section 4915, to which we have already referred), the court said that even a proceeding of that nature, expressly authorized by statute, was an application to the court to set aside the action of one of the executive departments; so that the proceeding was "something in the nature of a suit to set aside a judgment." In Orchard v. Alexander, the court said, on pages 378 and 379, 157 U. S., and page 635, 15 Sup. Ct., that, although the action of a department in a matter of this nature was executive, at the most only quasi judicial, and not a purely judicial act, yet such a determination may be made by statute 'final and conclusive. In Boyd v. Hay-Tool Co., 158 U. S. 260, 261, 15 Sup. Ct. 837, the court applied these principles to the question of the identity of different patents issued by the patent office. In none of these cases were the United States a party, and expressions of this character cannot always safely be exchanged from opinions filed in suits between individuals to suits of the character at bar, and the reverse; yet they all indicate generally the nature of a finding of the commissioner of patents as the result of the examination which the statute provides shall be made by him.

In land grant cases to which the United States have been a party, the rule has been laid down in the broadest and strongest terms. In U. S. v. Marshall Silver Min. Co., 129 U. S. 579, 588, 9 Sup. Ct. 343, the court, referring to the officials of the land department, said as follows:

"If the officers of that department of the government have acted within the general scope of their power, and without fraud, the patent which has issued after such proceedings must remain a valid instrument, and the court will not interfere, unless there is such a gross mistake or violation of the law which confers their authority, as to demand a cancellation of the instrument."

In U. S. v. California & O. Land Co., 148 U. S. 31, 43, 13 Sup. Ct. 458, the court fully reaffirmed this statement of the law. In Catholic Bishop of Nesqually v. Gibbon, 158 U. S. 155, 15 Sup. Ct. 779, the court finally laid down the broad rule that, "in the administration of the public lands, the decision of the land department upon questions of fact is conclusive, and only questions of law are reviewable by the courts." That the court intended this to cover issues between the United States and patentees is plain, because it cited in support of this proposition numerous cases of that character; and we use these expressions so far only as they touch that class of issues.

We have shown that the action of the commissioner, so far as this issue we are now considering is concerned, was merely a finding of the ultimate facts from other facts, all of which were known to the officials, and was therefore part of the ordinary work of the office, and the principle which we thus use in the interpretation of section 4893 is one of very general application. It is illustrated in numerous departments of the law, where acts are done by public or corporate