intervention. Recognition of the Government of Senor Huerta has not as yet been accorded by the Government of the United States.

Unhappily the year has been one in which many domestic and international contests and differences have been recorded, and the United States, with her widespread interests, has not been wholly unaffected.

Especially has this been true as to the revolutionary disturbances in her neighboring republic of Mexico, with regard to the regulations of rates for use of the Panama Canal, now approaching completion, matters as they are, of world wide importance, and it is claimed, of previous treaty stipulation, and as to the equal property rights in California of nationals of the friendly power of Japan. Moreover the proposed legislation of Congress modifying our policy as to foreign trade and proposing, along with reduced import duties, various new restrictions or regulations, has met with earnest protests from numerous friendly powers under the claim that such provisions either involve a breach of existing treaties or an invasion of the sovereignty of the protesting nations. To attempt the discussion or enumeration of these prognostic protests seems impolitic, if not impossible, at the present time while such legislation is pending and its final terms not yet agreed upon.

It is the hope and belief of your committee that all these dificulties can and will be met by the Government of the United States on a basis of justice to all, in consonance with the acknowledged principles of international law and in strict adherence to all treaty obligations interpreted, as our own supreme tribunal has declared they should be, in a spirit of the highest good faith.

All of which is respectfully submitted.







At the Boston meeting of the Association, in 1911, President Taft, in the course of a short extemporaneous address before the Association, mentioned the subject of a United States Court of Patent Appeals with the suggestion that the jurisdiction proposed for that court should be vested in the Commerce Court, as it had not enough business to keep it occupied. The friends of the bill were horrified. The Commerce Court was no more fit to exercise final jurisdiction in patent causes than the Police Court of Chicago. But what could they do? It was useless to press the bill against the opposition of the President. The committee did the only thing it could do. It addressed a letter to the President in which it discussed the subject fully in all its aspects, demonstrating, as it thought, the error of the proposal made by him from every point of view. That letter was made part of the report of this committee to the Association at Milwaukee last year. We cannot improve upon the argument there presented in support of our bill. We printed the letter and sent it to the President with a personal letter from the Chairman of our committee earnestly asking consideration of it. Beyond a formal acknowledgment of the receipt of that letter nothing was ever heard from it.

Hon. William Sulzer, now Governor of New York, but for some years a Representative in Congress from New York City, has been a conspicuous friend of the bill to create a Court of Patent Appeals. He has introduced it in the House of Representatives twice in terms substantially identical with those of the bill drafted by your committee; first in May, 1911, during the first session of the Sixty-second Congress. Failing to secure its passage during that session, he brought it forward again in the next. He was then about to resign his seat in Congress to take the office of

Governor. At that juncture a powerful ally came to his assistance the great New York Board of Trade & Transportation. There was good reason for that friendliness. For several years the manufacturers of the country have been coming to realize that the uncertainties and inconsistencies attending the administration of the patent law are injurious to their interests. The committee to which Mr. Sulzer's bill had been referred expressed a wish to be informed whether the business likely to come to the court, if it should be created, would occupy the time of five judges. The Secretary of the Board of Trade & Transportation referred that question to this committee for information. The Chairman of the committee took it up immediately by correspondence with the clerks of the nine United States Circuit Courts of Appeals, asking, first, as to the number of patent cases pending in the court, and, second, about what portion of the time of the judges was spent in the disposition of patent cases. The following is a summary of the information received:

1st Circuit:

2d Circuit:

11 cases pending; time of the court consumed with patent cases approximately one-third.

51 cases pending and disposed of since Oct. 7, 1912. No report as to the time spent.

3d Circuit:

20 cases in 1912; no estimate as to time.

4th Circuit: 2 cases pending; time of court consumed about 7 per


5th Circuit: 2 cases pending; average number 3 to 6 per year. 6th Circuit: 18 cases pending; no estimate of time expended. 7th Circuit: 15 cases pending; time of court consumed about 25 per cent.

8th Circuit: 5 cases pending; time of court consumed about 20 per


9th Circuit: 3 cases pending; no report as to time.

This makes a total of 127 cases. It represents the condition of the dockets at the time of the inquiry, or, at most, during the term in which the inquiry was made certainly only a fraction of a year. If we take the time occupied by the court in the disposition of the business as reported in the First, Seventh and Eighth Circuits as any indication of the time consumed in the circuits from which no report was made in that respect, it will be quite apparent that the time of the court will be very fully occupied with the business.

The United States Circuit Courts of Appeals were created in 1891 in order to relieve the Supreme Court from an accumulation of cases beyond its ability to handle. That overload consisted in large part of patent cases. So serious had that situation been for some time that it was proposed as early as 1883 to establish a Court of Patent Appeals in order to relieve the Supreme Court of the burden of patent cases. The bill was approved by letters of endorsement from Chief Justice Waite and Justices Miller and Bradley. The bill came before the Judiciary Committee of the Senate and would undoubtedly have become a law, but for the interposition of Senator Edmunds, then Chairman of that committee, who suggested that it be postponed for the reason that there was about to be created an intermediate court that would relieve the Supreme Court. And a little later the law was passed creating the United States Circuit Courts of Appeals. In the thirty years that have elapsed since then this country has seen a prodigious increase in population, business and litigation. The Circuit Courts of Appeals need the relief from the burden of patent cases which the Supreme Court needed in 1883, as the foregoing summary of the condition of their dockets abundantly shows.

But while this-the relief of the Circuit Courts of Appeals from the burden of patent cases-is a pertinent and substantial consideration, the main reason for the creation of a single court of last resort in patent cases is to secure unity and harmony in the law. In the nature of things this is impossible with its administration in the hands of nine independent tribunals, each having its own geographical jurisdiction. A man has only to reflect a moment on the situation to realize that among so many courts uniformity of decision is impossible. A curious instance has existed for several years past of the permanent deformation of the law in this way.

In National Harrow Co. vs. Hench et al, 83 Fed. 36 (1897), the United States Circuit Court of Appeals of the Third Circuit held that a combination among patentees to fix the prices of their patented harrows constituted an unlawful monopoly-just as though the same combination existed without the patents.

On the other hand, in Rubber Tire Wheel Co. vs. Milwaukee Rubber Works Co., 154 Fed. 358 (1907), it was held by the United States Circuit Court of Appeals of the Seventh Circuit that patented articles unless or until they are released by the owner of the patent from the dominion of his monopoly, are not articles of trade or commerce among the several states within the meaning of the Sherman Law.

It follows that for six years past the same acts have been innocent in the Seventh Circuit which were unlawful in the Third. To all this it may be added that the present system puts a burden upon the Supreme Court from which it ought to be relieved. An application for certiorari is very rarely successful; and yet it is successful often enough to tempt zealous and optimistic counsel to keep trying it. Every such application has to be accompanied with the record in the case. That record is turned over to one of the judges for examination. He studies it and reports his conclusion to the full Bench. If it is adverse to the application it is denied without examination by the other judges, but if hi conclusion is favorable to the application, the question is then taken up in consultation and decided by the full Bench. All which is a considerable tax on the time and strength of the justices.

This plan for the creation of a court of last resort in patent cases was proposed first in an address before the Patent Section of the Bar Association by Mr. F. P. Fish in 1900. Its friends have been struggling for thirteen years to see it incorporated in the law. As we have pointed out, the lapse of time only adds new arguments in its behalf. We ask from the Association its approval of our work and the individual coöperation of its members. We append a copy of the bill as proposed.

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