Attorney General ex rel. Hecker v. Rumford Chemical Works

| U.S. Circuit Court for the District of Rhode Island | May 15, 1876

Shepley, J.

The information in this case is by “George H. Williams, as he is attorney general of the United States of America,” at the relation ox George V. Hecker, of the city of New York, against the Rumford Chemical Works, a corporation duly organized under the laws of the state of Rhode Island, and a citizen of said state, and domiciled therein, and against George F. Wilson, a citizen of the state of Rhode Island, as president of said corporation, and its general manager.

The information showeth that letters patent of the United States were on the twenty-second day of April, 1856, granted to Ebon N. ilorsford for a new and improved preparation or substance being a substitute for a pulverulent acid for use in the manufacture of dry powders and other similar powders when a dry acid is required; that thereafter the letters patent became vusted in the Rumford Chemical Works, as assignee of Ilorsford. Two surrenders and reissues of the patent are then set out in the information, the first reissue being dated May 7, 1867, and numbered 2,597, and the second, J une 9, 18(58, and numbered 2,979. The reissue 2,979 is alleged to have been wrongfully and fraudulently obtained, and to be null and void by reason of claiming that which is not described in the original letters patent of Ilorsford, and 'that which was not the invention of Ilorsford as described in his original patent. The third claim of tho reissued patent is alleged to be void, not only as claiming an invention not described in the original patent, and not the invention of Horsford at the date thereof, but for want of any such description in either the original or reissued letters patent of the invention therein claimed, in such full, clear, and exact terms as to comply in that respect with the requirements of law. The fourth claim is alleged to be void also, because the subject-matter thereof is not described in the original patent, and because the subject-matter of the claim is not described with sufficient accuracy to enable a. person skilled in tho art most nearly allied thereto to successfully make and use the same.

Tho information further shows that on the seventeenth of June, 1868, tho Rumford Chemical Works filed a bill in equity in the circuit court of the United States for the Southern district of New York, against one John E. Eauer, alleging infringement of letters patent No. 2,979; that Lauer was an employe of the relator, George V. Hecker, and his partner, John Hooker; that the alleged acts of infringement were done in the course of said employment, and the defense of the suit was assumed by the Hookers; that, after a full hearing before his honor, Judge Blatchford, one of the judges of said court, it was adjudged and decreed that the first and second claims of said patent were void for want of novelty; that on or about the thirteenth day of September, 1869,. the Rumford Chemical Works,filed another hill in equity, in the same court, against the Heckers, alleging infringement of said letters patent No. 2,979; and that thereupon, and after the decree ip the suit in equity against Lauer, upon the application of the complainant, the cause against Lauer was reopened and further, proofs were taken in the cause. Proofs were also taken in the cause against the Heckers, and, by stipulation of the parties, the testimony taken in the Lauer Case was used in the Hecker Case, and, after a full hearing, it was adjudged and decreed in both cases that the first, second, and third claims of reissued patent No. 2,979 were void for want of novelty, and that the defendant George V. Hecker had infringed the fourth claim of said letters patent.

An allegation is then made that the question of the validity of the fourth claim was not argued or'heard in that trial, and that it is invalid for the reasons before stated; that the cause was referred to a master to take account of profits made by the defendants in infringement of the fourth claim, and it does not appear that such accounting has been completed, or any final-decree made in the cause. The information sets out the grounds upon which the court adjudged and decreed the first, second, and third claims of the patent to be void for want of novelty, and also the grounds upon which it is now' alleged that the first, second, third, and fourth claims of the reissued patent aré void for want of novelty or patentability; and that, before the expiration of the original term for which letters patent were granted, the same were extended for the term of seven years, and the extended term was duly assigned to the Rumford Chemical Works. The information proceeds to give the requisite notice of prior publications relied upon to prove that I-Iorsford was not the original and first inventor of the inventions described and claimed in the several claims of the patent.

Allegation is then made that, since the filing of the bills against Lauer and Hecker, the Rumford Chemical Works have instituted a large number of suits, in different circuits, against persons charged with infringing reissue No. 2,979, which alleged infringements consist, in some cases, in the-resale of packages of flour prepared and sold to them by Hecker, for which preparation and sale the Heckers, and Lauer, their employe, were sued in the aforementioned suits; that, all such suits being against customers of the said Heckers, they are obliged to assume the defense, and that thereby they are subjected to great vexation and expense, inasmuch as in those suits the complainant endeavors to maintain the validity of all the claims of the patent. The information further alleges that the Rumford Chemical Works has instituted a suit in equity against George V. Hecker, in the circuit court of the United States for the district of New Jersey, for alleged infringement of reissue No. 2,979, and threatens to institute other suits against other defendants for using and selling the same flour for the making and using of which the Heckers were sued in the Southern district of Hew York; that although the fourth claim of the patent was adjudged to be valid, yet the informant believes that the decree was unadvisedly made, and that the judgment of the court sustaining said claim cannot be revised at the private instance of the defendants therein, save by the supreme court of the United States, on appeal from the final decree, which final decree cannot be made until the completion of the accounting, and during the pendency of the accounting the decree is being used for harassing and vexatious litigation under said claim; that there are valid and subsisting patents, granted according to law and now owned by the Heckers, the use of the inventions secured by said patents being greatly impeded and injured by the aforesaid doings of the Rumford Chemical Works, and by the. existence of the reissued patents aforesaid. The prayer is that the reissufid patent Ho. 2,979 should be declared void, and be 'canceled and annulled, and that the Rumford Chemical Works be enjoined from prosecuting any suit at law or in equity for alleged infringements of the same. The bill is signed by George H. Williams, attorney general of the United States, by John A. Gardner, attorney of the United States in and for the district of Rhode Island. A motion was made and filed to set aside the service of the subpoena, and take the information from the files. The evidence offered under this motion was ordered to be filed and made a part of the record in the cause.

Inasmuch as the principal questions presented on the hearing of the motion are raised by the demurrer, the court decided to hear the parties oil the bill and demurrer, and further consideration of the motion is unnecessary. Defendants demur to tho bill on the grounds, briefly stated — First, that informant does not state any case which entitles him to relief against these defendants; second, that the informant had no lawful authority to file this information ; third, that the information and this proceeding are not in the name or in behalf of the United States; fourth, that tlie informant, “as ho is attorney general of the United States,” had no lawful authority to file this information ; fifth, that the informant has not signed the said bill or information, nor has counsel signed the same; sixth, that this court lias no jurisdiction under the constitution and laws of tho United States, to entertain this information and proceed therewith; seventh, that this court has no jurisdiction to entertain the said information, or to proceed therewith, because it appears that the United States are not parties thereto, of petitioners or plaintiffs therein;: eighth, that this court has no jurisdiction, because it does not appear that the piar ties are citizens of different states.

A patent for a useful invention is not, under the laws of the United States, a monopoly in the old sense of the common law. The whole patent system of tlie United States rests upon the basis of the constitutional provision conferring upon congress the power to promote the progress of science and the useful arts, by securing, for limited times, to authors and inventors, the exclusive rigid to their respective writings and discoveries.= So long as such writings and discoveries were not communicated to the public, authors and inventors had a possession of, which was equivalent to a property in, their writings and discoveries. When communicated to the public, by the common law that property was lost. In consideration that an inventor will disclose the secret of his invention, and put it in immediate, practice, and afford to the public the opportunity to practice it, when it becomes public property at the expiration of tlu; term of the patent, the government grants to the author of a new and useful invention the exclusive right in that invention for a term ot years. This grant is not the exercise of any prerogative to confer upon one or more of the subjects of a government the exclusive property iii that which would otherwise belong to the common right. It more nearly resembles a contract, which under the authority conferred by tlie constitution, congress authorizes to be entered into between the government and the inventor, securing to him, for a limited time, tho exclusive enjoyment of the practice of his invention, in consideration of the disclosure of his secret to the public, and his relinquishment of Ins invention to the public at the end of the term. To the legislation of congress, and to this alone, we must resort, under our form of government, for guidance as to the extent, limitations, and conditions of tlie respect ive rights of inventors and tlie public, and as to the forms of remedy and the remedial jurisdiction, as well as the remedy itself, under our system ol‘ patent law. Bo far as any inquirymayrelaieto the relations between the gov-eminent and the grantee of letters patent of tho United States, but little light can be reflected from tlie English decisions. Originating, as their system of patent law did, in a supposed right of tlie king, residing in his royal'prerogative, to create monopolies, and continued under the authority of the act of Parliament of 21 James I., which, while prohibí) ing by the statute of monopolies' the granting of exclusive privileges in trade, excepted letters patent for tlie sole working or making of any manner of new manufacture within the realm to the first and true inventors of such manufactures, it evidently rests upon a different basis from a system founded solely upon the express grant of power in a written constitution.

As in England the grant of a patent is a matter of grace and favor, the crown may annex any conditions it pleases to the grant. Every English patent contains a proviso which makes the grant it contains revocable by the queen, or by any six of her privy council, for certain causes, which are mentioned in the proviso. These causes are stated in the proviso to be, if the grant be contrary to law, or prejudicial or inconvenient to her majesty’s subjects, or if the invention was not new, or not invented by the patentee. Hind. Pat. c. 10, § 7. This provision is an affirmance of the law that the queen cannot do anything against the law, or against right and justice; hence the maxim that the queen cannot do wrong. Therefore all her letters patent which are contrary to law or common justice, or which are to the prejudice of the commonwealth, or to the general injury of the people, are null and void, and every grant from the queen has this condition either expressly or tacitly annexed to it, that it be not .a grievance or prejudice to her majesty’s subjects, and if a grant be contrary to this condition it is void. Co. Litt. 90 B; Chit. Prerog. 178; Bac. Abr. “Prerog.” F 2; Shep. Abr. “Prerog.” pt. 3, 48. §§ 5, 7. The statute of monopolies, 21 Jac. I. c. 3, § 6, provides also that patents for inventions “shall not be contrary to law, nor mischievous to the state by rais ing prices of commodities at home, or hurt of trade or generally inconvenient.” Letters patent are not dernandable in England as matter of right. .In practice they are rarely refused, but are granted on application properly made, the reason being that the grant is entirely at the risk of the petitioner for the patent. As the letters patent issued under the great seal,- and the enrollment of every patent remained of record in the court of chancery, the lord chancellor, in the common-law court of chancery, — or, in the words of Sir Edward Coke in the fourtheinstitute, the “one ordinary coram domino rege incaucel-laria, wherein the lord chancellor or lord keeper of the great seal proceeds according to the right line of the laws and statutes of the realm secundum legem et consuetudinem angliai,” — has power to hold plea of scire facias to repeal letters patent under the great seal, and to cancel the patent, and also the enrollment of it. King v. Butler, 3 Lev. 221, and 2 Vent. 344. The scire facias being a judicial writ, and founded upon a record, properly issued from the court of chancery, as the patent was a record in chancery. Sir Edward Coke says, (4 Inst. 88:) “Our lord chancellor of Engl and is called cancdlarius, a cancellendo, i. e„ a dignioriparte; being the highest point of his jurisdic tion to cancel the king’s letters patent under the great seal, and damning the enrollment thereof by drawing strikes through it like a lattice.” The form of a writ of scire facias, which issued from the court of chancery, commanded the sheriff to give notice to the patentee to appear in chancery, and show why the letters patent and enrollment should not be canceled, and the letters patent restored into chancery, there to be canceled.

These legal proceedings were in the office called the “Petty Bag,” the office of the court of chancery, in which all common-law proceedings of the court were carried on, all the pleadings and other common-law proceedings being entitled, “In the Petty Bag Office in Chancery.” The action of scire facias was not only a remedy provided by law for the crown in behalf of the public, but also for any subject of the crown who could show that a void or illegal patent operated to his prejudice. Thus, in Butler's Case, before cited, Lord Chancellor Finch said: “ Where a patent is granted to the prejudice of the subject, the king, of right, is to permit him upon his petition to use his name for the repeal of it.” Every person is presumed to have such an interest in a patent for an invention that, if he alleges that it is illegal or void, he is entitled, as of right, to a scire facias in the name of the queen, in order to repeal it. Queen v. Aires, 10 Mod. 354; Queen v. Ballivos, 1 P. Wms. 207; Tin. Abr. “Prerogative,” T. b.; U. b. 8. Such proceedings were always in the name of the crown. “The only means which tho law provides for the repealing of letters patent [for inventions] is by action of soire facias at the suit of the queen,” (Hind. Pat. 64,) and, as we have seen, this was a quasi common-law proceeding, with the right of trial by jury. This right, and this mode or proceeding, was preserved by the express provisions of the modern statut s, which, while providing for a new seal to patents, and for filing the specifications in such office as the new commissioners might designate, also enacted that “the writ of soire facias shall lie for the repeal of any letters patent issued under this act in the like case as the same would lie for the repeal of letters patent which may now be issued under tho great seal.” Ho instance can be found, it is believed, of any other proceeding in England than a soire facias to repeal letters patent for an invention. It is contended in tho case at liar that the case of Attorney General v. Vernon, 1 Vern. 277, is an authority for the repeal of letters patent by a bill in chancery. But this case was without a precedent, and has never been followed in England, and cannot be claimed to be a precedent for a bill in equity to repeal letters patent for an invention which issue under tiie great seal, and are recorded in chancery. The question related to letters patent which purported to grant, to Col. Vernon certain rights and privileges connected with the honor of tíudbury, and the manor of .Sudbury, and other landed estates. Lord Chief Baron Montague, as to tho objection that there was no precedent of any such suit brought into this court, said: “This court creates precedents, ” and the Lord Chancellor Jeffries, in allusion to what had been proved in tiie case, that Vernon had been a devoted and loyal adherent of the late King Charles I., and had by reason thereof suffered greatly in his person and estate, and been imprisoned in tho Tower, answered: “That Col. Vernon has been very loyal, and that his service and sufferings for the crown have been considerable, must be admitted;” but he goes on to decree that the patent must be delivered up and canceled upon two grounds -First, that “Col. Vernon had before that time tasted of the king’s bounty both in England and Ireland;” and also, “though Col. Vernon was an honest gentleman and of good quality, tho honor of Sudbury is of that vast extent, and so many noblemen hold of it that it is not fitting for a person of his degree. ”

Comparing tho system of rights and remedies, so far as they refer to the. relations between the. government and the subject in England and this country, we find these strongly marked differences: Letters patent for inventions in England are grants male by the crown de gratia specials; the words “of our special grace” in the patent importing that the grant proceeds merely from the grace and bounty of the crown, the grantee having no right or title to the grant, except through the favor of tho crown. 2 Co. Inst. 78; Hind. Pat. 50. In this country they are issued, neither in fact nor by publication, by any special grace or favor, and in no sense ex mero mota, but as a matter of right, under the provisions of a statute, to the inventor who has complied with the conditions which the statute imposes. In England, before the statutes of 12 & 18 and 15 & 16 Vict., tho letters patent issued under tho great seal, and were on record in tho court of chancery. In the United States the record of the patent is in the patent-office, and under the seal of the patent-office. In England tho patent issues to the applicant as a matter of course on his application, the grant being entirely at tho risk of the petitioner. By our statute the letters patent aro not issued until the commissioner of patents has caused an examination to be made, and until it appears, upon such examination, that tho claimant is j ustly entitled to a patent under the law, and that tho same is sufficiently new and important. From the decision of the examiner, or of the examiner-in-chief in charge of the interferences, an appeal is provided to the board of examiners, and from their decision the party dissatisfied may appeal to the commissioner in person. If such party, 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, sitting in lane; and after all these proceedings, if the patent be refused, the applicant may have a remedy by bill in equity. Also, in ease of interfering patents, the remedy is not by scire facias at the instance of the relator, as in England, but the statute provides for a suit in equity by the owner or other person interested in the working of the invention, brought against the owner of the interfering patent. In England the law gives to the party aggrieved by the issue of the letters patent his right to his remedy of scire facias, brought and conducted at his expense by the attorney general, in the name and in behalf of the queen, to repeal the patent. ISTo statute in this country confers or recognizes the existence of any such right, nor can any precedent be found for the suing out of a writ of scire facias, or the bringing of a bill in equity to repeal the patent by the attorney general in the name and behalf of the United States, either with or without a relator.

Under our system of patent law, where the issue of letters patent is either a quasi decision at the patent-office, or an actual judicial decision on appeal from the commissioner’s decision, and where the statute so carefully guards the rights of defendants in actions brought by owners of patents, we could entertain no doubt, in the absence of any statute provisions authorizing proceedings by the attorney general of the United States, either as in this instance, in his own name, “as he is attorney general,” or in the name and behalf of the United States, that no right to institute such a proceeding existed, were it not for the high respect which this court entertains for any suggestion coming from the supreme court of the United States, whose decisions are binding' upon this bourt, and whose dicta even are entitled to be treated with the respect and consideration due the high authority and profound learning of that court.

The case of Mowry v. Whitney, 14 Wall. 434" court="SCOTUS" date_filed="1872-04-22" href="https://app.midpage.ai/document/mowry-v-whitney-88550?utm_source=webapp" opinion_id="88550">14 Wall. 434, was one of two interfering patents. Mowry having been sued by Whitney for practicing the invention described in Mowry’s patent, which Whitney alleged to be an infringement of his (Whitney’s) prior, existing, and extended patent; and, Whitney having obtained a decree against Mowry in that suit in chancery, Mowry filed, in his own name, a bill against Whitney, alleging in substance that Whitney had obtained the extension of his patent by false suggestion, by falsely representing that his profits under the patent had been very small, when, in fact, they had been very large. There was a demurrer to the bill upon the grounds — First, that the extended patent had expired by its own limitation before the bill was filed; second, that the complainant could not, in his own right, maintain such a suit. The court did not deem it necessary to decide the first point. In deciding the second, the court, (Mr. Justice Miller,) stating the ancient mode of vacating a patent in the English courts by scire facias, states the three cases in which this may be done in those courts: First, when the king, by his letters patent, has by different patents granted the same thing to several persons, the first patentee shall have a scire facias to repeal -the second; second, when the king has granted a thing by false suggestion he may by scire facias, repeal his own grant; third, .when he has granted that which by law lie cannot grant, he, jure regis, and for the advancement of justice and right, may have a scire facias to repeal his own letters patent. The learned judge then, observing that the sixteenth section of the patent act of 1836 seems to have in view the same distinction made by the common law in regard to annulling of patents, proceeds to decide that the remedy under that section, to try the conflicting claim in chancery, is limited to individuals claiming under conflicting patents, or one whose claim to a patent has been rejected because his invention was covered by a patent already issued, and authorizes the court to annul or set aside a patent so far as may be found necessary to protect the Eight, and that the suit by individuals is limited to that class of cases, and that the general public is left to the protection of the government and its of-fleers. Tlie case decided, and only decided, that an interfering patentee of an individual could not, in his own name or in his own rigid, maintain such a bill in equity to vacate a patent upon the ground of false suggestion or fraud in obtaining tlie patent. The authority of this decision, or the conclusiveness of the reasoning in support of the decision, has never been doubted. In England, when the king had granted letters patent for an invention by false suggestion, the scire facias, brought by the king’s attorney general, to repeal tlie king's own grant, was in tlie king’s name and on his own behalf, and not at tlie suit of a, subject. And boro, by the act of 1836, it was not intended to confer upon an interfering patentee tlie right to try such a question by a suit in bis own name, which would be conclusive only inter partes, and leave the same question open, as the court in that case observes, to innumerable vexatious suits to set aside the patent, since a decree in favor of the patentee in one suit would be no bar to a suit by another party. It is true that, in deciding this question, the learned judge says, what is unquestionably true, that “the general public is loft to tlie protection of the government and its officers ” in cases like the one alleged in Mowry v. Whitney, of false suggestion or fraud in obtaining a patent. The court did decide that “no one but tlie government, either in its own name or tlie name of its appropriate, officer, or by some form of proceeding which gives official assurance of the sanction of the proper authority, can institute judicial proceedings for the purpose of vacating or rescinding the patent which the government lias issued to an individual, except in the cases provided for in section 16 of the act of July 4, 1836.” Tlie court did not decide, and in that case was not called upon to decide, what protection to tlie general public, by tlie government and its officers, had been provided by law; or whether, in tlie absence of any express statute provision, or in addition to such statute provisions as are designed to protect the rights of the general public, any further and additional right exists in any executive department of the government to institute any form of proceeding to repeal the grant, by virtue of any supposed prerogative, or any supposed relation of the government to the general public, like that under which the king jure reyis may institute proceedings to repeal his own grant, or as parens patria: may intervene in his own name for the benefit of liis subjects, at their relation and expense, to repeal a grant supposed to lie prejudicial to them. "Whether any power had been conferred by statute upon, any officer of the government to institute such proceedings, or whether any such right or power existed anywhere in the executive department, in the absence of statute provisions conferring the power and prescribing tlie mode of proceeding, isa question which the court can only decide “when a case arises in which tlie United States or the attorney general shall initiate a suit to have á patent declared null ab initio,” and tlie court, in tlie language last quoted, defers its decision upon the effect of such a proceeding (under a particular state of facts stated in the opinion) to tlie time when such a case shall arise.

This leads us to tlie consideration of tlie protection afforded by the provisions of the patent acts to the rights of the general public, and to the history of the legislation upon that branch of the subject. The fifth section of the act of 1760, the first act of congress in relation to tho subject, (1 St. at Large, 111,) provided a form and mode of proceeding to repeal a patent “obtained surreptitiously, by or upon false suggestion,” upon complaint made under oath before the judge of the district court where tlie defendant resided, and motion within a year after issuing of the patent, but not afterwards. The ¡latent issued under this act without any oath of the applicant and any previous examination, and want of novelty anil originality are not included in the list of defenses authorized by tlie sixth section. The act of 1793 extended tlie time of limitation for commencing proceedings to repeal the patent to three years, and enlarged the defenses in actions for infringement, opening the defenses of want of novelty and originality. These provisions clearly show that it was deemed necessary that authority for proceedings to repeal letters patent conferred by statute.

In ex parte Wood, 9 Wheat. 609, the courts say: “As the patents are not enrolled in the records of any court, but among the rolls of the department of state, it was necessary to give some directions as to the character, time, and manner of instituting proceedings to repeal them.” These acts of 1790 and 1793, including these provisions conferring jurisdiction upon the federal courts, over proceedings for the repeal of letters patent, were repealed by the act of 1836. That act was substantially re-enacted and codilied by the act of 1870, and in the Revised Statutes of 1874. The act of 1836 contained no provision authorizing any proceeding to repeal letters patent upon the ground that they were obtained “surreptitiously, by or upon false suggestion;” but the sixteenth section provided a remedy in the case of conflicting patents, and for a repeal of the one which the court should adjudge had been improvidently issued. This takes the place of the remedy to which, in case of conflicting grants, the subject is entitled to, as matter of right, in England.

For the protection of the general public, in place of the provision for a proceeding in the nature of a scire facias to repeal the patent, to be instituted within three years, as provided in the act of 1793, it sought to provide safeguards against the issue of letteis patent upon false suggestion, and ample security against any injury to the citizen, to-whom it opened every possible defense against injury resulting from any mistake or oversight of the commissioner in issuing the patent. In fact, every defense against a patent that can well be imagined was left open to the citizen whose interests were affected by it, excepting only the one which in Whitney v. Mowry, the supreme court decided was not open, — the question of fraud upon the government in obtaining the grant. To guard against such a fraud, it provided for the examination by the examiner, and for a commissioner, and the subsequent proceedings hereinbefore stated; it being made the duty of the examiner and the commissioner to protect the rights of the public. The jurisdiction conferred by Acts of 1790 and 1793 upon the federal courts to repeal a patent, and which, without express grant, it is believed did not inhere in those courts, is nowhere conferred by the Acts of 1886 or 1870 or in the Revised Statutes of 1874. It would seem to be a great stretch of power and assumption of jurisdiction for one circuit court, in the absence of any such express authority conferred by act of congress, to repeal and vacate a patent which may have been originally granted upon the decree of another circuit court, upon appeal from the commissioner, and adjudged valid, perhaps, in litigation respecting it, in stiil another circuit court in another circuit. The better opinion upon this brief and imperfect review of the legislation of congress upon this subject would seem to be that congress had deliberately transferred the jurisdiction over the question of the protection of the rights of the general public, to the quasi judicial decision of the examiner and the commissioner, or the actual judicial decision of tile federal courts upon appeal from the commissioner, and fully protected the rights of the individuals against whom the patents might be sought to be enforced by opening to them every defense essential to the preservation of their rights and the protection of their interests.

The decision in the federal courts, sustaining proceedings in equity to vacate letters patent granting lands obtained by fraud, furnish no precedent in case of letters patent for inventions. The United States as an owner of lands, has equal rights, and is entitled to equal remedies, with an individual owner. In granting lands, the United States conveys that in which it has the fee. In issuing letters patent for inventions, nothing is gianted which belonged before to the United States. The issue of the letters patent is in compliance with an act of congress. The rights and remedies of the parties are dependent solely on the statute enactments, and do not grow out of any previous ownership of the supposed subject of the grant, as in the case of a conveyance of lands, lint if this court has jurisdiction over any proceeding to vacate a patent, and declare it null ah initio, upon the ground of false suggestion, or the ground that the government lias undertaken to grant that which by law it cannot grant, it is perfectly clear that “the attorney general of the United States, as he is attorney general,” has no authority, as such, and in his own name, to filo an information or commence proceedings by bill in equity. It is undoubtedly in (he power of congress to confer upon any public officer the authority to commence suits in his own name on behalf of the United Slates. Such authority has been conferred by statute upon the postmaster general to institute suits in his own name for the recovery of debts and balances due the general post-office. No such authority to institute suits in his own name has been conferred by statute upon the attorney general, in the absence of any such authority, the information (if the court lias jurisdiction to entertain it) should be in the name of the United States, and, I think, should be filed by llie attorney of the United States, in the district in which the information is hied, “in the name and behalf of the United States.” The United States, then being a party to the proceedings, it would not abate by the death or resignation of the public officer who filed it. George H. Williams has resigned, and ceased to bo attorney general; as an individual lie cannot maintain his proceeding. The United States is not made a party; the, relator is not the party. “The relators are not plaintiffs.” U. S. v. Doughty, 7 Blatchf. 424" court="None" date_filed="1870-06-28" href="https://app.midpage.ai/document/united-states-ex-rel-west-v-doughty-8638565?utm_source=webapp" opinion_id="8638565">7 Blatchf. 424; Attorney General v. The Mayor, 1 Moll. 95; Attorney General v. Wright, 3 Beav. 447. ‘delators should know they are not parties io informations, and have no right, of their own authority, to make any application to the court.” There is no party plaintiff before the court, unless it be George H. Williams as an individual citizen. “This court can recognize the United States as a plaintiff on the record only when the record shows that the United States appears as plaintiff, by the district attorney of this district.” U. S. v. Doughty, 7 Blatchf. 425. In England the scire facias, in the common-law division, or in the petty bag in chancery, to repeal a patent, was always in the name of the sovereign. “The scire facias,” says Lord Campbell in Reg. v. Archipelago Co., 1 El. & Bl. 351, “in all cases must be in the name of the king.” The form of the writ recites that A.. 11., “attorney general for our said lady, the queen, who for our said lady, the queen, prosecutes in this behalf;” and that this has been the invariable rule in England will appear by an examination of every reported ease in that country, in which this jurisdiction to repeal letters patent by scire facias lias been exercised.

In Benton v. Woolsey, 12 Pet. 27" court="SCOTUS" date_filed="1838-02-13" href="https://app.midpage.ai/document/benton-v-woolsey-86027?utm_source=webapp" opinion_id="86027">12 Pet. 27, where no objection was made to an information filed by the district attorney “in behalf of the United States, ” the court thought, in the absence of any objection, “the United States may be considered the real party, though in form it is the information and complaint of the district attorney.” The usual and proper mode is for the district attorney to file an information in the name and in behalf of the United States, and probably only in that form could one be sustained, if objected to. The power (conferred by section 359 of the Bevised Statutes of the United States on the attorney general) to, in person, conduct and argue any ca.se in any court of the United States in which the United States is interested, or to direct the solicitor general, or any officer of the department of justice, to do so, clearly does not authorize him to bring such suit in liis own name, or authorize the solicitor general or any officer of the department of justice to do so. If the power given to him, wherever he deems it for the interest of the United States to conduct and argue any case in any court of the United States in which the United States is interested, confers upon him any authority to commence or institute proceedings, except through the district attorneys, who are subject to ins orders and supervision, which is at least doubtful, there is no right expressly given, or to be implied from any words in this or any other statute, to bring the suit in his own name, instead of in the name of the real party, the United States.

The conclusion, therefoie, follows that this information to repeal letters patent for an invention, being in the name of George II. Williams, as he is attorney general of the United States, and not in the name and behalf of the United States, is not authorized by any statute, sanctioned by any precedent, or supported by the authority of any judicial decision; and the demurrer must be sustained, and the information dismissed.