*1 by any responsibility tion, unburdened deci- by of the present state pelled . hard, patient painstaking and in for decisions I But think that sions. pat- development, future of bar impose to work can present barriers state their protection women stringent for men and con- ent than patents more far carry actually by implement out who and first instance templated in the either Congress. predictions prophecies of the by and or later Constitution Rogers strips “Fan- and the Buck comic for that the art tells us Patent Office paperback trade. of patent tastic Stories” appellant was seeks which us advise counsel by patents Indeed Patent Office anticipated of Merck Goldberg Scheuing been (1942), Rube cartoons that al. and and et purpose. by This for light used this same made was what encourage hardly way max- seems to appellant “obvious” did was Merck what engaged re- art, e., those incentive for anyone to imum in the i. skilled to mean invention. This could pharmaceutical ex- search and or chemist trained pert. widespread experi- plain research and that this that is also But it might by well, mentation in these areas application Pat- what the “obvious” necessity default, ultimately taught says economic Merck Office ent monopoly. sufficiently for the clear become a Government patent was not Germany, that for which chemists country famous, justly and of the rest is world, “obvious” discover many years ?
truth for so grant patent prefer I would discovering
appellant for unex- some properties.
pected Predictions chemical,
properties if and when of this synthesized, actually were such that tempted synthesize BARASH, it. But Appellant, one Max ignored predictions worthy new, qual- unpredieted and found SEATON, Secretary Fred A. ities, ad- scientific world has which the Interior, Appellee. years. mittedly for overlooked these No. 14069. me, illustrates, inhos- case This Appeals United States Court of patents, pitable toward attitude stem- District of Columbia Circuit ming part aversion natural our Argued premise monopolies. Nov. From the that argued bad, monopolies pat- is April 25, Decided being monopolies are least sus- ents at monopoly pri- patent pect. But a is dictionary sense, marily ain technical ownership land, we is much as .ought our reason be clouded not let semantics. hospitality patents toward lack This suggested argument, in the sometimes counsel here Patent
made Rogers Office, strips Buck comic rockets, jets depict space and the operate age no doubt will be cited “anticipation” patent of some devices as the for such fertile tions brain depict the cartoonist the children. appears imagina- unrestrained It *2 Washington,, Sonosky,
Mr. Marvin J. C., Philip D. berg, Washington, whom Mr. P. Maren- with C., on D. brief, appellant. for Smith, Atty., Dept, Mr. Fred W. Justice, Roger Mar- with whom Mr. P. Atty., Dept, Justice, quis, on the brief, appellee. Judge, Before Chief and Edgerton, Judges. and Circuit Fahy,
Bazelon Judge. BAZELON, Circuit 5, 1953, appellant ap On June filed an plication Secretary In with gas terior for a oil and covering acquired 954.51 acres of Acquired land.1 land is Government acquired private owned land owner ship. Public land is Government owned original part public land which was leasing procedures, domain. For both governed by provisions of17§ Leasing the Mineral Act of amended, 30 U.S.C.A. 226.2 § provisions require These qualified appli- to issue a lease first cant, providing land is not within structure of a If field. the land is within structure, such be must leased to the highest responsible qualified bidder competitive bidding. whether lands are within such structure of fact one which the has delegated Geologi- to the Director of the Survey required by cal tary’s who is regulations to define the bounda- parcels: seq. 1— “Parcel included three 351 et § 1. This U.S.C.A. Section 3 acres, .352, Parcel 2—453.64 of regulations 30 U.S.O.A. § thereunder, acres.” issued Parcel 3—38.30 43 C.F.R. applicable 200.4, acquired make leasing provisions Acquired lands are leasable under the the Mineral Leasing Acquired Act Lands Act of 1920. Mineral August Geological and delimit the defi- “The ries records of the maps appropriate may nition disclose that land drainage Notices field offices. 43 C.F.R. 192.6. oil of its *3 pub- subject of these have been the determinations content as area is on Register edge the the lished Federal since southern of in the the Panhandle Pro- field. effective date the Administrative In order of that the extent and 11, 1946, deposits may Act June worth of cedure the the field of in (3), may 3(a) development 1002 be determined and U.S.C.A. § (a)(3). proceed orderly manner, an in the Geological Survey recommends that stipulated Barash has been It gas rights the oil and owned the making appli- person and is “was the first United States within area in- the cover- for a lease cation ing volved be offered for in accord- qualified acres who is the 954.51 competitive leasing ance with the And the a lease under the hold Act.” provision of the Mineral map or dia- admits that “no sup- [Emphasis ” as amended.” *** gram placed on file plied.] Survey, Geological nor Director of the Following appellant’s protest, Bu- the Federal publication in the was there Management requested reau of the Land Register. Geological Survey to advised as to “be year September 1954, more than the date was deter- on which land application, he Barash filed his after learned, geologic mined to the known be within trying expe- in of course Field structure of the Panhandle lease, his the land issuance of dite whether such was effective determination leasing competitive had been offered [appel- as to all the lands embraced in July had leases in 1953 and that three Acting application.” Direc- lant’s] The issued, all notice him: two without following gave tor advice on Febru- Company, effective to the Texas leases ary 11, 1955: totaling acres; September 1, 12, 1952, “As June when the Taylor, to Baker & effective and one Geological Survey reported that the 1, 1953, There- for 38.30 acres. October ‘may Lands Lake McClellan Park upon protested Barash to the drainage,’ deter- requested com- cancellation of these mination made as to wheth- had been petitive of his leases and issuance or were not er of the lands were pro- Subsequent administrative lease. geologic within a known structure. ceedings the Bureau of disclosed that as- “A review of structural Management had based its decision Land pects lands has been of the involved for com- lands offer the to petitive date made as of June filing memorandum to the on a [appellant’s] application. Acting Director Bureau part of the This shows inquiry review GeologicalSurvey, reply to an competitive leases Agriculture on lands which Department July not with- sold in 1953 are were administrative control exercised geologic structure as in a known question. memo- The acquired lands in deemed to exist on year those limits were randum, June 1952—a dated 5, 1953. application— June before part: reads, pertinent within “The lands believed to be “ ** geologic are Department known structure The surveys (sections) 9 and confined to Agriculture, Soil Conservation Serv- Geological Rock- subdivision of the 10 of the inquired ice, has Land, Gray County Coun- Survey well School in- it is in the best whether [totaling ty, Texas 335.90 acres]. to offer United States terests [totaling of the lands remainder competitive lease sale certain County, were not within a Gray 618.61 acres] Texas. merely competitive geologic “recommends” June on reality Survey leasing, in “found that 5, 1953.” geologic structure the known it within foregoing upon memoran- Based Otherwise, says appellee, “one [etc.].” Management dum, Land Bureau of assume that [would to] (1) appellant was entitled held that law, under did know its function they acres because lease on the 618.81 refusing that, it, if it did know was not now situated “were not then and are discharge assump- it, neither of which structure”; on a known appellant provisions of tions is at all tenable.” The a lease not entitled to regulations the unambiguous clear and law and too *4 they remaining 335.90 acres because the permit such reliance on to being actually on the defined as “were McKay Wahlenmaier, speculation. geologic of Panhandle known structure 35; 1955, 313, U.S.App.D.C. 96 226 F.2d 5, prior date [the Field to June 1953 1958, Brucker, see also Harmon v. 355 appellant’s Upon appeal application].” 579, 433, U.S. 2 78 S.Ct. L.Ed.2d by Secretary parties, decided both the against appellant 954.51 as to the entire (1) provisions require These a deter- brought Appellant thereupon this acres. by lands mination the the that Secretary’s refusal suit to review the to (2) structure, “are” within a known Upon issue a lease to him. cross-motions filing reflecting map the this of a deter- summary judgment, the District in the mination definition of struc- the Secretary judgment entered for the Court requirements not ob- ture. These were and dismissed the suit. parcel respect served of either the parcel acres. acres or the of 335.90 contends, appeal appellant inter this parcel, respect Even with to the latter alia, no determination has ever been that the belated Sur- “determination” the question made lands in “are that the vey’s February 11, 1955 memorandum any geological within only stated these are “lands believed that gas field,” required a by as geologic to be within struc- the known competitive 30 leas- U.S.C.A. 226 for § ture.” amended Before the statute was ing. says Survey’s the memorandum He 1946, Secretary authority to the had merely 12, of June 1952 is a recommenda- competitively lease lands which were “be- leasing competitively tion for and that geological be with such a struc- lieved” to by following: (1) this is confirmed the amendment, however, ture.3 The limited Survey’s February memorandum of authority competitive his 11, 1955 that “no determination had been lands “are” within a such struc- 12, made connection with June [in * * * change adopted ture.4 This over 1952 memorandum] as * * Secretary. specific objections of the then ”; (2) of the lands fact Secretary Under the view the here, advances showing map that no the definition of the change given meaning no or prepared structure was ever or filed as effect. by Secretary’s regulations; required pub- the fact that there was no In this case the not does lication of notice of definition in the Fed- claim, Seaton, as he did in McKenna v. Register Department’s eral practice as was the U.S.App.D.C.-,-F.2d-, 103 that required whether or not regula- his construction the law and
Administrative 5 Procedure U.S. prac- tions is with established consistent 1002(a) (2, 3), 1002(b). C.A. §§ Department. tices requirements of law involved here We think these contentions are upon by appellee’s that, do rest technical considerations. not not met answer while designed They Survey’s 5, to assure fairness memorandum of June 8, 1946, August 916, 3, August 1, c. § 4. Act of 3. Act of § amending 30 U.S.C.A. § Stat. Mineral Act of 1920. appellant’s leasing publicly This case field the time lands.' at owned Appellant relying on tion plain. was filed. As to the 335.90 that makes filing however, map I would of a show- not disturb the absence of tary’s ing I decision pursuant decision. think that definition of a structure conclusion, including or determination, applied must read for a noncom- ato every finding, acreage was within petitive had that this lease. He reason appel- subject to known structure when lands were believe leasing. application rea- lant’s conclu- He filed. Such had sion, finding, I from the he or think should time son ad- application court. until the this record be overturned him had been leased vised the lands competitively application had after Secretary’s fail- Thus, filed. been steps prescribed ure either to take the give appellant actual notice competitive leas- were *5 ing leasing accomplished, before such was
appellant opportun- deprived
ity
acquiring any
kind of lease.
SEATON, individually
Fred A.
and as Sec-
Appellee’s
contention, that
final
retary
Appellant,
Interior,
Company
indispensable
Texas
is an
The
v.
party,
disposed
of Work v. State
COMPANY, Appellee.
The TEXAS
254-255,
Louisiana,
269 U.S.
case
S.Ct.
Court, proceedings in further consistent opinion,
with this resolution of issues relating agreements. to those and remanded
Reversed for further
proceedings opin- in accordance with this
ion. Judge (concurring FAHY, Circuit dissenting part).
part and holding
I concur in that the for a tion covering the 618.81 in- later lease to cluded Texas Com- validly
pany, could not been denied record, facts in this show acreage within a structure of a