20 F. 117 | U.S. Cir. Ct. | 1884
The bill was brought for an adjudication that the orators were entitled to a patent, pursuant to section 4915, Rev. St. The defendant accepted service of the subpoena to have the same effect as if duly served on him by a proper officer, and acknowledged receipt oí a copy, but did not appear in court, nor made any objection to proceeding to decree. After hearing the orators, a decree was made and entered in their favor. 19 Fed. Rep. 307. The present commissioner now moves for a rehearing, principally upon the ground
“Whenever a patent, on application, is refused, either by the commissioner of patents or by the supreme court of the District of Columbia upon appeal from the commissioner, the applicant may have remedy by bill in equity.”
This seems .to clearly imply that the remedy may be elsowhere. Whipple v. Miner, 15 Fed. Rep. 117. Another, and the principal mode is by claiming that no circuit court of a district away from the patent-office, and in which the commissioner does not reside, can acquire jurisdiction of such cases. The circuit courts have original jurisdiction, — ninth, of all suits at law or in equity arising under the patent or copyright laws^of the United States. Rev. St. § 629. This is, unquestionably, a suit so arising. There is no restriction upon proceeding in these courts in such cases except that civil suits against inhabitants of the United States are not to be brought bjr original process in any other district than that in which the defendant resides or is found at the time of service. Id. § 739. The court had general jurisdiction of this subject, and the defendant by his acceptance of service consented to be found in this district; and did not appear in court to object to being bound by his consent.
In Ex parte Schollenberger, 96 U. S. 369, Mr. Chief Justice Waite, in delivering the opinion of the court, says:
“The act of congress prescribing the place where a person may be sued is not one affecting the general jurisdiction of the courts. It is rather in the nature of a personal exemption in favor of a defendant, and one which he may waive. If the citizenship of the parties is sufficient a defendant may consent to be sued anywhere he pleases, and certainly jurisdiction will not be ousted because he has consented.”
Here no question was made before; now where one on this subject is made it is not whether the commissioner can be compelled to answer, but whether he can consent to be sued away from the seat of government and his residence. Prentiss v. Ellsworth, Mirror of Pat. Off. 35; Laws Dig. 103; Whart. Dig. 365, raised the question as to the compulsion and not as to the consent, and it was held upon apparently sound reasoning by Eandall, J., that the commissioner could not be compelled by process issuing out of the circuit court for the Eastern district of Pennsylvania to answer there. The question of jurisdiction founded on consent did not arise.
It is further objected against the jurisdiction here that the court here could not compel obedience of the commissioner at the patent-office to its decree. It is to be presumed, however, that a high officer of a department of the government will do his duty without compulsion, or even command, from any quarter, especially in a matter where he has no interest, nor the government any, except that the
All the grounds now urged on the merits of the application for the patent were fully considered before, and no sufficient reason appears lor going over the ground again.
Tiie motion is denied.