tion of matter, or any new and useful improvement thereof, not known or used by others in this country, and not patented or described in any printed publication in this or any foreign country, before his invention or discovery thereof, and not in public use or on sale for more than two years prior to his application, unless the same is proved to have been abandoned, may, upon payment of the fees required by law, and other due proceedings had, obtain a patent therefor." By the enactment of section 4886, R. S., Congress gave the name "Patent" to the "exclusive Right" alluded to in the Constitution, and by the enactment of section 4884, R. S., it defined the "exclusive Right " or " Patent" as the exclusive right to make, use, and vend the invention throughout the United States and the Territories thereof for a period of 17 years. Continental Paper Bag Co. v. Eastern Paper Bag Co., 210 U. S. 405; Patterson v. Kentucky, 97 U. S. 501; Bloomer v. McQuewan, 55 U. S. 539; Grant v. Raymond, 31 U. S. 218.) It therefore follows, logically, that when Congress, in the Act of March 3, 1883, authorized the Secretary of the Interior and the Commissioner of Patents to grant a patent it authorized the grant of the exclusive right to make, use, and vend the invention. Hence, if the Act be interpreted to mean that the invention is dedicated to the public by operation thereof the applicant would be granted no exclusive right and would obtain no patent except in name. The instrument, although called a patent, would be practically tantamount to a mere publication of the invention and effective only to prohibit the obtaining of a valid patent for the same invention by a later inventor. Obviously, it was unnecessary to enact a statute to produce this effect, for the same result was attainable by disclosure of the invention in a publication. As a matter of fact, the disclosure in a publication would probably be easier and less expensive, for it would obviate the necessity of the filing, prosecution, and examination of a formal patent application. But if the Act be interpreted to mean that the Government would acquire only such rights in the invention as I have hereinbefore defined, a patent monopoly would be granted to the applicant, subject only to such rights in or on behalf of the Government. The applicant would receive the patent, the Government its benefits thereunder, and the apparent intention of Congress would be satisfied. A patent is a contract between the United States and the patentee, wherein the consideration flowing from the United States to the patentee resides in the grant of the exclusive right to make, use, and vend the invention of the patent for a limited time, while the consideration flowing from the patentee to the United States is the dedication of the invention to the public at the expiration of said limited time. (Denning Wire & Fence Co. v. Am. Steel & Wire Co., 169 Fed. 793; Century Electric Co. v. Westinghouse Electric & Mfg. Co., 191 Fed. 350.) It is evident that if no monopoly be granted the consideration on the one hand fails and the contract (and therefore the patent) does not come into existence. If Congress intended that every person in the United States might use the invention without the payment of royalty it was obviously unnecessary to require the applicant to state anything but that the invention could be so used by the Government or any person in the United States. The expression "or any of its officers or employees in the prosecution of work for the Government" would be unnecessary and mere surplusage. But these phrases can not be regarded as surplusage, and evidently the intent of that portion of the Act may be accurately expressed by considering the expression "or any other person in the United States" to mean 66 or any other person in the United States in the prosecution of work for the Federal Government." Again, if the expression "or any other person in the United States " be construed to mean or any other person in the United States in the prosecution of any work either governmental or private," the general public would appear to obtain greater rights in the inventions of the patents issued under the Act than governmental officers and employees, since the latter would obtain merely the right to use the invention "in the prosecution of work for the Government." It seems hardly conceivable that Con gress could have intended so to discriminate against the officers and employees of the Government. It was clearly the intention of Congress to encourage the filing of applications under the Act, so that such rights as defined above would be available to the Government. To construe the statute to mean that the invention would be dedicated to the public would defeat the very purpose for which the statute was enacted, since it would discourage, rather than encourage, the filing of applications under the Act. That this would be the result can not be denied, for we have tangible evidence to that effect in your statement: "There are also many cases in which employees of the Government have declined to make applications for patents under this statute because of the doubt as to its proper interpretation and the possibility of a dedication of the invention to the public." Such an attitude on the part of inventors as you mention in your communication is not to be wondered at, for if in filing applications under the Act in question the inventor effects a dedication of practically all his rights therein to the public, he loses all to which he otherwise would be entitled and receives nothing in return. Surely it is no serious consideration that he is relieved of the payment of the usual Patent Office fees. Were he not, he would be in the anomalous situation of dedicating his rights to the public and paying for the privilege of doing so. Respectfully, TO THE SECRETARY OF WAR. C. B. AMES, Acting Attorney General. CUSTOMS DUTIES-LEAD ORES-WASTAGE ALLOWANCE. Under subsection 1, paragraph N, section 4 of the Tariff Act of 1913 (38 Stat. 198), the wastage allowance on the exportation or transfer to a bonded manufacturing warehouse of the lead derived from ores which have been imported for smelting and refining in a bonded warehouse should be computed on the basis of the amount charged against the bond as determined by the commercial method DEPARTMENT OF JUSTICE, SIR: I beg to acknowledge receipt of your letter of January 31, 1920, requesting the expression of my opinion on the question whether the wastage, to be allowed on the exportation or transfer to a bonded manufacturing warehouse of the lead derived from ores which have been imported for smelting and refining in a bonded warehouse under subsection 1, paragraph N, section 4 of the Tariff Act of 1913, should be computed on the basis of the actual lead content of the ore as determined by the wet assay or on the basis of the amount charged against the bond as determined by commercial methods. Section 1, paragraph 152 of the Tariff Act of October 3, 1913 (38 Stat. 128), imposes a duty on lead-bearing ores of all kinds containing more than 3 per cent of lead, of three-fourths of a cent per pound on all the lead contained therein * establishments "Provided, That on all importations of lead-bearing ores the duties shall be estimated at the port of entry, and a bond given in double the amount of such estimated duties for the transportation of the ores by common carriers to properly equipped sampling or smelting On the arrival of the ores at such establishments they shall be sampled according to commercial methods under the supervision of Government officers, who shall submit the samples thus obtained to a Government assayer, who shall make a proper assay of the sample and report the result to the proper customs officers, and the import entries shall be liquidated thereon, except in case of ores that shall be removed to a bonded warehouse to be refined for exportation as provided by law. * * * * Subsection 1, paragraph N, section 4, of said Act (38 Stat. 198), provides that imported ores and crude metals. of all kinds may be smelted and refined in bond without the payment of duties thereon "Provided, That the bonds shall be charged with the amount of duties payable upon such ores and crude metals at the time of their importation, and the several charges against such bonds may be canceled upon the exportation of an amount of the same kind of metal equal to the actual amount of dutiable metal producible from the smelting or refining, or both, of such ores or crude metals. And provided further, That the said metals so producible, or any portion thereof, may be withdrawn for domestic consumption and the several charges against the bonds canceled, upon the payment of the duties chargeable against an equivalent amount of ores or crude metals from which said metal would be producible in their condition as imported: And provided further, That on the arrival of the ores and crude metals at such establishments they shall be sampled and assayed according to commercial methods * The importer contends that the Court of Customs Appeals, in holding that the commercial method is the wet assay less one and one-half units, decided that only the lead content as determined by the commercial method is dutiable and that the one and one-half units are entitled to admission free of duty; that the action of the customs officials in basing the wastage allowance on the amount charged against the bonds as determined by the commercial method compels the importer to export all of the lead produced from the imported ore in order to cancel the charge against his bond and in that way nullifies the effect of the decision of the Court of Customs Appeals. His contention may be illustrated as follows: Upon the importation of 1,000 pounds of ore with a lead content of 40 per cent by the wet assay, the quantity charged against the bond is 385 pounds. In case of a recovery of 320 pounds the customs officials have fixed the wastage allowance at 16.88 per cent, with the consequence that the importer must export the entire 320 pounds in order to have the charge against his bond canceled. The importer contends that the wastage allowance should be fixed at 20 per cent and that the charge against his bond should be canceled on the exportation of 80 per cent of the quantity charged against his bond-viz., 308 pounds, allowing 12 pounds to be withdrawn for consumption free of duty. In other words, the importer would read the clause under consideration as if it provided that the charge against his bond shall be canceled upon the exportation of an amount 89836-22-VOL 32-13 |