Page:Federal Reporter, 1st Series, Volume 6.djvu/729

 SMITH ». MEBBIAM. 717 �described in both patents, and hold that the decision 6f the office that the occasion had arisen for granting a re-issue is final. The law is extremely liberal, perhaps too much so, and bas been much abi^sed ; but if we change it suddenly we shall make a destruction of titles which it is impossible to contemplat© without dismay. �If the court is to decide, by inspection of the original pat- ent, that it was not def ective, the resuit is this : That after a patentee, upon the best advice which he can obtain, has been instructed that his specification needs amendment, and obtains a, new patent, the court may say, "We are unable to see any defect, and your re-issue, however honestly obtained, is bad, b'ecause your original patent was so good." �The mistake is one of law, and the commissioner does not usually debide the law finally; but as to the mere question of the necessity for a re-is6ue, supposing the new patent itself to be unobjectionable, hie decision has always been held to be final; and this for an unanswerable reason, that nO pat- entee, however honest or careful, can b© eafe in obtaining a re-issue, if hfeistobe infonaed, whenhe gets into court, that the jiidge is tiiiable to sjee why^ he should have surrendered his first patent. The slighte;? and more bbviously unobjec- tiouable the chatige, the stroligei will be the arguihent that there was no occasion to make it; so that honest and carefiil patentees will be the most likeLy to suffer. �It does not help the matter to call the action of the com- missioner an excess of jurisdiction. : I know that : the courts have called these mistakes. jurisdictional; They did this to overrule, without positively saying so, the early cases which held the action of the commissioner within his jurisdiction to be final. It is' obvious that the commissioner has the same jurisdiction to issue a bad patent as to issue a good one. As his action is ex parte it does not bind the world, excepting in certain matters which it i» both unjust and inconvenient to review. A mistake by him as to the necessity of issuing a new patent is not an excess of jurisdiction, but a mistake in a matter clearly within his jurisdiction; and the real ques- ��� �