Page:Federal Reporter, 1st Series, Volume 8.djvu/457

 DE FLOBEZ' V. BAYNOLDS. 443 �y0ars from the date of the actual issuing of such re-issued patent, or for any other term than the residue of the 17 yeara granted by the original patent. The expression, "date of issue," as before defined, Controls re-issues under said section 6, and the re-issue of an original 17 years' patent is to run for 17 years from the date when the original term of 17 years began to run, which date is to be considered "the date of issue," under section 16, for the purpose of a re-issue. So, again, "all patents" literally includes design patents granted under section 11 of the act of 1861. Yet it neyer was or could be supposed that section 16, though later in place in the act than section 11, varied" the terms defined in section 11 for the duration of design pat- ents, namely, three and one-half years, seven years, or fourteen years ; or that the provision in said section 16 as to extension applied to "all patents," when section 11 had authorized the extension of design patents for seven years. We are not referred to any judicial decis- ion, where the question now considered was directly involved, which bolds to the contrary of the construction we thus give to section 16 of the act of 1861. In Westm y. White, 13 Blatchf. 364, the United States patent was granted August 6, 1867. A prior English patent for the same invention had been granted to the patentee and had been published, October 22, 1859. The question arose in May, 1876, whether the United States patent had expired October 22, 1873, at the expiration of 14 years from October 22, 1859, or whether, under section 16 of the act of 1861, it remained in force in May, 1876. If it should expire October 22, 1876, (being 17 years from October 22, 1859,) or if it should remain in force till August 6, 1884, (being 17 years from August 6, 1867,) it remained equally in force, in either case, in May, 1876. It was necessary, in May, 1876, only for the court to decide that the patent had not, under section 6 of the act of 1839, run out in 14 years from October 22, 1859, and the question whether it would run out October 22, 1876, or not till August 6, 1884, was not directly involved. ^or does it seem to have been argued or considered, except as may be inferred from the fact that the court says that the patent would not expire until October 22, 1876, and further says that the effect of the sixteenth and seventeenth sec- tions of the act of 1861 was that patents issued after the passage of the act of 1861, and falling within the proviso of section 6 of the act of 1839, would run for 17 years from the date or publication of the foreign patent. The case was one in the circuit court of the United States for the district of Connecticut, before Judge Shipman. In ��� �