Page:Federal Reporter, 1st Series, Volume 9.djvu/595

 580 FEDERAL REPORTER, �name of the United States to annul the defendant's patent, in whieh proceeding the testimony of the witness, Newell, could be taken with like benefit to the plaintiff as if taken by direction of this court in this proceeding, or in a suit brought by the defendant against the plaintiff. �It may be admitted that in cases of this description the rule is not to sustain the bill if it be possible that the matter in question can, by the party who files the bill, be made the subject of immediate judicial investigation, (^Angell v. Angell, 1 Sim. & S. 89;) but no opportunity to have such a judicial determination appears open to the plaintiff in this case. �Clearly the proceeding by the attorney general, supposed by the defendant to be possible, is not such an opportunity to bring the matter to a judicial determination as the rule requires. If it be assumed that the attorney general has power to institute a proceed- ing in the name of the United States to annul the defendant's patent for want of novelty, — as to which see Attorney General v. Rumford Chemical Works, 9 0. Gr. 1062, — still it rests with the attorney gen- erai or the United States attorney, and not with the plaintiff, to say whether such a proceeding shall be instituted, and if so where and when instituted ; whether the testimony of the witness, Newell, shall form part of the testimony in such proceeding. The plaintiff is without power to compel the institution of such a proceeding, and it cannot be knowu that such a proceeding will ever be instituted. �, It is said the presumption is that a public officer will do his duty, but such presumption does not warrant the conclusion that the attorney general or the United States attorney will, as of course, institute a proceeding to annul the defendant's patent upon the plain- tiff's application and assertion that the patent is void for want of novelty. There is no absolute duty imposed upon the attorney gen- erai, or any United States attorney, either by the common law or by any statute, to institute a proceeding to annul a patent issued for an invention, when applied to by any party asserting its invalidity for want of novelty. �Besides, the right which the plaintiff asserts in this bill is the right to have the validity of the defendant's patent adjudicated upon a consideration of the testimony of the witness, Newell, in regard to the fact asserted by the bill to be within the knowledge of that wit- ness; and if the plaintiff's application to the attorney general for a proceeding to annul the defendant's patent would create a duty on the part of the attorney general to institute such a proceeding, no duty ��� �