bound together by comity only, not by authority, and this is not only the occasion of direct conflicts of decision between them, but, even where a direct conflict does not appear, the rules of construction relating to patents are applied in a sensibly different manner in different localities. The Circuit Courts of Appeals in that as in other matters and as is inevitable in all Courts, respond in a measure to the prevailing tone of public opinion in the community over which their jurisdiction extends. Patents are liable to be more strictly construed in some parts of our country than in others. The claims of the owner of the patent, therefore, may be, and doubtless often are, rejected in one Court, where, upon the same record, they would have been allowed in another. Where there is a direct conflict of decision a petition to bring the case before the Supreme Court by certiorari is generally allowed, but, as such cases have no preference upon the calendar of that Court, the confusion caused by contrary decisions must necessarily last for the considerable period which must elapse before there can be a final determination of the controversy. The inconveniences of such a system are manifest. The complainant having a patent to enforce naturally seeks a jurisdiction where the Courts are most experienced in such cases and where he thinks the conditions are most favorable for his success. As the statute, however, provides that no patent suit can be brought except in the district where the defendant resides or has a regular and established place of business, resort is constantly had to the plan of suing a customer of the real party in interest, which forces the latter to assume the defence of a suit out of his home district and under all the disadvantages which the statute was intended to relieve. The results of a direct conflict of decision are still more serious where the same invention is held to be within the monopoly of the patent in one circuit and free to the public in another. This may be illustrated by a single example. In a suit brought for the infringement of the Grant patent for a rubber-tired wheel, a decision was rendered by the United States Circuit Court for the Eastern District of New York in December, 1898, sustaining the patent. This decision was followed by other courts, among others by the United States Circuit Court for the Northern District of Ohio in the case of the Rubber Tire Wheel Co. v. Goodyear Tire & Rubber Co., which decision on appeal, after elaborate argument and consideration, was reversed by the United States Circuit of Appeals for the Sixth Circuit and the patent held 3. 91 Fed. 978. invalid, and a petition to the Supreme Court for certiorari was denied. This was in 1902. In a subsequent suit the Circuit Court of Appeals for the Second Circuit in January, 1907, have held the patent valid. The consequence, therefore, is that the Goodyear Tire & Rubber Co., the defendant in the Ohio case and an Ohio manufacturing corporation, is free to make and sell the tires throughout the United States, and, under the doctrine of the late case of Kessler v. Eldred," its goods are also free in its customer's hands, so that the anomaly is presented of a patent that is good in one part of the country and invalid in another, which must go far toward rendering it worthless, and that after a litigation of fully ten years. The remedy for this state of things and one that has been sought for many years, is the establishment of a National Court of Patent Appeals having the jurisdiction in such cases which was formerly exercised by the Supreme Court before the act constituting the present Courts of Appeals went into effect. The growth of the business of our highest Court has made it impossible for it to exercise that jurisdiction, as it formerly did, in all cases, but the necessity for the exercise of such a jurisdiction in all cases still exists. The monopoly of a patent extends throughout the whole country. It is defined by the federal statutes and regulated by the Federal Courts. The rights and privileges that belong to it affect alike the citizens of every State, and the appropriate tribunal to act as the final arbiter of all controversies to which it gives rise, and the only tribunal adequate for that duty, is a single national court. In no other way than by the establishment of such a court can counsel who are called upon to give opinions as to the validity and scope of patents which are intended to be made the basis for the investment of capital, have the benefit of a series of uniform and authoritative decisions to guide them, or the manufacturer or dealer, who seeks advice as to a charge of infringement, feels that if he consults competent counsel, he can rely upon the advice received, with reasonable certainty. A plan for such a Court, to hold its sittings in Washington, has been formulated and for a long time advocated before Congress by the American Bar Association, to which a direct appeal shall lie, as a matter of right, from the decisions of the Circuit Courts, while its 4. 116 Fed. 363. 5. 123 Fed. 85. 6. 151 Fed. 237. 7. Sup. Ct. Adv. Sheets, No. 14, June, 1907, p. 611. own decisions are reviewable by the Supreme Court in such cases as that Court may order to be brought before it. It is difficult, however, to arouse interest in such a plan or to bring about an appreciation of its desirability. Comparatively few have been litigants in patent suits or personally felt the ill effects of the present system. Fewer yet have given the subject sufficient. attention to understand that it is only by the wisest and most uniform administration of our patent laws, such as will be best secured by a single national Court, that they can be saved from the growth to a dangerous extent of hostility against them. A hostility born of ignorance, and not surprising in a time of almost passionate hatred and fear of all monopolies, that, naturally, does not discriminate between a monopoly in restraint of trade that is condemned alike by law and public opinion, and a monopoly the very essence of which is restraint of trade but which is, nevertheless, upheld by the law and advocated for the public benefit. This hostility shows itself at almost every session of Congress in the introduction of amendments. to the statute, which, if adopted, would lead the way to the destruction of the whole patent system. The general belief in the necessity of fostering and protecting inventions has always thus far proved strong enough to prevent dangerous innovations and it is the duty of every thoughtful citizen to consider and keep that necessity in mind. When we regard the effect of inventions upon production, and thereby upon the conflict between employed and employing labor, upon the sources of wealth, upon the means of transportation and the machinery of modern warfare, and consider the increased competition between the civilized nations, brought about by the vast increase in facilities of communication that have drawn the whole world together, we shall see that a prime factor in determining the place we shall hold in the struggle for supremacy must be the inventive genius of our people. The Japanese have not been noted for their creative powers, but their mere facility in learning and adopting the inventions of Western civilization enabled them to step in a few years from what was regarded as not above the level of a semicivilized Oriental community to a place among the great powers of the earth. It is only through the laws relating to inventions that in our own case this motive force in our progress, and indispensable source of our strength and prosperity can be maintained, and to uphold and improve them, where improvement is needed, should be a cherished maxim of our national policy. Edmund Wetmore. Published monthly during the Academic year, by students of the Yale Law School. If a subscriber wishes his copy of the JOURNAL discontinued at the expiration of his subscription, notice to that effect should be sent; otherwise, it is assumed that a continuation of the subscription is desired. CRIMINAL TRIALS-PRESENCE OF THE ACCUSED. The growing tendency of some of our courts to dispense with at least a few of the many rigid rules of criminal procedure is illustrated by the case of Stoddard v. State, 112 N. W. (Wis.) 453. In that case the court held that, though it was a felony case, it was not error to receive the verdict while the accused was out on bail. Thus the case stands for authority that the accused on trial for felony may waive his right to be present at the rendition of the verdict. The general rule throughout the entire laws of criminal procedure is that after indictment found, nothing shall be done in the cause in the absence of the prisoner. Bishop on Crim. Proced., Vol. I., Sec. 265. But this principle has been modified somewhat by the doctrine of waiver. It is as to the extent to which the waiver may be carried that the courts fail to agree. Nearly all of our courts allow one indicted for misdemeanor to waive the right of presence during trial. United States v. Mayo, Fed. Cas. No. 15, 754; Warren v. State, 19 Ark. 214. But when the case is for felony, most of our courts have adopted from the English decisions the rigid rule that the right to be present during the whole trial is absolute and inalienable. Prime v. Commonwealth, 6 Harris (Pa.) 103; Andrew v. State, 34 Tenn. (2 Sneed) 550; Sneed v. State, 5 Ark. 431. The reason for the strength of this inflexible rule evidently came from the abuse of secret examinations, so common in the reign of the Stuarts. But as memory of such high-minded methods grew dim and our judges saw the administration of justice hindered in individual cases by the invoking of technical defenses, we find this doctrine of waiver growing in strength. The principle seems first to have been applied in cases where the prisoner was voluntarily absent for a few moments during the admission of testimony. That this should be ground for a new trial seemed absurd on its face. The dictates of common sense overcame the abstract rules. In this same way we find the courts in a considerable number of our states extending the idea to cases where accused has oportunity to be present at the rendition of the verdict, but absents himself of his own free will. Fight v. State, 7 Ohio (Ham.) Rep. Part 1, p. 181; Wilson v. State, 2 Ohio State 319; McCorkle v. State, 14 Ind. 39; Schlinger v. People, 102 Ill. 245; Hill v. State, 17 Wis. 675. The two earliest of these cases, Fight v. State and Wilson v. State, on which the others more or less rely, were decided on the ground that the rule requiring the presence of the prisoner during every part of the trial, was one purely for the prisoner's own benefit and hence, a right which he could waive. If he can waive the right to trial altogether by pleading guilty, why can he not voluntarily be absent from some part of the proceedings? Where he is out on bail, some of the courts say that it is his duty to return to receive the verdict. Is it not absurd, then, that he should be permitted to take advantage of his own wrong and breach of duty, and thus defeat the ends of justice? But the courts in the majority of our states refuse to follow this reasoning and repudiate the idea that a prisoner may waive the right of presence at the rendering of the verdict. Prime v. Commonwealth, Supra; Andrew v. State, Supra. These courts look beyond the individual prisoner in the individual case and consider the required presence of the accused as one of the bulwarks against the possibility of irregular court proceedings. It is on this ground that the judges, who oppose the encroachments of this doctrine of waiver on the stricter criminal procedure, stand. Chief Justice Smith, dissenting in State v. Kelly, 97 N. C. 409, stated the idea very clearly, when he said: "I am not disposed to relax those safeguards which the wisdom of past ages has provided for the security of persons charged with crime, while the modern tendency is manifested in some of the courts to dispense with them, upon the idea of waiver, because of the inconvenient necessity for a new trial, which an observance of them may render necessary. Now, it is true, the conduct of the accused in his hasty departure, when the jury were about to deliver their verdict, the purport of which he seems to have anticipated, entitles him to no favor, but it is the importance and value of the principle which is sacrificed in giving effect to a verdict thus rendered." But the judges favoring a more liberal criminal procedure claim that this principle, which is so strongly clung to by many of our courts, is one for which there is no longer any necessity. The publicity of our modern life takes away the need of protecting the prisoner by means of numerous technicalities. So we see this doctrine of waiver growing in many of our states along with the movement toward a less frequent granting of new trials because of some slight technicality. The idea looks towards the leaving of more of the minor details of trial within the discretion of the trial judge. He is |