(dissenting).
This court has heretofore held, that the instant proceedings constitute a ease or controversy in a judicial sense under section 2 of article 3 of the Constitution of the United States. In re Frischer & Co., Inc., et al., 16 Ct. Cust. App. 191. In that same decision it was held that this court was an inferior constitutional court. When these questions were carried before the Supreme Court of the United States, that tribunal did not decide the former issue but reversed this court upon the latter. Ex parte Bakelite Corporation, 279 U. S. 438, 49 S. Ct. 411, 73 L. Ed. 789. It was held to be immaterial whether it constituted a case or controversy or not so far as this court’s authority to review it as the statute provides is concerned.
Under this holding of the Supreme Court, I should not regard it necessary for this court to pass upon the constitutionality of section 316 of the Tariff Act of 1922 (19 USCA §§ 174-180), were it not for that part of the former decision of this court holding it to be a case, or controversy, in a judicial sense. Inasmuch as the Supreme Court did not pass upon this question, I take it that that portion of the decision of this court must, for the purposes of this hearing, be treated as res adjudicata, and, so accepting it, whatever my opinion might have been had I then been a member of the court, I acquiesce, in the necessity of our passing upon the constitutional question now for the first time presented tó us under circumstances requiring decision. It was not involved in the review of the matter by the Supreme Court referred to.
I am unable to agree with the majority in their conclusion and deem it proper respectfully to state my own views.
The majority hold section 316 to be constitutional, basing their holding almost wholly upon the decisions of this court and the Supreme Court of the United States in the case of J. W. Hampton, Jr., & Co. v. United States, 14 Ct. Cust. App. 350; Id., 276 U. S. 394, 48 S. Ct. 348, 72 L. Ed. 624. In that case the constitutionality of section 315 (19 USCA §§ 154-159), commonly known as the “flexible tariff provision” of the Tariff Act of 1922, was sustained.
In my opinion there are certain differences, fundamental in their nature, which distinguish the two sections.
By section 315 the President of the United States is charged with certain administrative duties in the performance of which it is provided that he shall have the assistance of the Tariff Commission in making investigations and finding facts. Both the President and the Commission are limited strictly to fact finding. No questions of law are submitted to them for determination; no opinion or theory is to be applied. Upon an ascertainment of “differences in costs of production of articles * * * wholly or in part the growth or product of the United States and of like or similar articles wholly or in part the growth or product of competing * * * countries,” the President is authorized to put into effect certain tariff duties specifically provided in the law. These differences in cost of production are held by the court to be capable of ascertainment, theoretically if not actually; Congress, anticipating that such facts could and would be ascertained, provided a definite law to be applied under them, and the courts held this *262not to be a delegation of legislative authority in contravention of the constitutional limitation.
It may be here noted that section 315 expressly provides that no proclamation shall ba issued under it by the President until there has been an investigation by the Tariff Commission. The Tariff Commission is made an indispensable,, part of the administrative machinery for enforcing that section. No such provision is made for the administration of section 316. While this fact standing alone, perhaps, has no bearing upon the question of constitutionality, it becomes of importance for an understanding of the real nature of the two sections. It will be further noted that section 315 does not require or even authorize recommendations by the Commission; section 316, apparently, authorizes such recommendations, if it does not make them mandatory. Again, no court action is provided as a part of section 315. In section 316 express provision is made for action by the Court of Customs Appeals and the Supreme Court of the United States, but only in such eases as may be acted upon by the Tariff Commission.
For the moment, however, the point whieh it is desired to emphasize is that in section 315 Congress made the law and authorized the executive branch of the government simply to ascertain facts under which the law should be applied, and that it was for this reason that the courts, following numerous authorities, found themselves able to sustain it; it being the duty of the courts always to give to acts of the legislative branch every presumption of constitutionality.
When section 316, whieh the Supreme Court in the Bakelite Case, supra, said “is not happily drawn,” is carefully analyzed, it must be apparent, it seems to me, that Congress has therein gone much further in delegating lawmaking authority than it sought to go or went in section 315.
In section 316 (19 USCA §§ 17A-180) there seems to me to be committed to the President of the United States the authority and duty of making findings not only of fact but of law. Paragraph (a) of the act (19 USCA § 174) reads: “That unfair methods of competition and unfair acts in the importation of articles into the United States, or in their sale by the owner, importer, consignee, or agent of either, the effect or tendency of which is to destroy or substantially injure an industry, efficiently and economically operated, in the United States, or to prevent the establishment of such an industry, or to restrain or monopolize trade and commerce in the United States, are hereby declared unlawful, and when found by the President to exist shall be dealt with, in addition to any other provisions of law, as hereinafter provided.”
In paragraph (e) (19 USCA § 178) which provides the remedy the President is required when the “unfair method or act,” denounced in paragraph (a) without being defined, “shall be established” to his satisfaction, to determine and direct the levying of certain additional duties, or “in what he shall be satisfied and find are extreme eases of unfair methods or acts as aforesaid” to direct an embargo excluding the offending merchandise from entry into the United States. (Italics mine.)
Paragraphs (b), (e), and (d) of section 316 (19 USCA §§ 175, 176, 177) make possible but not mandatory the bringing of the Tariff Commission and the Court of Customs Appeals and the Supreme Court of the United States into the equation; the Tariff Commission “to assist the President in making any decisions” by investigating “any alleged violation hereof on complaint under oath or upon its initiative,” and the courts to review the findings and recommendations of the Commission upon “a question or questions of lam only.” (Italics mine.)
If these paragraphs, (b), (c), and (d), were entirely eliminated from section 316, there would still remain in the other paragraphs a complete act or law. The President is not required to wait upon or have an investigation by the Tariff Commission, as is the case in administering section 315 (19 USCA §§ 15A-159), before issuing directions relative to additional duties or embargo. He may obtain the information which satisfies his mind as to what is unfair competition according to his idea of what that phrase means, and ascertain what the facts are, from any source or sources whatsoever that he chooses to consult or regard.
When the assistance of the Tariff Commission is invoked or availed of, however, that body must find facts and, in my opinion, also must determine questions of law. These are embodied in its report. This court-can then be invoked to review the questions of law only and an appeal can then be had to the Supreme Court upon certiorari, confined, of course, as this court is confined, to the questions of law.
Manifestly by providing the court action Congress evidenced its intent to delegate to the Commission the authority to make *263findings of law; otherwise, it did a vain thing in providing a court review upon law questions only.
What the Commission does is certainly a part of what the President is charged with the responsibility of finally doing. He may do it with or without the Commission’s aid. If he does it without, there is no court review provided. His findings of both law and fact are final. If the aid of the Commission is invoked, as has been done in the instant case, thereby making possible a limited court review, the President may disregard both the findings of the Commission and courts, make his own findings as to law and fact, and direct the levy of additional duties, or he may declare an embargo, if he finds the case “extreme.”
This is one of the features incident so this statute which creates difficulty for any court proceeding under it in a case such as that at bar. Our decision has not the force and effect of law; a conclusion expressed in terms of affirmation or reversal, using the nomenclature customary in court procedure, means nothing, so far as binding individuals in any legal sense is concerned and, apparently, if the Supreme Court shall take the jurisdiction provided for it by the statute, in this or some similar case, and pronounce a judgment upon the merits as this court is doing, it will have no greater binding effect as a judgment at law than our own. By its own force such judgment can exercise no control over the actions of the executive under the section.
In section 315, it seems well to repeat, and in various laws which were cited in the. court decisions sustaining its constitutionality, Congress did the legislating; Congress declared what the law was, or should be, under a specific state of facts capable of being ascertained purely as facts. The elements that were to enter into the eost of production were expressed; nothing, it was held, was left ip theory or opinion as to what constituted the law. The legislative outposts were set; the legislative intent and limitations were held to be clearly defined.
I cannot agree that this situation exists as to section 316, and that therefore this case is controlled by the Hampton decision, or the decisions therein cited as authorities.
Let paragraphs (a) and (e) of section 316 (19 USCA §§ 174, 178) be looked to. The portions pertinent to this discussion have been quoted supra.
What do the words “unfair methods of competition and unfair acts in the importation of articles into the United States” mean? What elements of conduct must be present in an act of importation in order to render it unfair? The same questions may be asked as to the meaning of the words, “or in their sale,” what acts in connection with the sale of an imported article must be shown to make the sale classifiable as unfair?
Congress has not said. Some one, the President finally, must say. Are these questions of fact only, similar to finding the difference in dollars and cents in production costs, or are they matters of opinion — opinion which when declared by competent constitutional authority becomes law ?
In the ease of Federal Trade Commission v. Gratz, section 5 of the Federal Trade Commission Act of September 26, 1914 (15 USCA § 45), was involved. 253 U. S. 421, 40 S. Ct. 572, 575, 64 L. Ed. 993. In discussing it the Supreme Court said: “The words 'unfair method of competition’ are not defined by the statute and their exact meaning is in dispute. It is for the courts, not the commission, ultimately to determine as matter of "law what they include.”
In the instant ease the words “unfair methods of competition” and “unfair acts in the importation of articles into the United States” are not defined with any more speeifieness than were the quoted words in the Federal Trade Commission Act, but, unlike the latter law, section 316 (19 USCA §§ 174-180) leaves it to the executive to define them. True in such cases as happen to be investigated by and reported upon by the Tariff Commission this court is clothed with authority to review the questions of law, and the Supreme Court also may do this upon writ of certiorari, but the findings of both courts may be disregarded, so far as any legal force inherent in them is concerned, and in eases not acted upon by the Tariff Commission there is no provision for review by any court.
The Federal Trade Commission Act has been held constitutional in decisions by the United States Circuit Court of Appeals of both the Seventh and Sixth Circuits. Sears, Roebuck & Co. v. Federal Trade Commission (C. C. A.) 258 F. 307, 311, 6 A. L. R. 358; National Harness Mfrs. Ass’n v. Federal Trade Commission (C. C. A.) 268 F. 705, 707. But this was true because the courts held that neither judicial nor legislative authority had been delegated to that body. In the former case it was pointed out that “the restraining order of the commissioners is merely provisional. The trader is entitled to his day in court. * * * ”
*264A syllabus of the second ease ' reads: “The authority given the Federal Trade Commission to determine what methods of competition a given trader employs, and, provisionally, to determine whether such methods are unfair, subject to right of review by the courts, does not confer on the commission judicial powers, or invalid executive or administrative authority, contrary to Const, arts. 1, 2, 3, in view of the fact that the commission’s determination is not only subject to review, but is enforceable only by the courts.” (Italics mine.)
The court said: “The commission’s determination of these questions is not final. Not only does the statute give a right of review thereon, upon application by an aggrieved trader, to a Circuit Court of Appeals of the United States, but'the commission’s order is not enforceable by the commission, but only by order of court.”
The difference in the Federal Trade Commission Act and section 316 of the Tariff Act of 1922 (19 USCA §§ 174-180), in so far as authority for determining and applying the law is concerned, becomes immediately manifest. In the former it is determined and enforced by the judiciary; in the latter, by the executive.
But attention is directed to that language of the section which reads: “ * * * The effect or tendency of which is to destroy or substantially injure an industry,, efficiently and economically operated, in the United States, or to prevent the establishment of such an industry, or to restrain or monopolize trade and commerce in the United States.” And it is argued that these are words of definition. I cannot think so. Surely they are words of limitation. Congress did not seek to denounce all acts that might be considered unfair, but only those that might have the effect or tendency or the result indicated. Otherwise, the word “unfair" would not have been so carefully inserted before the words “methods” and “acts.” I do not think the clause last quoted is intended to define what constitutes unfair acts, but is to limit those which the section denounces as unlawful. Had Congress omitted the word “unfair,” then the subsequent clauses might constitute definition. But even if we accept them as words of description or definition, there still remain questions inherent in the phrases which it seems to me must be determined as matters of law and not as facts only. Destruction of a business can be regarded as a thing of fact, but “tendency to destroy” requires something more. “Substantially injure” opens the door to opinion, belief, and speculation. Concerning the question of whether an industry is “efficiently and economically operated,” there may exist many different opinions according to the standard in the mind of the person considering it. It is conceivable that there may be importations whose sale might have an effect or tendency “to restrain or monopolize trade or commerce in the United States,” although there is a theory subscribed to by many that the converse is most frequently true, but certainly restraint and monopolization of trade and commerce present some quite weighty questions of law. Congress, to be sure, has defined these latter terms in other acts, but heretofore these acts have been regarded as presenting questions of law to be determined by the judicial branch of the government and not by the executive. Even if these be accepted as defined, the other phrases remain without any statutory definition.
After finding the meaning of the different phrases contained in the words of limitation, they must then be applied by whatever President happens to be administering the section, as he determines what constitutes “unfair methods of competition or sale,” and no factors are established in the law by which to measure or test an act.
There are some reported decisions of the Supreme Court of the United States which seem to me to present authority decidedly more applicable in the ease at bar than is the reasoning in the Hampton Case. Reference is had particularly to United States v. L. Cohen Grocery Co., 255 U. S. 81, 41 S. Ct. 298, 300, 65 L. Ed. 516, 14 A. L. R. 1045; Weeds, Inc. v. United States, 255 U. S. 109, 41 S. Ct. 306, 65 L. Ed. 537; and Small Co. v. Am. Sugar Refining Co., 267 U. S. 233, 45 S. Ct. 295, 297, 69 L. Ed. 589.
In those cases certain language of the Food Control Act of August 10, 1917 (40 Stat. 276), as amended October 22, 1919 (41 Stat. 297), commonly known as the Lever Act, was involved. Section 4 of that act, passed as a war time measure, contained the language: “That it is hereby made unlawful for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries; to conspire, combine, agree, or arrange with any other person * * * (e) to exact excessive prices for any necessaries. * * * Any person violating any of the provisions of this section upon conviction thereof shall be fined not exceeding $5,000 *265or be imprisoned for not more than two years, or both. * * *”
Cohen & Co. and Weeds, Inc., were indicted, charged with having violated this section. . In the Cohen Case the indictment was quashed by the United States District Court on the ground that the language of the act was repugnant to the Constitution, and the government appealed to the Supreme Court, which affirmed the District Court. In the Weeds Case the indictment also involved the conspiracy phrase in addition to the other part of the section. The District Court overruled defendant’s demurrer in that ease, and by certiorari it was carried to the Supreme Court, which reversed it upon the same ground as that upon which the Cohen Case was affirmed. Several other cases involving the same question were similarly disposed of.
In the Cohen Case the Supreme Court, speaking through Chief Justice White, said:
“The sole remaining inquiry, therefore, is the certainty or uncertainty of the text in question, that is, whether the words ‘that it is hereby made unlawful for any person willfully * * * to make any unjust or unreásonable rate or charge in handling or dealing in or with any necessaries,’ constituted a fixing by Congress of an ascertainable standard of guilt and are adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them. That they are not, we are of opinion, so clearly results from their mere statement as to render elaboration on the subject wholly unnecessary. Observe that the section forbids no specific or definite act. It confines the subject-matter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the wildest conceivable inquiry, the scope of which no one can foresee and the result of which no one can foreshadow or adequately guard against. In fact, we see no reason to doubt the soundness of the observation of the court below in its opinion to the effect that, to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized and punished all acts detrimental to the public interest when unjust and unreasonable in the estimation of the court and jury. And that this is not a mere abstraction, finds abundant demonstration in the cases now before us, since in the briefs in these cases the conflicting results which have arisen from the painstaking attempts of enlightened judges in seeking to carry out the statute* in eases brought before them are vividly portrayed. * * *
“That it results from the consideration which we have stated that the section before us was void for repugnancy to the Constitution is not open to question. United States v. Reese, 92 U. S. 214, 219-220, 23 L. Ed. 563; United States v. Brewer, 139 U. S. 278, 288, 11 S. Ct. 538, 35 L. Ed. 190; Todd v. United States, 158 U. S. 278, 282, 15 S. Ct. 889, 39 L. Ed. 982. And see United States v. Sharp, 27 Fed. Cas. 1041,1043 [Fed. Cas. No. 16264]; Chicago & Northwestern Ry. Co. v. Dey (C. C.) 35 F. 866, 876, 1 L. R. A. 744; Tozer v. United States (C. C.) 52 F. 917, 919, 920; United States v. Capital Traction Co., 34 App. D. C. 592, 19 Ann. Cas. 68; United States v. Pennsylvania R. R. Co., 242 U. S. 208, 237-238, 37 S. Ct. 95, 61 L. Ed. 251.”
It is true that these were criminal prosecutions, but the subsequent Small Co. Case was a civil action between individuals, involving solely the question of liability on a civil contract, and the court again held the statute unconstitutional, saying: “The defendant attempts to distinguish those cases because they were criminal prosecutions. But that is not an adequate distinction. The ground or principle of the decisions was not such as to be applicable only to criminal prosecutions. It was not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard whieh was so vague and indefinite as really to be no rule or standard at all. Any other means of exaction, such as declaring the transaction unlawful or stripping a participant of his rights under it, was equally within the principle of those cases. They have been so construed and applied by other courts in civil proceedings. Standard Chemicals, etc., Corporation v. Waugh Chemical Corporation, 231 N. Y. 51, 54, 131 N. E. 566,14 A. L. R. 1054; Dunman v. South Texas Lumber Co. (Tex. Civ. App.) 252 S. W. 274, 275. In the first of these citations, the Court of Appeals of New York, referring to this court’s ruling in the Cohen Grocery Co. Case, well said: ‘The ground on which it placed its judgment applies, and with like consequences, to civil suits as well. The prohibition was declared a nullity because too vague to be intelligible. No standard of duty had been established. * * * The variant views of judges of the. District Courts were quoted as evidence of the absence of a standard. If this is the rationale of the decision, its cense*266quences are not limited to criminal prosecutions. A prohibition so indefinite as to be unintelligible is not a prohibition by “which conduct can be governed. It is not a rule at all; it is merely exhortation and entreaty.’ ”
Passing from paragraph (a) to paragraph (e) of section 316 (19 USCA §§ 174, 178), it is to be observed that an embargo may be declared by the President only “in what he shall be satisfied and find are extreme cases of unfair methods or acts as aforesaid.” (Italics mine.)
There is no standard fixed by Congress by which to measure even methods so as to determine that they are unfair, but the statute adds degree to unfairness and leaves it to the executive to say not only what constitutes unfairness but what the degree of that unfairness is. Surely in the absence of any standard of law variableness of opinion as to what is extreme is inevitable, and opinion is not law except as it be declared by constitutional authority; the Legislature in making it, the judiciary in construing it.
It seems to me that whichever way one turns in the effort to give vitality to the section he finds himself upon an open sea of. individual opinion with no statutory chart or legislative compass, no congressional lighthouse, or beacon or buoy.
If the statute be enforced there must be a determination that something is the law which Congress has not written therein. It seems to me to be a delegation of lawmaking power (for in this instance the law-finding will be the lawmaking), and so, in its essential and fundamental elements, I regard it as being repugnant to those parts of the Constitution which limit legislative authority to the Congress and judicial authority to the courts.
The anomalous, uncertain, and indefinite character of section 316 is conspicuously illustrated by what appears to be the predominant issue (aside from the constitutional question) involved in the instant case.
That issue is found in the inquiry as to whether in enacting section 316 (19 USCA §§ 174r-189) it was the.intent of Congress to bring alleged patent infringements wrought by the importation of foreign merchandise to compete with similar merchandise produced in the United States as patented articles, within the purview of the “unfair methods of competition and unfair acts in the importation of articles” declared unlawful.
Without attempting to review the testimony in full, I feel that it justifies the conclusion that if the question of alleged patent infringement were eliminated from this case the proceedings would be virtually at an end.
This would certainly be true if the alleged trade-mark.complications or infringements were also eliminated, and as to these latter it would appear that the proper procedure would be to invoke section 526 of the Tariff Act of 1922 (19 USCA §§ 141-143) rather than section 316 (19 USCA §§ 174-180). That situation could at least be fully dealt with without recourse to “section 316.
The majority opinion recites that: “Findings [of the Tariff Commission] one, two, three, four, five, six, nineteen, twenty, twenty-one, twenty-two and twenty-three are, plainly, findings that the respondents have been guilty, of unfair practices and are not at all based upon the validity or invalidity of the patents in question.”
I cannot agree that this is an entirely accurate construction of certain of these findings. Nos. 2 and 3 in particular specifically refer to patents owned by the Bakelite Corporation, and this ownership I understand to be the essential feature of these findings. Others of the enumerated findings do not deal with unfair practice at all, but, disregarding this, finding No. 24, which appears to be in the nature of a general summing up or conclusion, reads as follows: “That articles made of synthetic phenolic resin, form C, have not been imported into the United States or sold therein by any respondent owner, importer, consignee, or agent of either, marked “bakelite”; and that apart from the question of violation of patent rights no such owner, importer, consignee, or agent of either has practiced any unfair method of competition or committed any unfair act in the importation of articles made of synthetic phenohe resin, form C, other than the failure to clearly and unmistakably distinguish such imported articles from articles made of synthetic phenolic resin, form C, manufactured by the Bakelite Corporation, as to reasonably avoid confusion between the imported and the domestic articles on the part of the purchasing public. (Italics mine.)”
The effect of the majority decision is to hold that section 316 contemplates treating alleged patent infringement as constituting at least one method of the “unfair competition” or one of the “unfair acts” therein denounced. At the same time they hold that in cases where the aid of the Tariff Commission *267is invoked in the administration of the section, that body is wholly without authority to pass upon the validity of the patents involved; that this authority is vested solely in the courts; and that the Commission can go no further than determine (a) that patents issued, (b) that they had not expired, and (c) that they had not been held invalid by “some court of competent jurisdiction, whose judgment would be binding upon the Commission,” and the effect is to hold that mere prima facie evidence becomes conclusive for the purpose of the section.
I assume that the logic of this holding necessarily leads to the conclusion that the President, in executing the section, is likewise without power or authority to determine patent validity. This assuredly must be true, for to hold otherwise would at once, it seems to me, bring the section (as I think it is brought by other matters already recited) indisputably beneath the constitutional ban, since it would be a declared attempt to clothe the Executive with the power to make law.
I do not disagree with the conclusion as to lack of authority in any tribunal other, than specifically authorized courts to determine patent validity, but when this doctrine is applied under section 316, we are at once brought to the anomalous and strange situation whereunder additional duties may be levied, or an embargo declared, based upon a claim of patent whieh, upon complete examination by competent authority, may be found to be null and void, and to have been so from the very beginning.
I am unable to find where, in section 316, or in any other act whieh Congress has ever passed, it evidenced any purpose to do such a thing as that, and, for that reason, I cannot agree with the majority that Congress in enacting the section had it in mind that alleged patent infringements should be dealt with under it. I feel that had it intended to do this, provision, in some way, would have been made for assuring a definite and legal finding upon any question of patent validity raised.
The essential purpose of our patent system is to benefit the public by encouraging the genius and wit of men to develop new and useful things for mankind’s benefit and enjoyment, and this is proposed to be accomplished by giving to inventors who secure patents a species of monopoly for a limited period, but Congress has never evinced a purpose to give favor or protection except to those who hold valid patents.
From the standpoint of general publie policy, therefore, and keeping in mind the spirit of our institutions, one can appreciate the feeling of the majority of the Tariff Commission when, having determined that they, had jurisdiction under section 316 to make investigations of unfair methods, or acts arising from rights granted under the patent laws, they felt themselves entitled to go further and consider and determine the validity of a patent. They said: “Manifestly there can be no infringement of an invalid patent. It follows that the validity of a patent may be an essential element of the investigation.”
The error, if error there be, on the part of the majority of the Tariff Commission, does not lie in the abstract principle of law asserted by them, but in the general assumption that Congress intended by section 316 to commit legislative or judicial authority to the President, and, through the President, to them when brought to his aid in administering it.
It seems to me that the fact that Congress in the Tariff Act of 1922 enacted section 526 (19 USCA §§ 141-143) making it unlawful to import merchandise which might infringe trade-marks of citizens of the United States, and did not in section 316 (19 USCA §§ 174-180), or elsewhere, specifically, or in general terms, make any provision touching the importation of merchandise whieh might infringe patents held by citizens of the United States, argues most strongly that it had no purpose of attempting to deal therein with that species of international commerce, and that the whole subject-matter was left to be determined under the general laws of the country. If the word “patent” appears anywhere in the Tariff Act, it has escaped my search.
The attention of this court has not been directed to any ease arising at any time in our courts where it has been held that the mere infringement of a patent, unaccompanied by other facts, constitutes unfair competition.
In so far as the instant ease depends upon patent infringement, therefore, the majority of this court, if its decision when proceeding under section 316 has any judicial effect, would bring into the legal system of the country as an act of unfair competition, or practice, or method, an element which neither Congress or any court has ever heretofore declared to be such; and that, too, while holding the body from whieh the appeal comes to us to be without authority to deter*268mine the validity of the patents alleged to be infringed, and, I assume, while agreeing that neither this court nor the President of the United States has any such authority.
As I understand it, the patent laws proceed wholly upon the theory that letters patent constitute prima facie evidence only that the patentee is entitled to the patent, and I know of no case, where infringement of a patent was the subject-matter of the proceeding, which holds that the certificate of the Patent Office is conclusive of validity, as the majority opinion holds those here in issue to be for the purposes of this proceeding.
It is true that if it should be held that the statute does require a judicial finding by the President, and those who aid him, upon the question of validity, aside from the prima facie presumption, the effect would undoubtedly be to bring it into immediate conflict with the Constitution, but that is not the fault or responsibility of this court. Congress has ample power to deal with the question by making the law itself whenever it may elect to do so.
Trade-mark infringement, when found by the courts, enters into the law of unfair competition, but patent infringement, standing alone, has been otherwise treated and dealt with by them.
In the innumerable decided eases relating to unfair competition, fraud and deceit must be shown in order to establish it.
“Unfair competition consists essentially in the conduct of a trade or business in such a manner as that there is an express or implied representation that the goods or business of one man are the goods or business of another.” Am. & Eng. Ency. Law (2d) 345.
“The essence of the wrong in unfair competition consists in the sale of the goods of one manufacturer or vendor for those of another ; and if defendant so conducts its business as not to palm off its goods as those of complainant, the action fails.” Howe Scale Co. v. Wyckoff, Seamans & Benedict, 198 U. S. 118,140, 25 S. Ct. 609, 614, 49 L. Ed. 972.
In the instant ease, I think it cannot be successfully argued that any alleged patent infringement is responsible for any alleged deceit or “palming off” of goods. If any infringement occurred, it did not constitute deceit, but was the violation of a legal right held by the patentee for which the general laws, of the country provide a remedy.
I cannot subscribe- to the doctrine that simply because it might be difficult for a patentee to obtain what he conceived to be ample redress against the importers of foreign goods alleged to infringe his patents, it follows that Congress intended to apply to importations, as constituting unfair practices, elements which were not mentioned or hinted at in the statute and which no court has ever heretofore held to be such.
Whether the proceedings here be regarded, as the opinion of the majority of the Tariff Commission declares, as “a general inquiry in the public interest,” rather than as a “contest between an individual American manufacturer and an individual importer,” does not and cannot alter the fundamental elements which, in a legal sense, must be present to constitute unfair trade practices. Had Congress wished patent infringement to become an element to be specially dealt with under the customs laws, it could have so specifically provided, as it did in trade-mark matters by section 526 (19 USCA §§ 141-143).
From my personal experience in the study of this case I am convinced that much of the confusion which seems to have attended its consideration on all sides has grown out of the, perhaps not unnatural, disposition to treat section 316 (19 USCA §§ 174-180) as being, in its fundamental legal aspects, on all fours with section 315 (19 USCA §§ 154-159), the so-called “flexible” provision, and I have endeavored herein to differentiate the two.
A study of the history of the legislation as disclosed in the’ Congressional Record indicates that in the Senate, wherein both sections originated, the Senators themselves did not appear to differentiate them. There was practically no analysis of or debate upon section 316. Section 315 was elaborately debated and it .was vitally amended on the Senate floor. Language was inserted, offered as amendments, which probably proved the deciding feature which enabled the courts to uphold its constitutionality.2
No such language giving definitions and declaring what should constitute the unfair methods denounced as unlawful in section 316 were inserted into it, and so it was left in hazy and indefinite form.
There seems to be a disposition to treat the function of the Tariff Commission under 316 as being analogous to its function under 315. Apparently as a result of this disposition much time was spent in the argument and much space is devoted in the briefs to the *269question of whether the report of the Tariff Commission really constitutes valid findings, since there were six members of the Commission and the findings were signed by only three of them. The majority opinion of this court deals with this question in an entirely satisfactory manner, so far as I am concerned; but if the same issue could be presented in a proceeding under section 315 a different question might exist, because an investigation by the Tariff Commission is an indispensable prerequisite for action under it.
In a proceeding under section 316 it does not seem to me to be of any vital legal consequence how the findings by the Tariff Commission are signed or by how many of its members, except that probably this court could not review ány except a report by a majority. In the ultimate result it would not be legally consequential because the function of the Commission under 316 is purely advisory and is neither affirmatively nor negatively binding upon the Executive or any one else.
The decision of this court is in precisely the same category as the Commission’s report, so far as any legal effect is concerned. We function under section 316 only in eases where the Tariff Commission acts and appeals come to us from that body. There is not conferred upon us any authority similar to that conferred upon the Circuit Court of Appeals of the United States in the Federal Trade Commission Act.
It is true that in paragraph (e) of section 316 (19 USCA § 176) the statement is made that the “judgment of said court (of Customs Appeals) shall be final,” except it is made subject to possible review by the Supreme Court, but what does that mean? It, at least, does not mean that of itself that judgment as pronounced law must control the Executive’s action. If by any possible construction it could be held to mean that, then the Executive, should he desire, has only to proceed to make findings through some other agency than the Tariff Commission, or through no agency whatever, and the matter cannot reach the courts under this particular section.
So far as my knowledge of the legislative history of our country extends, that portion of section 316 which provides for a court review, under certain circumstances, of steps taken looking toward an administrative or executive action, in advance of that action, is without any congressional legislative prototype. The novelty of it alone renders it an interesting study, but the full effect it was intended to accomplish by such procedure is not, I confess, as yet altogether clear to my understanding.
Under the theory announced in the beginning of this dissent, namely, that the instant proceedings constitute a ease or controversy, I have sought to deal with it purely from the legal standpoint and in a judicial sense. The majority opinion has done the same.
If this theory be erroneous and it was contemplated that we should deal with it from an economic standpoint and as a board rather than as a court, then I should wish-considerably more enlightenment upon several of the involved factors before assuming any responsibility in connection with it.
The amendments to the amendment to which I make reference were offered by Senator I. L. Lenroot, who is now an Associate Judge of this court.