GARRETT, Associate Judge.
This is an appeal from the findings and recommendations of the United States Tariff Commission in a proceeding had by that tribunal under the provisions of section 337 of the Tariff Act of 1930 (19 USCA § 1337).1
By the terms of the statute this court is limited to a consideration of “a question or questions of law only.”
The material involved is apatite, a phosphatic mineral from which there is produced phosphoric acid used in the manufacture of fertilizer. The apatite of the issue was mined in Northern Russia, and the importation was from that country. Phosphoric acid is produced from both phosphate and apatite. In order to fit the minerals for use in producing acid, they must be separated, after being mined, from the unusable substances which surround them. The method of separation said now to be in general use in the United States is a process known as the flotation process.
It appears that a corporation by name of Minerals Separation North American Corporation (not a party to this proceeding) is the owner of certain United States patents defining flotation processes. Among these are patent No. 1,547,732, issued July 28, 1925, to Walter Broadbridge and Edwin Edser, assignors, entitled “Production of Fertilizer Material,” and patent No. 1,795,-100, issued March 3, 1931, to William Trotter and Eltoft Wray Wilkinson, assignors, entitled “Flotation Concentration of Phosphate-Bearing Material.” For brevity, these will be hereinafter referred to, respectively, as the Broadbridge patent and the Trotter patent.
It is conceded that the patentees have no patents from the Union of Soviet Socialist Republics (hereinafter referred to as Russia) or any preceding Russian government.
[828]*828It further appears that a corporation known as Phosphate Recovery Corporation holds' an exclusive license under the involved patents; that another corporation, American Cyanamid Company, is a nonexclusive sublicensee, and that still another corporation, International Agricultural Corporation, while not a licensee or sub-licensee, has contracts under which Phosphate Recovery Corporation concentrates phosphates for it by the involved patented processes.
The instant proceedings were initiated before the Tariff Commission by the three last-named corporations, hereinafter referred to as appellees, a joint complaint being filed by them which alleged unfair methods of competition and unfair acts in .the importation and sale in the United States of apatite* or phosphate rock, imported from Russia.
In view of the manner in which the issues to be reviewed by this court are limited in the appeal, and particularly in the argument before us, it is not deeme'd essential or proper to set forth with any degree of particularity all the allegations and responses thereto contained in the several pleadings, as finally amended, which were passed upon by the Tariff Commission, nor is a full statement of all the Commission’s findings upon all phases of the controversy necessary.
It seems sufficient, for the purposes of our consideration, to state that a corporation known as Standard Wholesale Phosphate and Acid Works, Inc., of Baltimore, Md., was alleged to have purchased from “United Chemical Industries” of Russia some 25,000 tons of phosphate rock, of which some 7,000 tons were alleged to be en route to the port of Baltimore, and that the said United Chemical Industries, to quote from the complaint, “separate ¿11 phosphate mined by them from the material with which it is found in the earth by means of a Phosphate Flotation Process, which process is covered by United States patents 1,547,732, 1,795,100 and 1,780,022, and such separation of phosphate by the said United Chemical Industries * * * utilizes the invention described and claimed in said patents, * * * and that such acts constitute unfair methods of competition and unfair acts in the importation of articles into the United States and their sale by the owner, importer, consignee and their agents." (Italics ours.)
The italicized quotation comprehends what we regard as the principal issue with which this court need concern itself.
The appellant here, Amtorg Trading Corporation (hereinafter referred to as Amtorg), seems to have been made a party to the proceedings before the Tariff Commission because of the fact that it was the actual' vendor of the imported material to Standard Wholesale Phosphate & Acid Works; Amtorg having purchased it from the Russian organization. Amtorg2 is a corporation organized under the laws of the state of New York, and in it's answer to the complaint in this case states, inter alia: “Amtorg is now engaged, and since its organization in 1924, has been engaged in the purchase of commodities in the United States for shipment to the Union of Soviet Socialist Republics (hereinafter called Soviet Union), and in the purchase of commodities in the Soviet Union for importation into and sale in the United States.”
The Tariff Commission found as a fact that the flotation processes used in Russia for separating the apatite involved from the unusable substances surrounding it were the same as the processes respectively involved in the patent to Broadbridge and in claims 2 and 11 of the Tr.otter patent.
The authority cited by the Commission 3 for its finding here under review is its own [829]*829prior finding in a proceeding with reference to the importation of bakelite, which finding was approved by the majority of this court in the case of Frischer & Co., Inc., et al., v. Bakelite Corporation et al., 39 F.(2d) 247, 17 C. C. P. A. (Customs) 494, T. D. 43964, certiorari to review this court’s decision having been deniéd by the Supreme Court of the United States in the case of Frischer & Co., Inc., et al., v. Bakelite Commission et al., 282 U. S. 852, 51 S. Ct. 29, 75 L. Ed. 755.
It is pertinent, at this point, to recite that subsequent to the promulgation of the Commission’s statement, findings, and recommendations in the instant case, which promulgation was of date January 15, 1934, this court has had occasion to pass upon kindred questions in two cases also appealed from that tribunal. These are In re Orion Co., 71 F.(2d) 458, 22 C. C. P. A. (Customs) —-, T. D. 47123, and In re Northern Pigment Co. et al., 71 F.(2d) 447, 22 C. C. P. A. (Customs) -, T. D. 47124. These decisions along with the Frischer & Co. Case, supra, will be hereinafter more fully- discussed.
It is not admitted by appellant in the instant case that the processes used in the operations in Russia are, in fact, the processes of the respective patentees as found by the Tariff Commission, but it is conceded that, since this is purely a questibn of fact upon which the Commission has made a finding based upon substantial, even if controverted, evidence, that issue is not one which this court may now consider. Such concession is in harmony with this court’s holdings in the several cases above cited.
The entire argument on behalf of appellant respecting what we have above stated the principal issue to be, is predicated upon the fact that the patents which are involved are process, not product, patents. It is pointed out that in the Frischer & Co. et al. and Orion Co. Cases, supra, such patent questions as were actually controlling related solely to product patents, and, so far as the instant case is concerned, it is not urged that the decisions in those cases, in so far as they related to product patents, he overruled. Reconsideration by this court of the principles announced in those cases is here asked only to the extent that any observations there made may have a bearing upon process patents.
[830]*830With respect to the Northern Pigment Co. Case, however, the situation is different.. In that case one of the patents involved was a purely process patent; the other patent contained both process and product claims. We there sustained the holdings of the Tariff Commission to the effect that the importation into the United .States from Canada of pigments manufactured by a process, or by processes, patented in the United States, but for which patentees held no Canadian patents, and the sale of same here, brought the transaction within the purview of section 337 of the Tariff Act of 1930 (19 USCA § 1337), and justified the issuance by the President of the United States of the order of embargo.
It is not possible to draw any distinction, in principle, between the process claims involved in the Northern Pigment Co. Case, .supra, and the case at bar, and, if the doctrine there applied with respect to process claims be adhered to, it is controlling here. This is recognized by appellant, and so we. are asked to reconsider the question in the light of numerous authorities and arguments based thereon which were not presented at the hearing of the former issue.
We deem it our duty, under the presentation here made, to give full and careful re-examination of said question. The courts upon whom, in a peculiar sense, there must be final reliance for the establishment and maintenance of correct legal principles, do not, and should not, hesitate, when convinced that they have fallen into error, to reverse their own decisions and announce the principles which fuller information and more mature consideration lead them to conclude are sound and correct.
In Barden v. Northern Pacific Railroad Co., 154 U. S. 288, 322, 14 S. Ct. 1030, 1036, 38 L. Ed. 992, Mr. Justice Field, speaking for the court, after discussing certain cases in which he had written the opinions, some expressions of which were urged to be in conflict with the views being expressed in the case then being decided, said: “ * * * It is more important that the court should be right upon later and more elaborate consideration of the cases than consistent with previous declarations. Those doctrines only will eventually stand which bear the strictest examination, and the test of experience.”
The contentions in behalf of appellant upon the particular phase of the controversy now under discussion are, in effect, that section 337 of the Tariff Act of 1930, 19 USCA § 1337 (which is, in substance, the same as section 316 of the Tariff Act of 1922 (19 USCA §§ 174-180), under which the Frischer & Co. Case, supra, arose), is solely remedial; that it has in nowise enlarged the substantive grant of rights under the patent laws; that there was no infringement of the patents by the use of the process in Russia; and that the section does not clothe the President of the United States or the Tariff Commission, when acting thereunder, with any authority arbitrarily to declare an act, which does not fall within the category described by “Unfair methods of competition and unfair acts in the importation of articles into the United States” as such acts are judicially determinable by the courts, under settled rules of law, to be such an act as authorizes the issuance of the order of embargo provided by the section.
The brief on behalf of appellant quotes from the opinion of the Supreme Court of the United States in the case of Federal Trade Commission v. Gratz et al., 253 U. S. 421, 427, 40 S. Ct. 572, 575, 64 L. Ed. 993, as follows: “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. They are clearly inapplicable to practices never heretofore regarded as opposed to good morals be-caus'e characterized by deception, bad faith, fraud, or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly. The act was certainly not intended to fetter free and fair competition as commonly understood and practiced by honorable opponents in trade.” (Italics ours.)
As we construe the foregoing quoted language, while it is for the courts ultimately to determine, as a matter of law, what the words “unfair method of competition” include, it was within the jurisdiction of the Federal Trade Commission initially to pass upon whether a particular method of competition was, as a matter of law, unfair; that it is not necessary. that a particular act, or method, or practice must have been declared by the courts to be unfair before the Commission could properly find such act, method, or practice to be unfair, but, to be unfair, it must fall within the general domain of practices “heretofore regarded as opposed to good morals because character[831]*831ized by deception, bad faith, fraud, or oppression, or as against public policy because of their dangerous tendency unduly to hinder competition or create monopoly.” This language is broad and comprehensive. It covers a large field, as do the words “due process of law,” “unjust discrimination,” and the like. The words “unfair method of competition” may include acts which have never been specifically declared by the courts to be unfair. Federal Trade Commission v. Keppel & Bro., 291 U. S. 304, 54 S. Ct. 423, 426, 78 L. Ed. 814; Federal Trade Commission v. Raladam Co., 283 U. S. 643, 51 S. Ct. 587, 75 L. Ed. 1324, 79 A. L. R. 1191; Sears, Roebuck & Co. v. Federal Trade Commission (C. C. A.) 258 F. 307, 6 A. L. R. 358.
In each of the above-cited cases, however, the methods of practices found to be unfair fell within the general domain of unfair practices suggested in the Gratz Case, supra. In the case of Federal Trade Commission v. Keppel & Bro., supra, it was said of the practice there declared to be unfair : “ * * * It is clear that the practice is of the sort which the common law and criminal statutes have long deemed contrary to public policy.”
In the case of Federal Trade Commission v. Raladam Co., supra, the Commission was reversed in its holding that certain acts there involved were “unfair methods of competition.”
In the case of Sears, Roebuck & Co. v. Federal Trade Commission, supra, a certain misrepresentation in advertising was held to be an unfair method of competition, but it was also held that the selling of certain merchandise by appellant below cost was not an unfair method of competition, unless accompanied by misrepresentation in connection with such sale.
No case has been brought to our attention, nor have we found any, holding that the Federal Trade Commission may legally declare an act or method of practice unfair which the courts have judicially determined not to be an unfair act, or method, or practice, nor have we found any case holding any act, method, or practice to be unfair that did not come within the general domain of unfair methods of competition suggested in the hereinbefore quoted language from the Gratz Case, supra.
To state our interpretation of appellant’s position upon this question, it is that the acts of the President and of the Tariff Commission authorized by section 337, supra, are purely administrative, and that the acts upon which an embargo order may be predicated are only such acts as are unfair within the judicial meaning of the terms used in the statute. It is then urged that the use in Russia of the processes of the United States patents involved was entirely lawful, and that in the act of importation itself there was no element or incident of unfairness ; the importation being made openly and in entire accordance with the laws appertaining to such transactions.
It is but fair to this court to say that in no one of the three cases above named, in which we have been called upon to pass upon recommendations of the Tariff Commission, has the construction of the statute here advanced been presented as it is now presented, nor have we been supplied by prior litigants with the authorities which appellant has caused to be presented here. Such we think will be evident from a reading of both the majority and minority opinions in those cases.
Upon the consideration given the issue under the presentation here made, we feel constrained to hold that the theory now advanced is sound, and that it correctly sets forth the true meaning of the section, and under that theory we proceed to an examination of the question whether as a matter of law the acts found by the Tariff Commission to have been performed, such findings being findings of fact and binding upon us, were acts which authorize the exclusion of the merchandise, as the Commission recommends.
The facts are quite simple. Merchandise not itself patented, manufactured in Russia by a process patented in the United States, but not in Russia, was imported into, and entered the commerce of, the United States.
The owner of a valid United States patent is protected in its exclusive use “throughout the United States, and the Territories thereof.” 35 USCA § 40.
It follows, therefore, that the courts will protect the owner of a United States patent against an infringement thereof anywhere in the United States and its territories, where suit is brought in the proper jurisdiction. But the protection which the laws of the United States afford is limited to the territory named in the statute. In the case of Dowagiac Manufacturing Company v. Minnesota Moline Plow Company, 235 U. S. 641, 35 S. Ct. 221, 225, 59 L. Ed. 398, the Supreme Court said: “ * * * The [832]*832right conferred by a-patent under our law is confined to the United States and its territories * * * and infringement of this fight cannot be predicated of acts wholly done in a foreign country.”
Other pertinent cases are Bullock Electric & Mfg. Co. v. Westinghouse Electric & Mfg. Co. (C. C. A.) 129 F. 105; Victor Talking Mach. Co. v. Strauss (C. C.) 171 F. 673; Rushmore v. Manhattan Screw & Stamping Works (C. C.) 170 F. 188; Brown v. Duchesne, 60 U. S. (19 Flow.) 183, 15 L. Ed. 595.
It is also true that the owner of a patent granted by a foreign country, but having no United States patent, is not protected in the United States under our laws by his foreign letters patent.
The distinction between product and process patents is clear and is quite generally understood. The product patent is upon an invented or discovered article; the process patent is upon a method of making an article. It not infrequently happens that in the same letters patent invention is recognized in both the article and the method of making it, but it is the well-settled rule of law that a product patent protects only the product, and that a process patent protects only the process.
In Holland Furniture Company v. Perkins Glue Company, 277 U. S. 245, 255, 48 S. Ct. 474, 478, 72 L. Ed. 868, the Supreme Court said: “ * * * a patentable process is a method of treatment of certain materials to produce a particular result or product. Cochrane v. Deener, 94 U. S. 780, 24 L. Ed. 139. The description of one does not necessarily embrace the other. Either or both may be patentable. * * * ”
Thus a process patent is not infringed by the sale of a product made by the process, the product itself not being patented, and a product patent is not infringed by one who uses the process by which it is made, the process itself not being patented. Additional authorities will be cited later.
In the case at bar, the apatite (the article) is not patented. Hence there is no infringement of the patented process by a sale of apatite. The Russian exporter had a perfect right to sell and the American importer had a perfect right to buy the apatite and to resell it in the United States, in so far as any question of a process patent is concerned. Had there been a product patent we should, of course, have here a case analogous to the material parts of the Frischer and Orion Cases, supra.-
As has been already indicated, the use of the process in Russia'was entirely legitimate, since the patentees held no Russian patents. Were the situation reversed, that is to say, if patentees held Russian patents but not United States patents for the proc-éss only, such patentees would have no exclusive right to use same in the United States which could be protected by the courts under the laws of the United States.
The brief filed on behalf of appellant contains certain quite interesting legislative history with respect to a proposal made in 1852 by a bill introduced in the United States Senate at a session of the Thirty-Second Congress. By the terms of said bill it was proposed to make illegal the importation into the United States of a product of a patented process, or a product of a patented machine, provided the defendant had knowledge and the manufacture was in a nearby or adjoining country. The bill was discussed by various Senators, and seems to have been introduced in subsequent Congresses, but was never enacted into law. Citations are made to Congressional Globe, 32 Cong. 1st. Sess. pp. 1549-1551, 1566-1573, and 2d Sess. pp. 127, 128, 528, 534 — 536. House 2d Sess. 540.
No legislation of the nature of that proposed in 1852 has ever been enacted by the Congress and the extent of patent rights granted by process patents, which extent depends upon the statutes, has not been substantially changed by any law specifically directed thereto since such was fixed by Act of April 10, 1790, § 1 (1 Stat. 109) ; see, also, Act of July 4, 1836, § 5 (5 Stat. 117, 118, 119); Act July 8, 1870, § 22 (16 Stat. 198, 201, Rev. St. § 4884) amended by Act May 23, 1930 (46 Stat. 376, 35 USCA § 40).
Since the Commission’s recommendation in the instant case rests solely upon its finding that the act of importing apatite, made by the processes defined in the United States patents, constituted the act denounced by the statute, it becomes of importance to examine the decisions of the courts with respect to the extent of the protection afforded by process patents. These decisions uniformly have been to the effect that a patent for a process is not infringed by selling the product. Merrill v. Yeomans, 94 U. S. 568, 24 L. Ed. 235; Welsbach Light Co. v. Union Incandescent Light Co. (C. C. A.) 101 F. 131; National Phonograph [833]*833Co. v. Lambert Co. (C. C.) 125 F. 388; American Graphophone Co. v. Gimbel Brothers (D. C.) 234 F. 361; Kryiak v. Owens Bottle Co. (D. C.) 25 F.(2d) 358; Barton v. Nevada Consolidated Copper Co. (D. C.) 36 F.(2d) 85, 86. No authority holding otherwise has been cited in the several briefs filed in this case, nor have we found any as a result of our own researches.
The two. latter cases above cited are-further of importance here because of their holding upon the question of jurisdiction in respect to the protection of process patents.
By the provisions of the Judicial Code § 48, 28 USCA § 109, suits brought for the infringement of patents are required to be - brought in either the judicial district of which the defendant is an inhabitant, or in any district in which the defendant has committed an act of infringement.
In the Kryiak Case, supra, the defendant, Owens Bottle Company, was a corporation of the state of Ohio. It established a sales office in the state of Illinois, and there "sold certain unpatented bottles alleged to have been made by a process for which plaintiff, Kryiak, held a patent. The manufacture of such bottles, however, did not take place in the judicial district of Illinois where the suit was brought, but in other states. Suit was brought by plaintiff in the district of Illinois where the sales were made, alleging infringement of the two claims of his patent, both being process claims. The court, holding that the sale of the product did not infringe the process patent, dismissed the bill for “want of jurisdiction.” A similar principle was applied in the Barton Case, supra, where a- citizen of California brought suit- in the Southern district of New York against a Maine corporation alleging infringement of a process patent. It being found that the manufacturing process was not carried on in the New York district, only sales of the unp’at-ented product being made there, the court dismissed the case, saying: “ * * * This district is not the proper venue for this suit.”
In both the foregoing cases it seems to have been conceded that the defendants were, in fact, manufacturing the unpatent-ed articles by the respective patented processes, but not in the districts where sued. There only sales of the unpatented products had taken place, and, upon the established doctrine that a process patent is not infringed by the sale of its resultant, un-patented product, it was held, in effect, that there had been no infringement in the districts where the suits were instituted.
The brief for appellant cites the case of Hurn v. Oursler, 289 U. S. 238, 53 S. Ct. 586, 590, 77 L. Ed. 1148, with comment to the effect that it is believed that the decision of the Supreme Court therein conclusively disposes of the question now under discussion here.
In that case suit was brought, the allegation, in so far as here material, being (1) the infringement of copyright, and (2) unfair competition, based upon a claim that a certain play called “The Evil Hour,” belonging to and copyrighted by petitioners, had been pirated by defendant. Both plaintiff and defendant were citizens of the same state.
It was-pointed out by the- Supreme- Court that both the infringement claim and the claim of unfair competition rested upon the alleged violation of a single right, to wit, the right of protection to the copyrighted play. The court said, inter alia:
“ * * * The bill alleges the violation of a single right; namely, the right to protection of the copyrighted play. And it is this violation which constitutes the cause of action. Indeed, the claims of infringement and unfair competition so precisely rest upon identical facts as to be little more than the equivalent of different epithets to characterize the same group of circumstances. The primary relief sought is an injunction to put an end to an essentially single- wrong, however differently characterized, not to enjoin distinct wrongs constituting the basis for independent causes of action. The applicable rule is stated, and authorities cited, in Baltimore S. S. Co. v. Phillips, 274 U. S. 316, 47 S. Ct. 600, 71 L. Ed. 1069. ‘A cause of action does not consist of facts,’ this court there said (page 321 of 274 U. S., 47 S. Ct. 600, 602), ‘but of the unlawful violation of a right which the facts show. The number and variety of the facts alleged do not establish more than one cause of action so long as their result, whether they be considered severally or in combination, is the violation of but one right by a single legal wrong. * * * “The facts are merely the means, and not the end. They do not constitute the cause of action, but they show its existence by making the wrong appear.” ’
“Thus tested, the claims of infringement and of unfair competition averred in the [834]*834present bill of complaint are not separate causes of action, but different grounds asserted in support of the same cause of action.”
The court accordingly held that since federal jurisdiction existed by reason of the copyright being involved, there was also federal jurisdiction of the question of unfair competition,' in so far as use of the copyrighted play was concerned, although the parties were citizens of the same state, and it was further held that since the District Court was correct in its finding upon the merits that there had been no infringement of the copyright, this also disposed of the interrelated question of unfair competition in so far as the same related to the copyrighted play.
The analogy between the phase of the Hurn Case, supra, which has been recited, and the particular phase of the instant case, now under discussion, in so far as the principle applicable is concerned, seems quite complete. In the Hurn Case,' supra, the rights of the parties rested solely upon the copyright statutes; in the instant case the rights of the parties rest solely upon the patent statutes. Incidentally it may be remarked that the statutes themselves rest upon the same paragraph of the Constitution of the United States.
We are unable to see wherein, if the question of unfair competition fell with the finding that there had been no infringement of the copyright laws in the Hurn Case, supra, it must not also be held that “unfair methods of competition and unfair acts in the importation” of the merchandise here involved fall when it is determined, as it must be, that there was no infringement of the patented processes, since, under the facts found, the alleged unfair methods and acts related solely to the use of such processes.
Such must be the holding unless the court finds that it was the purpose of the Congress in enacting section 337 of the Tariff Act of 1930 (19 USCA § 1337) to broaden the field of substantive patent rights, and create rights in process patents extending far beyond any point to which the courts have heretofore gone in construing the patent statutes.
Mature consideration of the question leads us to the conclusion that Congress did not do this. Hence, we conclude that our decision in the Northern Pigment Co. Case, supra, went further than the statute provides, and that, in so far as said decision involved process claims, it was erroneous. We also withdraw any expressions of adjudication relating to process patents appearing in the Frischer and Orion Co. Cases, supra.
However, nothing herein contained should be construed as revoking or modifying, in any respect, the decisions rendered with reference to product patents in the Frischer and Orion Co. Cases, supra. The distinction between product and process patents and the remedies afforded by the law for their protection against infringement are so well defined and so well known that it is deemed unnecessary to here enter upon any discussion with respect thereto.
If some of the suggestions which have been offered during consideration of this case were carried to their logical conclusion, it would seem to follow that the importation of any merchandise the cost of which to the importer was lower than the price he would have to pay for a similar or competitive article produced in the United States would constitute an unfair method of competition within the purview of section 337, supra. Such a. transaction might* be regarded as unfair by. an interested party, but obviously Congress never- intended that such should fall within the operation of the section.
In reaching the conclusion here announced, we have given due attention to the authorities cited by appellees in the several briefs filed, and to the legislative history to which they directed attention.
A part of this history was recited by us in the Orion Co. Case, supra, as follows:
“When section 316 was being incorporated into the Tariff Act of 1922 (19 USCA §§ 174-180), the Senate Finance Committee, in reporting the bill to the Senate, incorporated this illuminating language as to the purposes of the embargo provision of that section:
“ ‘The provision relating to unfair methods of competition in the importation of goods is broad enough to prevent every type and form of unfair practice and is, therefore, a more adequate protection to American industry than any anti-dumping statute the country has ever had. (Senate Report No. 595, p. 3, 67th Cong. 2nd Session.)’
“At the time H. R. 2667 was being considered, the United States Tariff Commission called the attention of the Ways and Means Committee to the difficulties had in [835]*835the administration of sections 315, 316, and 317 of the Tariff Act of 1922, and made this suggestion:
“ ‘Importance of Commission’s Jurisdiction of Patent Infringements
“ ‘Existing law, apart from section 316, is wholly inadequate to protect domestic owners of patents from violation of their patent rights through the importation and sale of infringing articles. Such infringing articles may he and are imported in large quantities and distributed throughout the United States. The owner of a patent, seeking to protect himself, is confronted with the necessity of proceeding against individual wholesalers or retailers. The resulting multiplicity of suits imposes an impossible burden. Stoppage of importation of infringing articles through an order of exclusion from entry is the only effectual remedy. The jurisdiction of district courts and the scope of any decree issued by them do not extend to the importation or exclusion of imported merchandise from entry into the United States. Section 316, therefore, as construed by the Tariff Commission in its findings now before the Court of Customs Appeals for review, affords an exclusive remedy. (Vol. 17, Supp. to Tariff Readjustment Reports on Tariff Bill of 1929, page 10667.)’
“Thereafter, the committee reported to the House, in part, as follows:
“ ‘The only change made by the section over existing law is the elimination of the provision which authorized the President to impose such additional duties not in excess of 50 per cent or less than 10 per cent of the value of the article imported in violation of the section as would offset the unfair method or act employed. The committee feels that this provision should not be retained for the reason that the imposition of penalty duties to offset violations is entirely inadequate to prevent further violations. The effective remedy is to exclude from entry the articles concerned in the violation. (Report, Ways and Means Com. on H. R. 2667, Rept. No. 7, 71st Congress, 1st. Session, p. 166.)’”
Our comment preceding the above recital was as follows: “It will be borne in mind that many of the decisions cited in the Frischer Case, supra, and here, were rendered under statutes intended to prevent unfair methods of competition in the internal commerce of the country. Much more reason appears for the prevention of. such practices in the case of importations from foreign countries. In this latter class of cases, manufactured products, produced in a foreign country where the producer is beyond the control of the courts of the United States, are imported into this country. Up until the time when they are released from customs custody into the commerce of this country, no opportunity is presented to the manufacturer of the United States to protect himself against unfair methods of competition or unfair acts. After the goods have been so released into the commerce of the country, the American manufacturer may assert his rights against any one who has possession of, or sells, the goods. However, this method of control must be, and is, ineffective, because of the multiplicity of suits which must necessarily be instituted to enforce the rights of the domestic manufacturer. This phase of the matter obviously was in the minds of the Congress at the time of the preparation of said section 337.”
It is our view that the foregoing supports the conclusion here reached as to process patents.
There are other contentions on behalf of appellant, but, in view of our conclusion upon the issue already discussed, it is deemed unnecessary to pass upon them. We would, however, observe that it appears obvious that, even under the Commission’s theory, the recommendation based upon the Trotter patent should have been confined to only claims 2 and 11 thereof, these being the only claims of this patent, the process of which was found to have been used in Russia.
The finding of the United States Tariff Commission that, upon the facts found by it, the importation of the apatite involved constituted unfair methods of competition and unfair acts in the importation of the articles within the purview of section 337 of the Tariff Act of 1930 (19 USCA § 1337) is reversed.
Reversed.