594 Opinion of the Court. selective manner in which Congress has provided for judicial review reinforces the inference that the only review of the issue of probable cause which Congress granted was the one provided in the libel suit. Cf. Switchmen's Union v. Board, 320 U. S. 297, 305–306. ous. The purpose of the multiple seizure provision is plain. It is to arrest the distribution of an article that is dangerous, or whose labeling is fraudulent or misleading, pending a determination of the issue of adulteration or misbranding. The public therefore has a stake in the jurisdictional issue before us. If the District Court can step in, stay the institution of seizures, and bring the administrative regulation to a halt until it hears the case, the public will be denied the speedy protection which Congress provided by multiple seizures. It is not enough to say that the vitamin preparation in the present case is not dangerous to health. This preparation may be relatively innocuBut the statutory scheme treats every "misbranded article" the same in this respect-whether it is "dangerous to health," or its labeling is "fraudulent," or materially "misleading to the injury or damage of the purchaser or consumer.' What we do today determines the jurisdiction of the District Court in all the cases in that category. If the court in the present case can halt all multiple seizures but one, so can the court in other cases. The means which Congress provided to protect consumers against the injurious consequences of protracted proceedings would then be seriously impaired. Congress weighed the potential injury to the public from misbranded articles against the injury to the purveyor of the article from a temporary interference with its distribution and decided in favor of the speedy, preventive device of multiple seizures. We would impair or destroy the effectiveness 997 amending, or repealing regulations under §§ 401, 403 (j), 404 (a), 406 (a) and (b), 501 (b), 502 (d), 502 (h), 504, 604 are expressly made reviewable by § 701 (e) and (f), 21 U. S. C. § 371 (e) and (f). 7 See § 304 (a) note 3, supra. FRANKFURTER, J., dissenting. 339 U.S. of that device if we sanctioned the interference which a grant of jurisdiction to the District Court would entail. Multiple seizures are the means of protection afforded the public. Consolidation of all the libel suits so that one trial may be had is the relief afforded the distributors of the articles." MR. JUSTICE BURTON concurs in the result. Reversed. MR. JUSTICE CLARK took no part in the consideration or decision of this case. MR. JUSTICE FRANKFURTER, dissenting. While I agree with the Court as to the constitutional and statutory issues canvassed in its opinion, I am unable "When libel for condemnation proceedings under this section, involving the same claimant and the same issues of adulteration or misbranding, are pending in two or more jurisdictions, such pending proceedings, upon application of the claimant seasonably made to the court of one such jurisdiction, shall be consolidated for trial by order of such court, and tried in (1) any district selected by the claimant where one of such proceedings is pending; or (2) a district agreed upon by stipulation between the parties. If no order for consolidation is so made within a reasonable time, the claimant may apply to the court of one such jurisdiction, and such court (after giving the United States attorney for such district reasonable notice and opportunity to be heard) shall by order, unless good cause to the contrary is shown, specify a district of reasonable proximity to the claimant's principal place of business, in which all such pending proceedings shall be consolidated for trial and tried. Such order of consolidation shall not apply so as to require the removal of any case the date for trial of which has been fixed. The court granting such order shall give prompt notification thereof to the other courts having jurisdiction of the cases covered thereby." * Congress has granted distributors through the provision for consolidation of all libel suits the measure of relief which courts at times grant through a stay of multiple actions. See Landis v. North American Co., 299 U. S. 248. 594 FRANKFURTER, J., dissenting. to answer MR. JUSTICE JACKSON's dissent, and I must therefore yield to it. Of course Congress may constitutionally vest judicially unreviewable discretion in an executive agency to initiate multiple suits in order to stop trafficking in pernicious drugs or even in those that are harmless, where efficacy is misrepresented. I agree that it has done so in the Federal Food, Drug, and Cosmetic Act of 1938. 52 Stat. 1040, 21 U. S. C. § 301 et seq. But it does not at all follow that Congress has thereby cut off the right of access to the courts to prove that the enforcing agency has not acted within the broadest bounds of fair discretion, rare as the occasion may be for such an attempt and however improbable its success. Such I understand to be the nature of the proceedings below and such the basis of the District Court's decree. Unless we can say, as I cannot, that the findings in support of it have no support in the evidence, we should not hold that the court below was without jurisdiction to entertain the suit. The limited claim which the District Court sustained falls precisely within the qualification left open by this Court in a leading case sustaining the power of Congress to vest unreviewable discretion in executive agencies. When the Court was urged to deny this power of Congress and "extreme cases" were put showing "how reckless and arbitrary might be the action of Executive officers," the Court made this answer: "It will be time enough to deal with such cases as and when they arise. Suffice it to say, that the courts have rarely, if ever, felt themselves so restrained by technical rules that they could not find some remedy, consistent with the law, for acts, whether done by government or by individual persons, that violated natural justice or were hostile to the fundamental 339 U.S. JACKSON, J., dissenting. principles devised for the protection of the essential rights of property." Monongahela Bridge Co. v. United States, 216 U. S. 177, 195. Mr. Justice Harlan, speaking for the Court, cast its thought in the language current at the time. But the thought behind the words is not outmoded and controls, I believe, the case before us. MR. JUSTICE JACKSON, dissenting. The Court does not deal at all with what appears to be the ultimate issue decided by the court below. The trial court of three judges wrote no opinion but made forty-three detailed findings of fact which would require twenty of these printed pages to reproduce and which summarize a 1,500-page record of a long trial. Those findings are made largely on undisputed evidence and on evidence from government sources. This Court does not criticize or reverse any of them. The substance of these is to find that the Government instituted a multiplicity of court actions, with seizures in widely separated parts of the country, with a purpose to harass appellee and its dealers and intending that these actions and the attendant publicity would injure appellee's business before any of the issues in such cases could be tried. This, the court held, was justified by no emergency, the product being, at worst, harmless and having been marketed for years with knowledge of the Department. Assuming as I do that the Act on its face is not constitutionally defective, the question remains whether it has been so misused by refusal of administrative hearing, together with such irreparable injury in anticipation of judicial hearing, as to deny appellee due process of law or to amount to an abuse of process of the courts. The Government has sought and received from this Court protection against a multiplicity of suits under circumstances where injury was less apparent than in this. Landis v. North American Co., 299 U. S. 248. The holding of the court below and the contention of the appellee here that the Government is not entitled to so apply the statute as to bring multiple actions designed to destroy a business before it can be heard in its own defense is not frivolous, to say the least. I am constrained to withhold assent to a decision that passes in silence what I think presents a serious issue. GRAVER TANK & MFG. CO., INC. ET AL. v. LINDE AIR PRODUCTS CO. ON REHEARING. No. 2. Argued March 30, 1950.-Decided May 29, 1950. 1. This Court affirms the finding of the two courts below that, under the doctrine of equivalents, certain flux claims of Jones patent No. 2,043,960, for an electric welding process and for fluxes, or compositions, to be used therewith were infringed. Pp. 606-612. 2. The essence of the doctrine of equivalents is that one may not practice a fraud on a patent. P. 608. 3. The doctrine of equivalents is founded on the theory that, if two devices do the same work in substantially the same way and accomplish substantially the same result, they are the same, even though they differ in name, form or shape. Pp. 608-609. 4. In determining equivalents, consideration must be given to the purpose for which an ingredient is used in a patent, the qualities it has when combined with other ingredients, the functions which it is intended to perform, and whether persons reasonably skilled. in the art would have known of the interchangeability of an ingredient not contained in the patent with one that was. P. 609. 5. A finding of equivalence is a determination of fact to be made by the trial court; and the trial court's decision should not be disturbed unless clearly erroneous. Pp. 609–610. 6. On the record in this case, involving a claim of a combination of alkaline earth metal silicate and calcium fluoride, the trial court was justified in finding that the substitution in the accused composition of manganese silicate (which is not an alkaline earth metal |