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Bouvier's Law Dictionary, Revised 6th Edition (1856)

PATENT, PRUSSIAN. This subject will be considered by taking a view of the
persons who may obtain patents; the nature of the patent; and the duration
of the right.
2.-Sec. 1, Of the persons who may obtain patents. Prussian citizens
or subjects are alone entitled to a patent. Foreigners can not obtain one.
3.-Sec. 2. Nature of the patents. Patents are granted in Prussia for
an invention when the thing has been discovered or invented by the
applicant. For an improvement, when considerable improvement has been made
to a thing before known. And for importation, when the thing has been
brought from a foreign country and put in use in the kingdom. Patents may
extend over the whole country or only over a particular part.
4.-Sec. 3. Duration of patents. The patent may at the choice of the
applicant, be for any period not less than six months nor more than fifteen
years.


PATENT, ROMAN. The Roman patents will be considered by taking a view of the
persons to whom they may be granted; the different kinds of patents; the
cost of a patent; and the obligations of the patentee.
2.-Sec. 1. To whom patents are granted. Every person, whether a
citizen of the estates of the pope or foreigner, man or woman, adult or
infant, may obtain a patent for an invention, for an improvement, or for
importation, by fulfilling the conditions prescribed in order to obtain a
grant of such titles. Persons who have received a patent from the Roman
government may, afterwards, without any compromise of their rights or
privileges, receive a patent in a foreign country.
3. The different kinds of patents. In the Roman estates there are
granted patents for invention, for improvements, and for importations.
4.-1st. Patents for inventions are granted for, 1. A new kind of
important culture. 2. A new and useful art, before unknown. 3. A new and
useful process of culture or of manufacture. 4. A new natural production. 5.
A new application of a means already, known.
5.-2d. Patents for improvements may be granted for any useful
improvement made to inventions already known and used in the Roman states.
6.-3d, Patents for importations are granted in two cases, namely: 1.
For the introduction of inventions already patented in a foreign country,
and the privilege of which patent yet continues. 2. For the introduction of
an invention known and freely used in a foreign country, but not yet used or
known in the Roman states.
7.-3. Cost of a patent. The cost of a patent is fixed at a certain
sum per annum, without regard to the length of time for which it may have
been granted. It varies in relation to patents for inventions and
importation. It is ten Roman crowns per annum for a patent for invention and
improvement, and of fifteen crowns a year for a patent for importation.
8.-Sec. 4. Obligation of the patentee. He is required to bring into
[?] his invention within one year after the grant of the patent, and not to
suspend the supply for the space of one year during the time the privilege
shall last.
9. He is required to pay one half of the tax or expense of his patent
on receiving his patent, and the other half during the first month of the
second portion of its, duration.


PATENT, construction. That which is open or manifest.
2. This word is usually applied to ambiguities which are said to be
latent, or patent.
3. A patent ambiguity is one which is produced by the uncertainty,
contradictoriness or deficiency of the language of an instrument, so that no
discovery of facts or proof of declaration can restore the doubtful or
smothered sense without adding ideas which the actual words will not of
themselves sustain. Bac. Max. 99 T. Raym. R. 411; Roberts on Fr. 15.
4. A latent ambiguity may be explained by parol evidence, but the rule
is, different with regard to a patent ambiguity, which cannot be explained
by parol proof. The following instance has been proposed by the court as a
patent ambiguity: "If A B, by deed, give goods to one of the sons of J S,
who has several sons, he shall not aver which was intended; for by judgment
of law upon this deed, the gift is void for uncertainty, which cannot be
supplied by averment." 8 Co. 155 a. And no difference exists between a deed
and a will upon this subject. 2 Atk. 239.
5. This rule, which allows an explanation of latent ambiguities, and
which forbids the use of parol evidence to explain a patent ambiguity, is
difficult of application. It is attended, in some instances, with very
minute nicety of discrimination, and becomes a little unsteady in its
application. When a bequest is made "to Jones, son of, Jones," or "to Mrs.
B," it is not easy to show that the ambiguity which this imperfect
designation creates, is not ambiguity arising upon the face of the will, and
as such, an ambiguity patent, yet parol evidence is admitted to ascertain
the persons intended by those ambiguous terms.
6. The principle upon which parol testimony is admitted in these cases,
is probably, in the first of them, a presumption of possible ignorance in
the testator of the christian name of the legatee; and in the second, a
similar presumption of his being in the habit of calling the person by the
name of Mrs. B. Presumptions, which being raised upon the face of the will,
may be confirmed and explained by extrinsic evidence. Rob' on. Fr. 15, 27; 2
Vern. 624, 5; 1 Vern. by Raithby, 31, note 2; 1 Rop. Leg. 147; 3 Stark. Ev.
1000; 3 Bro. C. C. 311 2 Atk. 239; 3 Atk. 257; 3 Ves. Jr. 547. Vide articles
Ambiguity; Latent.


PATENT, contracts. A patent for an invention is a giant made by the
government of the United States to the inventor of any new or useful art,
machine, manufacture or composition of matter, or any new and useful
improvement in any art, machine, manufacture or composition of matter not
known or used by others before his or their discovery or invention thereof,
and not, at the time of his application for a patent, in public use or on
sale, with his consent or allowance, as the inventor or discoverer; securing
to him for a limited time, therein expressed, the full and exclusive right
and liberty of making, constructing, using, and vending to others to be
used, the said invention or discovery, on certain conditions, among which is
the one of at once giving up his secret and making public his discovery or
invention, and the manner of making and using the same, so that at the
expiration of his privilege, it may become public property. The instrument
securing this grant is also called a patent. The subject will be considered
by taking a succinct view of, 1. The legislation of the United States on the
subject. 2. The patentee. 3. The subject to be patented. 4. The caveat and
preliminary proceedings. 5. The proceedings to obtain a patent. 6. The
patent. 7. The duty or tax on patents. 8. Courts having jurisdiction in
patent cases. 9. Actions for violations of patents. Sec. 1. Legislation of
the United States.
2. The constitution of the United States authorizes congress to pass
laws "to, promote the progress of science and the useful arts, by securing,
for limited times, to authors and inventors, the exclusive right of their
respective writings and discoveries." Art. 1, s. 8, n. 8. By virtue of this
authority congress can grant patents to inventors, and it rests in the
sound, discretion of the legislature to say when, and for what length of
time, and under what circumstances the patent for an invention shall be
granted. Congress may, therefore, grant a patent which shall operate
retrospectively by securing to the inventor the use of his invention, though
it was in public use and enjoyed by the community at the time this act was
passed. 3 Sumn. 535; 2 Story, R. 164. The first act passed under this power
is that which established the patent office on the 10th of April, 1790, 1
Story, L. U. S. 80. There were several supplements and modifications to this
first law, namely, the acts passed February 7, 1793, Idem, 300; June 7,
1794, Idem, 363; April 17, 1800, Idem, 753; July 3,1832, 4 Sharsw. cont. of
Story, L. U.S. 2300; July 13, 1832, Idem, 2313.
3. These acts were repealed by the act of July 4, 1836, 4 Sharsw. cont.
Story, L. U. S. 2504, which. enacts:
Sec. 21. That all acts and parts of acts theretofore passed on this
subject be, and the same are hereby repealed: Provided, however, That all
actions and processes, in law or equity sued out prior to the passage of
this act, may be prosecuted to final judgment and execution, in the same
manner as though this act had not been passed, excepting and saving the
application to any such action, of the provisions of the fourteenth and
fifteenth sections of this act, so far as they maybe applicable thereto. And
provided, also, That all applications and petitions for patents, pending at
the time of the passage of this act, in cases where the duty has been paid,
shall be proceeded with and acted on in the same manner as though filed
after the passage thereof.
4. The existing laws on the subject of patents are the act of July 4,
1836, already mentioned; the acts of March 3, 1837; Idem, 2546; March 3,
1839; 9 Laws U. S, 1019; August29,1842; ch. 263, Pamph. Laws, 171; May 27,
1848. Minot's Stat. at Large, U. S. 231. Sec. 2. Of the patentee.
5. Any person or persons having discovered or invented the thing to be
patented, whether he be a citizen of the United States or an alien, is
entitled to a patent on fulfilling the requirements of the law. Act of July
4, 1836, s. 6.
6. By the 10th section of the same act it is provided, That where any
person hath made, or shall have made, any new invention, discovery or
improvement, on account of which a patent might by virtue of this act be
granted, and, such person shall die before any patent shall be granted
therefor, the right of applying for and obtaining such patent shall devolve
on the executor or administrator of such person, in trust for the heirs at,
law of the deceased, in case he shall have died intestate; but if otherwise,
then in trust for his devisees, in as full and ample manner, and under the
same conditions, limitations, and restrictions, as the same was held, or
might have been claimed or enjoyed by such in his or her lifetime; and when
application for a patent shall be made by such legal representatives, the
oath or affirmation provided in the sixth section of this act, shall be so
varied as to be applicable to them.
7. And by the act of March 3, 1837, section 6, it is enacted, That any
patent hereafter to be issued, may be made and issued to the assignee or
assignees of the inventor or discoverer, the assignment thereof being first
entered of record, and the application therefor being duly made, and the
specifications duly sworn to by the inventor. And in all cases, hereafter,
the applicant for a patent shall be held to furnish duplicate drawings,
Whenever the case admits of drawings, one of which to be deposited in the
office, and the other to be annexed to the patent, and considered a part of
the specification.
Sec. 3. The subject to be patented
8. Patents are granted, 1. For inventions and discoveries. 2. For
importations. 1. Patents for inventions and discoveries. By the act, of July
4, 1836, sect. 6, it is enacted, that any person or persons having
discovered or invented any new and useful art, machine,, manufacture, or
composition of matter, or any new and useful improvement on any art,
machine, manufacture, or composition of matter, not known or used by others
before his or their discovery or invention thereof, and not, at the time of
his application for a patent, in public use or on sale, with his consent or
allowance, as the inventor or discoverer, and shall desire to obtain an
exclusive property therein, may make application in writing to the
commissioner of patents, expressing such desire, and the commissioner on due
proceedings had, may grant a patent therefor.
9. The thing to be patented must be an invention Or discovery; it must
be new and useful.
10.-1. The invention or discovery must be something which the inventor
has himself found out; some peculiar device or manner of producing any given
effect. A patent cannot, therefore, be taken out for the elementary
principles of motion, which philosophy and science have discovered, but only
for the manner of applying them. 1 Gallis. 478; 2 Gallis. 51.
11. A patent may be taken out for an improvement on a machine which is
known and used; 3 Wheat. 454; but a mere change of former proportions, will
not entitle a party to a patent. 1 Gallis. 438; 2 Gallis. 51.
12. It is provided by the act of July 4, 1836, s. 13, that whenever the
original patentee shall be desirous of adding the description and
specification of any new improvement of the original invention or discovery
which shall have been invented or discovered by him subsequent to the date
of his patent, he may, like proceedings being had in all respects as in the
case of original applications, and on the payment of fifteen dollars, as
hereinbefore provided, have the same annexed to the original description and
specification; and the commissioner shall certify, on the margin of such
annexed description and specification, the time of its being annexed and
recorded; and the same shall thereafter have the same effect in law, to all
intents and purposes as though it had been embraced in the original
description and specification.
13. And by the act of March 3, 1837, s. 8, that, whenever application
shall be made to the commissioner for any addition of a newly discovered
improvement to be made on an existing patent, or when ever a patent shall be
returned for correction, and re-issue, the specification of claim annexed to
every such patent shall be subject to revision and restriction, in the same
manner as are original applications for patents; the commissioner, shall not
add any such improvement to the patent in the one case, nor grant the re-
issue in the other case, until the applicant shall have entered a
disclaimer, or altered his specification of claim in accordance with the
decision of the commissioner; and in all such cases the applicant, if
dissatisfied with such decision, shall have the same remedy and be entitled
to the benefit of the same privileges and proceedings as are provided by law
in the case of original applications for patents.
14.-2. The thing patented must be a new and useful invention,
discovery or improvement.
15. Among inventors, he who is first in time, has a right to the patent
for the invention. Pet. C. C. R. 394.
16. But by the act of March 3, 1839, sect. 7, it is provided, that every
person or corporation who has, or shill have, purchased or constructed any
newly invented machine, manufacture, or composition of matter, prior to the
application by the inventor or discoverer for a patent, shall be held to
possess the right to use, and vend to others to be used, the specific
machine, manufacture, or composition of matter so made or purchased, without
liability therefor to the inventor, or any other person interested in such
invention; and no patent shall be held to be invalid by reason of such
purchase, sale, or use, prior to the application for a patent as aforesaid,
except on proof of abandonment of such invention to the public; or that such
purchase, sale, or prior use has been for more than two years prior to such
application for a patent.
17. By the term useful invention is meant an invention which may be
applied to some beneficial use in society, in contradistinction to an
invention which is injurious to morals, to the health, or good order of
society. 1 Mason, C. C. R. 302; 4 Wash. C. C; R. 9. The term is also opposed
to that which is frivolous or mischievous. 1 Mason, C. C. R. 182; Renouard,
177; Perpigna, Man. des Inv. c. 2, s. 1, page 50. See 3 Car. & P. 502; 1
Pet. C. C. R. 480; 1 U. S. Law Journ. 563; 1 Paine, 203; 2 Kent, Com. 368,
Dr; Phillim. on Pat. c. 7, s. 14.
18. The act of August 29, 1842, sect, 3, provides that any citizen or
citizens, or alien or aliens, having resided, one year in the United States,
and taken the oath of his or their intention to become a citizen or
citizens, who by his, her, or their own industry, genius, efforts, and
expense, may have invented or produced any new and original design for a
manufacture, whether of metal, or other material or materials, or any new
and original design for the printing of woolen, silk, cotton, or other
fabrics, or any new and original design for a bust, statue, or has relief or
composition in alto or basso relievo, or any new and original impression or
ornament, or to be placed on any article of manufacture, the same being
formed in marble or other material, or any new and useful pattern, or print,
or picture, to be either worked into or worked on, or printed, or painted,
or cast, or otherwise fixed on, any article of manufacture, or any new and
original shape or configuration of ally article of manufacture not known or
used by others before his, her, or their invention or production thereof,
and prior to the time of his, her, or their application for a patent
therefor, and who shall desire or obtain an exclusive Property or right
therein to make, use, and sell and vend. the same, or copies of the same, to
others, by them, made, used, and sold, may make application in writing to
the commissioner of patents, expressing such desire, and the commissioner,
on due proceedings had, may grant a patent therefor, as in the case. now of
application for a patent: Provided, That the fee in such cases which by the
now existing laws would be required of the particular applicant shall be
one-half the sum, and that the duration of said patent shall be seven years,
and that all the regulations and provisions which now apply to the obtaining
or protection of patents not inconsistent with the provision's of this act,
shall apply to applications under this section.
2. Patents for importations.
19. It is enacted by the act of March 3, 1839, s. 6, that no person
shall be debarred from receiving a patent for any invention or discovery, as
provided in the act approved on the fourth day of July, one thousand eight
hundred and thirty-six, to which this is additional, by reason of the same
having been patented in, a foreign country, more than six months prior to
his application: Provided, That the same shall not have been introduced into
public and common use, in the United States, prior to the application for
such patent: And provided, also, That in all cages every such patent shall
be limited to the term of fourteen years from the date or publication of
such foreign letters-patent.
20. And by the act of July 4, 1836, s. 8, it is provided, that nothing
in this act contained shall be, construed to deprive an original and true
inventor of the right to a patent for his invention, by reason of his having
previously taken out letters-patent therefor in a foreign country, and the
same having been published at any time within six mouths next preceding the
filing of his specification and drawing.
4. Of the caveat and other preliminary, proceedings.
21. The act of July 4, 1836, s. 12, provides that any citizen of the
United States, or alien who have been resident in the United States one year
next preceding, and shall have made oath of his intention to become a
citizen thereof, who shall have invented any new art, machine, or
improvement thereof, and shall desire further time to mature the same, may,
on paying to the credit of the treasury, in manner as provided in the ninth
section of this act, the sum of twenty dollars, file in the patent office a
caveat, setting forth the design and purpose thereof, and its principal and
distinguishing characteristics, and praying protection of his right, till he
shall have matured his invention -- which sum of twenty dollars, in case the
person filing such caveat shall afterwards take out a patent for the
invention therein mentioned, shall be considered a part of the sum herein
required for the same. And such caveat shall be filed in the confidential
archives of the office, and preserved in secrecy. And if application shall
be made by any other person within one year from the time of filing such
caveat, for a patent of any invention with which it may in any respect
interfere, it shall be the duty of the commissioner to deposit the
description, specifications, drawings, and model, in the confidential
archives of the office, and to give notice, by mail, to the person filing
the caveat, of such application, who shall, within three months after
receiving the notice, if he would avail himself of the benefit of his caveat,

file his description, specifications, drawings, and model: and if, in the
opinion of the commissioner, the specifications of claim interfere with each
other, like proceeding& may be had in all respects as are in this act
provided in the case of interfering applications: Provided, however, That no
opinion or decision of any board of examiners, under the provisions of this
act, shall preclude any person interested in favor of or against the
validity of any patent which has been or may hereafter be granted, from the
right to contest the same in any judicial court in any action in which its,
validity may come in question.
22. And the same act, s. 8, directs, that whenever, the applicant shall
request it, the patent shall take date from the time of the filing of the
specification and drawings, not however, exceeding six mouths prior to the
actual issuing of the patent; and on like request, and the payment of the
duty herein required, by any applicant, his specification and drawings shall
be filed in the secret archives of the office, until he shall furnish the
model and the patent be issued, not exceeding the term of one year, the
applicant being entitled to notice of interfering application.
Sec. 5. Of the proceedings to obtain a patent.
23. This section will be divided by considering the proceedings when
there is no opposition, and when there are conflicting claims.
1. Proceedings without opposition
24. The sixth section of the act of July 4, 1836, directs, that before
any inventor shall receive a patent for any such new invention or discovery,
he shall deliver a written description of his invention or discovery, and of
the manner and process of making, constructing, using, and compounding the
same, in such full, clear, and exact terms, avoiding unnecessary prolixity,
as to enable any person skilled in the art or science to which it
appertains, or with which it is most nearly connected, to make, construct,
compound, and use the same; and in case of any machine, he shall fully
explain the principle and the several modes in which he has contemplated the
application of that principle or character by which it may be distinguished
from other inventions and shall particularly specify and point out the part,
improvement, or combination, which he claims as his own invention or
discovery. He shall, furthermore, accompany the whole with a drawing, or
drawings, and written references, where the nature of the case admits of
drawings, or with specimens of ingredients, and of the composition of
matter, sufficient in quantity for the purpose of experiment, where the
invention or discovery is of a composition of matter; which descriptions and
drawings, signed by the inventor and attested by two witnesses; shall be
filed in the patent office; and be shall, moreover, furnish a model of his
invention, in all cases which admit of a representation by model, of a
convenient size to exhibit advantageously its several parts. The applicant
shall also make oath or affirmation that he does verily believe that he is
the original and first inventor or discoverer of the art, machine,
composition, or improvement, for which he solicits a patent, and that he
does not know or believe that the same was ever known or used; and also of
what country he is a citizen; which oath or affirmation may, be made before
any person authorized by law to administer oaths.
25. The fourth section of the act of August 29, 1842, provides that the
oath required for applicants for patents, may be taken, when the applicant
is not, for the time being, residing in the United States, before any
minister plenipotentiary, charge d affaires; consul, or commercial agent,
holding a commission under the government of the United States, or before
any notary public of the country in which such applicant may be.
26. And the act of March 3, 1837, sect. 13, provides that in all cases
in which an oath is required by this act, or by the act to which this is
additional, if the person of whom it is required shall be conscientiously
scrupulous of taking an oath, affirmation may be substituted therefor.
27. The seventh section of the act of July 4, 1836, further enacts, that
on the filing of any such application, description, and specification, and
the payment of the duty hereinafter provided, the commissioner shall make or
cause to be made, an examination of the alleged new invention or discovery;
and if, on any such examination, it shall not appear to the commissioner
that the same had been invented or discovered by any other person in this
country prior to the alleged invention or discovery thereof by the
applicant, or that it had been patented or described in any printed
publication in this or any foreign country, or had been in public use or on
sale with the applicant's consent or allowance prior to the application, if
the commissioner shall deem it to be sufficiently useful and important, it
shall be his duty to issue a patent therefor. But whenever on such
examination it shall appear to the commissioner that the applicant wag not
the original and first inventor or discoverer thereof, or that any part of
that which is claimed as new had before been invented or discovered, or
patented, or described in any printed, publication in this or any foreign
country, as aforesaid, or that the description is defective and
insufficient, he shall notify the applicant thereof, giving him, briefly,
such information and, references as may be useful in judging of the
propriety of renewing his application, or of altering his specification to
embrace only that part of the invention or discovery which is new. In every
such case, if the applicant shall elect to withdraw his application,
relinquishing his claim to the model, he shall be entitled to receive back
twenty dollars part of the duty required by this act, on filing a notice in
writing of such election in the patent office, a copy of which, certified by
the commissioner, shall be a sufficient warrant to the treasurer for paying
back to said applicant the said sum of twenty dollars. But if the said
applicant in such case shall persist in his claim for a patent, with or
without any alteration of his specification, he shall be required to make
oath or affirmation anew in manner as aforesaid. And if the specification
and claim shall not have been so modified as in the opinion of the
commissioner, shall entitle the applicant to a patent, he may, on appeal,
and upon request in writing, have the decision of the board of examiners, to
be composed of three disinterested persons, who shall be appointed for that
purpose by the secretary of state, one of whom at least, to be selected, if
practicable and convenient, for his knowledge and skill in the particular
art, manufacture, or branch of science to which the alleged invention
appertains; who shall be under oath or affirmation for the faithful and
impartial performance of the duty imposed upon them by said appointment.
Said board shall be furnished with a certificate in writing, of the opinion
and decision of the commissioner, stating the particular grounds of his
objection, and the part or parts of the invention which he considers as not
entitled to be patented. And the same board shall give reasonable notice to
the applicant, as well as to the commissioner of the time and place of their
meeting; that they may have an opportunity of furnishing them with such
facts and evidence as they may deem necessary to. a just decision; and it
shall be the duty of the commissioner to furnish to the board of examiners
such information as he may possess relative to the matter under their
consideration. And on an examination and consideration of the matter by such
board, it shall be in their power, or of a majority of them, to reverse the
decision of the commissioner, either in whole or in part; and their opinion
being certified to the commissioner, he shall be governed thereby, in the
further proceedings to be had on such application: Provided, however, That
before a board shall be instituted in any such case, the applicant shall pay
to the credit of the treasury, as provided in the ninth section of this act,
(see 47,) the sum of twenty-five dollars, and each of said persons so
appointed shall be entitled to receive for his services in each case, a sum
not exceeding ten dollars, to be determined and paid by the commissioner out
of any moneys in his hands, which shall be in full compensation to, the
persons who may be so appointed, for their examination and certificate as
aforesaid.
28. By the twelfth section of the act of March 3, 1839, the commissioner
of patents is vested with power to make all such regulation's in respect to
the taking of evidence to be used in contested leases before him, as may be
just and reasonable and so much of the act of July 4, 1836, as provides for
a board of examiners, is thereby repealed.
29. And by the same act, sect. 11, it is provided, that in all cases
where an appeal is now. allowed by law from the decision of the commissioner
of patents to a board of examiners provided for in the seventh section of
the act to which this is additional, the party, instead thereof, shall have
a right to appeal to the chief justice of the district court of the United
States for the district of Columbia, by giving notice thereof to the
commissioner, and filing in the patent office, within such time as the
commissioner shall appoint, his reasons of appeal, specifically set forth in
writing, and also paying into the patent office, to the credit of the patent
fund, the sum of twenty-five dollars. And it shall be the. duty of said
chief justice, on petition, to hear and determine all such appeals, and to
revise such decisions in a summary manner, on the evidence produced before
the commissioner, at such early and convenient time as he may appoint, first
notifying the commissioner of the time and place of hearing, whose duty it
shall be to give notice thereof to all parties who appear to be interested
therein, in such manner as said judge shall prescribe. The commissioner
shall also lay before the said judge all the original papers and evidence in
the case, together with the grounds of his decision, fully set forth in
writing, touching all the points involved by the reasons of appeal, to which
the revision shall be confined. And at the request of any party interested,
or at the desire of the judge, the commissioner and the examiners in the
patent office, may be examined under oath, in explanation of the principles
of the machine, or other thing for which a patent, in such case, is prayed
for. And it shall be the duty of said judge after a hearing of any such
case, to return all the papers to the commissioner, with a certificate of
his proceedings and decision, which shall be entered of record in the patent
office; land such decision, so certified, shall govern the further
proceedings of the commissioner in such case, Provided, however, That no
opinion or decision of the judge in any such case, shall preclude any person
interested in favor or against the validity of any patent, which has been or
way hereafter be granted, from the right to contest the same in any judicial
court, in any action in which its validity may come in question.
2. When there are conflicting claims.
30. It is enacted by the 8th section of the act of July 4, 1836, that
whenever an application shall be made for a patent, which, in the opinion of
the commissioner, would interfere with any other patent for which an
application may be pending, or with any unexpired patent which shall have
been granted, it shall be the duty of the commissioner to give notice
thereof to such applicants or patentees; as the case maybe; and if either
shall be dissatisfied with the decision of the commissioner on the question
of priority, right or invention, on a hearing thereof, he may appeal from
such decision, on the like terms and conditions as are provided in the
preceding section of this act and like proceedings, shall be had, to
determine which, or whether either of the applicants is entitled to receive
a patent as prayed for.
31. And by the 16th section of the same act, that whenever there shall
be two interfering patents, or whenever a patent on application shall have
been refused on an adverse decision of a board of examiners, on the ground
that the patent applied for would interfere with an unexpired patent
previously granted, any person interested in any such patent, either by
assignment or otherwise, in the one case, and any such applicant in the
other, may have remedy by bill in equity; and the court having cognizance
thereof, on notice to adverse parties and other due proceedings had, may
adjudge and declare either the patents void in whole or in part, or
inoperative and invalid in any particular part or portion of the United
States, according to the interest which the parties in such suit may possess
in the patent or the inventions patented, and may also adjudge that such
applicant is entitled, according to the principles and provisions of this
act, to have and receive a patent for his invention, as specified in his
claim, or for any part thereof, as the fact of priority of right or
invention shall in any such case be made to appear. And such adjudication,
if it be in favor of the right of such applicant, shall authorize the
Commissioner to issue such patent, on his filing a copy of the adjudication,
and otherwise complying with the requisitions of this act. Provided,
however, that no such judgment or adjudication shall affect the rights of
any persons except the parties to the action and those deriving title from
or under them subsequent to the rendition of such judgment. And the
commissioner is vested by the 12th section of the act of March 3, 1839, with
powers to make such rules and regulations in respect to the taking of
evidence to be used in contested cases before him, as may be just and
reasonable.
32. The act of March 3, 1839, section 10, provides, that the provisions
of the sixteenth section of the before recited act shall extend to all cases
where the patents are refused for any reason whatever, either by the
commissioner of patents or by the chief justice of the district of Columbia,
upon appeals from the decision of said commissioner, as well as where the
same shall have been refused on account of, or by reason of interference
with a previously existing patent; and in all cases where there is ne
opposing party, a copy of the bill shall be served upon the commissioner of
patents, when the whole of the expenses of the proceeding shall be paid by
the applicant, whether the final decision shall be in his favor or
otherwise.
Sec. 6. Of the patent.
33. This section will be divided by considering, 1. The form of the
patent. 2. The correction of the patent. 3. The special provisions of the
acts of congress occasioned by the burning of the patent office. 4. The
disclaimer. 5. The assignment of patents. 6. The extension of the patent. 7.
The requisites to be observed after the granting of a patent to secure it.
1. Form of the patent.
34. The patent is to be issued in the form prescribed by the act of
congress. The fifth section of the act of July 4, 1836, directs, that all
patents issuing from said office shall be issued in the name of the United
States, and under the seal of said office, and be signed by the secretary of
state, and countersigned by the commissioner of the said office, and shall
be recorded, together with the descriptions, specifications and drawings, in
the said office, in books to be kept for that purpose. Every such patent
shall contain a short description or title of the invention or discovery,
correctly indicating its nature and design, and in its terms grant to the
applicant or applicants, his or their heirs, administrators, executors or
assigns, for a term not exceeding fourteen years, the full and exclusive
right and liberty of making, using, and vending to others to be used, the
said invention or discovery, referring to the specifications for the
particulars thereof, a copy of which shall be annexed to the patent,
specifying what the patentee claims as his invention or discovery. It is
usually dated at the time of issuing it, but by a provision of the last
mentioned act, section 8, whenever the applicant shall request it, the
patent shall take date, from the time of filing, the specification and
drawings, not, however, exceeding six months prior to the actual issuing of
the patent.
2. Correction of patent.
35. It is provided by the thirteenth section of the act of July. 4,
1836, that whenever any patent which has heretofore been granted, or which
shall hereafter be granted, shall be inoperative or invalid, by reason of a
defective or insufficient description or specification, or by reason of the
patentee claiming in his specification as his own invention, more than he
had or shall have a right to claim as new; if the error has, or shall have
arisen b y inadvertency, accident or mistake, and without any fraudulent or
deceptive intention, it shall be lawful for the commissioner, upon the
surrender to him of such patent, and the payment of the further duty of
fifteen dollars, to cause a new patent to be issued to the said inventor,
for the same invention, for the residue of the period then unexpired for
which the original patent was granted, in accordance with the patentee's
corrected description and specification. And in the event of his death, or
any assignment by him made of the original patent, a similar right shall
vest in his executors, administrators, or assignees. And the patent, so
reissued, together with the corrected description and specification, shall
have the same effect and operation in law, on the trial of all actions,
hereafter commenced for causes subsequently accruing, as though the same had
been originally filed in such corrected form, before the issuing out of the
original patent. And whenever the original patentee shall be desirous of
adding the description and specification of any new improvement of the
original invention or discovery which shall have been invented or discovered
by him subsequent to the date of his patent, he may, like proceedings being
had in all respects as in the case of original applications, and on the
payment of fifteen dollars, as hereinbefore provided, have the same annexed
to the original description and specification; and, the commissioner shall
certify, on the margin of such annexed description and specification, the
time of its being annexed and recorded; and the same shall thereafter have
the same effect in law, to all intents and purposes, as though it had been
embraced in the original description and specification.
36. And it is enacted by the act of March 3, 1837, section 5, that,
whenever a patent shall be returned for correction and reissue under the
thirteenth section of the act to which this is additional, and the patentee
shall desire several patents to be issued for distinct and separate parts of
the thing patented, he shall first pay, in manner and in addition to the sum
provided by that act, the sum of thirty dollars for each additional patent
so to be issued; Provided, however, that no patent made prior to the
aforesaid fifteenth day of December, 1836, shall be corrected and reissued
until a duplicate of the model and drawing of the thing as originally
invented, verified by oath as shall be required by the commissioner, shall
be deposited in the patent office: Nor shall any addition of an improvement
be made to any patent heretofore granted, nor any new patent to be issued
for an improvement made in any machine, manufacture, or process, to the
original inventor, assignee or possessor, of a patent therefor, nor any
disclaimer be admitted to record, until a duplicate model and drawing of the
thing originally intended, verified as aforesaid, shall have been deposited
in the patent office, if the commissioner shall require the same; nor shall
any patent be granted for an invention, improvement, or discovery, the model
or drawing of which shall have been lost, until another model and drawing,
if required by the commissioner, shall, in like manner, be deposited in the
patent office:
37. And in all such cases, as well as in those which may arise under the
third section of this act, the question of compensation for such models and
drawings, shall be subject to the judgment and decision of the commissioners
provided for in the fourth section, under the same limitations and
restrictions as are therein prescribed.
3. Special provisions occasioned by the burning the patent office.
38. The act of March 3, 1837, was passed to remedy the inconveniences
arising from the burning of the patent office. It is enacted,
39.-Sect. 1. That any person who may be in possession of, or in any way
interested in, any patent for an invention, discovery, or improvement,
issued prior to the fifteenth day of December, in the year of our Lord one
thousand eight hundred and thirty-six, or in an assignment of any patent, or
interest therein, executed, and recorded prior to the said fifteenth day of
December, may, without charge, on presentation or transmission thereof to
the commissioner of patents, have the same recorded anew in the patent
office, together with the descriptions, specifications of claim and drawings
annexed or belonging to the same; and it shall be the duty of the
commissioner to cause the same, or any authenticated copy of the original
record, specification, or drawing which he may obtain, to be transcribed and
copied into books of record to be kept for that purpose; and wherever a
drawing was not originally annexed to the patent and referred to in the
specification and drawing produced as a delineation of the invention, being
verified by oath in such manner as the commissioner shall require, may be
transmitted and placed on file, or copied as aforesaid, together with the
certificate of the oath; or such drawings may be made in the office, under
the direction of the commissioner, in conformity with the specification. And
it shall be the duty of the commissioner to take such measures as may be
advised and determined by the board commissioners provided for by the fourth
section, of this act, to obtain the patents, specifications, and copies
aforesaid, for the purpose of being so transcribed and recorded. And it
shall be the duty of each of the several clerks of the judicial courts of
the United States, to transmit, as soon as may be, to the commissioner of
the patent office, a statement of all the authenticated copies of patents,
descriptions, specifications, and drawings of inventions and discoveries
made and executed prior to the aforesaid fifteenth day of December, which
may be found on the files of his office; and also to make out and transmit
to said commissioner for record as aforesaid, a certified copy of every such
patent, description, specification, or drawing, which shall be specially
required by such commissioner.
40.-Sect. 2. That copies of such record and drawings, certified by the
commissioner, or, in his absence, by the chief clerk, shall be prima facie
evidence of the particulars of the invention and of the patent granted
therefore, in any judicial court of the United States, in all cases where
copies of the original record or specification and drawings would be
evidence, without proof of the loss of such originals and no patent issued
therefor by the patentee or other person prior to the aforesaid, fifteenth
day of December, shall, after the first day of June next, be received in
evidence in, any of the said courts in behalf of the patentee or other
person who shall be in possession of the same, unless it shall have been so
recorded anew, and a drawing of the invention, if separate from the patent,
verified as, aforesaid, deposited in the patent office; nor shall any
written assignment of any such patent, executed and, recorded prior to the
said fifteenth day of December, be received in evidence in any of the said
courts in behalf of the assignee or other person in possession thereof,
until it shall have been so recorded anew.
41.-Sect. 3. That whenever it shall appear to the commissioner that any
patent was destroyed by the burning of the patent office building on the
aforesaid fifteenth day of December, or was otherwise lost prior thereto, it
shall be his duty, on application terested therein, to issue a new patent
for the same invention or discovery bearing the date of the original patent,
with his certificate thereon that it was made and issued pursuant to the
provisions of the third section of this act, and shall enter the same of
record: Provided, however, That before such patent shall be issued, the
applicant therefor shall deposit in the patent office a duplicate, as near
as may be, of the original model, drawings, and description, with
specification of the invention or discovery, verified by oath, as shall be
required by the commissioner; and such patent and copies of such drawings
and descriptions, duly certified, shall be admissible as evidence in any
judicial court of the United States, and shall protect the rights of the
patentee, his administrators, heirs and assigns, to the extent only in which
they would have been protected by the original patent and specification.
42. The act of August 29, 1842, sect. 2, extends the provisions of the
last section to patents granted prior to the said fifteenth day of December,
though they may have been lost subsequently; provided, however, the same
shall not have been recorded anew under the provisions of said act.
4. Of the disclaimer.
43. The act of March 3, 1837 sect. 7, authorizes any patentee who shall
have, through inadvertence, accident, or mistake, made his specification of
claim too broad, claiming more than that of which he was the original or
first inventor, some material and substantial part of the thing patented
being truly and justly his own, any such patentee, his administrators,
executors, and assigns, whether of the, whole or of a sectional interest
therein, may make disclaimer of such parts of the thing patented as the
disclaimant shall not claim to hold by virtue of the patent or assignment,
stating therein the extent of his interest in, such patent; which disclaimer
shall be in writing, attested by one or more witnesses, and recorded in the
patent office, on payment by the person disclaiming, in manner as, other
patent duties are required by law to be paid, of the sum of ten dollars. And
such disclaimer shall thereafter be taken and considered as part of the
originals specification, to the extent of the interest which shall be
possessed in the patent or right secured thereby, by the disclaimant, and by
those claiming by or under him subsequent to the record thereof. But no such
disclaimer shall affect any action pending at the time of its being filed,
except so far as may relate to the question of unreasonable neglect or delay
in filing the same.
5. Assignment of patents.
44. By virtue of the act of July 4, 1836, sect. 11, every patent shall
be assignable in law, either as to the whole interest, or, any undivided
part thereof, by any instrument in writing; which assignment, and also every
grant and conveyance of the exclusive right under any patent, to make and
use, and to grant to others to make and use, the thing patented within and
throughout any, specified part or portion of the United States, shall be
recorded in the patent office within three months from the execution
thereof. This act required the payment of a fee of three dollars to be paid
by the assignee, but this provision has been repealed by the act of March 3,
1839, s. 8, and such assignments, grants, and conveyances, shall, in future,
be recorded without any charge whatever. But, by the act of May 27, 1848,
Minot's. Stat. at Large, U. S. 231, it is enacted, That hereafter the
commissioner of patents shall require a fee of one dollar for recording any
assignment, grant or conveyance, of the, whole or any part of the interest
in letters-patent, or power of attorney, or license to make or use the
things patented, when such instrument shall not exceed three hundred words;
the sum of two dollars when it shall exceed three hundred, and shall not
exceed one thousand words and the sum of three dollars when it shall exceed
one thousand words; which fees shall in all cases be paid in advance.
6. The extension of the patent.
45. The act of July. 4, 1836, sect. 18; directs, That whenever any
patentee of an invention or discovery shall desire an extension of his
patent beyond the term of its limitation, be may make application therefor,
in writing, to the commissioner of the patent office, setting forth the
grounds thereof, and the commissioner shall, on the applicant's paying the
sum of forty dollars to the treasury, as in the case of an original
application, for a patent, cause to be published, in one or more of the
principal newspapers in the city of Washington, and in such other paper or
papers as he may deem proper, published in the section of country most
interested adversely to the extension of the patent, a notice of such
application and of the time and place when and where the same will be
considered, that any, person may appear and show cause why the extension
should not be granted. And the secretary of state, the commissioner of the
patent office, and the solicitor of, the treasury, shall constitute a board
to hear and decide upon the evidence produced before them both for and
against the extension, and shall sit for that purpose at the time and place
designated in the published notice thereof. The patentee shall furnish to
said board a statement, in writing, under oath, of the ascertained value of,
the invention, and of his receipts and expenditures, sufficiently in detail
to exhibit a true and faithful account of loss and profit in any manner
accruing to him from and by reason of said invention. And if, upon a hearing
of the matter, it shall appear to the full and entire satisfaction of said
board, having due regard to the public interest therein, that it is just and
proper that. the term of the patent should be extended by reason of the
patentee, without neglect or fault on his part, having failed to obtain,
from the use and sale of his invention, a reasonable remuneration for the
time, ingenuity and expense bestowed upon the same, and the introduction
thereof into use, it shall be the duty of the commissioner to renew and
extend the patent, by making a thereon of such extension, for the term of
seven years from and after the expiration of the first term; which
certificate, with a certificate of said board of their judgment and opinion
as aforesaid, shall be entered on record in the patent office; and thereupon
the said patent shall have the same effect in law as though it had been
originally granted for the term of twenty-one years. And the benefit of
such, renewal shall extend to assignees and grantees of the right to use the
thing patented, to the extent of their respective interest therein:
Provided, however, That no extension of a patent shall be granted after the
expiration of the term for which it was originally issued.
7. Requisites to secure the patent.
46. The act of August 29, 1842, section 6, requires, That all patentees
and and assignees of patents hereafter granted, are hereby required to
stamp, engrave, or cause to be stamped or engraved, on each article vended,
or offered for sale, the date of the patent; and if any person or persons,
patentees, or assignees, shall neglect to do so, he, she, or they, shall be
liable to the same penalty, to be recovered and disposed of in the manner
specified in the foregoing fifth section of this act. See 49.
Sec. 7. Duty or tax on patents.
47. The tax or duty on patents is not the same in all cases, foreigners
being required to pay a greater sum than citizens, and the subjects of the
king of Great Britain a greater sum than other foreigners. The ninth section
of the act of July 4, 1836, requires, That before any application for a
patent can be considered by the commissioner as aforesaid, the applicant
shall pay into the treasury of the United States, or into the patent office,
or into any of the deposit banks to the credit of the treasury, if he be a
citizen of the United States, or an alien, and shall have been resident in
the United States for one year next preceding, and shall have made oath of
his intention to become a citizen thereof, the sum of thirty dollars; if a
subject of the king of Great Britain, the sum of five hundred dollars; and
all other persons the sum of three hundred dollars, for which payment
duplicate receipts shall be taken, one of which to be filed in the office of
the treasurer. And the moneys received into the treasury under this act,
shall constitute a fund for the payment of the salaries of the officers and
clerks herein provided for, and all other expenses of the patent office, and
to be called the patent fund.
48. When an applicant withdraws his application before the issuing of
the patent, he is entitled to receive back twenty dollars of the sum he may
have paid into the treasury. Act of July 4, 1836, sect. 7. And the act of
March 3, 1837, section 12, enacts, That whenever the application of any
foreigner for a patent shall be rejected and withdrawn for want of novelty
in the invention, pursuant to the seventh, section of the act to which this
is additional, the certificate thereof of the commissioner shall be a
sufficient warrant to the treasurer to pay back to such applicant two-thirds
of the duty he shall have paid into the treasury on account of such
application. When money has been paid by mistake, as for foes accruing at
the patent office, it must, by the direction of the act of August 29, 1842,
section 1, be refunded.
Sec. 8. Penalty for use of patentee's marks.
49. The act of August 29, 1842, s. 5, declares, That if any person or
persons shall paint or print, or mould, cast, carve, or engrave, or stamp,
upon any thing made, used, or sold, by him, for the sole making or selling
which he hath not or shall not have obtained letters-patent, the name or any
imitation of the namer of any other person who hath or shall have obtained
letters-patent for the sole making and vending of such thing, without
consent of such patentee or his assigns or legal representatives; or if any
person, upon any such thing not having been purchased from the patentee, or
some person who purchased it from or under such patentee, or not having the
license or consent of such patentee, or his assigns or legal
representatives, shall write paint, print, mould, carve, engrave, stamp, or
otherwise make or affix the word "patent," or the words "letters-patent," or
the word "patentee," or any word or words of like kind, meaning, or import,
with the view or intent of imitating or counterfeiting the stamp, mark, or
other device of the patentee, or shall affix the same or any word, stamp, or
device, of like import, on any unpatented article, for the purpose of
deceiving the public, he, she, or they, so offending, shall be liable for
such offence, to a penalty of not less than one hundred dollars, with costs,
to be recovered by action in any of the circuit courts of the United States,
or in any of the district courts of the United States, having the powers and
jurisdiction of a circuit court; one-half of which penalty, as recovered,
shall be paid to the patent fund, and the other half to any person or
persons who shall sue for the same.
Sec. 9. Courts having jurisdiction in patent cases.
50. It is enacted by the 17th section of the act of July 4, 1836, That
all actions, suits, controversies, and cases arising under any law of the
United States, granting or confirming to inventors the exclusive right to
their inventions or. discoveries, shall be originally cognizable, as well in
equity as at law, by the circuit courts of the United States, or any
district court having the powers and jurisdiction of a circuit court which
courts shall have power, upon bill in equity filed by any party aggrieved,
in any such case, to grant injunctions, according to the course and
principles of courts of equity, to prevent the violation of the rights of
any inventor as secured to him by any law of the United States on such terms
and conditions as said courts may deem reasonable: Provided, however, That
from all judgments and decrees, from. any, such court rendered in the
premises, a writ of error or appeal, as the case may require, shall lie to
the supreme court of the United States, in the same manner and under the
same circumstances as is now Provided by law in other judgments and decree,
of circuit courts, and in all other case's in which the court shall deem, it
reasonable to allow the same.
Sec. 10. Actions for violation of patent rights.
51. The act of July 4, 1836, section 14, provides, That whenever in any
action for damages for making, using, or selling the thing whereof the
exclusive right is secured by any patent heretofore granted, or by any
patent which may hereafter be granted, a verdict shall be rendered for the
plaintiff in such action, it shall be in the power of the court to render
judgment for any sum above the amount found by such verdict as the actual
damages sustained by the plaintiff, not exceeding three times the amount
thereof, according to the circumstances of the case, with costs; and such
damages may be recovered by action on the case, in any court of competent
jurisdiction, to be brought in the name or names of the person or persons
interested, whether as patentee, assignees, or as grantees of the exclusive
right within and throughout a specified part of the United States.
52.-Sect. 15. That the defendant in any such action shall be permitted
to plead the general issue, and to give this act, and any special matter in
evidence, of which notice in writing may have been given to the plaintiff or
his attorney, thirty days before trial, tending to prove that the
description and specification filed by plaintiff does not contain the whole
truth relative to his invention or discovery, or that it contains more than
is necessary to produce the described effect; which concealment or addition
shall fully appear to have, been made for the purpose of deceiving the
public, or that the patentee was not, the original and first inventor or
discoverer of the thing patented, or of a substantial and material art
thereof claimed as new, or that it had teen described in some public work
anterior to the supposed discovery thereof by the patentee, or had been in
public use, or on sale with the consent and allowance of the patentee before
his application for a patent, or that, he had surreptitiously or unjustly
obtained the patent for that which was in fact invented or discovered by
another, who was using reasonable diligence in adapting and perfecting the
same; or, that the patentee if an alien at the time the patent was granted,
had failed and neglected for the space of eighteen months from the date of
the patent, to put and continue on sale to the public, on reasonable terms,
the invention or discovery for which the patent issued; in either of which
cases judgment shall be rendered for the defendant, with costs. And whenever
the defendant relies in his defence on the fact of a previous invention,
knowledge, or use of the thing patented, be shall state, in his notice of
special matter, the names and places of residence of those whom he intends
to prove to have possessed a prior knowledge of the thing and where the same
had been used: Provided, however, that whenever it shall satisfactorily
appear that the patentee, at the time of making his application for the
patent, believed himself to be the first inventor or discoverer of the thing
patented the same shall not be held to be void on account of the invention
or discovery or any part thereof having been before known or used in any
foreign country, it not appearing that the same or any substantial part
thereof, had before been patented or described in any printed publication.
And provided, also, that whenever the plaintiff shall fail to sustain his
action on the ground that in his specification of claim is embraced more
than that of which he was the first inventor, if it shall appear that the
defendant had used or violated any part of the invention justly and truly
specified and claimed as new, it shall be in the power of the court to
adjudge and award as to costs as may appear to be just and equitable.
53. This last section has been modified by the act of March 3, 1837,
which enacts as follows: Section 9, That anything in the fifteenth section
of the act to which this is additional to the contrary notwithstanding That,
whenever by mistake, accident, or inadvertence, and without any willful
default or intent to defraud or mislead the public, any patentee shall have
in his specification claimed to be the original and first inventor or
discoverer of any material or substantial part of the thing patented, of
which he was not the first and original inventor, and shall have no legal or
just right to claim the same in every such, case the patent shall be deemed
good and valid for so much of the invention or discovery as shall be truly
and bona fide his own: Provided, it shall be a material and substantial part
of the thing patented, and be definitely distinguishable from the other
parts so claimed without right as aforesaid. And every such patentee, his
executors, administrators and assigns, whether of the whole or of a
sectional interest therein, shall be entitled to maintain a suit at law or
in equity on such patent for any infringement of such part of the invention
or, discovery as shall be bona fide his own as aforesaid, notwithstanding
the specification may embrace more than he shall have any legal right to
claim. But, in every such case in which a judgment or verdict shall be
rendered for the plaintiff he shall not be entitled to recover costs against
the defendant, unless he shall have entered at the patent office, prior to
the commencement of the suit, a disclaimer of all that part of the thing
patented which were so claimed without right: Provided, however, That no
person bringing any such suit shall be entitled to the benefits of the
provisions contained in this section, who shall have unreasonably neglected
or delayed to enter at the patent office a disclaimer as aforesaid. See Bac.
Ab. Monopoly Id. Prerogative, F 4; Phill. on Pat.; Fessend. on Pat.; Carpm.
on Pat.; Hand on Pat.; Webst. on Pat; Coll. on Pat.; Gods. on Pat.; Holr. on
Pat.; Smith on Pat.; Drewry's Patent Law Abandonment Act; Davies' Collection
of Cases on the Law of Patents; Rankin's Analysis of the Law of Patents.
Among the French writers are Perpigna on Patents; written in English'; and
the Manuel of the same author, in French; and the works of Renouard, Dalloz,
Molard, and Regnault. See the various Digests and particularly Peters'
Digest, h.t.