Lapas attēli
PDF
ePub

or branch of science to which the alleged invention appertains.” The commissioner is to furnish this board with his objections to the application in writing. The applicant is to be heard by the board, which may, if a majority sees fit, reverse the decision of the commissioner in whole or in part, and their opinion being certified to the commissioner, he is to be governed by it as to any further proceedings to be had on the application. The applicant is to pay twenty-five dollars towards the expenses, the examiners being entitled to receive not over ten dollars each.

By the 8th section of the same law, it is no objection to an application that the applicant has taken out foreign letters patent, and that they have been published within six months preceding his application.

By the same section, on the request of the applicant, his specification and drawings may be filed secretly in the office not longer than one year, and on the model being furnished, the patent may issue, dated back at the time of the specification, not exceeding, however, six months. He is, in such case, entitled to notice of any interfering application for a patent.

It is provided, by the same section, that interfering applications, or an application supposed by the commissioner to interfere with any subsisting patent, may be referred to a board of examiners appointed as above.

It is provided by the 12th section of this law, that any citizen of the United States, or alien who shall have been resident in the United States one year next preceding, and who 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 file in the patent office a caveat, setting forth the design and purpose thereof, and its distinguishing characteristics, and praying protection of his right, till he shall have matured his invention. 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 descriptions, 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 proceedings may be had as in case of interfering applications.

CHAPTER IX.

Divers Patents for the same Invention. The joining of

divers Inventions in the same Patent. Patent for a part of an Invention.

Sec. 1. Divers valid Patents cannot be taken out for

the same thing 2. Patent for a Combination, and for the separate

Things combined.
3. Distinct Inventions cannot be joined in the same

Patent.
4. Patent for a part of a Machine.

Sec. I.-DIVERS VALID PATENTS CANNOT BE TAKEN

OUT FOR THE SAME THING. It is a well settled doctrine, that divers valid patents cannot be taken out for the same invention, whether by the same or by different patentees.

That different patentees cannot take independent valid patents for the same thing, follows from what has already been said on the subject of patents, in a preceding chapter, where it is stated that the invention must be new and original, and prior to any other invention of the same thing, in order to be the subject of a valid patent, which necessarily excludes the possibility of two valid patents for the same thing. It is also inconsistent with the character of a patent as an exclusive privilege.

This doctrine has been particularly laid down by Mr. Justice Story. He says, “I have very great doubts, whether, when a patent is once granted to any person for an invention, he can legally acquire any right under a subsequent patent for the same invention, unless his first patent be repealed for some original defect, so that it might truly be said to be a void patent.” In a subsequent case the same judge says more positively, “ An inventor can have but a single valid patent for his invention; and the first he obtains, while it remains unrepealed, is an estoppel to any future patent for the same invention founded upon the general patent act. If the patentee could successively take out, at different times, new patents for the same invention, he might perpetuate his exclusive right during a century, whereas the patent act confines this right to fourteen years from the date of the first patent. If such a proceeding could obtain countenance, it would completely destroy the whole consideration derived by the public for the grant of the patent, viz. the right to use the invention at the expiration of the term specified in the original grant."

The same judge says, that “a grant of a subsequent patent for an invention, is an estoppel to the patentee to set up any prior grant for the same in

2

· Barrett v. Hall, 1 Mason, 473.
? Odiorne v. the Amesbury Nail Factory, 2 Mason, 28.

3

vention, which is inconsistent with the terms of the last grant.

But it seems rather that the prior patent should be an estoppel to set up a subsequent one; for the latter, according to the above doctrine, would be void as long as the former should remain unrepealed; and the same learned judge so lays down the doctrine in the case just cited. “A joint patent may well be granted upon a joint invention. There is no difficulty in supposing, in point of fact, that a complicated invention may be the gradual result of the combined mental operations of two persons acting together pari passu, in the invention. And if this be true, then as neither of them could justly claim to be the sole inventor in such a case, it must follow, that the invention is joint, and that they are jointly entitled to a patent. And so are the express words of the act of 1793, c. 156, s. 1, which declares, that if any person or persons shall allege that he or they have invented, &c., a patent shall be granted to him or them for the invention."

On the principles above stated, the same person cannot, at the same time, be the joint and separate patentee of the same thing. A joint patent for an invention,” says Mr. Justice Story, “is utterly inconsistent with several patents for the same inven

9 Barrett v. Hall, 1 M on, 473. * Odiorne v. Amesbury Nail Factory, supra, p. 213. > Barrett v. Hall, 1 Mason, 472.

« iepriekšējāTurpināt »