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frivolous inventions, it may be replied that a much smaller tax would be amply sufficient for this purpose. But, in truth, this is no justification; first, because frivolous patents are of no public injury, and, secondly, because the burthen weighs very unequally, being a slight obstacle to a wealthy individual or company, but an absolute prohibition to a mechanic without capital.
Proceedings in issuing Patents.
Sec. 1. Authority of the Commissioner of Patents.
2. Appeal to Examiners.
Sec. I.-AUTHORITY OF THE COMMISSIONER OF
By the act of 1793, it was made the duty of the secretary of state to cause patents to be issued, the patent being submitted to the attorney general, and by him certified to be made out in conformity to the law, before being signed by the President. The law of 1836 has assigned the duty of superintending the issuing of patents to the commissioner of patents. The seventh section of that law provides, that on an application being made for a patent, and a specification filed, and the fee paid, “ the commissioner shall make, or cause to be made, an examination of the alleged new invention or discovery; and if on such examination it shall appear 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 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 was 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 waiving 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 of such intention in the patent office.”
According to the phraseology of the statute of 1793, by which Mr. Justice Story suggests that the intention may have been to prevent insufficient specifications, the secretary of state and attorney general appear to have been invested with a discretionary authority on the subject of issuing patents; but that act did not prescribe the particular questions upon which it was the duty of one or the other of these officers to decide. It was provided that on application, “it should be lawful for the secretary to cause letters patent to be made out,” which should be “ delivered to the attorney general to be examined, who, if he found the same conformable to that act, should certify accordingly.” The law accordingly admitted of the construction that it was left to the discretion of the secretary of state whether to cause the patent to be made out, and the attorney general, if he found the patent in any respect not conformable to law, might withhold his certificate, and thus prevent the issuing of the patent. But, in practice, neither of those officers ever undertook to form any opinion of the originality, novelty, importance, or usefulness of the invention, or the sufficiency of the specification. The agency of those officers in issuing patents was considered to be merely ministerial. French patents contain an express provision that the government does not, by issuing the patent, intend to guaranty the novelty or usefulness of the invention ; though an examination is made of the specification and drawings. In England, the agency of the attorney general, in regard to the issuing of patents, is considered to be merely ministerial. In one respect, however, a discretion is exercised in England by the attorney general, in the issuing of patents, namely, in determining the time within which the specification is to be filed. A compliance with the terms of the patent, in this particular, is considered to be material to its validity, but no other point is predetermined which affects the validity of the patent.
i Whittemore v. Cutter, 1 Gal). 429.
See Whittemore v. Cutter, 1 Gall, R. 429.
It is evident that the judgment of any officer of the government, on the novelty and originality and utility of the invention, and the sufficiency of the
• It has been suggested that the attorney general could not be supposed to examine every specification critically. North Am. Rev. v. 23, specification, must be formed upon very superficial grounds. In the United States, for instance, the commissioner must pass upon from two to three patents in a day upon an average; a time scarcely sufficient to enable him to understand the specification, supposing him to have some previous knowledge of the subject of the invention. He cannot, therefore, be expected to reject the application except in a very plain case.
* Grant v. Raymond, 6 Pet. S. C. R. 241.
Sec. II.-APPEAL TO EXAMINERS.
The law of 1793 made no provision for an appeal from the decision of the secretary of state rejecting a claim for a patent, and in practice, as we have seen, no claim was rejected. The only particular provision for any preliminary decision on the claim, was by the ninth section, relating to conflicting claims. The act of 1836, section 9, goes on to provide for an appeal from the decision of the commissioner. If the applicant, in case of a decision by the commissioner against him, “shall persist in his claim for a patent, with or without any alteration of the specification, he shall be required to make oath or affirmation anew,” as at the time of his application. “ And if the specification 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 deci