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sion of a 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 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 parts of the invention which he considers as not entitled to be patented. And the said 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 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 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 further proceedings to be had on such application.” The
applicant is to pay twenty-five dollars towards the expenses of this examination, and the examiners are to receive not exceeding ten dollars each for their services.
The small compensation fixed for these examiners will evidently prevent the constitution of a competent board and a thorough investigation; for a common laborer, supposing him to be competent, could hardly, at this rate of compensation, afford the time for an investigation of such a case. . The rate of compensation fixed upon shows that only a very hasty and superficial trial is intended by the statute; and accordingly that it is not intended that the board shall reject the claim except in a very plain case. And this is all that is expedient, for a thorough trial before a competent tribunal would be exceedingly expensive-as much so as that of patent cases ordinarily—and after all not very satisfactory. To produce a full and thorough investigation of a patent case, presenting questions no more complicated and difficult than are met with in such cases generally, it is necessary not only to have a very able tribunal, but also all the evidence bearing upon the question, which can be collected by the activity and sagacity of opposing parties spurred on by conflicting interests and other excitements, together with the suggestions and arguments of acute and learned advocates. The proceedings provided for by this statute do not prevent such a trial subsequently, if the patent be
ed; for it would be against all analogy that others should be bound by proceedings of which they had no notice. The decision of the board against the applicant is final, since his patent is denied; but if it is in favor of a grant of the patent, he still stands upon the same ground as if no preliminary trial had taken place, except the weight, more or less, of the decision of the examiners; for any one may infringe his patent right and dispute its validity in an action brought by the patentee for the infringement. The examiners, then, will very naturally lean in favor of the applicant, and give him the advantage of all doubts, and all presumptions that can be made in his favor, since this course can work no material injury; whereas, by adopting a different one, a great and irreparable wrong might be done. In this view and with such a course of proceeding, this provision may be very useful in preventing the issuing of patents to which the applicants have no colorable ground of claim.
Sec. III.-CONFLICTING APPLICATIONS.
The subject of the preceding section is a conflict between the claim of the patentee and the supposed rights of the whole community. The next inquiry relates to an interference of the claim of the applicant with that of other individuals for the same exclusive privilege. The questions do not exclude each other, since two several applicants might apply for a patent which the commissioner might be of opinion ought not to be granted at all, and the questions would then be whether it ought to be granted at all, and, if so, which has a good claim for it.
On the subject of interfering claims, the law of 1793, section 9, provided for an arbitration, one arbitrator to be appointed by each applicant, and the third by the secretary of state. The award of the arbitrators was held not to be conclusive upon any question excepting that of issuing the patent.” The act of 1836, section 8, provides for the case of interfering applications, and also that of an application interfering with an unexpired patent. “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 other 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 may be; and if either shall be dissatisfied with the decision of the commissioner on the question of the priority of right, or invention, on a hearing thereof, he may appeal from such decision, on the like terms and conditions
» Stearns v.
Barrett, 1 Mason's R. 153.
as are provided,” in case of a rejection of an application in other cases, “and the like proceedings shall be had to determine which or whether either of the applicants shall be entitled to a patent as prayed for."
But in this case the decision of the examiners is not final, as it is in that of the rejection of a claim where there are not opposing parties. By the sixteenth section of the same act of 1836, “ Whenever there shall be two interfering patents, or when 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 such patent, either by assignment or otherwise, in the one case, and
applicant in the other case, 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 to such suit may possess in the patent, or the inventions
may also adjudge that such applicant is entitled, according to the provisions and principles 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