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and liberty of making, using, and vending to others to be used, the said invention or discovery."
The clause, “not exceeding fourteen years," is the same that is used in the sixth section of the English statute of monopolies. Mr. Godson construes that clause in the English act, to leave it optional with the king, when he sees occasion, to grant a patent for less than fourteen years."
Though the phraseology of the act of Congress is not literally inconsistent with the construction that the commissioner may exercise a discretion as to the period for which the patent is granted, yet in practice, under the similar provision of the statute of 1793, authorizing the secretary of state to cause patents to be issued, the inventor, if he brings himself within the terms of the law as to the originality, importance and utility of his invention, and takes the requisite steps to obtain a patent, has been considered to be entitled to a grant of a patent for the full term of fourteen years, excepting in the case of the surrender and renewal of the patent, in which case the new patent is only for the unexpired part of the term for which the original patent was granted.
. The only case then, in which the patent would be granted for a less term, would be that of an application to that effect, an application not likely to be made, as there is not, by our law as by that of France, a difference of fee or tax, according to the length of the period of the exclusive privilege.
*C. 7. p. 161.
Where the first patent is void through mistake or inadvertence in drawing up the specification, a new one may be taken out for the unexpired part of the period of fourteen years. It has heretofore been a frequent practice in England and the United States, to apply to the legislative authority for the prolongation of the term of the patent. The usual reason alleged for such an application is that the patentee has not been reimbursed his expenses, or has not reaped the advantages to which he is fairly entitled from his invention. By a standing rule of the House of Lords, applications for confirming or prolonging the term of patents are required to be made only at a session of parliament, commencing within two years before the expiration of the original term; and by another rule such applications are to be entertained only when made by the original inventor or his personal representatives. By the terms of the grant of a prolonged term the patent is still made subject to all the objections to which it was liable before such prolongation.
? Supra, ch. XI. s. 10, act of 1836. Grant v. Raymond, 6 Pet. S.C.R. 218. Ames v. Howard, 1 Sumber's Rep. 482.
3 Dwarris on Statutes, 358.
By the second section of the additional act of Congress, passed on the 3d of July, 1833, it was provided that application to Congress to prolong or renew the term of a patent, should be made before its expiration, and should be notified at least once a month, for three months before its presentation, in two newspapers
in which the laws of the United States were published in the State or territory in which the patentee resided ; and that the petition should set forth particularly the grounds of the application ; and should be verified by oath, should be accompanied by a statement of the ascertained value of the invention, and of the receipts and expenditures of the patentee, so as to exhibit the profit or loss arising therefrom.
This law was enacted to prevent the recurrence of a case like that of the renewal of Oliver Evans's
patent for his hopperboy so long after the expiration of the original term, that others had, after its expiration, erected hopperboys, the use of which, it was held, was stopped by the renewal of the patent."
But the law of 1836, sect. 18, makes a new provision on this subject, that a patentee may
application to the commissioner in writing for the extension of his patent, setting forth the grounds of his application, and on payment of forty dollars into the
treasury by the patentee, the commissioner shall cause the application to be published in one or more of the principal papers in Washington, and such other papers as he may deem proper, published in the section of the country most interested against the extension of the patent, with notice of the time and place of considering the application, that any person may appear and show cause why the extension should not be granted. And the secretary of state, the commissioner of patents, and the solicitor of the treasury, shall constitute a board to determine on the application, on hearing the evidence for and against the same, to which board the patentee must produce a statement in writing under oath of the expenditures for and value and profits of the invention. And if the board shall be satisfied that the patentee, without his fault or neglect, has failed to obtain, from the use and sale of the invention, a reasonable remuneration for the time, ingenuity and expense bestowed on the same, and the introduction thereof into use, and that the term should be extended, it shall be the duty of the commissioner to extend the patent for the additional term of seven years, by making a certificate to that effect on the patent, which certificate, and also that of said board, are to be recorded in the patent office, and such renewal shall extend for the benefit of assignees and grantees to the extent of their respective interests in the patent. But no grant of such extension is to be made after the expiration of the original term.
This provision is, no doubt, intended to supersede, in some degree, applications to the legislature for the extension of patents. Whether the legislature will entertain applications in the nature of an appeal from the decision of the board, remains to be determined.
The provision seems to be an improvement in the law of patents. It is questionable whether the provision as to assignees should not have been more explicit, for as the professed object is to reimburse and reward the inventor and those who have been at the expense of introducing the invention, the benefit of the extension ought to be confined to such parties as far as this may be practicable, consistently with the agreements of the patentee with other assignees. Perhaps, however, the discrimination between different assignees cannot be made by law, on account of the difficulty of framing a provision to meet the case. As the law now stands, the patentee, in order to secure to himself the benefit of this provision, should provide for it by a stipulation in his contracts with others for licenses, or a sale of the shares in the patent.