Be it known that I, the undersigned, S. C. of V. in the county of H. in the state of M. have invented [or discovered], a new and useful machine [invention or improvement, or composition of matter,] called [here give the title of the invention] of which the following is a full and exact description:

[Description of the invention.]

In testimony whereof, I the said S. C. hereto subscribe my name in the presence of the witnesses whose names are hereto subscribed, on the

day of

Signed in our presence,

A. B.

C. D.

A. D. 18

S. C.

ATTESTATION TO THE DRAWINGS.

The above is the drawing of [description of the invention] referred to in my specification, of the said improvement [machine or invention] dated at V. on the day of

A. D. 18.

In testimony whereof, I hereto subscribe my name on said day and year

Signed in presence of

A. B.

C. D.

S. C.

FORM OF THE OATH.

On the

State of M. County of H. ss.

day of

A. D. 18 before the subscriber, a justice of the peace in and for said county, and authorized by

law to administer oaths, personally appeared S. C. and made oath [or affirmation] that he verily believes that he is the first and original inventor of the [improvement, machine, or composition of matter, &c.] above mentioned and described in the specification by him subscribed, and that he does not know or believe that the same was ever before known or used, and that he is a citizen of the United States.1

FORM OF THE PETITION.'

To the Honorable Henry L. Ellsworth, Commissioner of Patents of the United States.

The petition of S. C. of V. in the county of H. and state of M. engineer, respectfully represents

That your petitioner has invented a new and useful [machine, improvement, composition of matter,] which he verily believes was not known or used prior to his invention thereof; which has not heretofore been and is not now in public use or on sale with his consent or allowance as inventor thereof, an exclusive property wherein he is desirous of securing to himself and his legal representatives. He therefore prays that letters patent of the United States may be granted to him therefor, vesting in him and his legal representatives the exclusive right to the same upon the terms and conditions expressed in the act [or acts] of congress in such case made and provided; the petitioner being a citizen of the United States, and having paid thirty dollars into the treasury of the United States, and having otherwise complied with the provisions of said act [or acts.] S. C.

If he is an alien resident in the United States, who has made his declaration, &c. it should be so stated; or if an alien not domiciled in the United States, the country of which he is a subject should be stated.

DECLARATION IN CASE FOR THE INFRINGEMENT OF A PATENT.

of

To answer to A. of B. in the county of S. in the district manufacturer, in a plea of trespass on the case, for that the plaintiff was the original and first inventor [or discoverer] of a certain new and useful art [machine, manufacture, composition of matter, or improvement on any art, machine, &c. taking the words of the statute most applicable to the subject of the invention] in the letters-patent hereinafter mentioned and fully described, the same being a new and useful [here, insert the title or description given in the letterspatent] which was not known or used before his said invention [or discovery], and which was not, at the time of his application for a patent as herein after mentioned, in public use or on sale with his consent or allowance; and the plaintiff being so, as aforesaid, the inventor [or discoverer] thereof, and being also a citizen of the United States [if the fact is so],' on the day of [here, insert the date of the patent] upon due application therefor did obtain certain letters-patent therefor in due form of law under the seal of the patent office of the United States, signed by the secretary of state and counter

It has been suggested, in a preceding part of this work, p. 408, that the citizenship of the patentee need not be proved by the plaintiff, and, if so, it need not be averred. This will, however, depend upon the construction that shall be given to the 15th section of the act of 1836, c. 357, by which, if the patentee be an alien, the defendant is permitted to give matter in evidence tending to show that the patentee has "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." The position referred to in p. 408 assumes that the burthen on this point is, in conformity to the language of the statute, in the first instance on the defendant. But to go on the safer side, the above form of declaring assumes the burden to be on the plaintiff to aver and prove, in the first instance, that the patentee is a citizen of the United States, or, if an alien, and the eighteen months have expired before the date of the writ, that he has put and continued the invention on sale in the United States on reasonable terms.

signed by the commissioner of patents of the United States, bearing date the day and year aforesaid, whereby there was secured to him, his heirs, administrators, executors or assigns,' for the term of fourteen years from and after the date of the patent, the full and exclusive right and liberty of making, using and vending to others to be used, the said invention [machine, improvement or discovery] as by the said letterspatent, in court to be produced,' will fully appear. And the plaintiff further says that from the time of the granting to him of the said letters-patent, hitherto, he has made, used and vended to others to be used, [or he has made, or has used, or has vended to others to be used, as the case may be] the said invention [machine, improvement or discovery,] to his great advantage and profit [or if he has not made, used or vended, then, instead of the above averments, may be substituted after the word "hitherto," "the said exclusive right has been and now is of great value to him, to wit of the value of $

1 Act of 4th of July, 1836, ch. 357, s. 5.

2 Which the plaintiff brings here into court. Chit. Pl. v. 2, p. 765, 5th ed.

3 The English precedents here state the making and filing of the specification, the assignment of the patent and the recording of the assignment, if the action be in the name of an assignee, or if an assignee of a part of the right is joined.

If the patentee is an alien and the counsel chooses to declare very cautiously, if eighteen months have expired from the date of the patent, he may here introduce the averment that within eighteen months from the date of the patent, viz. on, &c. at, &c. he (or his assignees, or he and his assignees,) put the invention on sale in the United States, on reasonable terms, and from that time always afterwards to the time of purchasing the writ, he (or they, or he and they) had continued the same on public sale in the United States, on reasonable terms.

4 The principle upon which these averments are made is the same as that upon which, in an action for trespass upon personal property, the value of the property is alleged, by way of showing that it was a thing in respect to which the plaintiff might sustain damage. Mr. Gould says of this averment, "As he [the plaintiff] is not obliged to state the true value, the rule requiring it to be stated would seem to be of no great practical use." Gould's Pl. c. 4, s. 37, p. 187. Mr. Chitty says the above averments as to profit, by making, using and vending, are sometimes omitted.

Yet the said D. well knowing the premises, but contriving to injure the plaintiff,' did on the [some day after the date of the patent] and at divers times before and afterwards, during the said term of fourteen years mentioned in said letters-patent, and before the purchase of this writ, at C. in the county of M. in said district of , unlawfully and wrongfully, and without the consent or allowance, and against the will of the plaintiff, make [use and vend to others to be used, or did make, or did use, or did vend to others to be used, as the case may be,] the said invention [machine, improvement or discovery] in violation and infringement of the exclusive right so secured to the plaintiff by said letters-patent as aforesaid, and contrary to the form of the statute of the United States in such case made and provided, whereby the plaintiff has been greatly injured and deprived of great profits and advantages which he might and otherwise would have derived from said invention; and has sustained actual damage to the amount of , a and by force.

3

of the statute aforesaid, an action has accrued to him to recover the said actual damage, and such additional amount, not exceeding in the whole three times the amount of such actual damages, as the court may see fit to order and adjudge, yet the said D., though requested, has never paid the same, or any part thereof, to the plaintiff, but hath refused, and yet refuses so to do.

The propriety of making the averment of the value seems to depend upon the question whether the allegation of ownership of an article or species of personal property, or interest in it, and possession of it, imports a value to the plaintiff without specifically alleging its value; for if it does, then a ground of action distinctly appears without any such specific allegation.

1 "Contriving and wrongfully intending to injure the plaintiff, and to deprive him of the profits, benefits, and advantages, which he might and otherwise would have derived and acquired from the making, using, exercising and vending of the said invention, after the making of the said letters-patent and within the said term of fourteen years in said letters-patent mentioned." Chit. Pl. 5th ed. v. p. 766.

2 There is now but one statute. In case of others being passed, the averment should be in the plural, "the statutes."

3 Act of 4th of July, 1836, ch. 357, s. 14.