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out by the assignees. But whatever may have been held or intimated or implied to the contrary on this subject, it seems, from the whole language of the act of Congress of 1793, especially the form of the oath, and from the cases already cited," and also from the common form of the patent itself, that it can be taken out only on the application and oath and in the name of the inventor himself, or the inventors themselves, if more than one, except in the case of the death of an inventor, as hereafter mentioned. The effect of an assignment previously to the grant of the patent, therefore, is that on the patent being issued on the application and oath and in the name of the inventor, and on the recording of the assignment in the office of the secretary of state, the assignee, thereafter, under the fourth section of the act of 1793, stands in the place of the original inventor, both as to right and responsibility.
Sec. VI.-HEIRS OR REPRESENTATIVES OF THE PA
By the act of April 17th, 1800, it is provided that in case of the decease of the inventor before taking out a patent, his personal representatives may take
it out; the oath being "so varied as to be applicable to them."
14 Stearns v. Barrett, 1 Mason, 153; and Barrett v. Hall, 1 Mason, 447.
By the act of 1793, the party applying for a patent, in order to be entitled to the grant of one, must not only have been the original sole inventor, but must also have been a citizen of the United States. The expression of the first section of that act is "That when any person, or persons, being a citizen, or citizens of the United States, shall allege that he or they have invented," &c. the secretary may grant letters patent. This was a departure from the practice under both the English and French laws on the same subject, by both of which patents are granted to foreigners as well as to English and French subjects. The act of Congress of 1790, which was superseded and repealed by that of 1793, like the English and French laws, made no distinction between citizens and foreigners. After the right of taking out a patent had been confined to citizens exclusively for seven years, the act of Congress of April 17th, 1800, was passed, by which the privilege was extended to resident aliens. By that act the privileges granted to citizens by the former "are extended and given to all aliens, who at the time of petitioning, in the manner prescribed by said act, shall have resided for two years within the United States; provided that every person petitioning for a patent for any
invention, art, or discovery, pursuant to this act, shall make oath, or affirmation, before such patent shall be granted, that such invention, art, or discovery, hath not, to the best of his knowledge or belief, been known or used either in this or any other foreign country." This form of the oath differs from that taken by a citizen, but the difference is only in form, for both are "placed substantially on the same ground. In either case if the invention was known or used before it was patented, the patent is void. In both cases the right must be tested by the same rule."'15
Sec. VIII. PERSONAL DISABILITIES.
A bankrupt is not disqualified from taking out a patent during the pendency of the proceedings in bankruptcy, though M. Renouard says that by the French law the patent, if taken out before his discharge, the profits of it will enure to his creditors. The law is not so in England; there no acquisition subsequent to the assignment of the bankrupt's effects by the commissioners of bankruptcy, will go to the benefit of his creditors under the assignment. A patent bearing date before the assignment by the commissioners will pass by such assignment. The
15 Per M'Lean, J. Shaw v. Cooper, 7 Pet. R. S. C. Rep. 292, 16 P. 312. c. 8. s. 2.
construction of the State bankrupt laws in the United States, in regard to this question, would probably be similar to that adopted in England, as far as the proceedings are analogous to those under the English law.
M. Renouard says that persons civilly dead, that is, who have abjured, or who, by way of punishment, have been deprived of the rights of civil society, may, notwithstanding such disability, apply for and take out a patent; though they could not pursue any person for infringing it, or otherwise derive any benefit from contracts made respecting the use of it. But the opinion of M. Renouard as to their capacity to take out patents, seems to be subject to some doubt, since he assumes that such persons are by the laws of France incapable of contracting, or asserting rights of property. It should seem to follow that they could not receive valid grants, and if so, they cannot be patentees, since a patentee is a grantee, and a party to a contract. But in forming an opinion on this question, we should bear in mind. that the phrase civilly dead does not, in all countries and in all cases, import precisely the same disabilities. If the laws of any country be that a person civilly dead cannot take and hold any property, but that all his possessions go to his heirs, by the very fact of his civil disability, and his estate is administered upon as
17 P. 311, c. 8. s. 2.
that of a person deceased, his right to a patent would stand upon the same footing; and his representatives would take it out in his stead where the invention was made before his disability was incurred. But if he makes the invention subsequently to his disability being incurred, there does not appear to be any way for him to avail himself of the advantages of it unless the act of Congress authorizing the granting of patents should be construed to supersede the State law by which he should be declared to be civilly dead. These questions remain as subjects of future legislation or judicial decision.
Nothing prevents a patent being taken out by a minor or married woman; though in the latter case the property in the patent would belong, as a matter of course, to the husband. But in the former case it does not appear but that the fruits of the minor's invention merely, independently of his labor, would be similar to his finding a treasure not claimed by any owner, or to his inheriting property by descent. In the last case, what descends to him is his separate property, and from analogy it is inferred that in the two former cases his rights would be the same.