ation within one year under the same condition of forfeiture. The French law, however, makes an exception of cases where a longer delay is satisfactorily accounted for, and every law containing such a limitation of the time for putting the invention into use ought to have some provision for extending the time, since some inventions, requiring extensive preparations and large outlay, cannot be brought into operation in two or three years. In the United States, Mr. Justice Washington distinctly lays down the doctrine that no neglect of the patentee, to put his invention into practical operation, will be construed to be an abandonment of his patent right. And such is the language of all the

149

148

cases. Our law appears to go upon the presump

tion that the public benefit may in this case be left wholly to the influence of the interest of the patentee; and confides to him the absolute control and disposal of his invention for the period of his monopoly.

There may be instances of inventions, the use of

148 Gray & Osgood v. James, 1 Pet. C. C. R. 403.

149 Whittemore v. Cutter, 1 Gallison's R. 478; Thompson v. Haight, U. S. Law Journal, Vol. 1, p. 563; Morris v. Huntington, 1 Paine's R. 345; Pennock & Sellers v. Dialogue, 2 Pet. S. C. R. 1; Wood v. Brimmer, 1 Holt. N. P. C. 58; Kent's Com. Vol. 2. p. 369.

This

which are vitally material to the public safety, as in such a case as Mr. Cochran's improvement in fire arms, just as in some case the appropriation of individual property to the public use is essential to the public defence. In the latter case the general safety is not subjected to the caprice or inordinate cupidity of the proprietor, for his property may be taken for the public use without his consent, and a reasonable compensation allowed. And such would be the rule, probably, in regard to the use of a patent right, which is no more sacred than other personal property. provision of law is limited to the case of the use of property by the public as a corporate political body, and does not reach the case of an indirect benefit derived to the public by the use of a thing by individuals. In this respect the law leaves patent rights upon the same footing as other personal property, the proprietor of which may, by his own caprice or folly, deprive the public and himself of the benefit that would result from a reasonable use of it, and there does not seem to be any pressing urgency for a different rule in regard to different species of property. There is, it is true, no absolute insurmountable objection to a regulation on this subject in relation to patents, for the public may grant patents or lands upon such conditions as may be deemed expedient, and for the general

benefit; but as a general rule, unless the case is plain and urgent, it is the better policy to leave private rights to the discretion and interest of proprietors, where their interest evidently coincides with that of the public, since the inconveniences attendant upon an attempt by law to supply their want of reasonable discretion, would, in a majority of cases, be greater than those consequent upon their abuse of the discretion and control allowed by the law.

CHAPTER VIII

Appeal to Board of Examiners. Interfering Applications. Previous Foreign Patent by the Applicant. Secret Filing of the Specification. Caveat.

By the 7th section of the act of Congress of 1836, it is provided that whenever, on examination, it shall appear to the Commissioner of Patents that the applicant for a patent, for an invention, "was not the original and first discoverer thereof, or that a 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, 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 renewing his application, or of altering his specification to embrace only that part of his invention which is new." The applicant may thereupon withdraw his application, and receive back twenty dollars of the thirty dollars paid into the treasury by him, and leave his model in the patent office. But if he persist in his claim, whether he chooses to alter the specification or not, he must again make the usual oath, and if the commissioner still refuses to grant the patent, he may appeal to a board of examiners, consisting of three persons appointed by the Secretary of State, "one of whom, at least, to be selected, if practicable and convenient, for his knowledge and skill in the art, manufacture or branch of science to which the alleged invention appertains." The commissioner is to furnish this board with his objections to the application in writing. The applicant is to be heard by the board, which may, if a majority sees fit, reverse the decision of the commissioner in whole or in part, and their opinion being certified to the commissioner, he is to be governed by it as to any further proceedings to be had on the application.

The applicant is to pay twenty-five dollars towards the expenses, the examiners being entitled to receive not over ten dollars each.

By the 8th section of the same law, it is no objection to an application that the applicant has taken out foreign letters patent, and that they have been published within six months preceding his application.

By the same section, on the request of the applicant, his specification and drawings may be filed secretly in the office not longer than one year, and on the model being furnished, the patent may issue, dated back at the time of the specification, not exceeding, however, six months. He is, in such case, entitled to notice of any interfering application for a patent.

It is provided, by the same section, that interfering applications, or an application supposed by the commissioner to interfere with any subsisting patent, may be referred to a board of examiners appointed as above.

It is provided by the 12th section of this law, that any citizen of the United States, or alien who shall have been resident in the United States one year next preceding, and who shall have made oath of his intention to become a citizen thereof, who shall have invented