1836 has assigned the duty of superintending the issuing of patents to the commissioner of patents. The seventh section of that law provides, that on an application being made for a patent, and a specification filed, and the fee paid, "the commissioner shall make, or cause to be made, an examination of the alleged new invention or discovery; and if on such examination it shall not appear that the same had been invented or discovered by any other person in this country prior to the alleged invention or discovery thereof by the applicant, or that it had been patented, or described in any printed publication in this or any foreign country, or had been in public use, or on sale with the applicant's consent or allowance prior to the application, if the commissioner shall deem it to be sufficiently important, it shall be his duty to issue a patent therefor. But whenever, on such examination, it shall appear to the commissioner that the applicant was not the original and first inventor or discoverer thereof, or that any 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, as aforesaid; 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 waiving his appli

cation or of altering his specification to embrace only that part of the invention or discovery which is new. In every such case, if the applicant shall elect to withdraw his application, relinquishing his claim to the model, he shall be entitled to receive back twenty dollars, part of the duty required by this act, on filing a notice of such intention in the patent office."

It is evident that the judgment of any officer of the government, on the novelty and originality and utility of the invention, and the sufficiency of the specification, must be formed upon very superficial grounds. In the United States, for instance, the commissioner must pass upon from two to three patents in a day upon an average; a time scarcely sufficient to enable him to understand the specification, supposing him to have some previous knowledge of the subject of the invention. He cannot, therefore, be expected to reject the application except in a very plain case.

Sec. II.-APPEAL TO EXAMINERS.

The act of 1836, section 9, c. 357, provides for an appeal from the decision of the commissioner. If the applicant, in case of a decision by the commissioner against him, "shall persist in his claim for a patent,

with or without any alteration of the specification, he shall be required to make oath or affirmation anew," as at the time of his application. "And if the specification shall not have been so modified as, in the opinion of the commissioner, shall entitle the applicant to a patent, he may, on appeal, and upon request in writing, have the decision 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 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 infor

mation 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.

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 a third by the secretary of state. The award of the arbitrators has been 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 as are provided," in case of a rejection of an application on other grounds, "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

Stearns v. Barrett, 1 Mason's R, 153,