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If applicants prefer to have their models transmitted by express, instead of by packet, they must in all cases pay the expense of transportation. Neither models nor specimens must, under any circumstances, be sent by mail. (See Sec. XX.)
The transmission of models by the agents extends to those for new applications, as well as those restored in consequence of the destruction of the originals.
Models of unpatented machines, specimens of compositions and of fabrics, and other manufactures or works of art, will be received and arranged in the National Repository of the Patent Office.
6th. Of fees payable for a Patent.-The fee payable on an application for a patent by a citizen of the United States, or by a foreigner who has resided in the United States one year next preceding the application, and has made oath of his intention to become a citizen, is thirty dollars; by a subject of Great Britain, five hundred dollars; by any other foreigner, three hundred dollars.
In a case of a total assignment, before the patent issues, of his invention by a foreigner to a citizen of the United States, the same fee is required as if the patent issued to the inventor himself.
Instructions in regard to the manner of paying these fees may be found in Sec. XVIII of this pamphlet.
The above six pre-requisites having been complied with, the application is ready for examination. But the neglect of any one of them, or of the instructions relative thereto, will be sufficient to delay the action of the office until they have been satisfactorily fulfilled.
If the following questions can be answered affirmatively before transmitting the papers, few applications will be returned for correction:
1st. Is the petition signed by the applicant and addressed to the Commissioner of Patents?
2d. Is the specification signed and attested by two witnesses, and does it contain a specific claim?
3d. Has the inventor made oath of his citizenship, and in accordance with instructions and forms given above?
4th. Are the drawings described and referred to in the specification? If not, are they signed before two subscribing witnesses, and accompanied by written references? Are duplicates sent?
5th. Has the model (or specimen) been deposited, and is the name of the inventor and assignee, if the invention be assigned, durably affixed thereto ? 6th. Is the fee remitted, and in manner prescribed in Sec. XVIII?
SEC. V. OF THE PROCEEDINGS DURING EXAMINATION.
Applications are examined and patents issued in the order in which the proper documents are completed, except in cases in which the claims so nearly resemble those undergoing examination as to render an interference probable; in which case they will be taken up and examined with the cases then under examination.
A decision deliberately made and affirmed by one Commissioner cannot be disturbed by his successor. Some years since, the evils arising from such revisions became so apparent and embarrassing, that a positive rule to that effect was adopted. It was submitted to, and approved by, the President of the United States.
This office, therefore, cannot, except under extraordinary circumstances, disturb decisions so re-affirmed, but must refer all who consider themselves
aggrieved to their remedy by appeal; for instructions with regard to which, or withdrawal, see Sec. VI, par. 3 and 4. For instructions relative to interfering applications, Sec. VI, par. 5.
A defective specification or drawing may be amended at any time before a patent has issued; in which case the applicant will be required to make oath anew. In case papers are withdrawn from the office for alteration or amendment before examination, the application will take its turn for examination as a new case filed on the day of the reception of the altered or amended papers.
In case specifications and drawings should be found defective, they are returned to the applicant, with instructions to amend. When returned to the office, they are again examined; the examination in such cases taking precedence of all new cases on hand at the time of their reception. But if, on such examination, it should be found that the instructions to amend have been disregarded, or not properly attended to, the papers are again returned to the applicant; and, upon their second return to the office, the examination of such papers is delayed until all the business on hand at the time of their reception is disposed of.
When papers are thus returned to applicants for amendment, should they find it necessary, or deem it important, to prepare new documents in order to make suitable amendments, the original papers must be returned to the office together with the amended or new papers; otherwise, examination upon such cases will be delayed until the original papers are received by the office.
After an application has been examined, no alteration made in the character of the invention can be considered under the same fee. Any such alteration requires a new fee, papers, &c., before examination can be had.
In general, if any addition is to be made to an invention duly before the office, or any change in its character, the applicant must withdraw and file his application anew.
The personal attendance of an applicant at the Patent Office is unnecessary. The business can be done by correspondence or by attorney. All explanations and suggestions in relation to pending and to all other cases should be in writing, addressed to the Commissioner. Correspondence with the examiners, or other subordinates, is strictly prohibited.
When an application has been finally decided, the office will retain the original papers, allowing the applicant to obtain copies thereof
SEC. VI. OF THE RESULTS OF AN EXAMINATION.
1st. If the claim or claims be allowed.-If a patent issues, it is transmitted to the inventor or his agent. If to the latter, he must have filed a full power of attorney authorizing him to receive it. In case an assignment be made of the entire patent right, the patent will be sent to the assignee or his attorney.
2d. If the claim be rejected.—In cases of rejection, such references are made in the official communication as, in the opinion of the office, justify its decision. If the applicant is satisfied with the grounds of rejection, he may withdraw his application; if, on the contrary, he still deems himself entitled to a patent, he can request a reconsideration of the case, provided the references and arguments relied upon by the office as grounds of rejection have been carefully considered by him; and explanations, whether verbal or in writing, based upon the inapplicability of the one, or the unsoundness of the other, may be received at any convenient time. These are the only grounds upon which an application can be reconsidered, and this final action in the case cannot be had until it comes up in its turn as a case presented anew. If the applicant is
still dissatisfied, he can appeal from the decision of the Commissioner, as prescribed by law.
3d. Of the withdrawal.-When either an American or foreign application is rejected, and the applicant relinquishes his claim, and desires to avail himself of the provisions of the 7th section of the act of 1836, and the 12th section of the act of 1837, he must petition the Commissioner of Patents, stating the abandonment of his application; in which case two-thirds of the original fee will be returned. The model and papers are retained by the office; and if the latter have been withdrawn for correction, or for any other purpose, they must be returned to their files before a withdrawal of two-thirds of the fee can be allowed. No money is, however, refunded on the withdrawal of an application after an appeal has been taken from the decision of the Commissioner, nor any part of the fees received on filing caveats, or applications for additional improvements, or for reissues, or for extensions, or for designs.
In withdrawing an application the following forms may be followed:
To the COMMISSIONER OF PATENTS:
SIR: I hereby withdraw my application for a patent for improvements in the cotton-gin, now in your office, and request that twenty dollars may be returned to me, agreeably to the provision of the act of Congress authorizing such withdrawal.
CABOTVILLE, MASS., July 16, 1849.
Received of the Treasurer of the United States, per Thomas Ewbank, Commissioner of Patents, twenty dollars, being the amount refunded on withdrawing my application for a patent for improvements in the cotton-gin.
CABOTVILLE, MASS., July 16, 1849.
As the law does not allow public moneys to be paid in bank bills, or by draught on banks, particular instructions should be given by the person withdrawing as to the manner in which the money shall be paid-i, e., whether to his order at this office, or remitted by mail, in gold, at his risk. Money in gold and silver only is receivable and payable at this office.
4th. Of appeal.-When a patent is refused by the Commissioner, the applicant can have remedy by an "appeal to the Chief Justice of the District Court of the United States for the District of Columbia," by giving notice thereof to the Commissioner, and filing in the Patent Office, within such time as the Commissioner shall appoint, his reasons of appeal, specially set forth in writing, and also paying into the Patent Office, to the credit of the Patent Fund, the sum of twenty-five dollars, in manner prescribed in section XVIII.
"And it shall be the duty of said Chief Justice, on petition, to hear and determine all such appeals, and to revise such decisions in a summary way, on the evidence produced before the Commissioner, at such early and convenient time as he may appoint, first notifying the Commissioner of the time and place of hearing, whose duty it shall be to give notice thereof to all parties who appear to be interested therein, in such manner as said Judge shall prescribe. The Commissioner shall also lay before the said Judge all the original papers and evidence in the case, together with the grounds of his decision, fully set forth in writing, touching all the points involved, by the reasons of appeal, to which the revision shall be confined; and, at the request of any party interested, or at the desire of the Judge, the Commissioner, and the Examiners in the Patent Office, may be examined, under oath, in explanation of the p inciples of the machine, or other thing, for which a patent in such case is prayed
[for.] And it shall be the duty of said Judge, after a hearing of any such case, to return all the papers to the Commissioner, with a certificate of his proceedings and decision, which shall be entered on record in the Patent Office; and such decision, so certified, shall govern the further proceedings of the Commissioner in such case: Provided, however, That no opinion or decision of the Judge in any such case shall preclude any person interested in favor [of] or against the validity of any patent which has been or may hereafter be granted, from the right to contest the same in any judicial court, in any action in which its validity may come in question."
In cases of appeal it has been decided by the said Chief Justice that the case must be dismissed, unless the "reasons of appeal" are filed in the Patent Office within the time prescribed by the Commissioner, and that no further reasons or argument in writing, or otherwise, and no answer to the grounds of the Commissioner's decision, can be received, heard, or considered afterwards; but that the appeal must be decided upon the papers filed in the Patent Office, and the written grounds of the Commissioner's decision. Notice of this decision is given because a practice somewhat different has heretofore prevailed.
In cases where patents are refused for any reason whatever, either by the Commissioner of Patents or by the Chief Justice of the United States court for the District of Columbia, remedy can be had by bill in equity; "and the court having cognizance thereof, on notice to adverse parties," (and when there shall be no adverse party a copy of the bill shall be served upon the Commissioner of Patents, when the whole of the expenses of the proceedings shall be paid by the applicant, whether the final decision shall be in his favor or otherwise,) and other due proceedings had, may adjudge and declare either the patent void in the whole or in part, or inoperative and invalid in any particular part or portion of the United States, according to the interest which the parties to such suit may possess in the patent or the inventions patented; and may also adjudge that such applicant is entitled, according to the principles and provisions of this act, to have and receive a patent for his invention, as specified in his claim, or for any part thereof, as the fact of priority of right or invention shall, in any such case, be made to appear. And such adjudication, if it be in favor of the right of such applicant, shall authorize the Commissioner to issue such patent, on his filing a copy of the adjudication, and otherwise complying with the requisitions of this act: Provided, however, That no such judgment or adjudication shall affect the rights of any person except the parties to the action, and those deriving title from or under them, subsequent to the rendition of such judgment."
It has recently been decided, in the district court of Eastern Pennsylvania, that all proceedings in equity against the Commissioner of Patents must be commenced and prosecuted in the courts of the District of Columbia; no court out of the District having jurisdiction over the subject matter.
Before appealing from the decision of the Commissioner, the oath of invention must be renewed.
5th. Of interfering applications.-Whenever an application is presented 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 unexpired patent which shall have been granted, it shall be the duty of the Commissioner to give notice thereof to such applicants or patentecs, as the case may be; and if either shall be dissatisfied with the decision of the Commissioner on the question of priority of right or invention, on a hearing thereof, he may appeal from such decision on like terms and conditions as are provided in the case of applications for inventions not new; and the like proceedings shall be had to determine which, or whether either, of the applicants is entitled to receive a patent as prayed for.
In contested cases, the following rules have been established for taking and transmitting evidence:
1st. That all statements, declarations, evidence, &c., shall be in writing, setting forth, minutely and particularly, the point or points at issue, and shall be verified by oath or affirmation.
2d. That all statements, declarations, proofs, and evidence shall be filed in the Patent Office by the parties, respectively, before the day of hearing.
3d. That, before the deposition of a witness or witnesses be taken by either party, notice should be given to the opposite party of the time and place when and where such deposition or depositions will be taken, so that the opposite party, either in person or by attorney, shall have full opportunity to crossexamine the witness or witnesses. And such notice shall, with proof of service of the same, be attached to the deposition or depositions, whether the party cross-examine or not; and such notice shall be given in sufficient time for the appearance of the opposite party, and for the transmission of the evidence to the Patent Office before the day of hearing.
4th. That all evidence, &c., shall be sealed and addressed to the Commissioner of Patents, by the persons before whom it shall be taken, and so certified thereon.
5th. That the certificate of the magistrate taking the evidence shall be substantially in the following form, and written upon the envelope, viz:
'I hereby certify that the depositions of A B, C D, &c., relating to the matter of interference between E F and G H, were taken, sealed up, and addressed to the Commissioner of Patents by me.
"A B, Justice of the Peace."
6th. In cases of extension, where no opposition is made, ex parte testimony will be received from the applicant; and such testimony as may have been taken by the applicant, prior to notice of opposition, shall be received: Provided, The applicant shall give prompt notice to the opposing party or parties of the names and residences of the witnesses whose testimony has been thus taken.
7th. That no evidence, statement, or declaration, touching the matter at issue, will be considered upon the said day of hearing, which shall not have been taken and filed in compliance with these rules: Provided, That if either party shall be unable, for good and sufficient reasons, to procure the testimony of a witness or witnesses within the stipulated time, then it shall be the duty of said party to give notice of the same to the Commissioner of Patents, accompanied by statements, under oath, of the cause of such inability, and of the steps which have been taken to procure said testimony, and of the time or times when efforts have been made to procure it, which last-mentioned notice to the Commissioner shall be received by him previous to the day of hearing afore
SEC. VII. OF ADDITIONAL IMPROVEMENTS
"Whenever the original patentee shall be desirous of adding the description and specification of any new improvement of the original invention or discovery, which shall have been invented or discovered by him subsequent to the date of his patent, he may, like proceedings being had in all respects as in the case of original applications, and on the payment of fifteen dollars, as hereinafter mentioned, have the same annexed to the original description and specification; and the Commissioner shall certify, on the margin of such an nexed description and specification, the time of its being annexed and re