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Act of 1861, (Laws 1861, ch. 88, § 9,) which declares, “ And be it further enacted, That no money paid as a fee on any application for a patent after the passage of this act shall be withdrawn or refunded, nor shall the fee paid on filing a caveat be considered as part of the sum required to be paid on filing a subsequent application for a patent for the same invention. That the three months' notice given to any caveator, in pursuance of the requirements of section twelve, act of July 4th, 1836, shall be computed from the day on which such notice is deposited in the post-office at Washington, with the regular time for the transmission of the same added thereto, which time shall be indorsed in the notice." Section ten of this act of 1861 also abolishes the laws regulating the fees at the Patent Office, and discriminating between citizens of the United States and that of other countries, and provides that the fee for filing each caveat shall be ten instead of twenty dollars. As to the effect of a caveat upon a subsequent patent, see the ruling of Sprague, J., in Johnson v. Root, MS.: "It is contended, on the part of the defendant, that the caveat itself is conclusive evidence that the invention was not perfected. You will observe that the application, which is in the caveat before you, made to the Patent Office by Mr. Johnson for leave to file a caveat, sets forth that he has made a certain new and useful improvement in the sewingmachine, and that he is then making experiments to perfect it, and he asks leave to file a caveat to secure it. The defendant insists that that application is of itself conclusive evidence that he has not perfected it. We will look at it, gentlemen, and see. I do not instruct you that it is conclusive evidence; but it is evidence for you to take into view in connection with the other evidence, and in connection with the other parts of the same instrument, in which he begins by saying that he has made a new and useful invention in the sewing-machine. Now, gentlemen, although a caveat is understood to be, and in this instance is, filed in order to allow the party to perfect his machine, yet if, in point of fact, the invention had been perfected in the eye of the law, as I have explained to you, then, if you are satisfied of that from the evidence, you may deem it, for the purposes of this trial, as perfected. Or it may happen that a person may choose to file a caveat while he is going on and making improvements upon an invention which he has already completed, so as to be of practical utility. Therefore, gentlemen, I would say to you

that you will take into consideration the declaration of the plaintiff himself in the application, that he had made a new and useful improvement in sewing-machines, and the further declaration that he is making experiments in order to perfect his invention, and the subsequent declaration that he has made a new and useful improvement, and the other evidence in relation to the case, that is, what is described in the caveat and the model made in 1848, and see if that exhibits to you a perfected machine; and then such further evidence as you have as of the actual operation of the machine that will be before you.

"Now, gentlemen, if he had perfected it, then he had a right to embrace it in a patent that he should afterwards take out. If he had not perfected it, then another question will arise, and that is, had he invented the feeding mechanism at that time, and did he use due diligence to perfect that and put it into a perfect machine so as to make it of some practical utility. . . . . If the invention was perfected, as I have already said, or, if not perfected, if Mr. Johnson used reasonable diligence to perfect it, then he had a right to have it incorporated into his patent, and to supersede those that had intervened between his first discovery and his subsequent taking out of the patent. If he had not perfected it, and did not use due diligence to carry it into effect, and in the mean time, before he got his patent, some one else had invented and used and incorporated into a practical, useful machine that mode of feeding, then he could not, by subsequent patent, appropriate to himself what was embraced in the former machine, between his caveat and the obtaining of his patent."

THE PETITION, OATH, PAYMENT OF FEES, ETC.

§ 271. The act of 1836, § 6, requires an inventor who desires to obtain a patent to "make application in writing to the Commissioner of Patents," &c. This application in writing has, from the origin of the government, been by way of petition, generally with the specification annexed and referred to, or accompanied by the specification, filed at the same time. The form of the petition is not material, provided it set forth the facts to which the applicant is required to make oath. When filed, it is to be presumed to adopt the specification, or schedule, filed at the same time, and to ask for a patent for the invention therein described.1

1

Hogg v. Emerson, 6 How. 437,480. The rules of the Patent Office give a form of petition which it is advisable to adopt in all cases. See Appendix.

If a party chooses to withdraw his application for a patent and pay the forfeit, intending at the time of such withdrawal to file a new petition, and he accordingly does so, the two petitions are to be considered as parts of the same transaction and as constituting a continuous application, within the meaning of the law. Thẹ question of the continuity of the application should be submitted to the jury. Where an inventor, having made application for a patent for certain improvements, afterwards, with his claim still. on file, makes application for another but distinct improvement in the same branch of art, describing therein the former application, but not claiming it as original, such description and non-claim is not to be considered a dedication of the prior invention.2

§ 272. The applicant is also required to make oath or affirmation that he does verily believe that he is "the original and first inventor," &c.," and that he does not know or believe that the same was ever before known or used," and also of what country he is a citizen; which oath or affirmation may be made before any person authorized by law to administer oaths.3

§ 273. The applicant is required to make oath or affirmation, not that he is the original and first inventor or discoverer, but that he believes himself to be so. He cannot know absolutely whether he first invented or discovered the thing for which he claims a patent, but he may believe that he did; and it is only when he is willing to make oath that he so believes, that the law grants him the patent. A subsequent section of the same statute provides for one case in which a patent shall still be valid, if issued to an applicant who believed himself to be the first inventor or discoverer, although he was not so, in point of fact. This case is where the invention or discovery had been previously known or used in a foreign country, but had not been patented or described in any public work, and the patentee was ignorant of that fact. If the patentee, before making his application, had learned that the thing had been known or used in a foreign country, although not patented or described in any foreign work, he cannot have believed 1 Godfrey v. Eames, 1 Wallace, 317.

Suffolk Co. v. Hayden, 3 Wallace, 315.

* Act of July 4, 1836, § 6. The oath extends to all described in the schedule as to the title or description of the invention conHogg v. Emerson, 6 How. 437, 482.

filed with the petition, as well

tained in the petition itself.

himself to be the first inventor or discoverer. But if he learn the fact after he has taken the oath, it will not invalidate his patent.1

§ 274. An irregularity in the form of the oath will be cured by the issuing of the patent, and it seems that a patent would be valid, when issued, although the oath might not have been taken at all. It has been held that the taking of the oath is only a prerequisite to the granting of the patent, and in no degree essential to its validity; so that if the proper authorities, from inadvertence or any other cause; should grant a patent, where the applicant had not made oath according to the requisitions of the statute, the patent would still be valid. But where the oath has been taken and is recited in the patent, it is the foundation of the onus probandi thrown on the party who alleges that the patentee was not the original and first inventor.2

§ 275. The ninth section of the statute provides, that before any application for a patent shall be considered by the commissioner, the applicant shall pay into the treasury of the United States, or into any of the deposit banks to the credit of the Treasury, if he be a citizen of the United States, or an alien, and shall have been resident in the United States for one year next preceding, and shall have made oath of his intention to become a citizen thereof, the sum of thirty dollars; if a subject of the King of Great Britain, the sum of five hundred dollars.3

These provisions have been superseded by the fee-bill contained in the Act of Mar. 2, 1861, § 10. And be it further enacted, That all laws now in force fixing the rates of the Patent Office fees to be paid, and discriminating between the inhabitants of the United States and those of other countries, which shall not discriminate against the inhabitants of the United States, are hereby repealed, and in their stead the following rates are established :—

On filing each caveat, ten dollars.

On filing each original application for a patent, except for a design, fifteen dollars.

On issuing each original patent, twenty dollars.

On every appeal from the examiner in chief to the commissioner, twenty dollars.

1 Act 4th July, 1836, § 15.

2 Alden v. Dewey, 1 Story's R. 336, 341.

Act 4th July, 1836, § 9.

On every application for the reissue of a patent, thirty dollars.

On every application for the extension of a patent, fifty dollars; and fifty dollars in addition, on the granting of every extension. On filing each disclaimer, ten dollars.

For certified copies of patents and other papers, ten cents per hundred words.

For recording every assignment, agreement, power of attorney, and other papers of three hundred words or under, one dollar.

For recording every assignment and other papers over three hundred and under one thousand words, two dollars.

For recording every assignment or other writing, if over one thousand words, three dollars.

For copies of drawings, the reasonable cost of making the

same.

SIGNATURES OF THE SECRETARY OF THE INTERIOR AND OF THE

COMMISSIONER OF PATENTS.

§ 276. The act of July 4, 1836, ch. 357, § 5, provides that patents shall be issued from the Patent Office "in the name of the United States, and under the seal of said office, and be signed by the Secretary of State, and countersigned by the commissioner of said office."

But now, according to act of 1849, ch. 108, § 2, "The Secretary of the Interior shall exercise and perform all the acts of supervision and appeal in regard to the office of Commissioner of Patents, now exercised by the Secretary of State."

§ 277. It has been held that the sanction of the Secretary of State (now of the Interior) to a correction of a clerical mistake in letters-patent, may be given in writing afterwards; and that he need not re-sign the letters themselves. But the commissioner, if he be the same officer who countersigned the letters originally, may make the correction without re-signing or re-sealing. If the mistake occurs in the copy of the patent, and not in the record or enrolment, it may be corrected by the commissioner and made to conform to the original. If the mistake in the enrolled patent be a material one, the letters cannot operate except on cases arising after the correction is made; but if the correction be of a clerical mistake only, it operates back to the original date of the letters,

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