bring home to the public generally, and probably, a knowledge of its existence and deprive any one of the credit and protection of being original, if he afterward construct a like machine. Nothing can be within the spirit of the law except what is public and thus known. The Court held that novelty is not negatived by any prior private patent granted in a foreign country.

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The only secret patents, of which I am aware, that are received by this Office, are those British patents upon which the ban of secrecy has been removed. These will be considered later, in the discussion of British procedure.

SECRET PATENTS (SECTION 4887).

While it has been said that the word "patented" means the same thing in Sections 4886 and 4887 (Queen vs. Friedlander, 149, Fed., 775), a secret patent, while not a bar under Section 4886, will probably prevent an an applicant from receiving a patent in this country under the conditions stated in Section 4887.

In the case of De Florez vs. Raynolds, C. D., 1880, p. 289, the court said:

"We fix the date of Nov. 27, 1862, and not the date of Feb. 20, 1863, because we regard it as the clear intention of the provisions of the law limiting the duration of a United States patent, patenting an invention previously patented abroad to the same inventor, to give the patentee a specified term from the date at which his foreign patent took effect as a foreign patent in his favor.

This view is not necessarily applicable to a case where a foreign patent to one inventor is set up to defeat a United States patent to a different inventor. In such case, the manifest intention of the law is that a foreign patent shall apply only as of a date when the invention was published or was accessible to the public and not of an earlier date from which the inventor may have enjoyed the benefit of the foreign patent as a patent."

The decision in this case was quoted with approval in the opinion of the Secretary of the Interior in the case of

Rumpff et al. vs. Köhler vs. Krügener, C. D., 1883, p. 111.

The question of the secrecy or publicity of an Austrian patent can not under Section 25 of the Act of 1870 affect the duration of a patent for the same invention in this country.

Elec. Co. vs. Arnoux et al., 17 Fed., 838.

Section 30 of the British Patent Act provides for what are known as secret patents on instruments or munitions of war. The patent is assigned to the Secretary of State for war, or the admiralty, who may certify to the comptroller that, in the interest of public service, the particulars of the invention should be kept secret. If the benefit of this section is waived at any time by the Secretary of State, or the admiralty, the specifications shall thenceforth be kept, and dealt with in the ordinary way.

The sealing of such a patent is not published in the official Journal, but when the benefit of the law is waived by the Secretary of State, or the admiralty, the specifications are published and the date of publication is given in the heading thereof.

While the controlling date of such a patent under Section 4886 is the date of publication, it is effective, nevertheless, as a bar under Section 4887 as soon as patented. The date of the application is determined as hereinafter stated, according to the character of the application.

CITATION OF FOREIGN PATENTS.

In Robin vs. Muller, cited, it was held that where the date and contents of a foreign patent are proved, the burden is upon the party against whom it is used, to show that it was not published or open to public inspection on the date which it bears.

Also, in the case of Hummel vs. Tingley, C. D., 1900, p. 2, the Examiner cited a foreign patent as a reference. It appeared upon its face that it was issued at a date prior to the filing date of the application under consideration. It was contended by the applicant that the foreign patent was not granted at the date shown on its face, but it was held that when a foreign patent is cited, the

burden is shifted to the applicant to prove that said patent was not entitled to the date which made it effective as an anticipatory publication.

Where an application was rejected on a foreign patent, Held, the Examiner properly refused to withdraw the patent as a reference in the absence of an affidavit by the applicant, fully identifying it as his own or filed on his behalf, with his knowledge and consent.

Ex parte Wlost, C. D., 1911, p. 57.

In addition to the data required to be given by Rule 66, the Examiner, when citing foreign patents, will include a statement identifying the particular figures of the drawing relied upon as a showing of the anticipating structure. If the drawing of the foreign patent comprises a single sheet, the Examiner will say "(one sheet).' If the drawings on the foreign patent, as issued, comprise more than one sheet, the particular figures and numbers of sheets will be indicated.

The purpose of this order is to give applicants and attorneys information respecting foreign patents cited as references, so that photographic copies thereof may be ordered without unnecessary correspondence and delay. Order 2096, Jan. 21, 1914.

FOREIGN PUBLICATIONS.

It has been held that the so-called publications made in the British Official Journal and the German Imperial Gazette concerning applications for patents, and the laying open of such applications to the public inspection, do not constitute either publications of, or patents for, the inventions involved. Parkins vs. Jenness, 1893, C. D., p. 64.

The practice in Austria, however, differs from that in England and Germany in that the Patentblatt does more than merely identify the application. It publishes a description of the invention itself, but is without drawings, and while it is doubtful if such a disclosure in many cases would be operative as a publication under Section 4886, it is possible that in some cases, the invention would be described with all the necessary clearness.

The disclosure, to be effective for this purpose, should enable one skilled in the art to practice and fully understand the invention without experimentation, and must be as definite as specifications for patent in this country. Badische Fabrik vs. Halle, 94 Fed., 163.

Mattress Co. vs. Whittlesley, Fed. Cas., 18058.
Western Elec. Co. vs. Tel. Co., 88 Fed., 505.

The date of publication, "offentliggjort" is at the end of a Swedish specification, while in the case of Norwegian patents, the "offentliggjort" date is in the heading.

The dates of publication of Dutch and Danish patents are found in the headings thereof by the expressions"Octrooischrift uitgegeven" and "Bekendtgjort," respectively.

QUESTIONS ARISING UNDER SECTION 4887

The most important questions arising under Section. 4887 regarding the word "patented" are the date of the actual patent grant, the identity of the invention patented, and the identity of the patentee.

In order to operate as a bar to the grant of a patent in this country, the foreign patent must be actually issued under the seal of the foreign government.

Bell Telephone Co. vs. Cushman, C. D., 1892, p.

546.

In the case of any country, excepting Great Britain, if we have a copy here we may be assured that the patent has been granted.

In the case of British patents, there is a wide variation possible in the date of sealing and since the specification and drawings are usually printed and ready for public dsitribution, two or three weeks after the acceptance of the complete specifications, the receipt in this Office of the printed copies of the specification and drawing is no evidence that the patents have been sealed.

There is no indication on the heading of a British patent specification as to its sealing date and it is important that this be known.

It is also important to know the actual or effective

filing dates of British patents because of the complications arising under the British practice. For this reason, a separate consideration is given of the British practice in so far as it may influence our practice under Section 4887.

The sealing of a British patent takes place according to the statute as soon as may be, and not after the expiration of fifteen months from the date of the application. Section 12-2-British Patents & Designs Act.

There are four exceptions to this rule, however, nineteen months being allowed where an extension of time was allowed in which to leave the complete specification and the period is extended also in the case of the death of the applicant, or neglect to pay the required fees, in which cases, the patent may be sealed any time within twelve months after his death, Section 12-3, or the period may be extended on the payment of fees, Section 12-4. Also, when an appeal has been taken, the patent shall be sealed at such a time as the law officer may direct. Section 12-2.

The date of sealing, if the patent has been sealed, may be learned on inspection of the British Official Journal in the Library.

In this connection, it may be stated that the contents. of this Journal are:

1st. Applications.

2d. Specifications accepted.

3d. Specifications open to public inspection before acceptance.

There are cases arising under Section 4887 in which the applicant acknowledges the filing of a patent application in a foreign country more than twelve months prior to the date of filing in this country. A valid patent could issue on the domestic application, provided that there has been no previous grant of the foreign patent.

When, therefore, such an application is ready for allowance, the applicant should not be required to prove that