ing, upon any patented article, of the word "patent" or "patentee," or the words "letters patent," or any word of like import, with intent to imitate or counterfeit the mark or device of the patentee. 3. Marking upon any unpatented article the word "patent," or any word importing that the same is patented, for the purpose of deceiving the public. 1 § 326. The first two of these three classes of acts are injurious to the public, and to the patentees. They are injurious to the public in that they are adapted to mislead persons into buying and using articles which were made and sold in violation of patents, and which therefore cannot be lawfully used even by innocent purchasers. The law provides that those who have a right to make and sell patented articles shall mark those articles with the word "patented;" and that other persons shall not so mark such articles. When buying anything which is not so marked, a purchaser properly concludes that it is not patented, and that he may therefore use it without risk of a suit for infringement; and when buying anything that is so marked, the purchaser concludes, with equal propriety, that it was made and sold by the patentee or some one lawfully authorized by him, and that therefore it may be lawfully used to any extent desired. It is clear, that on these accounts, the first two of the forbidden acts are detrimental to public security, and therefore opposed to public policy. The same acts are also injurious to patentees, and they will be considered in that aspect in a subsequent section. $327. The last of the three forbidden classes of acts is injurious to the public, in that it is adapted to mislead persons into an opinion that they have no right to make and use, or make and sell, other specimens of the thing marked as being patented. When an unpatented thing is so marked, it is immaterial whether it is a patentable thing or not.' This point is so clear that it would not be thought to re 1 Revised Statutes, Section 4900. Mills Co. 5 Sawyer, 120, 1878: Winne v. Snow, 19 Fed. Rep. 509, 1884. quire or admit elaboration, had not a judge in one case expressed a contrary opinion.' Whether a thing is patentable or not depends on considerations of which the public as a whole are necessarily ignorant. They may therefore be deceived by seeing the word "patented" upon an unpatentable unpatented article, as readily as by seeing the same word upon a patentable unpatented article. That word warns them not to copy that article. They are as reluctant to disregard that warning on a supposition that the article is not patentable, as they are on the hypothesis that it is not patented; and they are as effectually diverted from exercising their right to copy it in the one case as in the other. Intent to deceive the public is a necessary element of the forbidden act now under consideration; and that intent does not exist when the person marking, is himself mistaken relevant to his right so to mark; or where the word "patented" is accompanied by other words or characters which indicate that the article was once the subject of a patent, but that the patent has expired at the time of the marking. Inasmuch as all persons are presumed to intend the natural consequences of their acts, proof of an act which was adapted to deceive the public, is sufficient proof of the intent to deceive, unless the doer establishes his innocence of that intent. The burden of proof therefore lies upon the defendant, in this particular. That burden can be carried by showing that the person marking, honestly believed that the thing marked was really patented by a particular patent; but it cannot be carried by showing that the person marking did not know whether the article marked was patented or not; and the question whether a particular thing marked patented is really patented by a particular patent a question of construction for the Court." is 1 United States v. Morris, 2 Bond, 27, 1866. 2 Walker v. Hawxhurst, 5 Blatch. 494, 1867. 3 Wilson v. Mfg. Co. 12 Fed. Rep. 57, 1882 Brig Struggle v. United States, 9 Cranch, 74, 1815. Tompkins v. Butterfield, 25 Fed. Rep. 556, 1885. § 328. Proof that the article illegally marked patented was afterward sold, or was otherwise presented to the notice of the public, is not a necessary element in either of the acts which are forbidden by the statute; but proof that the intent to deceive the public existed when the marking was done is such an element. Accordingly, if a person illegally marks an article, his offence is complete, and is not condoned by a subsequent omission to profit by that offence; but where a person marks an article without any intent to deceive, and afterward uses the article so marked, for purposes of deception, he does not violate the statute.' Where a person illegally marks an article in one judicial district of the United States and offers it for sale in another, he violates the statute in the former district but not in the latter.' § 329. The penalty prescribed by the statute for either of the forbidden acts is "not less than one hundred dollars;" and Justice CURTIS well decided that such language must, in a penal statute like this, be strictly construed, and that, when so construed, it authorizes a penalty of precisely one hundred dollars and no more.' The district judge in the same district, in a later case, instructed a jury to assess the "damages" not less than one hundred dollars and as much more as they thought proper. That instruction was not accompanied by any reasoning on the subject, and was apparently made in ignorance of the elaborate contrary decision of Justice CURTIS. The latter decision may therefore safely be said to embody the law on this point. § 330. The plaintiff in a qui tam action for illegally marking a patented or unpatented article, may be any "person," whether he was injured by the doings of the defendant or not. It was decided under a similar statute relevant to 1 Nichols v. Newell, 1 Fisher, 647, 1853. 2 Pentlarge v. Kirby, 19 Fed. Rep. 504, 1884. 3 Stimpson v. Pond, 2 Curtis, 502, 1853. Nichols v. Newell, 1 Fisher, 659, Revised Statutes, Section 4901. • Winne . Snow, 19 Fed. Rep. 508, 1884. copyrights, that a plurality of persons could not join as plaintiffs in an action of the kind.' The language of that copyright statute was identical with that of the present patent statute in this particular; and the same good reasoning which carried the court to its conclusion in the copyright case, will probably carry any court to the same conclusion in any qui tam action under the patent statute. The person who sues must be a natural and not an artificial person; and he must sue in his own name and not in that of the United States,' though it is not improper for him to state that he sues for the United States, as well as for himself." The defendant may be the particular natural person who did the marking complained of; and it has been held in one case that the defendant may be the corporation for which that natural person acted, even where he marked the articles without any directions so to do. The death of the defendant will end a qui tam patent case, and will terminate the right of action on which it is based.' § 331. Jurisdiction in qui tam actions, unlike that in other kinds of patent suits, is conferred upon District Courts, not upon Circuit Courts, of the United States, and is conferred upon the particular court within the district of which the forbidden act was committed." § 332. The proper form of common law action, in qui tam cases, is that of debt.' Inasmuch, however, as no particular form is prescribed by the Federal statute, the code forms of complaints or petitions are to be used in code States. The declaration, complaint, or petition, as the 1 Ferrett v. Atwill. 1 Blatch. 153, 1846. * United States v. Morris, 2 Bond, 27, 1866. Winne. Snow, 19 Fed. Rep. 508, 1884. 4 Tompkins v. Butterfield, 25 Fed. Rep. 559, 1885. Schreiber v. Sharpless, 17 Fed. Rep. 589, 1883. Revised Statutes, Section 4901; Winne . Snow, 19 Fed. Rep. 509, 1884; Pentlarge v. Kirby, 19 Fed. Rep. 505, 1884. Stimpson v. Pond, 2 Curtis, 505, 1855; Jacob v. United States, 1 Brockenbrough, 520, 1821. 914. Revised Statutes, Sections 721, case may be, ought to state all the elements of the forbidden act upon which it is based;' and to charge that the act was contrary to the form of the statute in such cases made and provided. It is not enough to charge that the act was contrary to the law in such cases made and provided,' but to aver it to have been contrary to the form of the statutes in such cases made and provided, though inartistic, is not fatal. It is not necessary to aver the uses to which the penalty when recovered, is to be applied. A declaration, complaint or petition in a qui tam patent case is tested in point of sufficiency by the rules applicable to civil actions in the state in which the District Court is established when that sufficiency is drawn in question in that court." § 333. The first two of the classes of acts, forbidden by Section 4901 of the Revised Statutes, are not only injurious to the public, in the manner already explained; but they are also injurious to the rightful patentees. Such acts enable infringers to increase the amount of their infringements, by inducing the public to believe that the articles they sell were lawfully made, and may be lawfully sold and used. So also, such acts may enable infringers to palm off on the public an inferior article, the using of which will disappoint the purchaser, and thus operate to injure the reputation of the genuine thing. For these reasons, it has been held that a person who is guilty of an act of either of the first two classes, may be restrained by an injunction from any repetition of such an act.' § 334. A writ of error lies to the Circuit Court for the same district, from the final judgments of a District Court, in a qui tam patent case, because such a case is a civil case," 1 Ferrett v. Atwill, 1 Blatch. 155, 1846. ? Sears v. United States, 1 Gallison, 259, 1812. 3 Smith v. United States, 1 Gallison, 264, 1812. Kenrick v. United States, 1 Gallison, 273, 1812. 5 Sears v. United States, 1 Gallison, 259, 1812. Fish v. Manning, 31 Fed. Rep. Washburn & Moen Mfg. Co. v. Jacob v. United States, 1 Brock- |