commissioner. If it is shown to his satisfaction that the delay was unavoidable, the application is not to be regarded as abandoned. He is invested with the power to grant the patent, and he may exercise it subject to the duty of determining that the preparation of the application for examination was not unnecessarily delayed after two years. The sufficiency of the evidence is for him. He is the only judge to be satisfied, and his judgment is conclusive. McMillin v. Barclay, 5 Fish. 189; s. c. 4 Brews. 275.

If the inventor has been incapacitated for business by mental disorder, the application will not be deemed to be abandoned. Ballard v. Pittsburgh, 12 Fed. Rep. 783.

Although a party fails to prosecute his application within two years after he is notified of its rejection, yet he may file a new application for the same invention, for it is not the invention but the application that is deemed to be abandoned. Lindsay v. Stein, 21 O. G. 1613; s. c. 10 Fed. Rep. 907.

This section comprehends the abandonment of applications only, which is a different thing from the abandonment of an invention to the public. William H. Golding, 8 O. G. 141.

If after an application is withdrawn, another is not filed in two years, it may reasonably be presumed that the applicant has no intention of renewing it. Hamilton v. Foster, 1 Dec. Com. 30; John W. Orr, 1 Dec. Com. 33; Edson v. Coffin, 1 Dec. Com. 65; Benson v. Bennett, 2 Dec. Com. 26; Gates v. Benson, 2 Dec. Com. 65; W. W. Williams, adm'r, 2 Dec. Com. 109; Hiram H. Marsh, 2 Dec. Com. 151; Cryer, 17 O. G. 452. If a second application is filed within two years of the date of the withdrawal, this renewal may be regarded as establishing a continuity of application, which makes it necessary that a public use, such as will operate as a bar to the grant of a patent, shall have taken place two years before the filing of the first application. S. Howes, 1 O. G. 227.

Delay in the prosecution of an application may be excused by satisfactory proof. Alfred Shoe, 3 Dec. Com. 62; R. A. Stewart, 4 Ö. G. 665; s. c. 5 0. G. 1; Stephen Hull, 9 O. G. 1.

Delay in prosecuting an application is not excused because the applicant is too deeply engaged in other pursuits; nor by anything short of such embarrassments as unavoidably prevent him. Gray v. Hale, 3 Dec. Com. 129.

If an applicant neglects to prosecute his application for two years after the office have rejected it, it will be held to be abandoned, unless it be shown that such delay was unavoidable. W. D. Leavitt, 3 O. G. 212; vide Weitling v. Cabell, 2 O. G. 223.

If a party omits to ask for the hearing of an appeal before the commissioner for two years, the application will be deemed to be abandoned. W. E. Woodbridge, 15 O. G. 564.

If an applicant does not prosecute his application within two years after any action thereon, it will be deemed to have been abandoned, unless the delay was unavoidable. Smith v. Dimond, 20 O. G. 742.

If no steps are taken towards prosecuting an application for two years after notice of the last action of the office upon it, except to enter a formal abandonment and request a return of the model, it must be considered abandoned. Freeham Graham, 3 O. G. 211; Lee & Smith, 5 O. G. 58.

The apparent date of a paper requesting further action may or may not be correct. It may be wholly deceptive and intended to mislead. The only date that can be regarded as entirely reliable is that of filing as indicated by the official stamp on the paper. Henry H. Blake, 3 O. G. 2.

The day of the last action in the patent office will be excluded in computing the period of two years within which the applicant must prosecute his case in order to avoid a forfeiture. Musser, 16 O. G. 858.

If a claim which has been rejected is amended in mere matter of form and then rejected a second time, a mere request for a reconsideration of the decision is not such a prosecution of the application as will take the case out of the operation of this section. Barton H. Jenks, 14 O. G. 747.

An application which has been forfeited by a failure to prosecute can not be revived, unless the party establishes the utmost good faith and diligence in his conduct. Thomas Mayor, 13 O. G. 912.

A prior rejected or withdrawn application can not be held as a bar to the issue of a patent under a subsequent application. G. B. Sexton, 9 O. G. 251.

Neglecting to take any steps in prosecuting an application for a reissue for two years after the last action of the office upon it does not work an abandonment of it. N. H. Galusha, 3 O. G. 321.

An applicant may take an appeal from an adverse decision at any time within two years after the decision. Reynolds, 24 O. G. 993.

SEC. 4895. Patents may be granted and issued or reissued to the assignee of the inventor or discoverer; but the assignment must first be entered of record in the patent office. And in all cases of an application by an assignee for the issue of a patent, the application shall be made and the specification sworn to by the inventor or discoverer; and in all cases of an application for a reissue of any patent, the application must be made and the corrected specification signed by the inventor or discoverer, if he is living, unless the patent was issued and the assignment made before the eighth day of July, eighteen hundred and seventy.

Statute Revised-July 8, 1870, ch. 230, § 33, 16 Stat. 202.

Prior Statute-March 3, 1837, ch. 45, § 6, 5 Stat. 193.

The words" the assignee" mean the assignee in any degree and however remote. They are not limited to the immediate assignee of the inventor, but embrace the ultimate assignee. Selden v. Stockwell S. L. G.

B. Co., 20 O. G. 1737; s. c. 19 Blatch. 544; s. c. 9 Fed. Rep. 390.

No assignment of an unpatented invention is required to be recorded by this section, unless it is an assignment on which a patent is to be issued to the assignee," and in such case the invention must be so identified in the assignment by a reference to a specification or an application, or

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otherwise, that there can be no mistake as to what particular invention is intended. Wright v. Randel, 21 O. G. 493; s. c. 19 Blatch. 495; s. c. 8 Fed. Rep. 591.

When an assignment of an interest in the invention is recorded in the patent office, the patent may be issued to the inventor and assignee jointly. Wright v. Randel, 19 Blatch. 495; s. c. 21 O. G. 493; s. c. 8 Fed. Rep. 591.

If the assignment which divested the inventor of his interest in the patent was made before July 8, 1870, the specification for a reissue need not be signed by the inventor. Selden v. Stockwell S. L. G. B. Co., 20 O. G. 1377; 19 Blatch. 544; s. c. 9 Fed. Rep. 390.

A patent cannot be granted to an assignee where the inventor himself would not be entitled to a patent. Tatham v. Loring, 5 N. Y. Leg. Obs. 207.

If assignments have been made, the commissioner of patents must be governed by the record in determining to whom a patent shall issue. Thomas A. Edison, 7 O. G. 423; Edwin L. Paine, 13 Ö. G. 407.

SEC. 4896. When any person having made any new invention or discovery for which a patent might have been granted, dies before a patent is granted, the right of applying for and obtaining the patent shall devolve on his executor or administrator, in trust for the heirs at law of the deceased in case he shall have died intestate; or if he shall have left a will, disposing of the same, then in trust for his devisees, in as full manner and on the same terms and conditions as the same might have been claimed or enjoyed by him in his lifetime; and when the application is made by such legal representatives, the oath or affirmation required to be made shall be so varied in form that it can be made by them.

Statute Revised-July 8, 1870, ch. 230, $ 34, 16 Stat. 202.

Prior Statutes-April 17, 1800, ch. 25, § 2, 2 Stat. 38.-July 4, 1836, ch. 357, § 10, 5 Stat. 121.

A patent issued to an executor will be valid, although the trust is not expressed on the face thereof, for the law creates the trust. Stimpson v. Rogers, 4 Blatch. 333; Northwestern Co. v. Philadelphia, 6 O. G. 34; s. c. 1 Ban & Ard. 177.

The import of this provision is that while the legal title to the invention is devolved upon the administrator, he must take and hold it subject to any equities existing as against the inventor in his lifetime. Where

the inventor parted with the equitable title, the administrator holds it under exactly the same conditions, and subject to the same limitations of his interest in it. Northwestern Co. v. Philadelphia Co., 6 O. G. 34; s. c. 1 Ban & Ard. 177.

An administrator with relation to letters patent is substantially a trustee for the heirs of the inventor, but in order to act he must make proof of his representative character. Foreign letters of administration are not good evidence of it. Robert Ransome's Ex'rs, 2 Dec. Com. 143.

If an applicant dies, his executor need not file a new application, but may be made a party to the pending application. Rice v. Burt, 16 O. G. 1050.

SEC. 4897. Any person who has an interest in an invention or discovery, whether as inventor, discoverer, or assignee, for which a patent was ordered to issue upon the payment of the final fee, but who fails to make payment thereof within six months from the time at which it was passed and allowed, and notice thereof was sent to the applicant or his agent, shall have a right to make an application for a patent for such invention or discovery the same as in the case of an original application. But such second application must be made within two years after the allowance of the original application. But no person shall be held responsible in damages for the manufacture or use of any article or thing for which a patent was ordered to issue under such renewed application prior to the issue of the patent. And upon the hearing of renewed applications preferred under this section, abandonment shall be considered as a question of fact.

Statute Revised-July 8, 1870, ch. 230, § 35, 16 Stat. 202.

Prior Statutes-June 25, 1864, ch. 159, 1, 13 Stat. 194.-March 3, 1865, ch. 112, 1, 13 Stat. 533.

The decision of the commissioner in regard to abandonment upon a renewed application is not conclusive, and all the defences which can be made to a patent granted upon an original application may be made to a patent granted upon a renewed application. U. S. Rifle Co. v. Whitney Arms Co., 11 O. G. 373; s. c. 14 Blatch. 94; s. c. 2 Ban & Ard. 493; Marsh v. Commissioner, 5 Fish. 610; s. c. 3 Biss. 321; 2 O. G. 340; Planing Machine Co. v. Keith, 101 U. S. 479; s. c. 17 O. G. 1031; s. c. 4 Ban & Ard. 100.

If applicants file new applications, such as have been before filed by them and abandoned, the proper action is not to reject them on reference to the former application, but to refuse to consider them, because the right to file them does not exist. Andrew Mills, 7 O. G. 961; George Crompton, 9 O. G. 5; Alfred Shoe, 3 Dec. Com. 62; Robert McCully, 6 O. G. 153; Timothy Gordon, 6 O. G. 543; Davies v. Hartman, 9 O. G.

351.

An application cannot be renewed if the motion therefor is made more than two years after the allowance of the patent. Hardy, 12 O. G. 1075. An inventor may file a second application although more than two years have elapsed since the allowance of a prior application which was forfeited for non-payment of the final fee. Livingston, 20 O. G. 1747.

The filing of a naked petition for the renewal of a rejected application does not of itself renew the case, but the petition must be accompanied by a demand for the action appropriate to the next stage of proceeding. Millspaugh, 2 Dec. Com. 112.

If an application is made for an article and a process, and the claim for the article is rejected, such claim can only be renewed by an application for a reissue of the patent for the process. Arkell, 11 O. G. 1111; C. B. Cottrell, 9 O. G. 495.

SEC. 4898. Every patent, or any interest therein, shall be assignable in law by an instrument in writing; and the patentee, or his assigns or legal representatives, may, in like manner, grant and convey an exclusive right under his patent to the whole or any specified part of the United States. An assignment, grant, or conveyance, shall be void as against any subsequent purchaser or mortgagee for a valuable consideration, without notice, unless it is recorded in the patent office within three months from the date thereof.

Statute Revised-July 8, 1870, ch. 230, § 36, 16 Stat. 203.

Prior Statutes-February 21, 1793, ch. 11, § 4, 1 Stat. 322.-July 4, 1836, ch. 357, 11, 5 Stat. 121.

Construction.

This section is confined to assignments, grants, and conveyances of interests in patents after they are issued. Wright v. Randel, 19 Blatch. 495; s. c. 18 O. G. 857; s. c. 8 Fed. Rep. 591.

Mode of Assigning.

The monopoly granted to the patentee is for one entire thing. It is the exclusive right of making, using, and vending to others to be used, the improvement he has invented, and for which the patent is granted. The monopoly did not exist at common law, and the rights therefore which may be exercised under it can not be regulated by the rules of the