33; J. D. Brown, 3 Dec. Com. 39; C. H. & H. E. Davidson, 3 Dec. Com. 71; Isaac Hayden, 3 Dec. Com. 73; Wm. L. Williams, 3 Dec. Com. 93; A. H. Rowand, 3 Dec. Com. 105; James D. Sarvin, 3 Dec. Com. 170; William Kelly, 3 Dec. Com. 186; John Haw, 3 Dec. Com. 191; F. C. Lowthorp, 3 Dec. Com. 192; L. F. Munger, 3 Dec. Com. 203; John P. Manny, 3 Dec. Com. 205; Benaiah Fitts, 3 Dec. Com, 211; B. D. Whitney, 3 Dec. Com. 211; Philip W. McKensie, 3 Dec. Com. 223; Lovejoy & Butterfield, 3 Dec. Com. 267; C. Chambers, 3 O. G. 320; Michael H. Simpson, 2 Dec. Com. 88; Ethan Rogers, 2 Dec. Com. 92; Emily J. Lamson, 2 Dec. Com. 94; Sopia & P. L. Moen, Adm'rs, 2 Dec. Com. 98; Samuel Thomas, 2 Dec. Com. 99; W. & Wm. H. Lewis, 2 Dec. Com. 118; Tobias J. Kindleberger, 2 Dec. Com. 121; D. P. Estep, 2 Dec. Com. 123; George Thompson, 2 Dec. Com. 128; Samuel Morrill, 2 Dec. Com. 134; El Dora Louis, Adm'x, 2 Dec. Com. 148; Thaddeus Fairbanks, 3 Dec. Com. 15; Samuel R. Smith, 3 Dec. Com. 16; D. W. Shares, 3 Dec. Com. 19; Samuel R. Wilmot, 3 Dec. Com. 31; Wm. C. Hicks, 3 Dec. Com. 50; George F. Hutchius, 3 Dec. Com. 57; Elliott Savage, 3 Dec. Com. 69; Ann M. Cooley, 3 Dec. Com. 187; John Toulman, 3 Dec. Com. 214; Charles H. Sayer, 3 Dec. Com. 224.

SEC. 4925. Upon the receipt of such application, and the payment of the fees required by law, the commissioner shall cause to be published in one newspaper in the city of Washington, and in such other papers published in the section of the country most interested adversely to the extension of the patent as he may deem proper, for at least sixty days prior to the day set for hearing the case, a notice of such application, and of the time and place when and where the same will be considered, that any person may appear and show cause why the extension should not be granted.

Statute Revised-July 8, 1870, ch. 230, 64, 16 Stat. 208.
Prior Statute-July 4, 1836, ch. 357, 17, 5 Stat. 124.

A notice of an application for an extension of the original patent is sufficient, although it has been surrendered and a reissue granted. Crompton v. Belknap Mills, 3 Fish. 536.

The judgment of the commissioner settles conclusively all questions of notice. Crompton v. Belknap Mills, 3 Fish. 536; Brooks v. Bicknell, 3 McLean 250; s. c. 2 Robb 118; Gear v. Grosvenor, 6 Fish. 314; s. c. 1 Holmes 215; 3 O. G. 380.

SEC. 4926. Upon the publication of the notice of an application for an extension, the commissioner shall refer the case to the principal examiner having charge of the

class of inventions to which it belongs, who shall make the commissioner a full report of the case, stating particularly whether the invention or discovery was new and patentable when the original patent was granted.

Statute Revised-July 8, 1870, ch. 230, ? 65, 16 Stat. 208.

Prior Statutes-July 4, 1836, ch. 357, ? 17, 5 Stat. 124.-May 27, 1848, ch. 47, 21, 9 Stat. 231.

SEC. 4927. The commissioner shall, at the time and place designated in the published notice, hear and decide upon the evidence produced, both for and against the extension; and if it shall appear to the satisfaction of the commissioner that the patentee, without neglect or fault on his part, has failed to obtain from the use and sale of his invention or discovery a reasonable remuneration for the time, ingenuity and expense bestowed upon it, and the introduction of it into use, and that it is just and proper, having due regard to the public interest, that the term of the patent should be extended, the commissioner shall make a certificate thereon, renewing and extending the patent for the term of seven years from the expiration of the first term. Such certificate shall be recorded in the patent office, and thereupon such patent shall have the same effect in law as though it had been originally granted for twenty-one years.

Statute Revised-July 8, 1870, ch. 230,
Prior Statute-July 4, 1836, ch. 357,

66, 16 Stat. 208. 17, 5 Stat. 124.

The granting of an extended patent is a judicial act. Authority to that end is conferred upon the commissioner of patents. The manner in which it is to be exercised, and the time within which it may be exercised, are prescribed by the act. When an extension is granted in apparent conformity to the act of Congress, the decision of the officer has the attribute of a final judgment. It is not subject to appeal or revision. It can not be shown that the commissioner exceeded or irregularly exercised his authority, except by matter apparent on the face of the patent. Dorsey Co. v. Marsh, 6 Fish. 387; s. c. 9 Phila. 395; Clum v. Brewer, 2 Curt. 506; Colt v. Young, 2 Blatch. 471; Brooks v. Bicknell, 3 McLean 250; s. c. 2 Robb 118; Goodyear v. Providence Rubber Co., 2 Fish. 499; s. c.

9 Wall. 788; 2 Cliff. 351; Jordan v. Dobson, 4 Fish. 232; s. c. 2 Abb. U. S. 398; 7 Phila. 533.

The decision of the commissioner is not conclusive as to the right of the party to whom an extension is granted to obtain it. Brooks v. Bicknell, 3 McLean 250; s. c. 2 Robb 118.

The decision of the commissioner in extending a patent is not conclusive upon the question of his jurisdiction to act in a given case. Wilson v. Rousseau, 4 How. 646; s. c. 1 Blatch. 3; s. c. 2 Robb 373.

The entry of a decision upon the file wrapper provisionally, without being promulgated, will be regarded as a minute of the views of the commissioner, and not as a decision. Wood Paper Co. v. Glen Falls Co., 4 Fish. 561; s. c. 8 Blatch. 513.

The expiration of a foreign patent for the same invention forms no objection to the granting of an extension. Tilghman v. Mitchell, 4 Fish. 615; s. c. 9 Blatch. 18.

A patent may be extended, although the invention was first patented in a foreign country. New Am. File Co. v. Nicholson File Co., 20 O. G. 524; s. c. 8 Fed. Rep. 816.

A patent may be extended, although a private act was passed fixing the term of the patent. New Am. File Co. v. Nicholson File Co., 20 O. G.

524; s. c. 8 Fed. Rep. 816.

When a patent is extended, the original term and extended term are not considered as one term, but as two distinct terms. Sayles v. Louisville C. R. R., 9 Fed. Rep. 512.

An extension vests an absolute title in the patentee, although he may not have had it at the time of making a surrender and taking a reissue. Potter v. Empire Sewing Machine Co., 3 Fish. 474.

A transcript of an extension is sufficient, although it does not state the payment of the fees, the notice or the grounds of the decision. The proceeding is summary, and does not require the same degree of particularity as a judicial record. The function of the commissioner is in its nature judicial. Parties are brought before him, as well those who oppose the extension of the patent as those who apply for it, and evidence on both sides being heard, the commissioner pronounces his judgment. The proceeding, therefore, is not like a tax sale, where every step must be proved or the title fails, but it is in the nature of a judicial action, where, jurisdiction being acquired, no subsequent errors can affect the title of a purchaser under execution. The courts can not prescribe the form in which duties devolved upon the executive branch of the government shall be performed. They can only say whether enough appears to show that the subject was before the commissioner, and his decision. Brooks v. Jenkins, 3 McLean 432.

An allegation that the patent was extended by the commissioner is substantially supported by proof of an extension by the acting commissioner. A provisional officer, who is invested by law with the functions of the commissioner of patents, is properly described as commissioner, so far as the efficacy of his official acts is concerned. Dorsey Co. v. Marsh, 6 Fish. 387; s. c. 9 Phila. 395.

The form of an extension, under a special act, may be the same as that in general use. Agawam Co. v. Jordan, 7 Wall. 583.

The function of the commissioner in extending a patent is judicial, and his decision is conclusive until it is impeached in a proceeding had directly for that purpose. The extension can not be impeached for fraud not apparent on its face in a collateral proceeding. The regular tribunal is chancery founded on a proceeding by scire facias, or by bill or information. Rubber Co. v. Goodyear, 2 Fish. 499; s. c. 9 Wall. 788; 2 Cliff. 351; Gear v. Grosvenor, 6 Fish. 314; s. c. 1 Holmes 215; 3 O. G. 380; Crompton v. Belknap Mills, 3 Fish. 536; Eureka Co. v. Bailey Co., 11 Wall. 488; Mowry v. Whitney, 3 Fish. 157; s. c. 4 Fish. 207; 5 Fish. 496; 14 Wall. 620; 2 Bond 45; s. c. 1 O. G. 492; Wood Paper Co. v. Glen Falls Co., 4 Fish. 324; s. c. 8 Blatch. 513; Tilghman v. Mitchell, 4 Fish. 615; s. c. 9 Blatch. 18.

The proof of the alleged fraud in obtaining the extension of a patent must be clear and satisfactory. Goodyear v. Providence Rubber Co., 2 Fish. 499; s. c. 9 Wall. 788; 2 Cliff. 351.

A bill to vacate an extension filed after the expiration thereof will not be entertained, for the extension has ceased to be of any effect, and there remains nothing which can be the subject of the suit. Bourne v. Goodyear, 9 Wall. 811; Mowry v. Whitney, 5 Fish. 513; s. c. 14 Wall. 434; 1 O. G. 499.

A party who has consented to an act can not afterwards complain of it as a fraud. Goodyear v. Providence Rubber Co., 2 Fish. 499; s. c. 9 Wall. 788; 2 Cliff. 351.

If a special act extending a patent is procured by fraud, it is nevertheless binding on the courts, and the only remedy is to obtain a repeal. Gibson v. Gifford, 1 Blatch. 529.

Practice.

Extensions are not granted, like patents, as a matter of strict right, to which the party is entitled on fulfilling certain requirements; they are more subject to the discretion of the commissioner. Henry Bessemer, 2 Dec. Com. 9; Robert Mushet, 2 Dec. Com. 106; Wm. E. Ward, 2 Dec. Com. 126.

Reason of opposition to an extension must be filed twenty days before the day of hearing, and must not be confounded with the notice of opposition. Christopher Amazeen, 2 Dec. Com. 132.

In any application for extension, absence of satisfactory proof, both of the value and importance of the invention, and of due diligence in introducing it into notice, is a fatal defect. Samuel Falkenberg, 2 O. G. 3; John M. Heck, 1 Dec. Com. 19; Jonathan F. Barrett, 1 Dec. Com. 40; R. W. Lewis, 2 Dec. Com. 8; Wm. P. Maxson, 2 Dec. Com. 87; W. M. Storm, 2 Dec. Com. 97; John F. Boynton, 2 Dec. Com. 125; Samuel A. Knox, 2 Dec. Com. 126; E. W. Sperry, 2 Dec. Com. 139; Geo. Hoyt, 2 Dec. Com. 183; Lydia Moore, 3 Dec. Com. 82; Sylvester Bennett, 3 Dec. Com. 191; W. M. C. Cushman, 3 O. G. 29.

Although the evidence does not give all the information as to the value of the invention, and the diligence of the patentee, which the rules require,

yet, if it gives enough to satisfy the commissioner, an extension will be granted. Henry R. Robbins, 3 O. G. 292.

The application of a pioneer, whose invention has been made more practical by subsequent improvement, is regarded with favor. Hymen L. Lipman, 1 O. G. 304; Eli W. Blake, 1 O. G. 605.

Public policy may demand the extension of a patent to be refused on account of claims which the patentee might insist upon on a reissue. T. J. Stealey, 3 Dec. Com. 317.

Where matters have been improperly interpolated in a reissued patent, an extension of it will be refused. John A. Krake, 1 Dec. Com. 100; Mary G. Pratt, 2 Dec. Com. 2; Christian Shunk, 2 Dec. Com. 10; Abner G. Bevin, 2 Dec. Com. 68; Robert H. Fletcher, 3 Dec. Com. 7; Ethan Allen, 5 O. G. 148.

The extension of a patent will be refused where the claim is practically worthless, and the device has gone into extensive use without any effort to obtain a reissue or check notorious infringements. Sarah A. Holmes, Executrix, 2 Dec. Com. 155.

An application for the extension of a patent which has been reissued in several divisions, will be allowed as to one which embraces the same claim substantially as the original patent, and found to be of value; but will be denied as to the others which embrace claims not in the original. Walter Hunt's Adm'rs, 2 Dec. Com. 29; Levi Bissell, 3 Dec. Com. 207; James R. Floyd, 6 O. G. 541.

When a claim which is allowed to remain on extending a patent, defines the invention by reference to another which is required to be disclaimed, the latter will be understood to remain valid so far as it is connected with the other. S. B. Sexton, 3 O. G. 409.

A patent will not be extended unless it is restricted to the special use described by the device named, if it is one that has been known before in other applications. Sarah Stone, Adm'x, 1 Dec. Com. 48.

Although a patent covering the principle on which a process depends has already been extended, yet a patent to another person, who first discovered the method of making the principle available, and reduced it to successful practice, will also be extended. Samuel Wetherill, 1 Dec. Com. 87.

A reissued patent will not be extended which claims more than was originated by the patentee. W. W. Lyman, 2 O. G. 705; E. W. Goodale, 1 Dec. Com. 82; S. B. Sexton, 3 O. G. 409.

Although the term for which a patent issued has not elapsed, it can not be extended if it has expired in consequence of the expiring of a foreign patent for the same invention. Ernest Gessner, 3 Dec. Com. 48.

The extension of a patent should not be denied because a previous English patent for the same invention has expired, if the specification in the latter was enrolled less than six months before the application was filed on which the American patent was granted. Apperly & Clissold, 2 Dec. Com. 163; John Neville, 2 Dec. Com. 167; Silas G. Putnam, 2 Dec. Com. 168.

Results are not patentable; therefore functional claims, or for results, are refused extension. Robert Dick, 2 O. G. 147.

An extension will be refused where the article did not involve invention, or was not new. P. A. Sabbaton, 2 O. G. 703; T. N. Lupton, 1 Dec. Com. 10; John M. Heck, 1 Dec. Com. 19; Samuel Pelton, 1 Dec. Com. 112; W. H. King, 2 Dec. Com. 79; Edwin et al., 2 Dec. Com. 117; Matthew A. Crooker, 2 Dec. Com. 133; John Worsley, 2 Dec. Com. 176; B. T. Babbitt, 3 Dec. Com. 70; Gideon B. Massey, 3 Dec. Com. 213;