The subject of appeals in patent cases received considerable attention by Congress during this period. The act of July 4, 1836, made provision for appeals from the decision of the Commissioner of Patents to a board of three examiners appointed by the Secretary of State, which had power, by a majority vote, to reverse such decision. The act of March 3, 1839, abolished this method of decision and gave the patent claimant the right to appeal to the Chief Justice of the District Court of the United States for the District of Columbia, the appellant being required to pay a fee of twenty-five dollars. An act of August 30, 1852 (10 Stat. L., 75), provided that appeals might also be made to either of the assistant judges of the Circuit Court of the District of Columbia. The act of July 8, 1870 (16 Stat. L. 205), provided that appeals might be taken from the decision of the Commissioner of Patents to the Supreme Court of the District of Columbia, but this jurisdiction was transferred to the Court of Appeals for the District of Columbia by the act of February 9, 1893 (27 Stat. L., 436), which created that court.

Appeals to the Commissioner from the decisions of primary examiners were provided for in 1857 by an administrative act of the Commissioner of Patents who appointed temporary boards to examine various appeals. The next year a permanent board was established by the Commissioner for all appeals. The existence of such a board was given legal recognition by an act of March 2, 1861, which provided for a board of examiners-in-chief composed of three members, appointed by the President, by and with the advice and consent of the Senate, "for the purpose of securing greater uniformity of action in the granting and refusal of letters patent," the functions of this board being "to revise and determine upon the validity of decisions made by examiners, when adverse to the grant of letters patent, and also to revise and determine in like manner upon the validity of the decisions of examiners in interference cases," thus relieving the Commissioner of much of the appellate work. An act of June 27, 1866 (14 Stat. L., 76), provided for a fee of ten dollars to be charged for entering such an appeal.

The act of 1861 made other important changes in and additions to the existing patent laws. It eliminated all discrimination against foreign inventors except in the case of citizens of foreign govern

ments which discriminated against the United States; withdrew the power of the Commissioner of Patents to extend the term of the patent grant, but lengthened the original term from fourteen to seventeen years; fixed the patent fee at thirty-five dollars, of which fifteen dollars was made payable upon filing and twenty dollars when the patent was issued; authorized the Commissioner to appoint, from time to time, such additional examiners as were required to transact current business, provided the expense were kept within the income of the Patent Office; it repealed the provision of the act of July 4, 1836, which authorized the annexing to letters patent of the description and specification of additional improvements, by requiring that in all cases where additional improvements have been admissible, independent patents must be applied for; removed the penalty for failure to mark articles patented but provided instead that by such failure the patentee forfeited his right to recovery for damages; and it provided for the issue of design patents for terms of three and one-half, seven and fourteen years, according to the desire of the applicant, and for a seven-year extension of such design patents if desired.

An act of July 20, 1868 (15 Stat. L., 119), directed that the patent fund which had been at the disposal of the Commissioner for Patent Office expenditures, and all moneys received by him be turned over to the Treasury. Since that enactment the expenditures of the Patent Office have been met as in other bureaus, by appropriations made by Congress.

Codification of the Patent Law, 1870. During the period from 1836 to 1870, twenty-five acts and parts of acts were passed, revising, consolidating and amending the statutes relating to patents. The result was that the patent law was full of ambiguities. The necessity for revision and codification was discussed as early as 1845, but it was not until 1870 that such a codification was consummated.

On July 8, 1870, an act (16 Stat. L., 198), was approved "to revise, consolidate, and amend the statutes relating to patents and copyrights." It is under the provision of this law with its subsequent amendments, that the Patent Office is now operating.

An important new provision of this act was that conferring upon the Commissioner of Patents, subject to the approval of the

Secretary of the Interior, power to establish regulations not inconsistent with law for the conduct of proceedings in his office. Among other new provisions it defined the duties, and thereby recognized the position, of examiner of interferences to determine questions of priority, a position which had been previously created by the Commissioner; made additions to the personnel force of the Patent Office and increased the salaries of some of the examiners; and authorized the Commissioner of Patents to print copies of the current issues of Patents, and of such laws, decisions, and rules as were necessary for the information of the public.

Provision for Trade-Mark Registration. The act of 1870 for the first time made statutory provision for the registration of trademarks by vesting in the Commissioner of Patents jurisdiction in the granting of trade-mark registrations, and authorizing him to make appropriate rules and regulations. This provision for trademark registration was subsequently declared to be unconstitutional."

Development of Patent and Trade-Mark Systems and Their Administration, 1870 to 1923. The Office of Assistant Commissioner was created by an act of July 12, 1870 (16 Stat. L., 230, 244). On January 11, 1871, a joint resolution (16 Stat. L., 590) ordered the discontinuance of the annual reports of patent claims and descriptions, known as Patent Office Reports, and directed the Commissioner to have printed in lieu thereof copies of the complete specifications and drawings of each patent issued after July 1, 1869. A limited number of these were issued for free distribution and others for the purpose of sale to the public.

Before the institution of this service it was necessary for the public, in order to ascertain the nature of patent grants, to search the original drawings or models in the Patent Office or to obtain. tracings of them. Since this service has been standardized one hundred copies of all drawings of patents are photolithographed, and the specifications are printed at the Government Printing Office, the sets being stored in the Patent Office for sale at the rate of ten cents each, and the supply is replenished whenever it is exhausted.

The publication of the Official Gazette was begun in January, 1872, being authorized by an act of May 18, 1872 (17 Stat. L., 122, 131).

'Trade Mark Cases, 100 U. S. 82.

While the Patent Office personnel was increased from time to time, the increase was seldom sufficient to enable the office to produce the results that it should have accomplished, partly because the force of experts was insufficient, and partly because there was need for better organization. In 1872 the Commissioner of Patents prepared an elaborate plan of reorganization of his office which was intended to remedy the existing deficiencies. This plan met with the approval of the Secretary of the Interior and of the President, but could not be carried out because Congress failed to enact the necessary legislation.

Provision for the registration of the copyright of labels and prints in the Patent Office was made in an act approved June 28, 1874 (19 Stat. L., 79), the act providing that all other copyrights are to be registered in the Library of Congress."

On September 24, 1877, a second fire occurred in the Patent Office, but the damage was not so great that it could not be repaired, although some of the early records were destroyed. An appropriation was made by Congress in 1878 for the restoration of the models damaged by fire and water and for the restoration of the Patent Office building.

The matter of the revision of the patent law became the subject of consideration by a Congressional Committee on patents in 1878, but no legislation followed.

After many trade-marks had been registered under the act of 1870, the United States Supreme Court rendered a decision on November 17, 1879," declaring unconstitutional that part of the act relating to trade-marks and also an act of August 14, 1876 (19 Stat. L., 141), "to punish counterfeiting of trade-marked goods." The court showed that because of the distinction between patents and copyrights and trade-marks, the power of Congress to enact the law could not be derived from that paragraph of Article 1, Section 8, of the Constitution which relates to authors and inventors, since the right of ownership in trade-marks is created by adoption and not by authorship or invention. Neither could the law be supported by the commerce clause of the same article

10

This act was somewhat modified by the copyright law of March 4, 1909, effective July 1, 1909.

"Trade Mark cases, 100 U. S. 82.

and section, because it was not limited to commerce among the states but was extended to the trade-marks generally, embracing marks used wholly within a state.

The granting of trade-mark registrations by the Patent Office was resumed, in a limited way, under an act approved March 3, 1881 (21 Stat. L., 502), which provided for the registration of trade-marks used in commerce with foreign nations and with the Indian tribes. An act of February 20, 1905 (33 Stat. L., 724), which superseded the act of 1881, authorized the registration of trade-marks used in commerce with foreign nations, or among the several states or with Indian tribes." This legislation was held to be constitutional on the ground that Congress has power to regulate foreign and interstate commerce and commerce with the Indian tribes.12

In accordance with these acts and the amendments thereto, the Patent Office has since granted trade-mark registration as one of its regular functions.

The act of July 8, 1870, provides that no patent may be granted on an invention which has been in public use in this country for more than two years prior to the inventor's application. In December, 1882, the Supreme Court of the District of Columbia" rendered a decision declaring it to be the duty of the Commissioner of Patents to inquire into the question of public use of an invention in this country for two years or more prior to the filing of an application for a patent therefor. In order to carry out the terms of this decision, an additional appropriation has been made by Congress since 1884 to enable the Patent Office to detail an official, when necessary, to investigate the operativeness of a device under actual conditions of service and use.

A permanent organization for classifying patents was created in the Patent Office by an act approved June 28, 1898 (30 Stat. L., 440). This service was instituted " for the purpose of determining with more readiness and accuracy the novelty of inventions," and "to prevent the issuance of letters patent of the United States for inventions which are not new." The act directed the Commissioner to revise and perfect the classification, by subject-matter, of all

12 Rossman vs. Garnier, 211 Fed. Rep. 401.

13 Ex parte von Heffner-Alteneck, 23 O. G. 269; 1883 C. D. 139.