patent. (Babcock v. Degener, MS. Appeal Cases, D. C., 1859.)

59. CONTINUING APPLICATION.-If a party chooses to withdraw his application for a patent and pay the forfeit, intending at the time of such withdrawal to file a new petition, and accordingly does so, the two petitions are to be considered as parts of the same invention and as constituting a continuous application within the meaning of the laws. (Godfrey v. Evans, 1 Wall., 317.)

And where the patentee made public use and sale of his invention for less than two years before his original application for a patent, but subsequently, and more than two years after such public use and sale, withdrew such application and filed a second one, upon which a patent was granted, it was held, that the continuity of the application was not necessarily destroyed, and, in the absence of proof of abandonment or dedication, the patent was not avoided by reason of the public use and sale for more than two years before the final application. (Howe v. Newton, 2 Fish., 531.)

Where a patent was applied for May 3, 1856, and rejected August 30, 1856, amended specification filed September 22, 1856, and finally rejected, upon appeal to the Commissioner, June 15, 1857, but not withdrawn, a new application made May 26, 1858, and a patent granted August 3, 1858: held, that the last application was in the nature of a petition for review of the previous rulings and related back to the prior application; and that the action of the Commissioner was not original and independent, but a renewal and elongation of the former proceedings and a reversal of the former rejections. To an action of this revisory character the statute imposes no

limitation, and, under such circumstances, the public use to avoid the patent must be for two years before the first application. (Blandy v. Griffith, 3 Fish., 609.)

Where an application was withdrawn and the withdrawal fee received back, and no further steps were taken for eight years, when a new application was filed, and in the meantime several patents had been granted in which the invention was incorporated, the latter application was held not to be a continuation of the former, and was rejected. (J. W. Cochran ex parte, Commissioners' Decisions, 1859, p. 30.)

After the withdrawal of an application, it is for the Commissioner to determine whether a second one is filed within a reasonable time, so as to constitute a continuance of the first. (Ib.)

And if, after an application is withdrawn, another is not filed in two years, it may reasonably be presumed that the applicant has no intention of renewing it. (Ib.)

60. THE COMMISSIONER MAY REFUSE A PATENT WHICH WOULD BE SUSTAINED BY THE COURT IF ISSUED.-When the patent has been granted, and its validity is called in question, a court may so far respect the action of the Commissioner and the grant of the Government as to adopt a rule to save and sustain the patent, which it would be very unwise and unsafe to adopt as the uniform practice in granting patents. The courts have held that the omission of the oath is not fatal. (Crompton v. Belknap Mills, 3 Fish., 536.) And, doubtless, if the patent were actually issued, with but a single witness to the specification, or without a petition or the payment of a fee, these informalities would not avoid the patent; and yet he would be a bold Commissioner who should knowingly proceed

to issue patents without petition, witnesses, oath, or fees. In Hogg v. Emerson (6 How., 437) it was held, that inventions very dissimilar might be united in the same patent; and in Goodyear v. Wait (3 Fish., 242) it was held, that the process and the product might be separated, and claimed in two reissues, the court remarking that this was within the discretion of the Commissioner. So in the case of Suffolk Company v. Hayden, it was held, that an invention might be included in a subsequent patent which was described in a preceding one.

Yet in all these cases there can be no doubt that it is within the discretion of the Commissioner to say that each patent shall cover but one invention, or that the subject-matter of a reissue is incapable of division, or that all the inventions, or parts of an invention, described in an application, shall be included in one patent, or in divisions founded upon that application. (L. J. Atwood ex parte, Commissioners' Decisions, 1869, p. 100.)

68. Assignment after rejection of 77. Definition of the terms

application valid.

as

signee, grantee, and licensee.

61. APPLICATION IS BY WAY OF PETITION.-The law (ut infra, p. 10, § 26) requires an inventor who desires to obtain a patent to "make application in writing to the Commissioner of Patents," &c. This application in writing has, from the origin of the Government, been by way of petition, generally with the specification annexed and referred to, or accompanied by the specification, filed at the same time. The form of the petition is not material. When filed, it is to be presumed to adopt the specification or schedule filed at the same time, and to ask for a patent for the invention therein described. (Curtis on Patents, § 271; Hogg v. Emerson, 6 How., 437, 480.)

62. THE APPLICATION MUST BE MADE BY THE ACTUAL INVENTOR, IF ALIVE, even if the patent is to issue or reissue to an assignee; but, where the inventor is dead, the application and oath may be made by the executor or administrator. (Patent Office Rules, July, 1870.)

63. FORM OF PETITION BY A SOLE INVENTOR.

To the Commissioner of Patents:

Your petitioner prays that letters patent may be granted to him for the invention set forth in the annexed specification. JOHN SMITH.

64. JOINT INVENTORS.-Joint inventors are entitled to a joint patent; neither can claim one separately; but

independent inventors of separate improvements in the same machine cannot obtain a joint patent for their separate inventions, nor does the fact that one man furnishes the capital and the other inakes the invention entitle them to take out a joint patent. (Patent Office Rules, July, 1870.) A joint patent may well be granted upon a joint invention. There is no difficulty in supposing, in point of fact, that a complicated invention may be the gradual result of the combined mental operations of two persons acting together, pari passu, in the invention; and if this be true, then, as neither of them could justly claim to be the sole inventor in such case, it must follow that the invention is joint, and that they are jointly entitled to a patent; but a joint patent cannot be sustained upon a sole invention. (Barrett v. Hall, 1 Mason, 472.)

And if the circumstances are such as to show that two parties contributed to an invention, so as to make them joint inventors, a joint patent should be taken out. (Thomas v. Weeks, 2 Paine, 103.)

For if the invention patented, as in a joint patent, is the sole invention of one of the patentees, and not the joint invention of both, the patent is void. (Ransom v. Mayor, &c., of New York, 1 Fish., 252.)

One of two or more joint inventors is not the inventor, within the meaning of the act; and if he applies for a patent the Commissioner is bound to refuse it. (Arnold v. Bishop, MS. Appeal Cases, D. C., 1841.)

The man who reduces to practice the theory of another, who assists in the reduction of it to practice, cannot be considered as the sole inventor of the machine; and if one suggest the mode of operation or the principle of a machine, and the other reduce it to practice, neither can