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are thus retained by my invention, but one appeal within the Patent Office is nevertheless eliminated, and without depriving the Commissioner of any of his judicial powers.

The decision of the Board of Commissioners is final in so far as the Patent Office is concerned. To obtain a review of such a decision, appeal may be had in one of the ten Courts of Appeal. The Court of Appeals of the District of Columbia is always open to the aggrieved party, but if he chooses to invoke the jurisdiction of this appellate tribunal, he must accept the decision of this tribunal as final. No further appeal is possible. All proceedings under the provisions of Section 4915 of the Revised Statutes are abolished. In an ex parte case, the applicant may resort to the Court of Appeals of his own jurisdiction, instead; and in an inter partes case, to the Court of Appeals in the jurisdiction of the party who prevailed before the Board of Commissioners. In all cases, the decision of the particular Court of Appeals, the jurisdiction of which is invoked, is final.

In inter partes cases, testimony may be introduced according to well known practice. In ex parte cases, provision is made for the introduction of testimony or ex parte affidavits, at the applicant's election, prior to decision rendered by the Board of Commissioners; and, in the discretion of the Board of Commissioners, after such decision, as a basis for reconsideration. In all cases, however, whether ex parte or inter partes, the case is submitted to one of the Courts of Appeals, upon a complete record that has been fully considered by the Board of Commissioners, and no opportunity is offered for recommencing the litigation with the introduction of new testimony, as has been the practice heretofore.

Many advantages of my invention not enumerated above will be obvious to those skilled in the art without further detailed explanation. In motions to dissolve interferences, for example, there can be but one appeal, and this direct to the Board of Commissioners. And troublesome questions as to when a case is reviewable by

the Board of Examiners-in-Chief and when by the Commisssioner are, by my invention, entirely eliminated. I claim:

1. A method of prosecuting appeals that comprises appealing from the Primary Examiner or the Interference Examiner direct to a Board of Commissioners.

2. A method of prosecuting appeals that comprises appealing from the Primary Examiner or the Interference Examiner direct to a Board of Commissioners, and from the Board of Commissioners to a Court of Appeals whose decision shall be final.

THE RIGHTS CONFERRED BY LETTERS PATENT FOR INVENTIONS.

Reprinted from Virginia Law Review, May, 1922.

The terms "patent" and "patent law" have been appropriated in common parlance practically exclusively to Letters Patent, and to the law relating to Letters Patent, for inventions. When one speaks of a patent, he is at once understood to mean a patent for an invention. Sometimes we hear the word "patent" used as if it were a synonym of "invention". This is an indication of the large part that inventions occupy in our thought. There is, indeed, in this country but one other thing for which Letters Patent have been issued. The Government grants of public lands are evidenced by Letters Patent issued to the grantee.

One of the Circuit Judges of the Court of Appeals of the Second Circuit in a recent address at a banquet given by the American Patent Law Association in honor of Chief Justice Taft, said, that to the general practitioner, "a patent case spells mystery", and, said he, since the Federal Judges in the main are drawn from the ranks of the general practitioners, he doubted whether any with that training have failed to approach their first patent

case without awe and trembling, only to find, to their surprise, "that in many respects a patent cause has the characteristics of any other cause in equity; that its language is no more individualistic than is the language of the law of contracts or the law of frauds". The thing that injects the element of mystery into a patent, or a patent case to the general practitioner is the facts of the mechanism, or device which forms the subject of the patent. From either natural inaptitude for such things, or the want of education or training in respect of machinery or industrial processes, he is unable to grasp the significance of, or to understand these facts. As far as the law itself is concerned, there is nothing so special or abstruse in it that makes it difficult of understanding. How close questions arising in patent cases have touched, and involved the application of principles of the law in relation to other subjects is shown by Packet Co. v. Sickles, in which was invoked the 4th Section of the Statute of Frauds with respect to contracts not to be performed within one year, and the application of the rule of law of attornment in real property that a tenant may not deny his landlord's title, to the licensee under a patent, who, while the license is in force, is estopped to deny the validity of the licensor's patent. And it required a decision of the Supreme Court, De La Vergne Refrigerating Co. v. Featherstone, to show that the rule in Shelley's case does not apply to patents even though the grant reads to John Doe, "his heirs and assigns". John Doe being dead at the time of the issue of the patent the question was whether "heirs" was a word of limitation or a word of purchase. If, as was held by the lower court, it was a word of limitation, defining the aucestor's estate, the patent was void for want of a grantee in esse, at the time of the grant.

Patent law is, of course, a specialty, and one in which one can only hope for large success who is able to unler

1 5 Wall. 580.

2 U. S. v. Harvey Steel Co., 196 U. S. 310.

3 147 U. S. 154.

stand the mechanical or scientific facts with which he must deal in his practice.

This discussion, since it will have nothing to do with what I have referred to as the facts of a patent, but wholly with matters of law, may not prove uninteresting even to those who by want of natural aptitude or training have no special interest in things mechanical or scientific.

What are the rights which the holder of a patent may assert? What does the Government purport to give to him when, under the seal of the United States, it issues its Letters Patent?

It is not uncommon for laymen and even general practitioners to think that the grant of a patent is the grant of the right to make and sell the device or mechanism set forth in the specification or description and illustration attached to and forming part of the patent. Indeed, some have the idea that without the patent the device could not be made or put on the market, that it is necessary to receive Government authority through a patent to market a new device or invention.

Obviously, the patent grant could not give the patentee the right or authority to place his patented device in use, or upon the market. Some prior patentee might have a patent which would be infringed by the marketing or use of the subsequently patented device if the latter in its construction contained that which was the subject of the previous patent, as it would if the device of the subsequent patent was in the nature of an improvement upon, or modification of, the device of the previous patent. Thus, if a patent had been granted for a gas engine, and later another inventor obtained a patent for a device for keeping the engine cylinder from overheating, -such as the familiar radiator with the hollow wall or "jacket" about the cylinder to circulate water about the cylinder, the later patentee would not, by virtue of the patent on his cooling device, receive by his patent the right to make gas engines with his cooling device attached, and his cooling device might have no other use

than as a part of a gas engine. Of course, the prior patentee of the gas engine would have no right to use with his engine the subsequently patented cooling device without the consent of the patentee of the latter.

* *

What a patent grants is the right to exclude others from making, using or vending the patented invention. The language used in Section 8 Article I of the Constitution upon which our patent law rests is: "The Congress shall have power to promote the progress of Science and the useful Arts, by securing, for limited Times, to Authors and Inventors, the Exclusive Right to their respective writings and Discoveries." The expression is "exclusive Right to their Discoveries".

As an invention or discovery may be utilized or enjoyed by making it, or selling it, or using it, the “exclusive right" to it is to be secured by conferring a monopoly as to these three things, and accordingly the granting clause of the patent runs, "the exclusive right to make, use and vend" the invention.

As long ago as the time of Chief Justice Taney and in an opinion of the Supreme Court of the United States written by him in Bloomer v. McQuewan, what is granted by a patent is thus explained:

"The franchise which the patent grants consists altogether in the right to exclude anyone from making, using or vending the thing patented without permission from the patentee. This is all he obtains by the patent."

And the Supreme Court in recent years has repeatedly said the same thing. Thus in the Paper Bab Case, it was said,

"that whenever the Court has had occasion to speak it has decided that the inventor receives from a patent the right to exclude others from its use for the time prescribed in the Statute".

4 15 How. 359.

210 U. S. 405.

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