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ible portion thereof, or of the substance on which the same shall be mounted, the following words, viz: Entered according to act of Congress, in the year by A. B., in the office of the Librarian of Congress, at Washington; or, at his option the word "Copyright," together with the year the copyright was entered, and the name of the party by whom it was taken out; thus: "Copyright, 18-, by A. B."

SEC. 2. That for recording and certifying any instrument of writing for the assignment of a copyright, the Librarian of Congress shall receive from the persons to whom the service is rendered, one dollar; and for every copy of an assignment, one dollar; said fee to cover, in either case, a certificate of the record, under seal of the Librarian of Congress; and all fees so received shall be paid into the Treasury of the United States.

Restrictions.-SEC. 3. That in the construction of this act the words, "engraving," "cut," and "print," shall be applied only to pictorial illustrations, or works connected with the fine arts, and no prints or labels designed to be used for any other articles of manufacture shall be entered under the copyright law, but may be registered in the Patent Office. And the Commissioner of Patents is hereby charged with the supervision and control of the entry or registry of such prints or labels, in conformity with the regulations provided by law as to copyright of prints, except that there shall be paid for recording the title of any print or label not a trade mark, six dollars, which shall cover the expense of furnishing a copy of the record under the seal of the Commissioner of Patents, to the party entering the same.

SEC. 4. That all laws and parts of laws inconsistent with the foregoing provisions be and the same are hereby repealed.

SEC. 5. That this act shall take effect on and after the first day of August, eighteen hundred and seventy-four.

Approved June 18, 1874.

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ABANDONMENT OF EXPERIMENTS.

1. Where a patent has been granted for improvements, which, after a full and fair trial, resulted in unsuccessful experiments, and have been finally abandoned, if any other person takes up the subject of the improvements, and is successful, he is entitled to the merit of them as an original inventor. Whitely v. Swayne, 208. 2. Desertion of an alleged prior invention, consisting of a machine never patented, may be proved by showing that the inventor, after constructing it, broke it up or laid it aside, as something requiring more thought and experiment; provided it appears that those acts were done without any definite intention of resuming his experiments. Seymour v. Osborne, 292.

See PRIOR USE; REDUCTION TO PRACTICE.

ABANDONMENT OF INVENTION.

1. Where a party having made application for a patent for certain improvements, afterwards, with his claim still on file, makes application for another but distinct improvement in the same branch of art, in which second application he describes the former improvement, but does not in such second application claim it as original, the description in such second application and non-claim of it there, is not a dedication of the first invention to the public. Suffolk Co. v. Hayden, 140. 2. Forbearance to apply for a patent during the progress of experiments, and until the party has perfected his invention and tested its value by practical experiment, affords no ground for presumption of abandonment. Agawam Co. v. Jordan, 187.

See APPLICATION, 1; EQUITY, 6, 7; PRIOR USE.

ACCOUNT OF PROFITS.

1. In taking an account, the master is not limited to the date of entering the decree; he can extend it down to the time of the hearing before him. Rubber Co. v. Goodyear, 237.

2. An objection that the word "patented" was not affixed by the complainant, under section 13 of the act of March 24, 1861, must be taken in the answer, if it is intended to be raised at the hearing or before the master.

Ibid.

3. Profits are rightly estimated by the master by finding the difference between cost and sales. Ibid.

4. A decree for all the profits made in violation of the rights of the complainants under the patents aforesaid, by respondents, by the manufacture, use, or sale of any of the articles named in the bill of complaint," is correct in form. Ibid. 5. In estimating the cost, the elements of cost of materials, interest, expense of manufacture and sale, and bad debts considered by a manufacturer in finding his profits, are to be taken into account, and no others. Ibid.

6. Interest on capital stock and "mauufacturer's profits" were properly disallowed by the master. Ibid.

7. Profits due to elements not patented, which entered into the composition of the patented article, may sometimes be allowed. They were, however, properly disa lowed in this particular case. Ibid.

8. Extraordinary salaries were properly disallowed by the master, on the ground that they were dividends of profit under another name. Ibid.

ACCOUNT OF PROFITS-continued.

Ibid., 219.

9. "Profit" is the gain made upon any business or investment, when both the receipts and payments were taken into the account. 10. It is as true of a process, invented as an improvement in a manufacture, as it is of an improvement in a machine, that an infringer is not liable to the extent of his entire profits in the manufacture. Mowry v. Whitney, 410.

11. In such a case the question to be determine is, what advantage did the infringer derive from using the invention, over what he had in using other processes then open to the public, and adequate to enable him to obtain an equally beneficial result? The fruits of that advantage are his profits, and that advantage is the measure of profits to be accounted for. Ibid.

12. The profits recoverable from an infringer are the measure of the patentee's damages, and though called profits, are really damages, and unliquidated until a final decree is made.

Ibid.

13. Interest upon unliquidated damages is not generally allowable, and should not be allowed before a final decree for profits. Ibid.

ACTIONS.

See DAMAGES; EQUITY, 1; INFRINGEMENT, 1.

1. Under the fourteenth section of the Patent Act of 1836, enacting that damages may be recovered by action on the case, to be brought in the name of the person "interested," the original owner of the pat: nt, who has afterwards sold his right, may recover for an infringement committed during the time that he was owner. The word "interested" means interested in the patent at the time when the infringement was committed. Moore v. Marsh,.180.

2. Where the patentee has assigned his whole interest, either before or after the patent is issued, the action must be brought in the name of the assignee, because he alone was interested in the patent at the time the infringement took place; but where the assignment is of an undivided part of the patent, the action should be brought for every infringement committed subsequent to the assignment, in the joint names of the patentee and assignee, as representing the entire interest. Ibid., 185.

3. Settled view at one time was, that the grantee of a territorial right, for a particular district, could not bring an action on the patent in his own name; but the act of Congress having made him a party interested in the patent, it is now equally well settled that he may sue in his own name for invasion of the patent in that territorial district, as no one else is injured by any such infringement. Ibid., 185.

4. Subsequent sale and transfer of the exclusive right are no bar to an action to recover damages for an infringement committed before such sale and transfer. Ibid., 186.

5. Suits for infringement committed subsequent to a grant can only be brought in the name of the grantee, as it is clear that no one can maintain such an action until his rights have been invaded, nor until he is interested in the damages to be recovered. Ibid, 185.

6. The true meaning of the word "interested," as employed in the last clause of the fourteenth section of the Patent Act, when properly understood and applied, is, that the right of action is given to the person or persons owning the exclusive right at the time the infringement is committed. Ibid., 186.

See AGREEMENT, 4; APPEALS; DAMAGES; INFRINGEMENT; NOTICE OF SPECIAL MATTER.

ADMINISTRATORS AND EXECUTORS.

1. Where a patentee dies, the surrogate of the place where the decedent was domiciled properly has jurisdiction to take probate of his will and issue letters testamentary. Rubber Company v. Goodyear, 237.

ADMINISTRATORS AND EXECUTORS-continued.

2. Where several executors are appointed by the will of a patentee decedent-provision being made, however, for one alone acting-and but one proves the will and receives the letters of administration, he alone can maintain an action for infringement of the letters patent at common law. Ibid.

3. Under the laws of the United States, where a patent is granted to C. G. as executor, he can maintain a suit on the patent in all respects as if he had been designated in the patent as trustee instead of executor. Ibid.

4. An objection to the authority of an executor to maintain a suit on letters patent should be taken by a plea in abatement. Ibid.

ADMISSIONS IN ANSWER.

See EQUITY, 1, 2.

AGREEMENT.

1. Where the purchaser of a claim for a patent agrees that, as soon as the patent is issued, he will give his notes, payable at a future date, the fact that no patent has issued until after the day when the last note, if given, would have been payable, is no defense to assumpsit for not having given the notes; the patent having finally issued in form. Read v. Bowman, 129.

2. The practical construction which the parties themselves have given to a contract by their own conduct is, in cases of doubt, always entitled to great weight. Rubber Company v. Goodyear, 246.

3. Where there is doubt as to the proper meaning of an instrument, the construction which the parties to it have themselves put upon it, is entitled to great consideration; but where its meaning is clear, an erroneous construction of it by them will not control its effect. Railroad Company v. Trimble, 274.

4. Where the owner of a patent granted the portion of his interest in it to another person in consideration of certain payments to be made by such person to third parties, and certain promises and agreements then made by him; and such person never made any of the payments which he was thus required to make, and by common consent of the grantor and grantee, the contract never went into operation in any way, because the grantee was unable to comply with any of his engagements, so that the grantor was compelled to pay, and did pay, the money which the grantee had agreed to pay; and the grantee during his lifetime never claimed any interest in the contract, but, on the contrary, always recognized the grantor's exclusive right, and acted as his agent in the patent, under a power of attorney, paying him a part of the profits for the privilege: Held, after the grantee's death, that the agreement did not prevent the grantor's bringing suit for the infringement of the patent without naming the grantee. Ibid.

5. A contract in writing may be binding on a corporation though a private seal of one of its officers was used instead of the corporate seal, and though no record may be found authorizing the officer to make the contract, if other evidence proves that he had such authority, or that the company ratified his act afterwards. Eureka Company v. Bailey Company, 287.

6. When parties have, after long negotiation, with full opportunities for knowing what they are doing, entered into contracts for the use of inventions covered by rival patents, and no fraud or imposition is alleged, the case of a party sued in such a contract must be very clear, who denies the validity of the patent for which he has agreed to pay a royalty. Ibid.

7. And when such a party has furnished under the contract a model of the machines which he proposes to make, on which he agrees to pay a royalty, he cannot deny that such machine contains matter covered by the patent, unless he alleges and proves circumstances which would set aside the contract for fraud, mistake, or surprise. Ibid.

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