cided as a question of fact. While an application remains forfeited no notice is given to the applicant of any subsequent applications, and neither forfeited nor abandoned applications are cited as references to defeat a later applicant. Forfeited applications remain in the secret archives of the Patent Office, open to the inspection only of the applicants or their attorneys, but copies of them may be given to other persons when specifically ordered by the Commissioner. $585. Final Fees: how Paid: Delivery of Patent. The final fee may, like the entrance fee, be paid to the Commissioner, or to the Treasurer or any of the Assistant Treasurers of the United States, or to any of the depositaries, national banks, or receivers of public money designated by the Secretary of the Treasury for that purpose, whose receipt may be transmitted to the Patent Office. The patent will be delivered or mailed on the day of its date to the patentee, unless there be an attorney of record, in which case it will be delivered to him or to the patentee as the attorney may require, but without a special request to that effect it will not be given to an associate or substitute attorney. 3 That a renewal application will be examined in the light of the state of the art at the time the original was filed, see Ex parte Livingston (1881), 20 O. G. 1747; Ex parte Gordon (1874), 6 0. G. 543. That a new application, filed more than two years after forfeiture, is defeated by any matter in bar arising after the forfeiture, see Ex parte Livingston (1881), 20 O. G. 1747. That a delay in renewing an application raises a suspicion of abandonment and the oath should negative it, see Thomson v. Waterhouse (1884), 30 0. G. 177. That Sec. 35, act 1870, does not refer to applications then pending, see Ex That delay in renewing an applica parte Mygatt (1877), 12 O. G. 51. SECTION X. OF THE APPLICATION: PROCEDURE IN INTERFERENCE CASES. § 586. Interference Proceeding Instituted to Determine Priority between Rival Inventors. The procedure heretofore described is that which is pursued in uncontested or ex parte cases. Upon all questions relating to the patentability of an invention and the fact of its discovery by the alleged inventor, the only parties in interest are the public on one side and the inventor on the other; and the examination instituted in the Patent Office upon the filing of the application is regarded as sufficient both to protect the public rights and to secure the lawful privileges of the inventor. But when there are rival claimants for the same invention, to neither of whose applications, if each stood alone, could any effectual objection be urged in the interest of the public, the question as to which of these inventors is entitled to a patent still remains, and in the investigation of this question adverse individual interests appear. The law, which authorizes the grant of but a single patent for the invention, awards it to that one of the claimants who first conceived the idea of the art or instrument described, provided he has used due diligence in reducing it to practice. To determine this fact a judicial proceeding becomes necessary, in which the several rivals are parties adverse to each other, having a right to be heard by evidence and argument in vindication of their own claims and in opposition to the claims of their antagonists, and which results in a judgment in favor of some one of them as the lawful patentee.1 This judicial § 586. 1 In Hibbard v. Richmond (1880), 17 O. G. 1155, Doolittle, Act. Com. (1156) "The first and original inventor, whose invention has not been in public use or on sale more than two years prior to his application, and who has not abandoned the same to the public, is entitled to a patent for his inven tion upon making a proper application, and if on examination of such application it shall appear that the applicant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, it becomes the imperative duty of the Commissioner to grant him letters-patent. The whole proceeding forms the only contested case now known in the Patent Office, and is called an Interference.2 § 587. History of Interference Proceedings. An interference is a proceeding instituted for the purpose of determining the priority of the inventive act between two or more parties who claim substantially the same patentable invention. This proceeding first appeared in our law in the act of 1793, which provided that interfering applications should be submitted to the arbitration of three persons,two chosen by the applicants and the third appointed by the Secretary of State, whose award should be final.2 The act machinery of the Office under the law is framed for this purpose, and if the Commissioner at any time finds that he has granted a patent to one who is not the first and original inventor, but that the first and original inventor is another person whose application is pending before him, it is his duty to grant a second patent to such applicant. The manner of trying the fact as to whether an applicant in any given case is the first and original inventor when his application conflicts with another pending application or with an unexpired patent is prescribed by section 4904, Revised Statutes, and the proceeding is known as an interference.' 2 That an interference is now the only contested case in the Patent Office, see Little v. Lillie (1876), 10 O. G. 543. § 587. 1 That in an interference proceeding the sole question is that of the priority of the inventive act, see Hicks . Keating (1887), 40 O. G. 343; Swift t. Rochow (1880), 17 O. G. 450; Laverty . Flagg (1879), 16 O. G. 1141; Ex parte Knox (1879), 16 O. G. 1048; Miller v. Miles (1877), 11 O. G. 197; Lagowitz Topham (1875), 9 O. G. 742; Dana v. Greenleaf (1875), 9 O. G. 198; Smith . Perry (1875), 9 O. G. 688; Bigelow *. Commissioner (1875), 7 O. G. 603; MacArthur, 24. That disputes between patentees and their assignees cannot be determined in an interference proceeding, see Swift v. Rochow (1880), 17 O. G. 450. That an interference is declared be. tween applications rather than applicants, and is intended to find out which invention was first produced, not who has the title, and want of title may appear without a statutory bar being proved, see Hicks v. Keating (1887), 40 O. G. 343. 2 In Little v. Lillie (1876), 10 O. G. 543, Duell, Com., gives the following short history of interferences: (544) "The first laws relating to interfering applications were passed in 1793, when, under the system then in practice, patents were grantable as a matter of course, the only examination being to determine whether the invention was sufficiently useful and important and the papers in proper form. Even at that early date it was found necessary to provide a means whereby to determine which of two or more persons was the first and original inventor, and for this purpose it was provided that the matter should be submitted to arbitrators. The act of 1836, establishing the Patent Office, inaugurated a new system, which, with various modifications, has since been adopted. The office of Commissioner of Patents of 1836 gave to the Commissioner the authority to hear and decide these controversies, subject to an appeal to the board of was then created, and his powers and duties were defined to be under the direction of the Secretary of State to superintend, execute, and perform all such acts and things touching and respecting the granting and issuing of patents for new and useful discoveries, inventions, and improvements, as herein provided for, or shall hereafter, by law, be directed to be done and performed.' Section 6 of said act prescribed the conditions upon which a patent should be granted, and section 7 required the Commissioner to cause an examination of each application to be made, in order to determine whether, under the statute, the party was entitled to a patent, and, if found not, then he was to refuse the grant. As a matter separate and distinct from this examination, provision is made in section 8 for interferences, as follows: That when ever an application shall be made for a patent, which, in the opinion of the Commissioner, would interfere with any other patent for which an application may be pending, or with any unexpired patent which shall have been granted, it shall be the duty of the Commissioner to give notice thereof to such applicants or patentees, as the case may be, and if either shall be dissatisfied with the decision of the Commissioner on the question of priority of right or invention on a hearing thereof, he may appeal from such decision on the like terms and conditions as are provided in the preceding section of this act; and the like proceedings shall be had to determine which or whether either of the applicants is entitled to receive a patent as prayed for.' The appeal, like that in cases arising from a second rejection under sections 6 and 7, was to be taken to a Board of Examiners appointed for the purpose. By the act of 1839 this Board was abolished, and the Chief Justice of the District substituted as the appellate tribunal. The act of 1852 gave to the assistant judges the same authority to hear appeals as the Chief Justice. Section 2 of the act of 1861 created the Board of Examiners-in-Chief, whose duty it was made 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.' From the decision of this Board an appeal would lie to the Commissioner. The condition of the law at this time made it necessary that interferences be declared for determining the question of priority between two or more persons in order that the first and original inventor might be discovered. The primary examiners were intrusted with the decision of these cases, and, like ex parte cases, their action could be appealed from to the Board of Examiners-in-Chief, from them to the Commissioner, and thence to any of the justices of the District Court. On the 8th of July, 1870, the laws relating to patents were revised and the Patent Office reorganized, several marked and important changes being made in the practice. The provisions for interferences were contained in section 42 (R. S. 4904), as follows: Whenever an application is made for a patent, which, in the opinion of the Commissioner, would interfere with any pending application, or with any unexpired patent, he shall give notice thereof to the applicants, or applicant and patentee, as the case may be, and shall direct the primary examiner to proceed to determine the question of priority of invention. And the Commissioner may issue a patent to the party who is adjudged the prior in examiners. In 1839 the right of an appeal to the Chief Justice of the District Court of the United States for the District of Columbia, instead of to the board of examiners, was conferred on the defeated party, and the decision of the Chief Justice was made conclusive as to all further proceedings in the case. The act of 1861 intrusted the determination of this question to the primary examiners, subject to appeal to the examiners-in-chief, whose judgment in its turn could be revised by the Commissioner. The act of 1870 directed that a special examiner of interferences should be appointed in the Patent Office, before whom these contested cases should be heard, and from whose finding an appeal might be taken to the examiners-in-chief and from them to the Commissioner, whose decision should be final. The latter is the present system of procedure. § 588. Interference Proceedings Instituted only between Pending Applications or between a Pending Application and an Unexpired Patent. An interference can be instituted only between two or more pending applications, or between a pending application ventor, unless the adverse party appeals from the decision of the primary examiner, or of the Board of Examiners-inChief, as the case may be, within such time, not less than twenty days, as the Commissioner shall prescribe.' A special examiner was provided to attend to interference cases. Appeal to the Board and the Commissioner was allowed as in ex parte cases, but here the former practice and analogy ceased. While ex parte cases were appealable to the Supreme Court of the District of Columbia sitting in banc, instead of the justices, interferences could not be taken beyond the Commissioner, his decision being final. The work of the Office was then divided into ex parte and contested cases, the former to be considered by the primary examiners, from whose action an appeal might ultimately be In taken to the Supreme Court of the Dis- |