§ 616. Interference Proceedings: Parties to: Assignees. The parties to an interference are usually the rival inventors themselves, and from the nature of the case and the required proceedings no interference can be properly conducted without their participation. But when an inventor is unable or refuses to prosecute or defend his own claims to priority, or whenever the ends of justice would be otherwise defeated, an assignee may be permitted to protect his rights in the invention as a party to the interference, upon motion duly made to the Commissioner and satisfactory evidence that the necessity for such permission actually exists. SECTION XI. OF THE FORM AND EFFECT OF LETTERS-PATENT. §617. Issue of Patent is a Judgment that all Prerequisites are Fulfilled. The issue of letters-patent is a judgment that all prerequisites have been performed, and that all the conditions necessary to the granting of a patent privilege have been fulfilled.1 Upon mere formal matters this judgment is final. Upon questions relating to the merits of the invention and the title of the patentee it is prima facie correct, and casts the burden of proof upon any one who controverts the presumption raised by the patent. Upon material points concerning the regu § 617. That the issue of a patent is a judgment that all the facts entitling the patentee to the patent do exist, see Konold v. Klein (1878), 3 Bann. & A. 226. 2 That the decision of the Commissioner is final as to the sufficiency of all formal acts and proofs prerequisite to a patent, see Mahn v. Harwood (1884), 112 U. S. 354; 30 O. G. 657; U. S. Rifle & Cartridge Co. v. Whitney Arms Co. (1877), 14 Blatch. 94; 11 O. G. 373; 2 Bann. & A. 493. That after the patent issues the Patent Office cannot inquire whether the patentee made a false oath, see Ex parte Gillen (1877), 11 O. G. 419. 3 That the issue of the patent constitutes prima facie evidence of all facts entitling the patentee to the grant, see Eagleton Mfg. Co. v. West, Bradley, & Cary Mfg. Co. (1880), 17 O. G. 1504; 18 Blatch. 218; 2 Fed. Rep. 774; Konold v. Klein (1878), 3 Bann. & A. 226; Sands v. Wardwell (1869), 3 Clifford, 277; Philadelphia & Trenton R. R. Co. v. Stimpson (1840), 14 Peters, 448; 2 Robb, 46. That the decision of the Commis. sioner is never conclusive on a question larity of the proceedings in the Patent Office it is so far conclusive that the patent cannot be collaterally attacked upon such grounds, although they may present reasons for its repeal on a bill in equity, or an information.* § 618. Protest against the Issue of Letters-Patent. A protest against the issue of a patent may be filed by any person, though not a party to the application nor otherwise connected with the proceedings, for the purpose of calling the attention of the Patent Office to objections urged against the application, or of asserting or saving his own rights as a claimant of the invention. In reference to the objections stated in such protest the Commissioner may take whatever action he deems necessary. As a notice to the Office of the claims of the protestant, it may furnish evidence in some future controversy to rebut presumptions of abandonment or acquiescence in the issue of the patent to another claimant. The protest must show that an application has been or will be filed, and that the protestant's knowledge of the existence of such application has been lawfully obtained through its voluntary communication to him by the applicant.1 § 619. Letters-Patent, to whom Issued. The grantee of a patent is usually the applicant himself. But when an inventor dies pending his application, the patent of law, see Gardner v. Herz (1886), 118 That the decision of the Commissioner is not conclusive upon questions of abandonment or other matters relating to the merits, see Planing Mach. Co. v. Keith (1879), 101 U. S. 479; 17 O. G. 1031; Wilson v. Barnum (1849), 2 Fisher, 635; 1 Wall. Jr. 347; 2 Robb, 749. See also § 578 and notes, ante. That the decision of the Commissioner is not conclusive on any question on which a defence in the courts may be based under the statutes, see Malin v. Harwood (1884), 112 U. S. 354; 30 O. G. 657. 4 That the regularity of a patent cannot be collaterally attacked, see Hoe v. Cottrell (1880), 18 O. G. 59; 17 Blatch. 546; 1 Fed. Rep. 597; 5 Bann. & A. 256; Doughty v. West (1869), 6 Blatch. 429; 3 Fisher, 580. See also, as to all the matter of this paragraph, §§ 423, 451, and notes, ante, and §§ 967, 1016, 1032, and notes, post. As to whether and when a patent can be repealed, see §§ 716-730 and notes, post. § 618. 1 That a protest against the issue of a patent can be made only under the rules of the Patent Office, and must show that an application has been, or is about to be, filed and that the protestant's knowledge of it has been lawfully acquired, see Ex parte Neale (1879), 15 O. G. 511. issues to his executor or administrator, in trust for his heirs at law or devisees. When an applicant assigns the whole interest in the expected patent or the entire invention, the patent will be granted to the assignee upon the request of the applicant; and when the assignment transfers only an undivided interest, the patent will, upon a similar request, be awarded jointly to the original applicant and the assignee. To secure the issue of the letters-patent to an assignce, either as the sole or part owner of the invention, however, the assignment must contain an express petition to that effect, and must be received at the Patent Office for record at a date not later than the day on which the final fee is paid.1 § 620. Form and Contents of Letters-Patent. The patent itself is exceedingly brief and simple. It consists of a short title or description of the invention, correctly indicating its nature and purpose, and a grant to the patentee, his heirs or assigns, of the exclusive right to make, use, and vend the invention described in the title and the annexed specification throughout the United States and its territories during the period prescribed by law. No recital of proceedings in the Patent Office is required, all presumptions being in favor of their correctness; but a copy of the specification and drawings is appended to and is by law made part of the grant.2 All patents issue in the name of the United States, under the seal of the Patent Office, and must be signed by the Secretary of the Interior and countersigned by the Commissioner. This signature of the Secretary is essential to the validity of the patent, and a patent accidentally issued without it cannot be amended after his term of office has expired.3 § 619. 1 For the matter of this paragraph see also §§ 367, 368, 403–414, and notes, ante, and §§ 769-772, 800-802, 836, 844, and notes, post. § 620. 1 That a patent need not recite that the prerequisites have been fulfilled, see Gear v. Grosvenor (1873), Holmes, 215; 6 Fisher, 314; 3 O. G. 380; Philadelphia & Trenton R. R. Co. v. Stimpson (1840), 14 Peters, 448; 2 Robb, 46. 2 That the specification might have been made part of the patent before 1836, at the request of the patentee, see Hogg v. Emerson (1850), 11 How. 587. That under the act of 1790 the allegations of the petition were recited in the patent, see Evans v. Chambers (1807), 2 Wash. 125; 1 Robb, 7. 8 That a patent is not valid unless signed by the Secretary, and if accidentally issued without his signature it The patent is not complete until duly sealed; but when allowed and signed it is the duty of the Commissioner to affix the seal, unless it is evident to him that the issue of the patent would be contrary to law. § 621 Date and Delivery of Letters-Patent. Every patent must bear date as of a day not later than six months from the allowance of the application and the mailing of the notice and request for the final fee. On payment of the fee the patent is prepared for issue, and receives its date and number, and is delivered to the patentee or his attorney, as the attorney may direct. In no case can a patent be antedated. It takes effect as the grant of an exclusive privilege from the date of issue, although as evidence of an inventive act, and for many other purposes, it relates back to the date of the application upon which it is based.2 cannot be amended by his successor, see Marsh v. Nichols (1883), 15 Fed. Rep. 914; 24 O. G. 901. That it is doubtful whether a patent issued without the signature of the Secretary becomes good from the date of his subsequently signing it, see Marsh . Nichols (1883), 24 O. G. 901; 15 Fed. Rep. 914. That the omission of the Secretary's signature cannot be aided by showing the perfect patent on the record (an imperfect grant not being saved by a perfect record), nor be amended by his successor though he were the Acting Secretary when the omission occurred, nor be cured by affixing the true signature after the Secretary's official term has expired, see Marsh v. Nichols (1883), 24 0. G. 901; 15 Fed. Rep. 914. See also McGarrahan v. Mining Co. (1877), 96 U. S. 316; Goodman v. Randall (1877), 44 Conn. 321. § 621. 1 That under the present law a patent cannot be antedated, see Gramme Electrical Co. v. Arnoux & Hochhausen Electric Co. (1883), 17 Fed. Rep. 838; 21 Blatch. 450; 25 O. G. 193. VOL. II.-17 That prior to 1836 a patent could not be antedated, see Opinion Atty. Gen. (1820), 5 Op. At. Gen. 722. That under the acts of 1861 and 1836, a patent could be dated from the filing of the specification, if not preceding its issue more than six months, see Burdett v. Estey (1880), 3 Fed. Rep. 566; 19 Blatch. 1. 2 That a patent takes effect from the date of the grant, see Gramme Electrical Co. v. Arnoux & Hochhausen Electric Co. (1883), 17 Fed. Rep. 838; 25 O. G. 193; 21 Blatch. 450. That a patent may not always take its date from the day when it begins to run, as when it begins from the date of a foreign patent, see De Florez v. Raynolds (1880), 17 O. G. 503; 17 Blatch. 436; 8 Fed. Rep. 434; 5 Bann. & A. 140. That a patent relates back to the date of the application, see Johnsen v. Fassman (1872), 5 Fisher, 471; 20. G. 94; 1 Woods, 138. That in the absence of all other proof the date of the patent will be assumed to be the date of the application and of § 622. Term of Patent Privilege Limited by Express Statute or by Foreign Patents. The term of a patent is measured by the statute, not by the language of the grant. Where the invention has not been previously patented in a foreign country, the term is uniformly fixed at seventeen years from the date of the grant. But where a foreign patent has already been obtained, a different rule has been adopted. It is the policy of our government not to impose upon our own public a greater restriction than has been or may be placed upon a foreign people in the use of the invention; and where the invention has been disclosed abroad by a patent, and will become the property of the foreign public after a given period of time, it is the purpose of our statutes to permit no more extended monopoly to the inventor in the United States. Various rules have been from time to time established to secure this result. Under the act of 1836 a foreign patent was a bar to a domestic application unless it had been granted and published within six months preceding the filing of the latter, thus making the terms of both substantially the same. The act of an assignment before patent, see Worley v. Loker Tobacco Co. (1882), 104 U. S. 340; 21 O. G. 559. That a patent on a renewal application is to be dated six months after the renewal application is allowed, see Thomson v. Waterhouse (1884), 30 O. G. 177, § 622. That the statute, not the language of the patent, limits its term, see De Florez v. Raynolds (1880), 17 O. G. 503; 8 Fed. Rep. 434; 17 Blatch. 436; 5 Bann. & A. 140. That the patent ought to express its actual duration, see Opinion Sec. Int. (1882), 21 O. G. 1197. That Sec. 4887 does not require that the term of a patent shall be correctly stated in the patent itself, but only limits the term, and the grant of a patent for seventeen years, therefore, does not prevent it from expiring with a prior foreign patent, see Canan v. Pound Mfg. Co. (1885), 31 O. G. 119; 23 Blatch. 173; 23 Fed. Rep. 185. That a domestic patent is valid, though its term is not expressly limited to that of a foreign patent, see American Paper Barrel Co. v. Laraway (1886), 28 Fed. Rep. 141; 37 O. G. 674. That in the absence of fraud the date of a patent may be altered to correspond with that of a foreign patent, see Opinion Atty. Gen. (1844), 4 Op. At. Gen. 335. 2 That under the act of 1861 patents "remain in force" seventeen years, not run seventeen years from the date of the patent, see De Florez v. Raynolds (1880), 17 O. G. 503; 8 Fed. Rep. 434 ; 17 Blatch. 436; 5 Bann. & A. 140. 8 That under the act of 1836 a foreign patentee applying for a domestic patent, within the time prescribed, could enjoy the full statutory term, see American Diamond Rock Boring Mach. Co. v. Sheldon (1879), 17 Blatch. 303. |