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it is the duty of the Commissioner to give; and if, through any fault or inadvertence in the Office, it should be omitted, or if the caveator should fail to receive it, and a patent for the invention issue to the applicant, the latter can take no advantage from his patent in any subsequent interference proceeding between himself and the caveator.2 Although his

authorizes any person who shall have invented any new art, machine, or improvement thereof, and shall desire further time to mature the same, upon payment of twenty dollars, to file in the Patent Office a caveat, setting forth the design and purpose thereof, and its principal and distinguishing characteristics, and praying protection of his right till he shall have matured his invention. Such caveat is filed in the confidential archives of the Office and preserved in secrecy. The obvious design of this section is to afford to inventors the opportunity of perfecting their discoveries and inventions. To prevent an abuse of the privilege, it is further provided that if an application is made by any other person, within one year from the time of filing the caveat, for a patent of any invention with which it may in any respect interfere, it shall be the duty of the Commissioner to deposit the descriptions, specifications, drawings, and model, in the confidential archives of the Office, and to give notice by mail to the person filing the caveat of such application, who shall, within three months after receiving the notice, if he would avail himself of the benefits of his caveat, file his description, specifications, drawings, and model. If no such application is made, the caveator has a reasonable time in which to mature his invention or discovery; and when his letterspatent are issued, if he have used due diligence, he has the right to have his matured invention incorporated into his patent, and to supersede those that have intervened between the date of his first discovery and his subsequent

taking out of the patent." 6 Fisher, 424 (431).

2 In Frevert v. Gahr (1873), 3 O. G. 660, Thacher, Act. Com.: (660) "The law, however, not only contemplates that notice shall be duly sent, but that it shall be received by the caveator; that he shall have he benefit of his caveat for which he has paid, which he cannot have if he does not receive notice of an interfering application. I do not mean to assert that the Office is bound to insure him notice, further than it does in ordinary cases, by duly mailing the notice and suspending the interfer ing application, as was done in this instance. But when it appears in proof as a matter of fact that the notice, through no fault of his, did not reach the caveator, then it follows that the patentee has obtained his patent without the proceedings in interference which the law contemplates shall be had in all cases of this nature. Whereas, if the notice had not failed to reach its destination, the parties would, in all probability, have come before the Office as applicants upon equal footing, as the law intends in such cases; now, by the fault of neither party nor the Office, the patentee, as such, has, upon the record, acquired an advantage. It can not be ignored that his apparent advantage in this instance comes through a mere accident, and that if allowed its ordinary value the spirit of the law would obviously be subverted. Therefore I am not disposed to consider Gahr in any better position than he would have been had the interference been declared pending his application."

That it is the duty of the Commis

patent cannot be recalled it will be regarded as surreptitiously obtained, and both the caveator and himself will be treated as standing on equal ground as rival applicants. But this rule in reference to notice applies exclusively to applications filed pending the caveat; of those which are already in the Office when the caveat is filed, and those which are presented after the life of the caveat expires, the caveator has no right to be informed, but must take the same chances concerning them as any other inventor.4

§ 445. Caveat not to be Withdrawn: Copies: Amendments.

A caveat, having been once filed in the Office, cannot be withdrawn by the caveator, either for the purpose of amendment or for any other purpose. Copies of it, or of its accompanying papers, may be obtained by him or his authorized agent in the usual manner; and any correction or addition which he may desire to make, if proper to be made at all, must be separately prepared and filed.

§ 446. Caveat as Evidence: as Estoppel.

A caveat is evidence of the date of the invention described therein, and may be used in certain cases as proof that the inventive act had been performed before the time when it was filed. But unless necessarily inferred from the description given, it does not show that the invention was then completed; nor, on the other hand, does the statement in it that the caveator desires further time to mature his invention

sioner to give to the caveator the proper notice, and its accidental omission cannot prejudice his rights, see Phelps v. Brown (1859), 4 Blatch. 362; 18 How. Pr. 7; 1 Fisher, 479.

That a patent issuing on a subsequent application, without notice to the caveator, gives no advantage to the patentee, but as against the caveator he will still be treated as a rival applicant, see Ware v. Bullock (1874), 7 O. G. 39; Phelps v. Brown (1859), 4 Blatch. 362; 18 How. Pr. 7; 1 Fisher, 479.

That a patent issued on a subse quent application without notice to the caveator is "surreptitiously obtained," see Phelps v. Brown (1859), 4 Blatch. 362; 18 How. Pr. 7; 1 Fisher, 479.

That an application and a caveat being filed simultaneously by two different inventors, the caveator is entitled to notice, see Ex parte Essex (1876), 9 O. G. 497.

§ 446. See MS. cases cited in Law's Digest: title, Caveat. Also § 1015 and notes, post.

conclude him from averring that the art or instrument was at that time perfect and ready for a patent.2

§ 447. Caveat not Assignable.

The law makes no provision for the assignment of a caveat, or of the right to notice which it is intended to secure. The invention described therein may be transferred under such terms of contract as shall protect the assignee by obliging the inventor to proceed with his application, upon receiving notice, on behalf of the real owner of the invention; and the caveat may serve as a means for identifying the invention applied for with the invention so transferred.

§ 448. Caveator not Concluded by his Description of the In

vention.

The description of the invention as given in a caveat is not conclusive upon the inventor or his assignee. It does not purport to be an account of a result accomplished, but of a result expected and desired; and, when attained, this result may vary in many particulars from the one foreseen by the inventor. While, therefore, as entitling him to a notice of subsequent applications, the caveat is taken according to the terms of the description, he is not estopped by it, when his invention is completed, from connecting with his perfect art or instrument the inventive act imperfectly delineated by him in the caveat. Having filed this as a matter of precaution, he may proceed with his experiments; and if he uses due diligence he may secure his matured invention by a patent, although other inventors have conceived the same ideas or successfully prosecuted the same experiments since the date of his original discovery.1 In all such cases the question between him and his rivals is simply that of priority of invention, to be determined according to the principles already stated.

2 That a caveat does not show whether or not the invention is perfected, see Johnson v. Root (1858), 1 Fisher, 351.

§ 448. That if the first conceiver, having filed his caveat, uses reasonable diligence in reducing to practice, he

may protect his matured invention in his patent, see American Nicholson Pavement Co. v. Elizabeth (1873), 3 O. G. 522; 6 Fisher, 424; Phelps v. Brown (1859), 4 Blatch. 362; 18 How. Pr. 7; 1 Fisher, 479.

SECTION III.

OF THE APPLICATION: ITS FORM.

§ 449. Application for Letters-Patent Made by Whom.

An application for a patent must in all cases be made by the inventor, if living, whoever may by law be actually entitled to the ownership of the exclusive privilege when granted. A patent may be issued, as shown at length in the preceding Book, either to the inventor himself, his personal representatives, or his assigns; but the measures to obtain it must be originated by the inventor, unless this has been rendered impossible by his death. If he has died after completing the invention and without applying for a patent, the application must be made by his executor or administrator in the interest of his heirs or devisees or assignees, in whom, by law or by the act of the inventor, the right to the patent may be vested. An application for a patent for a joint invention must be made by all the joint inventors.

$450. Proper Applicant Determined from the Record Title in

the Patent Office.

In receiving and examining applications the Patent Office. deals only with those who appear, by the records of the Office, to be the proper applicants.' It has no jurisdiction over questions of title between rival claimants, and cannot undertake to make or alter or enforce the agreements of contending parties. It therefore recognizes the inventor as the only

§ 450. In Ex parte Edison (1875), 7 O. G. 423, Thacher, Com. (424) "The issue before the Commissioner is, to whom shall the patents be granted? In determining this question, the Commissioner must be guided entirely by the record. He has not the authority of a court to consider evidence, outside the record, as to outstanding equities. The only question that he can decide is, who on the record possesses the legal title to these inventions? He must

issue the patents accordingly, if the requirements of the Office in such cases provided have been complied with."

That an application is evidence of the applicant's title, see Com. Dec. (1884), 26 O. G. 637.

That in issuing patents the Patent Office has no power to reform or cancel assignments or decide the equitable rights of parties on extraneous proof, but must follow the record title, see Ex parte Paine (1878), 13 O. G. 408.

party in interest, until by proof of his death and the presentation of the proper letters by his personal representative, the latter is substituted in his place, or until, by the filing and recording of an assignment, the assignee is made either the sole owner of the invention, or a joint owner with the inventor. Thus, although the application be originally made by the inventor, the person of the applicant, as known to the Patent Office, may be subsequently changed, either wholly or in part. By the death of the inventor, or by his assignment of the entire interest in the invention or in the future patent, he ceases to be known to the Office as an applicant, and his executor or administrator or the assignee is alone entitled to hold correspondence with the department concerning the invention; while if the assignment has transferred only an undivided interest in the invention or the patent, both the inventor and the assignee now constitute the applicant, and both are so regarded by the Office and must act jointly in the prosecution of their claims. Changes of this character may take place up to the date of the issue of the patent, and the patent will then be granted to whosoever may appear of record to be its proper owner.2

§ 451. Applications must Conform to Legal Requirements: if Granted, such Conformity Presumed.

Every application for a patent must conform in all respects to the requirements of the law. The Patent Office has no power to dispense with any of them, however unessential they may seem to be.2 Its own authority, as well as the rights of

2 That an assignment filed of record after the final fee is paid will be considered in the Patent Office, see Ex parte Paine (1878), 13 O. G. 408.

That assignees of two joint inventors become thereby the owners of a sole patent afterward granted to one of the joint inventors and may control the application, see Kohler v. Kohler (1888), 43 O. G. 247.

§ 451. That all essential statutory prerequisites must be fulfilled or the patent will be void, see Eagleton Mfg. Co. v. West, Bradley, & Cary Mfg. Co.

(1884), 111 U. S. 490; 27 O. G. 1237 ; Eagleton Mfg. Co. v. West, Bradley, & Cary Mfg. Co. (1880), 18 Blatch. 218; 2 Fed. Rep. 774; 17 O. G. 1504; Latta v. Shawk (1859), 1 Fisher, 465; 1 Bond, 259; Ransom v. Mayor of N. Y. (1856), 1 Fisher, 252; Child v. Adams (1854), 1 Fisher, 189; 3 Wall. Jr. 20.

See also § 423 and notes, ante.

2 That the Patent Office has no power to dispense with such prerequisites though the courts may have sustained patents not possessing them, see Eagleton Mfg. Co. v. West, Bradley, &

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