in either as a proper matter for amendment. It treats the adjectives "defective" and "insufficient" as covering two different classes of errors, the former consisting in want of exactness, the latter in want of completeness, instead of regarding the second as a substantial repetition of the first. It makes the field of amendment commensurate with the field of error, all possible errors being comprised in inexactness and incompleteness of the Description, and in inexactness, incompleteness, and excessiveness of the Claim. In the second Phila. 461; Westinghouse v. The Gardner & Ranson Air Brake Co. (1875), 9 O. G. 538; 2 Bann. & A. 55; Seymour v. Marsh (1872), 2 O. G. 675; 6 Fisher, 115; 9 Phila. 380. That a Claim is part of the specification and therefore amendable, see Smith v. Merriam (1881), 19 O. G. 601; 6 Fed. Rep. 713. That an enlarged Claim is allowable in a re-issue, if there are no adverse rights to be affected by it, see Stutz v. Armstrong (1884), 20 Fed. Rep. 843; 28 O. G. 367; McArthur v. Brooklyn Railway Supply Co. (1884), 19 Fed. Rep. 263; 21 Blatch. 558. is, the substantial identity of the invention covered by the original patent with that covered and described in the re-issued patent, it is competent for the jury to look into the drawings of the original patent to determine whether the inventions are the same. The drawings, as well as the specifications, are to be looked to in giving a construction to the Claims of a patent, in determining what was the invention of the original patentee. If, for instance, the drawings show an element of the invention which the patentee has not included specially in his Claim, it is evidence nevertheless that it was a part of his invention, and he or his assignee has a right to incorporate that element in the re-issued patent." 2 Bond, 115 (127). Further, that the re-issue may so enlarge or otherwise modify the Claims of the original as to secure the actual invention, see Jenkins v. Stetson (1887), 32 Fed. Rep. 398; Becker v. Hastings (1884), 28 O. G. 98; 22 Fed. Rep. 827; Ex parte Long (1883), 25 O. G. 1189; Crandall v. Watters (1881), 9 Fed. Rep. 659; 20 Blatch. 97; 21 O. G. 945; Smith v. Merriam (1881), 6 Fed. Rep. 713; 19 O. G. 601; Waring v. Johnson (1881), 19 O. G. 1068; 19 Blatch. 38; 6 Fed. Rep. 500; Miller v. Brass Co. (1881), 104 U. S. 350; 21 O. G. 201; Anilin v. Higgin (1878), 15 Blatch. 290; 14 O. G. 414; 3 Bann. & A. 462; Lorillard v. McDowell (1877), 2 Bann. & A. 531; 11 O. G. 640; 13 That a re-issue is the proper mode of securing what was described but not claimed in the original patent, see Asmus v. Alden (1886), 27 Fed. Rep. 684; 36 O. G. 231; Hill v. Commissioner (1885), 33 O. G. 757 ; 4 Mackay, 266; Ex parte Cottrell, (1876), 9 O. G. 495; Richardson v. Lockwood (1870), 4 Clifford, 128. That a re-issue is the only mode of securing what was accidentally omitted from the original, see Keystone Bridge Co. v. Phoenix Iron Co. (1877), 95 U. S. 274; 12 O. G. 980. That an element shown but not claimed in a prior patent, yet patentable thereby if it had been claimed, can be secured by re-issue or by a separate patent, see Loring v. Hall (1879), 15 O. G. 471. place, this view is in harmony with the entire tenor of the act. The act is characterized by a spirit of great liberality toward inventors. The benefits which it confers upon them are inestimable. Even in the very section which provides for a reissue the privilege of incorporating subsequent improvements and additions into an existing patent, with the same effect in law as if embraced in the patent as originally issued, was accorded, a privilege far beyond the scope of any conceivable amendment in the Description or Claim of the original invention; and it can scarcely be supposed that the same legislature which conferred this privilege intended to deprive inventors of that remedy for insufficient Claims which had already been found necessary by the courts and had been granted by the act of 1832. In the third place, this view is the only one under which the remedy by re-issue is of any practical advantage to inventors. The value of a patent to the patentee depends upon the completeness with which it. protects his actual invention, and as the limits of the protec tion are fixed by the Claim, a mistake by which the Claim is unduly restricted is, more than any other error, injurious to the inventor, and in his interest more imperatively demands correction. To permit him to amend by giving more specific information to the public, or by narrowing the Claims of his original patent, or by stating in more precise language the Claim that he has already made to the invention, affords him no adequate relief against the evils that inevitably arise out of the inherent difficulty which attends the endeavor to put into words a complete delineation of those essential characteristics in which the identity and individuality of the invention reside. If in any portion of the instrument error is likely to occur it is here; and if any error seriously prejudices his interests it is the one by which his patent is made narrower than his invention. And hence, if any error ought to be corrected, when occurring without wilful fault on his part, it is the one whereby he is deprived of that right to which he is entitled both by the spirit and the letter of the law. For these three reasons, and others which a careful study of the act itself suggests, it seems that of the two views of the rule above described the latter is correct; and that this act con fers the privilege of a re-issue whenever the Description or the Claim is inexact or incomplete, or when the Claim is broader than the actual invention, provided the error has arisen from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention.* §657. Re-issues under the Act of 1870 and the Revised Statutes of 1874. That both the Description and the Claims may be corrected by re-issue, see Sewing Mach. Co. v. Frame (1884), 24 Fed. Rep. 596; 28 O. G. 96; Hailes v. Albany Stove Co. (1883), 16 Fed. Rep. 240; 24 O. G. 391; 21 Blatch. 271; Wilson v. Coon (1880), 6 Fed. Rep. 611; 19 O. G. 482; 18 Blatch. 532; Anilin v. Higgin (1878), 14 O. G. 414 ; 15 Blatch. 290; 3 Bann. & A. 462; Tucker v. Tucker Mfg. Co. (1876), 10 O. G. 464; 4 Clifford, 397; 2 Bann. & A. 401; Carew v. Boston Elastic Fabric Co. (1871), 3 Clifford, 356; 5 Fisher, 90; 1 O. G. 91; Batten v. Taggert (1854), 17 How. 74. Under the act of 1870 and the Revised Statutes, the law governing re-issues is the same as under the act of 1836. The phraseology of these later acts differs from that of the earlier in some unimportant respects, but it is evident that no intent to change the rules existed at the passage of these statutes, and that the language used was regarded as substantially identical with that of the former act. This being the case, the law may now be considered as providing for more than he had or shall have a right to claim as new," etc. The difference between these two provisions consists simply in the omission from the act of 1870 of the words here included in brackets in the act of 1836. The change is evidently verbal, not substantial. The word specification is used in its modern sense as covering the Description as well as the Claim, and the patent is treated as a proper subject for re-issue when either is defective or insufficient. That this alteration in language was not intended to limit re-issues to cases where the Description as distinguished from the Claim is defective or insufficient appears from the final clause of Sec. 53, which permits the introduction into the re-issue specification of matter wholly omitted from the original, upon proof that it constituted part of the original invention, and was omitted by inadvertence, accident, or mistake. The Revised Statutes, Sec. 4916, follow the act of 1870, Sec. 53, so far as this point is involved. See Wilson v. Coon (1880), 6 Fed. Rep. 611; 19 O. G. 482; 18 Blatch. 532. § 657.1 Act of 1870, Sec. 53: "That whenever any patent is inoperative or invalid, by reason of a defective or insufficient specification, or by reason of the patentee claiming as his own invention or discovery more than he had a right to claim as new," etc. Act of 1836, Sec. 13: "That whenever any patent shall be inoperative or invalid, by reason of a defective or insufficient [description or] specification, or by reason of the patentee claiming [in his specification] as his own invention the re-issue of a patent whenever it becomes necessary to amend either the Description or the Claim in order to make the actual invention accessible to the public, or to afford it that complete and exact protection to which its inventor is entitled.2 § 658. Conditions of Re-issue the Same under all the Foregoing Statutes. The conditions upon which an amendment by re-issue might be made have remained the same under all these statutes. These are that the defect or insufficiency should have arisen through inadvertence, accident, or mistake, and without any fraudulent or deceptive intention. A defective or insufficient statement, purposely inserted with intent to deceive the public, is regarded as a fraud which vitiates the entire patent and justly forfeits all right of the inventor to any consideration from the government. Such a statement cannot be amended in any form. A defective or insufficient statement, occurring otherwise than through inadvertence, accident, or mistake, is also not amendable. "Inadvertence" signifies want of attention; "mistake," want of knowledge; accident," circumstances against which the inventor cannot guard. A statement, made without inadvertence, accident, or mistake, is a statement made voluntarily and with sufficient knowledge and attention. If a statement thus made in the Description is defective or insufficient, the inventor is guilty of wanton negligence, if not of fraud, and certainly ought not to be permitted to amend. If a statement thus made in the Claim is incomplete, the inventor is precluded from correcting it on the ground that he has either abandoned the unclaimed matter to the public, or has excluded it from the present monopoly and reserved it for the protection of an independent patent. If the Claim is wilfully and with knowledge and attention made obscure or broader than his actual invention, it is evidently fraudulent and void. Of these questions of inadvertence, accident, mistake, and fraud, the Patent Office is to judge upon an application for re-issue; though where an 2 See Sec. 656, note 3, ante, for cases on this subject decided since the pas sage of the act of 1870. alleged incompleteness in the Claim is so apparent upon a comparison of the Description with the Claim that it could not have occurred involuntarily or through any want of knowledge or attention, or where unreasonable delay in obtaining a re-issue, or other circumstances in the history of the application or the patent, show that no inadvertence, accident, or mistake could have originally existed, the courts regard it as conclusive evidence that the inventor intended to exclude from his original patent all that was not duly claimed, and treat a re-issue which endeavors to reclaim it as to that extent invalid. § 659. The Fundamental Principles Governing Amendment by Re-issue Reducible to Four Propositions. This review of the historical development of the subject of re-issues suggests the following propositions as representing the present doctrines of the law in reference thereto :1 (1) That the sole object of a re-issue is to so amend an imperfect existing patent that it may disclose and protect the patentable subject-matter which it was the purpose of that patent to secure to its inventor; (2) That being the amendment of an existing patent, and not the grant of a new patent, it must be confined to the invention which the patentee attempted § 659. The first three of these propositions express the fundamental conditions of amendment by re-issue, the absence of any one of which is a perfect bar to its allowance. The original patent must be an existing patent, otherwise there is nothing to amend; and it must be an imperfect patent, other wise there can be no defect requiring an amendment. The subject-matter of the amendment must be the invention which the patentee endeavored to describe and claim in the original patent, otherwise the re-issue would be a new patent for a different invention, and not a mere amendment of the old. The defect must have occurred through inadvertence, accident, or mistake, and without fraud, or the pretended amendment would, in the first case, be a recla mation of matter already voluntarily ex- |