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the scope of the invention patented is conclusively determined, and the line drawn between those objects which lie open to unrestricted use and those which none but the inventor can lawfully employ. On them depend, on the one hand, the entire commercial value of the invention, with the consequent reward of the inventor, and on the other hand, the privileges still remaining in the public. Hence it becomes most important that in them the invention should be accurately pointed out, and that by them the rights of the inventor should be permanently established within the precise limits which the nature of his discovery and its position in the arts require.

§ 416. Patent Office Established to Secure the Issue of Legal and

Correct Letters-Patent.

It is to secure this accuracy in the description of the invention in the letters-patent, and to fix this precise limit between the rights of the inventor and the public, that the Patent Office of the United States has been created. To this department of the government have been committed the interests of individual inventors as well as those of the whole community, so far as they depend upon the progress of the industrial arts. To it the inventor has recourse if he wishes for protection while completing his discovery and reducing it to practice. To it he applies, when his inventive act is finished, for the patent by which his monopoly is to be conferred. By it his application is examined, the novelty and utility of his alleged invention are determined, the language he has used in its description, or in the statement of his claims, is corrected and made to correspond with the real character of his invention, and the controversies between himself and rival inventors are decided. The proceedings necessary to the performance of these various functions and to the securing of these different results have developed, under successive acts of Congress and the decisions of the courts and the Commissioner, into an elaborate system of laws and regulations, in accordance with which all applications for letterspatent must be prepared, submitted, scrutinized, and granted or denied.

§ 417. Authority of Patent Office to Amend Defective Letters

Patent.

Notwithstanding all available diligence and skill on the part of inventors in describing their inventions, and all the care of the Patent Office in examining them, errors often occur in letters-patent, which, if allowed to remain and govern the reciprocal rights of the inventor and the public, would be productive of serious injustice. The law has therefore authorized the correction of these errors, even after the patent is issued by the government, and although it has controlled the relations of the inventor and the public for a long period of time. These errors result mainly from an excess in the description of the invention in the letters-patent, whereby the inventor has received a grant of the exclusive use of more than he has himself invented; or, on the contrary, from some omission or inaccuracy in the description, whereby the right secured by the patent is more limited than that to which the nature of his invention has entitled him. In either case, an application to the Patent Office for the amendment of his letters-patent becomes necessary, an application which is always granted where the error has occurred without his own misconduct or neglect.1

§ 418. Illegal Letters-Patent Repealed, not by Patent Office but by Courts.

The same power which can create a patent privilege can also, when it becomes necessary, destroy it. The authority to grant letters-patent when the required conditions are performed implies an authority to repeal them whenever it is ascertained that the grant had been improperly conferred. Thus, although the Constitution authorizes Congress only to secure to inventors their exclusive rights, yet it has always claimed and exercised the power to provide methods for invalidating its own grants upon discovering that the patentee had no right to retain them. This power, however, has not been confided to the Patent Office; for a patent, when once issued, passes beyond the control of that department, except for the purpose of amendment on the application of the § 417. 1 See §§ 633-715 and notes, post.

patentee. All questions as to the repeal of patents fall within the jurisdiction of the courts of the United States, and the proceedings instituted for that object are regulated by the statutes or the general provisions of the law.1

$419. Letters-Patent Interpreted by the Courts.

The grant of an exclusive privilege to an inventor creates a contract relation between himself and the public, the obligations of which, on both sides, are expressed in the letterspatent. A patent is thus a written agreement by which the rights and duties of the inventor on the one hand, and of the people at large upon the other, are defined. Like every other contract, the character and scope of these rights and duties depend upon the terms of the patent as interpreted by the courts, and this interpretation is governed by the same general rules which are applied in construing any written obligation between one party and another. Whatever may have been the real nature of the invention, or the true intention of the inventor in describing it, or even the limits which the Patent Office has attempted to establish for his exclusive rights, the monopoly actually secured by the patent is ascertained and determined by the judicial construction given to its various provisions. In the last resort the patent privilege is, therefore, measured by the judgment of the courts; and hence the legal doctrines applied in construing contracts are always to be borne in mind when the letters-patent, or the documents preliminary to them, are to be prepared.1

§ 420. Rights Created by Letters-Patent Transferrible.

The right conferred by the grant of letters-patent is the right to the exclusive use of the invention during a specific period of time. This right differs, in some respects, from the right to the invention itself. The right to the invention vests in the inventor by virtue of his own creative act, and under existing laws includes the right not only to use it without a patent, but to obtain a patent for it, and under certain circumstances to procure an extension of that patent for an ad

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§ 418. 1 See §§ 716-730 and notes, § 419. 1 See §§ 731-751 and notes, post.

ditional term of years. The right created by the letters-patent is collateral to the right to the invention, and consists in the authority to prohibit other persons from making, using, or selling the patented art or instrument during the time named for the continuance of the monopoly. Like the right to the invention, however, this right may be transferred to others, either as an entirety or in subdivisions, and for such periods and upon such conditions as the inventor may desire. All these conveyances are limited in their effect by the interpretation given to the patent by the courts, and the titles of all who claim an interest in the patent relate back to the original letters-patent as the source from which they spring.1

§ 421. Extension of Letters-Patent: General Divisions of the Law Relating to Letters-Patent.

From an early period the law has taken notice of the fact that during the original term for which the monopoly was granted the inventor may, from circumstances not within his own control, fail to obtain the entire recompense which he deserves; and it therefore has provided, sometimes in one method, sometimes in another, for the extension of the letters-patent after the first term has expired. This duty is also confided, wholly or in part, to the Patent Office; and when exercised completes the series of invaluable services which that department of the government has been empowered to render to the meritorious inventor.1 Thus it appears that the provisions of Patent Law concerning those letters-patent by which the rights of the inventor and the public are defined, and the titles of the patentee and his transferees to the exclusive use of the invention are established, relate to six principal subjects:

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I. The Grant of Letters-Patent.

II. The Amendment of Letters-Patent.
III. The Repeal of Letters-Patent.
IV. The Construction of Letters-Patent.

V. The Transfer of Letters-Patent.
VI. The Extension of Letters-Patent.

§ 420. 1 See §§ 752-834 and notes,

§ 421. 1 See §§ 835-845 and notes, post.

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CHAPTER I.

OF THE GRANT OF LETTERS-PATENT.

§ 422. Grant of Letters-Patent Governed by Statute and by Rules of Patent Office: Authority of such Rules.

The proceedings relating to the grant of letters-patent are regulated in part by the acts of Congress, and in part by rules established by the Patent Office itself. While the general features of these proceedings may properly be made the subject of permanent provisions in the statutes, their numerous and ever varying details can be controlled only by the vigilant and flexible authority of the department in which they arise. For this reason power has been conferred upon the Commissioner of Patents to adopt such regulations as he may deem expedient for the conduct of the business committed to his charge. These rules are subordinate to the statutes, and if inconsistent with them are invalid, but otherwise are of the same obligation as the acts of Congress.1 Officers of the department, as well as parties and attorneys, are bound to recognize and follow them until duly repealed, and no departure from them, except in some case of necessity, is permitted.2

§ 422. 1 That the Patent Office has power to make its own rules, and if these are consistent with the statutes, they are as binding as an act of Congress, see United States v. Marble (1882), 22 O. G. 1365.

That the rules of the Office as to the forms of papers, etc., must be complied with, see Ex parte Mason (1888), 43 O. G. 627.

That the Executive Department will not interfere with the regulations of the Patent Office, see Opinion Atty. Gen. (1869), 13 Op. At. Gen. 28.

ute, the rule yields and the statute prevails, see Stone v. Greaves (1879), 17 O. G. 260.

2 That the rules are binding until repealed, see Smith v. Cowles (1885), 30 O. G. 343; Ex parte Smoot (1877), 11 O. G. 1010.

That the rules are binding on the officers of the department as well as on the public, see Brown v. La Dow (1880), 18 O. G. 1049; Ex parte Smoot (1877), 11 O. G. 1010.

That the rules must not be departed from without necessity, see Ex parte That if inconsistent with the stat- Skinner (1881), 19 O. G. 662.

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