takes up the work where the inventor left off. Said in a case where papers were prepared but not filed at inventor's decease. Jones, 103 0. G. 228.

Executor or administrator should make the application even when the inventor executes papers before he dies.

Lewis, 93 0. G. 1311.

That a guardian has been appointed by a foreign court is not sufficient.

Hummel, 1900 C. D. 15, 94 O. G. 583.

Practice in case of interference. It cannot be properly held that an application has no standing before the Office because the inventor is dead and the executor has not asserted his rights.

Handly v. Bradley, 89 O. G. 522.

If the inventor dies during the pending of the application it is not necessary to withdraw the application and file a second; but there is no objection to such a course provided the rights of third parties are not infringed.

Rice v. Burt, 1879 C. D. 2991, 16 O. G. 1050.

Proof that the applicant is the administrator of the deceased inventor must be made. Foreign letters of administration are not sufficient. Ancillary letters of administration must be taken out in the United States.

Executors of Robert Ransome, 1870 C. D. 143.

Cases passing on the subject matter of this rule.

Deeter, 1900 C. D. 162, 93 O. G. 190; Decker v. Loosley, 1896 C. D. 106, 77 O. G. 2140; Chose v. Ryder, 1892 C. D. 219, 61 O. G. 885.

Rule 26. Patents to Assignees.

In case of an assignment of the whole interest in the invention, or of the whole interest in the patent to be granted, the patent will, upon request of the applicant embodied in the assignment, issue to the assignee; and if the assignee hold an undivided part interest, the patent will, upon like request, issue jointly to the inventor and the assignee; but the assignment in either case must first have been entered of record, and at a day not later than the date of the payment of the final fee (see Rule 188); and if it be dated subsequently to the execution of the application,

it must give the date of execution of the application, or the date of filing, or the serial number, so that there can be no mistake as to the particular invention intended. The application and oath must be signed by the actual inventor, if alive, even if the patent is to issue to an assignee (see Rules 30, 40); if the inventor be dead, the application may be made by the executor or administrator.

CONSTRUCTIONS.

See Rules 5, 6 and 183.

Rev. Stat., sec. 4895.

See order No. 1,792, 138 O. G. 970.

Whether the request to issue the patent to the assignee, together with a record of the assignment is necessary to vest the legal title in the assignee has been variously decided.

Harrison v. Morton, 83 Md. 477; Walker on Patents,

235-236; Robinson on Patents, p. 580 affirmative; Wende v. Harine, 191 Fed. 620, negative; Hildreth v. Averbach, 200 Fed. 972.

The assignee of a part interest is joined in the issue of a patent only upon request of the applicant imbodied in the assignment.

Ryle, 193 O. G. 753.

A different rule has been advanced but it is thought that one rule should prevail.

Dudley, 187 0. G. 831.

A patent will not be issued to the assignee upon an assignment subject to an exclusive license.

Hubert, 171 O. G. 745.

A license of record will not prevent the issuance of a patent on a proper assignment (authorities).

Hubert, 171 O. G. 745.

It is purely discretionary with the commissioner whether he shall issue the patent to the assignee.

In re Pearsall, 31 App. D. C. 205; Moore, Com. v. U. S. ex rel. Boyer, 138 O. G. 530.

An assignment of the legal title including a request to issue the patent to the assignee necessary.

Stanford, 138 O. G. 527.

P filed an application Sept. 15, '02 and assigned his interest to V Sept. 18, '04. B made a second application and assigned his interest to W. The Patent Office issue a patent on the

second application and rejected the first application on said patent.

Affirmed by Court of Appeals.

In re Pearsall, 135 O. G. 221.

Assignments from an executor, without copies of the letters testamentary, may be recorded, but the patent may not issue to the assignee.

Pilgrim Paper Company, 125 O. G. 994.

Where each of two applications filed by the same inventor contain some claims for the same subject matter and both applications and the inventions disclosed therein are assigned, respectively to different assignees the application which was first assigned should be passed to issue and the claims in the other application should be only such as can not be properly made in the first.

McCormick, 116 O. G. 1183.

The reservation of a license does not prevent the transfer of the legal title to the invention and patent to be granted. Rowand, 114 O. G. 2091.

The instrument, however, lacks the request that the patent be issued to the assignee (Rule 26) and it therefore does not convey the legal title, which still remains in the applicant.

Hertford, 113 O. G. 851.

Where there were two assignments, one containing a request to issue the patent to the assignee. Held that with such request the legal title was perfect that an assignment without such request conveyed only an equitable interests. That the legal title should be observed by the Office.

Graham, 112 O. G. 1752.

In case of conflicting assignments the patent will issue to the inventor.

Moller, 1904 C. D., 108 O. G. 2144.

The office uniformly refuses to render judicial decisions in matters relating to the recording of papers of the nature of assignments. It requires that applications intended to be covered by assignments be identified therein otherwise than by subject matter and the same rule applies where it is intended to except certain matter from the assignment.

Long, 1903 C. D., 104 O. G. 851.

The power conferred upon the Commissioner to issue the patent to the assignee is discretionary. If there is doubt if an undivided interest is assigned, the patent should issue to applicant.

Eickemeyer, 1902 C. D. 174, 99 O. G. 1622.

Questions under this rule to be determined by record exclu

sively. An assignment should contain a request to issue patent to assignee.

Tracy, 1990 C. D. 12, 94 O. G. 431.

If there are two conflicting assignments only one of which contains a request to grant the patent to the assignee, the one in which the request is, shall prevail.

If there are two proper conflicting assignments correspondence shall be with the inventor.

McTammany, 93 0. G. 751.

It must be a technical assignment a license is not sufficient. Rosback, 1899 C. D. 202, 89 O. G. 705.

A request that a power of attorney given by an alleged assignee be approved and that the patent issue to said assignee denied, as the assignment fails to fully identify the application and to specifically request the issue of the patent to the assignee.

Chillingsworth, 1897 C. D. 72, 80 O. G. 1892.

The Office must follow the record, since it has no means of determining disputed questions of fact.

Nichols, 1897 C. D. 70, 80 O. G. 1891.

The Office is not the place to try doubtful questions of title.

It is not even mandatory for the Commissioner to issue a patent to the assignee.

McFarlane, 1896 C. D. 37, 76 O. G. 1418.

Where an assignment from one of several joint inventors contains a request that the patent shall issue to his assignee. Held that the request will be observed and the patent be issued jointly to the remaining inventors and the assignee.

Fowler, 1894 C. D. 109, 69 O. G. 1641.

Where one of two joint inventors assigned his interest to a third person and requested that the patent issue jointly to such third person and the other inventor in the absence of any objection there was no error in issuing the patent as directed. Fowler & Hutton, 1893 C. D. 111, 64 O. G. 1131.

The statute is not mandatory, and in case of contest between the parties, the Commissioner may in his discretion issue the patent to the inventor.

Spielman, 1892 C. D. 1, 58 O. G. 141.

Patent may not be granted to a party having only a territorial interest.

Buchanan, 1891 C. D. 104, 56 O. G. 140.

The issue of the patent will not be stayed to have the courts determine the equitable title when the legal title is shown by the record.

Shedlock et al. v. Hannay et al., 1890 C. D. 4, 50 0.

G. 166; Agee, 1902 C. D. 399, 101 O. G. 1609.

Rule 27. Inventor Believing Himself to be First Inventor.

If it appear that the inventor, at the time of making his application, believed himself to be the first inventor or discoverer, a patent will not be refused on account of the invention or discovery, or any part thereof, having been known or used in any foreign country before his invention or discovery thereof, if it had not been before patented or described in any printed publication.

Rev. Stat., sec. 4923.

Reduction to practice in a foreign country can never operate to destroy a patent applied for here, however widely known such reduction to practice may be, either among foreigners or among persons living here, unless the invention be patented or described in a printed publication.

Westinghouse Machine Co. v. General Electric Co., 196 0.
G. 276.

Rule 28. Joint Inventors.

Joint inventors are entitled to a joint patent; neither of them can obtain a patent for an invention jointly invented by them. Independent inventors of distinct and independent improvements in the same machine can not obtain a joint patent for their separate inventions. The fact that one person furnishes the capital and another makes the invention does not entitle them to make an application as joint inventors; but in such case they may become joint patentees, upon the conditions prescribed in Rule 26.

CONSTRUCTIONS.

"Former rule 32 of the Patent Office, which was promulgated in 1897 and provided that new parties might be added to a pending application of joint inventors, that some of the parties might be dropped where all consented in