3. The rules relative to the granting of rehearings in interference cases before this Office are those which govern the granting of new trials in the courts, and to motions for the same diligence is a prerequisite. Wicks v. McAvoy, 190.
See Abandonment, 5; Claims, 1; Infringement, 11; Particular Patents, (Slemmon,) 70; Patents, 21; Rules of the Office, 3; Void Patents.
1. When the original patent described a certain form of mica chimney united to a glass base, a reissue claiming such glass base in combination with any form of chimney-top was regarded as greatly enlarging the scope of the invention by dropping one element from the combination and putting in its place another not its equivalent. * Blackman et al. v. Hibbler et al., 234.
2. The statutory provision for a reissue, to correct errors resulting from inadvert- ence, accident, or mistake, affords a remedy, not for the case in which the applicant selects for his specific claim the wrong specific invention, whether described or not described in his application, but for the case in which he im- perfectly describes or claims the right invention. The remedy for an error of the former class is to be found, not in the substitution of a second specific invention in the patent by a reissue, but in an original patent granted on a new application. Er parte McClintock, 41.
3. It is doubtful whether a reissue patent can be sustained in any case where it con- tains claims that have once been formally disclaimed by the patentee or rejected with his acquiescence, and he has consented to such rejection in order to obtain his patent. * Leggett et al. v. Avery et al., 283.
4. In such case the rejection (omission) of the claim can in no just sense be regarded as a matter of inadvertence or mistake, and even if it were such the applicant should seem to be estopped from setting it up on an application for a reissue. *Id. 5. The allowance of claims once formally abandoned by the applicant in order to get his patent through is the occasion of immense frauds upon the public, and is to be discountenanced. * Id.
6. Where two species are described and only one claimed in an application, and subsequently by amendment the discription of the species not claimed is inad- vertently stricken out, its absence occasions no defect or insufficiency in the specification, and presents no case for correction on reissue under section 4916 of the Revised Statutes. Ex parte Ewart, 78.
7. Same reissue privilege pertains to a patentee taking under a special law as under the general law. * Page, administratrix, &c., and the Western Union Telegraph Company v. The Holmes Burglar Alarm Telegraph Company, 345.
8. The decision of the Commissioner of Patents in granting a reissue that by reason of an insufficient or defective specification, the original patent is inoperative or invalid, and that such error arose from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, conclusively establishes the fact. * Christman et al. v. Rumsey et al., 388.
9. When the specification and drawings of the original and reissued patents illustrate and describe the same mechanical structure, with the same mode of operation, the reissue may lawfully contain claims to combinations of fewer elements than were contained in the combination claimed in the original patent. Id.
10. The suggestion in a reissue application of new uses to which the invention may be put not objectionable as new matter, if such uses of similar structures were known at the time of the grant of the original patent and no attempt is made to change the form of the structure itself. Putnam v. Yerrington (9 OFFICIAL GAZETTE, 691) cited in support. Ex parte Palmer, 129.
11. When the reissue describes only what was described in the original patent, both as to the devices and the nature of the invention, it cannot be said that the invention in one is different from that in the other, although the claims have been changed and enlarged. *Sharp v. Tifft, 483.
12. Where the invention embraced by a prior patent is held not to anticipate a later patent upon which suit is brought, a reissue of such prior patent granted after the date of the later patent can have no effect upon the same. *The United States Stamping Company v. King et al., 507.
13. A reissued patent has the same effect and operation in law as though it had been originally filed in the corrected form only on the trial of actions brought on it for causes thereafter arising, and has no such effect in any other cause or for any other purpose. * Id.
14. The Commissioner of Patents may issue a patent for one or more of the divisions of a reissue application, and subsequently issue a patent to the applicant for the remaining divisions, if it be held that otherwise he is entitled to them. Ex parte Greaves, 213.
15. Until an application for reissue is ended in all its divisions the vitality of the original patent continues so far as required to support that portion of the application which remains undecided.
16. It appearing that the claim of the reissued patent sued upon if so construed as to cover the defendants' machine would be invalid as a substantial departure from the original patent and if limited to the invention contained in such original would not be infringed, the bill was dismissed. *Corell v. Pratt et al., 589.
17. If the reissues of an orginal patent are for any other or substantially different invention from that described in such original patent they are unquestionably void; but the fact that the specifications or claims are different, the invention or discovery remaining the same, is of no consequence. *Campbell v. James,633. 18. If a form of a device embraced in a reissued patent had not been mentioned in the original patent it might well be said not to have formed any part of the conception of the inventor; but if described in such original patent, although referred to as not being so useful or desirable in the combination as another form of such device, it might nevertheless be properly embraced by the reissued patent. Id.
19. It is doubtless true that a reissue of a patent to a person not the owner would not affect the title of the owner. The reissue and title should go together to make a good title to the reissue, or, at least, the reissue should be consented to by the true owner. *Id.
20. A reissue can only be had when the original patent is inoperative or invalid from one of two causes-either 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-and even then only where the error has arisen from inadvertence, accident, or mistake, and without any fraudulent or deceptive intention. "Giant Powder Compuny v. California Vigorit Powder Com- pany et al., 620.
21. The power to accept a surrender and issue new letters patent vested exclu- sively in the Commissioner of Patents. He must judge of the sufficiency of the original specification, whether the same is defective in any particular, whether such defect was the result of an unintentional error, and if so to what extent a new or additional specification should be allowed to describe correctly the invention claimed. Id.
22. But this does not preclude the examination by the court of the original and re issued patents to see whether or not they disclose on their face a case in which the Commissioner has no jurisdiction to act or a case in which, by his determina- tion, he has exceeded his jurisdiction. If so, the reissued letters patent must fall. *Id.
23. Whenever it appears, on a comparison of the two instruments, that the original patent is valid it is clear that the Commissioner has exceeded his jurisdiction and the reissue is without authority of law. *Id.
24. When it appears, upon comparison, that the specification of the reissue only differs from the original in containing an invention of broader scope, it is clear that the original patent must be valid if the reissue would be. *Id.
25. If the original patent is valid to the extent of its claim a reissue is without au- thority of law. *Id.
26. The Commissioner of Patents is invested by law with authority to determine whether surrendered patents are invalid by reason of defective or insufficient specifications or by reason of the patentee's claiming as his own invention or discovery more than he had a right to claim as new, and whether these errors have arisen by inadvertence, accident, or mistake, and without fraudulent in- tention. His decision as to the existence of these perquisites is conclusive, and not subject to review by the courts. *Ball et al. v. Langles et al., 687.
27. The Commissioner, however, has no authority to grant a reissue embracing new matter or a broader invention than what was revealed in the original specifi- cations, drawings, or models. *Id.
28. The question of identity of invention is to be determined by an inspection of the two instruments. *ld.
REJECTED APPLICATIONS. See Abandoned Applications.
RES ADJUDICATA. See Examiners-in-Chief, 3.
1. The extent to which a case decided by the Commissioner is to be accepted as res adjudicata is not determined by the words used where they are narrower than the substance of the decision. Ex parte Pennie, 56.
RESULTS. See Claims, 23; Combinations, 2; Old Elements, 1, 5; Patents, 8; Process and Product, 3.
In view of the decision of the United States Supreme Court, in the case of Dunbar and Harper v. Myers and Eunson (11 OFFICIAL GAZETTE, 35), no excuse is afforded the Patent Office for the allowance of patents for the mere carrying forward of original patented conceptions into other structures where they perform the same functions and accomplish the same results. Lovejoy v. Hill, 59. REVOCATION OF POWER OF ATTORNEY. See Attorneys, 1.
RIGHT TO USE. See Construction of Statutes, 13; Licenses, 4, 5, 6, 7, 8, 9; Patents, 17.
ROYALTY. See Damages and Profits, 7.
1. Benefits derived by the defendant from the use of the plaintiff's patented inven. tion constitute valid ground for a recovery by the plaintiff. *Sargent v. The Yate Lock Manufacturing Company, 231.
2. The mere opinion and estimate of two witnesses may be insufficient to establish the value of the use of the invention to the defendant. *Id.
3. The amount subsequently paid by the defendant to another patentee for the use of a device which subserved the same purpose may afford a proper measure of the value of the use of the plaintiff's invention to the defendant. *Id. RULES OF THE OFFICE. See Construction of Statutes, 8; Division of Applica- tions, 1; Examiners-in-Chief, 1, 4; Motions, 2; Practice in the Patent Office, 1, 2, 14. 1. The rules are, if possible, to be constrted as to be operative in subordination to the statute. If incapable of such construction, they cannot be executed. Stone v. Greaves, 23.
2. If the application of the new rules to a case which was in process of adjudication on the 1st of January, 1880, will not place either party to an interference in a worse attitude than he would have occupied under those rules if both applica- tions had been filed after that date, the operation of the old rules will not be extended to such case. Fowler et al. v. Benton, 39.
3. Rule 39 applies to reissue as well as to the original applications. Ex parte Beck, 54.
RULES OF THE OFFICE-Continued.
4. Rule 6, as construed by circular of February 17, 1880, applies alone to personal signatures of inventors and assignees to amendments and other actions. Ex parte Ackerman, 131.
5. Where the rules of practice have been clearly indicated and determined there is no reason why any officer of the bureau should fail to observe them. Brown v. La Dow, 199.
SALE. See Injunction,7; Public Use and Sale.
SEPARATE PATENTS. See Claims, 9; Combinations, 3, 4; Practice in the Patent Office, 26; Reissues, 14, 15.
Separate patents for several parts of the same invention may be granted, al- though the whole invention is fully described in each of them, to explain the purpose and mode of operation of the parts covered by the claims of such pat- ents. *McMillin et al. v. Rees et al., 476.
SERVICE OF PROCESS. See Chancery, 2.
SIGNATURES. See Rules of the Office, 4.
SOLE INVENTOR. See Original Inventor; Practice in the Patent Office, SPECIFICATIONS. See Claims, 16, 22, 25, 26; Description, 1, 3; Infringements, 4; Patents, 11; Practice in the Patent Office, 25, 28; Reissues, 8, 9, 24, 26, 27.
1. Where an invention was described in one portion of the specification as com- pounded of the explosive substance nitro-glycerine and an inexplosive porous substance, and in another portion of the specification a more detailed descrip- tion of the porous substance was given without mentioning its inexplosive character, Held, that the two passages are to be read together, and that the in- vention is a compound of nitro-glycerine with an inexplosive porous substance of the character described. * Giant Powde rCompany v. California Vigorit Pow-
SPECIFIC CLAIMS. See Claims, 1, 2, 3, 8, 9, 10, 11, 12, 15, 17, 23; Generic Claims; Patents, 1; Practice in the Patent Office, 22; Process, 1; Reissues, 2. STATE LAWS. See Injunction, 13; Liability, 1; Married Women, 1, 2.
STATUTES. See Construction of Statutes.
STATUTORY BAR. See Construction of Statutes, 2; Motions, 2.
1. Rule 120 provides that, upon the attention of the Commissioner being called by the Examiner of Interferences or the Examiners-in-Chief to a statutory bar to the grant of a patent to either party, he may suspend the interference and re- mand the case to the Primary Examiner for the consideration of such objection. Hedges v. Daniels, 9.
STAY OF PROCEEDINGS. See Motions, 3.
SUBSTITUTION OF MATERIAL.
1. Although it is known that both rubber and vulcanite become soft at the tem- perature at which steam-packings are used, it does not follow that the employ- ment of vulcanite for rubber as the skeleton of a packing is a mere substitution of material, particularly in view of the different qualities presented by pack- ings made by the two methods. *Clarke v. Johnson, 673.
2. In Jenkins v. Walker (1 O. G., 359) the excess of sulphur united with lead or lith- arge to form refractory material, and in Jenkins v. Johnson the excess of sulphur was taken up by the oxides of lead or iron in a similar manner. *Id.
SUITS FOR INFRINGEMENT. See Bill in Equity, 3, 4; Circuit Courts, 1; Construc- tions of Statutes, 11, 12; Infringements, 9, 11; Title, 2.
TESTIMONY. See Interferences, 17 18; Practice in the Patent Office, 33.
The testimony of a witness cannot be impeached by showing his general character founded upon particular facts rather than upon general repute and failing to show his character for truth and veracity. Fulgham v. Westcott, 167.
TITLE. See Assignments, 8, 12, 13; Circuit Courts, 1; Patents, 19; Reissues, 19. 1. The defense that the plaintiffs' title fails because one of the parties through whom such title is derived did not own the patent when it was surrendered by and reissued to him was sought to be sustained by showing that a certain in strument of writing was forged by such party by placing it before and attaching it to the genuine execution of another and a different instrument. It appear- ing that the parties whose assignment such instrument purported to be had knowingly acted under the same, Held, that this ratified and confirmed the instrument as good from the beginning. *Campbell v. James et al., 633.
2. It appearing that the conveyance was one expressly in trust, upon condition that the plaintiff should have the sole management of the trust until a fair, just, and reasonable settlement should be had with the United States for the use of the invention in the postal service of the United States by the Post-Office De- partment, Held, that as no such settlement had been made, the limitation in the conveyance had not expired, and the right to bring suit for infringement was in the plaintiff. Id.
1. Any person may adopt as a trade-mark and affix to a produce of his own man- ufacture any symbol or device not previously appropriated which will distin- guish it from articles of the same general nature manufactured or sold by others, and thus secure to himself the benefits of increased sale by reason of any peculiar excellence he may have given to it. The Amoskeag Manufacturing Company v. Trainer et al., 464.
2. The symbol or device constituting the trade-mark thus becomes a sign to the public of the origin of the goods to which it is attached and an assurance that they are the genuine article of the original producer. * Id.
3. The object of a trade-mark is to indicate, either by its own meaning or by asso- ciation, the origin or ownership of the article to which it is applied. * Id. 4. A right to the exclusive use of words, letters, or symbols, to indicate merely the quality of the goods to which they are affixed, cannot be acquired. * Id. 5. Letters or figures which, by the custom of traders or the declarations of the manufacturer of the goods to which they are attached, are only used to denote quality are incapable of exclusive appropriation. *Id.
6. The letters A. C. A., as used by the Amoskeag Manufacturing Company, are designed merely to indicate the quality of the goods, and do not constitute a trade-mark. * Id.
7. The defendants employed labels unlike the complainants, except as to the letters A. C. A., and in consideration of such fact it was held that there was no such imposition practiced upon the public and no such fraud perpetrated upon the manufacturers in attempting to dispose of the goods of one as those of another as to call for the interposition of a court of equity. *Id.
8. As a rule, geographical names cannot be allowed registration as trade-marks. Ex parte Farnum & Co., 155.
9. Before any geographical name can be said to be registrable it must clearly appear that the place of that name is such a one that the word will be understood by the general purchasing public as primarily fanciful, and that manufacturers of like goods at such place cannot so mark their wares and claim the protection of our laws. Id.
10. The essential features of a trade-mark are those only which serve in whole or in part to distinguish the goods of the party by whom such mark is adopted, and it is not proper that anything should be described as essential which the courts would hold otherwise. Id.
11. Words calculated to deceive the public as to the place of manufacture should not be allowed registration. Id.
12. A person has no right to mark his goods with any words or terms indicating that
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