Correction of omissions. It might be supposed that whether an inventor intended to abandon or not, he must lose any part of his invention which he failed to claim when he should have done so, because the statute does not provide for a correction under such circumstances. It provides for the issue of a patent for an invention, but not for the issue of a second patent in case the first one has not been broad enough. Logically there seems to be no answer to such a position. The invention should be treated as lost, not by abandonment, but by failing to apply for a patent.

Practically, however, the courts have protected the inventor from such loss as a result of his mistake, by their interpretation of $4916 R. S. This provides 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, if the error has arisen by inadvertence, accident, or mistake, and without any fraudulent or deceptive intention, the Commissioner shall, on the surrender of such patent and the payment of the duty required by law, cause a new patent for the same invention, and in accordance with the corrected specification, to be issued to the patentee, or, in case of his death or of an assignment of the whole or any undivided part of the original patent, then to his executors, administrators, or assigns, for the unexpired part of the term of the original patent. Such surrender shall take effect upon the issue of the amended patent. The Commissioner may, in his discretion, cause several patents to be issued for distinct and separate parts of the thing patented, upon demand of the applicant, and upon payment of the required fee for a reissue for each of such reissued letters patent. The specifications and claim in every such case shall be subject to revision and restriction in the same manner as original applications are. Every patent so reissued, together with the corrected specifications, shall have the same effect and operation in law, on the trial of all actions for causes thereafter arising, as if the same had been originally filed in such corrected form; but no new matter

shall be introduced into the specification, nor in case of a machine patent shall the model or drawings be amended, except each by the other; but when there is neither model nor drawing, amendments may be made upon proof satisfactory to the Commissioner that such new matter or amendment was a part of the original invention, and was omitted from the specification by inadvertence, accident, or mistake, as aforesaid."258

DEDICATION OF AN INVENTION TO THE PUBLIC is not different from abandonment, in the ordinary speech of the courts. The words are often used indiscriminately. If judges were to make a distinction it would probably be in accord with the distinction of non-technical usage; abandonment carrying the idea of negative intent, of acts of omission; dedication implying positive acts and intent definitely to confer the right upon the public.

The foregoing discussion has dealt with abandonment or dedication to the public. There is a form of what might be called abandonment or dedication to particular individuals which, while it does not affect the inventor's right in respect to the public generally, does affect it in respect to these individuals. This is found in the statute itself259 which provides "Every person who purchases of the inventor or discoverer, or with his knowledge and consent, constructs any newly invented or discovered machine, or other patentable article, prior to the application by the inventor or discoverer for a patent, or who sells or uses one so constructed, shall have the right to use, and vend to others to be used, the specific thing so made or purchased, without liability therefor."

258 James v. Campbell, 104 U. S. 356; Electric Gas Lighting Co. v. Boston Elec. Co., 139 U. S. 481; Thomson-Houston Elec. Co. v. Elmira & H. Ry. Co., 71 Fed. 396; Ide v. Trorlicht, etc. Carpet Co., 115 Fed. 137. The Suffolk Co. v. Hayden, 3 Wall. 315, syll. 1, "Where a party having made application for a patent for certain improvements, afterwards, with his claim still on file, makes application for another but distinct improvement in the same branch of art, in which second application he describes the former improvement, but does not in such second application claim it as original, the description in such second application and non-claim of it there, is not a dedication of the first invention to the public."

259 R. S. § 4899.

CHAPTER VI

SECURING A PATENT

§ 1. FORM OF APPLICATION

The statute provides that260 "Before any inventor or discoverer shall receive a patent for his invention or discovery, he shall make application therefor, in writing, to the Commissioner of Patents, and shall file in the Patent Office a written description of the same, and of the manner and process of making, constructing, compounding and using it, in such full, clear, concise, and exact terms as to enable any person skilled in the art or science to which it appertains, or with which it is most nearly connected, to make, construct, compound, and use the same; and in case of a machine, he shall explain the principle thereof, and the best mode in which he has contemplated applying that principle, so as to distinguish it from other inventions; and he shall particularly point out and distinctly claim the part, improvement, or combination which he claims as his invention or discovery. The specification and claim shall be signed by the inventor and attested by two witnesses.

"When the nature of the case admits of drawings, the applicant shall furnish one copy signed by the inventor or his attorney in fact, and attested by two witnesses, which shall be filed in the Patent Office; and a copy of the drawing, to be furnished by the Patent Office, shall be attached to the patent as a part of the specification.

"When the invention or discovery is of a composition of matter, the applicant, if required by the Commissioner, shall furnish specimens of ingredients and of the composition, sufficient in quantity for the purpose of experiment.

"In all cases which admit of representation by model, the applicant, if required by the Commissioner, shall furnish a 260 R. S. § 4888-4893.

model of convenient size to exhibit advantageously the several parts of his invention or discovery.

"The applicant shall make oath that he does verily believe himself to be the original and first inventor or discoverer of the art, machine, manufacture, composition, or improvement for which he solicits a patent; that he does not know and does not believe that the same was ever before known or used; and shall state of what country he is a citizen. Such oath may be made before any person within the United States authorized by law to administer oaths, or, when the applicant resides in a foreign country, before any minister, chargé d'affaires, consul, or commercial agent holding commission under the Government of the United States, or before any notary public, judge, or magistrate having an official seal and authorized to administer oaths in the foreign country in which the applicant may be, whose authority shall be proved by certificate of a diplomatic or consular officer of the United States.

"On the filing of any such application and the payment of the fees required by law, the Commissioner of Patents shall cause an examination to be made of the alleged new invention or discovery; and if on such examination it shall appear that the claimant is justly entitled to a patent under the law, and that the same is sufficiently useful and important, the Commissioner shall issue a patent therefor."

In amplification of these provisions of the statute, the Patent Office has made more definite and specific rules in regard to application for a patent and other proceedings to obtain it.261 "The Commissioner of Patents, subject to the approval of the Secretary of the Interior, may from time to time establish regulations, not inconsistent with law, for the conduct of proceedings in the Patent Office." Copies of these rules will be furnished free of charge upon application to the Commissioner of Patents. As they are definite, and appertain only to

261 This is authorized by R. S. 483, "The Commissioner of Patents, subject to the approval of the Secretary of the Interior, may from time to time establish regulations, not inconsistent with Law, for the conduct of proceedings in the Patent Office."

the undisputed and clear details of procedure, they need nɔt be set out here nor discussed at length.

TITLE. The application must be by petition under oath, signed by the inventor, if he is alive and sane. It must be in the English language, as must be also the specifications and oath. The rules provide that the petition must "designate by title the invention sought to be patented." The form of this designation is, however, relatively unimportant, and it need not be exact nor complete provided the petition properly adopts, by reference, a specification of the invention by which it is sufficiently set forth. This matter came before the court in the case of Hogg v. Emerson.262 The invention for which the patent issued was entitled, "a new and useful improvement in the steam engine." The suit itself was brought for violation of a patent for an "improvement in the steam engine and in the mode of propelling therewith either vessels on the water or carriages on the land." It was contended that the offer in evidence of the patent, as entitled, did not prove the existence of a patent such as set out in the suit. The court held that the identity of the patent need not be determined by the title alone, but that the specification annexed to the petition was a part of it and should be read in connection with it. The holding of the court and its reasons can not be set out more clearly than in its own language which is as follows: "Coupling the two last together, they constitute the very thing described in the writ. But whether they can properly be so united here, and the effect of it to remove the difficulty, have been questioned, and must therefore be further examined. We are apt to be misled, in this country, by the laws and forms bearing on this point in England being so different in some respects from what exist here. There the patent is first issued, and contains no reference to the specification, except a stipulation that one shall, in the required time, be filed, giving a more minute description of the matter patented. It need not be filed under two to four months, in the discretion of the proper officer. (Gods. Pat., 176.) Under these circumstances, it will be seen

2626 How. 437.