rather rigid, for a general rule, since some inventions, requiring extensive preparations and large outlays, cannot be brought into operation in that time. A law containing a provision of this description ought also to provide for lengthening the time in particular cases. But the laws of England and the United States, contain no provision on this subject. Mr. Justice Washington distinctly lays down the doctrine that no neglect of the patentee, to put his invention into practical operation, will be construed to be an abandonment of his patent right." And such is the language of all the cases.150 Our law appears to go upon the presumption that the public benefit may in this case be left wholly to the influence of the interest of the patentee; and confides to him the absolute control and disposal of his invention for the period of his monopoly.

149

There may be instances of inventions, the use of which are vitally material to the public safety, just as in some instances the appropriation of individual property to the public use is essential to the public defence. In the latter case the general safety is not subjected to the caprice or inordinate cupidity of the proprietor, for his property may be taken for

149 Gray & Osgood v. James, 1 Pet. C. C. R. 403.

150 Whittemore v. Cutter, 1 Gallison's R. 478; Thompson v. Haight, U. S. Law Journal, Vol. 1. p. 563; Morris v. Huntington, 1 Paine's R. 345; Pennock & Sellers v. Dialogue, 2 Pet. S. C. R. 1; Wood v. Brimmer, 1 Holt. N. P. C. 58; Kent's Com. Vol. 2. p. 369.

the public use without his consent, and a reasonable compensation allowed. And such would be the rules, probably, in regard to the use of a patent right, which is no more sacred than other personal property. This provision of law is limited to the case of the use of property by the public as a corporate political body, and does not reach the case of an indirect benefit derived to the public by the use of a thing by individuals. In this respect the law leaves patent rights upon the same footing as other personal property, the proprietor of which may, by his own caprice or folly, deprive the public and himself of the benefit that would result from a reasonable use of it, and there does not seem to be any pressing urgency for a different rule in regard to different species of property. There is, it is true, no absolute insurmountable objection to a regulation on this subject in relation to patents, for the public may grant patents or lands upon such conditions as may be deemed expedient, and for the general benefit; but as a general rule, unless the case is plain and urgent, it is the better policy to leave private rights to the discretion and interest of proprietors, where their interest evidently coincides with that of the public, since the inconveniences attendant upon an attempt by law to supply their want of reasonable discretion, would, in a majority of cases, be greater than those consequent upon their abuse of the discretion and control allowed by the law.

CHAPTER VIII.

Appeal to Board of Examiners. Interfering Applications. Previous Foreign Patent by the Applicant. Secret Filing of the Specification. Caveat.

By the 7th section of the act of Congress of 1836, it is provided that whenever, on examination, it shall appear to the Commissioner of Patents that the applicant for a patent, for an invention, "was not the original and first discoverer thereof, or that a part of that which is claimed as new had before been invented or discovered, or patented, or described in any printed publication in this or any foreign country, or that the description is defective and insufficient, he shall notify the applicant thereof, giving him, briefly, such information and references as may be useful in judging of the propriety of renewing his application, or of altering his specification to embrace only that part of his invention which is new." The applicant may thereupon withdraw his application, and receive back twenty dollars of the thirty dollars paid into the treasury by him, and leave his model in the patent office. But if he persist in his claim, whether he chooses to alter the specification or not, he must again make the usual oath, and if the commissioner still refuses to grant the patent, he may appeal to a board of examiners, consisting of three persons appointed by the Secretary of State, "one of whom, at least, to be selected, if practicable and convenient, for his knowledge and skill in the art, manufacture

or branch of science to which the alleged invention appertains." The commissioner is to furnish this board with his objections to the application in writing. The applicant is to be heard by the board, which may, if a majority sees fit, reverse the decision of the commissioner in whole or in part, and their opinion being certified to the commissioner, he is to be governed by it as to any further proceedings to be had on the application. The applicant is to pay twenty-five dollars towards the expenses, the examiners being entitled to receive not over ten dollars each.

By the 8th section of the same law, it is no objection to an application that the applicant has taken out foreign letters patent, and that they have been published within six months preceding his application.

By the same section, on the request of the applicant, his specification and drawings may be filed secretly in the office not longer than one year, and on the model being furnished, the patent may issue, dated back at the time of the specification, not exceeding, however, six months. He is, in such case, entitled to notice of any interfering application for a patent.

It is provided, by the same section, that interfering applications, or an application supposed by the commissioner to interfere with any subsisting patent, may be referred to a board of examiners appointed as above.

It is provided by the 12th section of this law, that any citizen of the United States, or alien who shall have been resident in the United States one year next preceding, and who shall have made oath of his intention to become a citizen thereof, who shall have invented any new art, machine or improvement thereof, and shall desire further time to mature the same, may file in the patent office a caveat, setting forth the design and purpose thereof, and its distinguishing characteristics, and praying protection of his right, till he shall have matured his invention. And such caveat shall be filed in the confidential archives of the office and preserved in secrecy. And if application shall be made by any other person within one year from the time of filing such caveat, for a patent of any invention with which it may in any respect interfere, it shall be the duty of the commissioner to deposit the descriptions, specifications, drawings and model, in the confidential archives of the office, and to give notice by mail to the person filing the caveat, of such application, who shall within three months after receiving the notice, if he would avail himself of the benefit of his caveat, file his description, specifications, drawings and model; and if in the opinion of the commissioner, the specifications of claim interfere with each other, like proceedings may be had as in case of interfering applications.