actions thereafter, for causes subsequently accruing, as though the same had been originally filed in such corrected form, before the suing out of the original patent."

CHAPTER XII.

Signing of the Specification. Attestation. Oath. Delivery of Drawings, Models and Specimens. Petition. Fees.

Sec. 1. Signing of the Specification. Attestation. 2. The Oath.

3. Delivery of Drawings, Models and Specimens. 4. The Petition.

5. Payment of the Fee.

Sec. I. SIGNING OF THE SPECIFICATION. ATTESTA

TION.

THE third section of the act of 1793 required that the specification should be signed by the inventor and attested by two witnesses. The act of 1836 makes a slight alteration by providing, section 6, "that the descriptions and drawings, signed by the inventor and attested by two witnesses, shall be filed in the patent office." The former act said

nothing of the drawings being signed by the appli cant; but the signing of the specification referring to the drawings is in effect attesting the latter. Whether a distinct signature will be required under this law remains to be decided. None of the acts on this subject have required the applicant to affix a seal to the specification.

Sec. II. THE OATH.

It seems to be reasonable that a patent should not be granted except upon probable grounds of a right. The law of 1793, therefore, required that the applicant, "before he could receive a patent, should swear or affirm that he did verily believe that he was the true inventor or discoverer of the art, machine or improvement for which he solicited a patent, which oath or affirmation might be made before any person authorized to administer oaths." The substituted law of 1836, section 6, varies a little from the former law on this subject. It provides that "the applicant shall make oath or affirmation that he does verily believe that he is the original and first inventor or discoverer of the art, machine, composition or improvement, for which he solicits a patent, and that he does not know or believe that the same was ever before known or used; and also of what country he is; which oath or affirmation. may be made before any person authorized by law

to administer oaths." The phrase, "original and first inventor," is substituted for that of true inventor in the act of 1793. That part of the oath relating to the invention being ever before known or used, is added, and not superfluously, for it often happens that a man truly invents a machine, and then finds out that some one had previously invented the same machine. The last part, stating of what country the applicant is, was also added, the purpose, under the law of 1836, being to determine the fee to be paid. Under the former law the citizenship of the applicant was material, for unless he was a citizen of the United States or resident for two years, he could not take out a patent. But it did not intimate what proof of either fact was to be given. It was a frequent practice to insert the fact of citizenship or residence in the affidavit. We observe that this oath is not absolute, that the applicant is the original inventor; he is required to swear that he verily believes himself to be such; for though he may positively know whether he invented the machine, he cannot know certainly whether he is the original and first inventor.

The law of 1836, s. 15, provides "that whenever it shall satisfactorily appear that the patentee, at the time of making his application for a patent, believed himself to be the first inventor or discoverer of the thing patented, the same shall not be held to be void on account of the invention or discovery, or

any part thereof having been before known or used, in any foreign country, it not appearing that the same or any substantial part thereof had been patented or described in any public work."

This is an alteration of the law on the subject of the novelty of the invention, of some importance; but it does not affect the oath, since, notwithstanding this provision, the applicant must, at the time of making his application, believe himself to be the first inventor. If, before making his application, he learns that the thing had been already invented and used abroad, though not patented or described in any printed publication, he cannot take the oath; but if he learns it subsequently, it seems that, according to the above section, this will not invalidate his patent.

The provision as to the oath is in the alternative, that is, that the applicant is the inventor or discover; and this suggests the question whether the petitioner must make oath, in the words of the law, that he believes himself to be the inventor or discoverer, or to use one of those terms only, which he considers to be most applicable; for though both words may

be applicable to some patentable subjects, only one of them is so to others, since it would be absurd to describe one as being the discoverer of a new threshing machine or loom, though, in regard to compositions of matter, the word discovery is, perhaps, generally the more applicable. As we cannot

suppose the law to intend to insist rigidly on the abuse of words, the more reasonable construction is, that the applicant may use both or either of the words in his oath, as he may suppose one or the other only, or both of them, to be appropriate.

In an action for the violation of a patent right, it appeared that the oath taken by the patentee was, that he was the true "inventor or improver of the machine." It was held, by Mr. Justice Story, that the oath taken by the inventor not being conformable to the statute, formed no objection to a recovery in the action. "The taking of the oath was but a prerequisite to the granting of the patent, and in no degree essential to its validity." According to this decision, therefore, the form of the oath is not of great importance, for if the commissioner of patents objects to it, the inaccuracy is corrected at once; if no objection is made and the patent is granted, its validity will not be affected by any inaccuracy in the form of the oath.

The form of the oath in England differs from ours only by inserting the allegation that the inventor, "after considerable application and expense, hath invented," &c. and "which invention, he believes, will be of general benefit and advantage." It does not allege the citizenship of the applicant. The

'Whittemore v. Cutter, 1 Gallison, 429.