skilled in the art or manufacture to which the invention appertains, on the applicant's advancing twentyfive dollars towards their fees, by whose award or that of a majority of them the commissioner is to be governed as to issuing a patent.25 s. 7. So an application which the commissioner supposes to interfere with another application, or an existing patent, may be referred to the examiners. An appli

cant is not precluded from taking out a patent by reason of his having taken out one abroad and its having been published within six months preceding his application. The patent may be dated from the time of the filing of the specification and application, if the applicant wishes, not exceeding six months before the issuing, and his specification and application may at his request, in the mean time, be filed secretly in the office, and notice be given him of any interfering applications. s. 8. The applicant, if a citizen, or an alien having resided in the United States for a year preceding his application and made oath of his intention to become a citizen, must, on applying for a patent, pay into the treasury of the United States or one of its banks of deposite, thirty dollars; if a subject of Great Britain, five hundred dollars; if of any other country three

26

"This provision is new.

26 New.

hundred dollars. s. 9. In case of the death of the inventor his personal representatives may take out a patent. s. 10. The whole patent, or any share, or the exclusive right for any district," may be assigned by writing to be recorded in the patent office within three months from the time of its execution. s. 11. Any citizen or such resident alien who has made an invention which he desires further time to mature, may file a caveat in the patent office entitling him for one year to notice of any interfering application; but if notice of such application be given him he must specify and file drawings and a model within three months. The specifications and drawings of the subsequent applicant are in such case filed secretly in the office. If on filing the specification the applications appear to the commissioner of patents to interfere with each other, proceedings may be had before a board of examiners as above, but no decision of said board in any case precludes any person from contesting the validity of any patent in any action. s. 12.28 A patent that is invalid by reason of the specification being defective through inadvertency, mistake or accident, and without any fraudulent or deceptive intention, may be surrendered and a

27 New.

28 Whole section new.

new one taken out in its stead. The patentee may add to his patent any new improvement, by filing a specification of it and having such specification annexed to his patent. s. 13.29 If the plaintiff recover a verdict in action for an infringement, the court may, at its discretion, increase, not more than treble, it. s. 14.30 In a suit for an infringement the defendant may plead the general issue and give in evidence any special matter of defence of which notice in writing may have been given to the plaintiff or his attorney thirty days before trial, tending to show that the specification does not contain the whole truth respecting the invention, or that it contains more than is necessary to produce the effect described, which concealment or addition must appear to have been made for the purpose of deceiving the public, or that the patentee was not the original inventor, or that the invention had been described in some public work, anterior to the supposed invention by the patentee; or had been in public use; or that it had been on sale with the consent and allowance of the patentee, before his application for a patent; or that he had unjustly or surreptitiously obtained a patent for the discovery of another person, who was using due diligence in perfecting the same; or that the patentee, if an alien had neglect

29 Last part new.

30 Formerly trebled of course, act of 1800. c. 25. s. 3.

ed for the space of eighteen months from the time of granting the patent to put and continue the invention on sale upon reasonable terms. The defendant, if he allege a previous public use, must in his notice state the persons by whom and the places where the invention was so used. The fact of the previous use of the invention abroad is not a defence, if it was not known to the patentee and if it had not been described in some printed work, and had not been patented. If the suit fail on the ground of the specification containing too much, and it appear that the defendant had used the part for which the patentee was entitled to a patent, the court has discretion as to awarding costs. s. 15.1 In case of interfering patents, or an application which interferes with a patent, the question may be tried, and the commissioner is to be governed by the decision of the court as to issuing a patent.32 s. 16. The circuit court has original jurisdiction of patents at law as well as in equity. s. 17. A patentee or his assigns may apply to the commissioner for an extension of the period of his patent, on paying a fee of forty dollars; and on such application the commissioner must give notice of such application in a Washington paper and such other principal newspapers as he may think proper, published in the part of the coun

try most interested against the application. And the secretary of state, the commissioner of the patent office and the solicitor of the treasury are constituted a board to award on the application, on an account of the profits and expenses on the patent having been exhibited to them, and if they award in favor of the application the patent is to be extended for seven years. But no extension is to be granted after the expiration of the term for which the patent was granted. s. 18.33 A library is to be attached to the patent office, to which an annual appropriation of fifteen hundred dollars is made. s. 19.54

A constitutional question has arisen on this subject, viz. whether a State has still the power of granting monopolies, notwithstanding the provision of the Constitution giving limited power of legislation on patents to Congress, and notwithstanding that Congress has used the power thus conferred, by passing laws in pursuance of it. This question was very much agitated in the State of New York in regard to the exclusive privilege of steam navigation granted, in that state, to Livingston and Fulton. The question is one of great importance, and though that case was decided in the Supreme Court of the United

33 New.

34 No provision is made for repeal of a patent on scire facias or motion of defendant in an action for an infringement.