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CHAPTER XIII.

PATENTS, TRADE-MARKS, AND

COPYRIGHTS.*

Revised by Loyd H. Sutton, of the United States Patent Office.

GENERAL INFORMATION REGARDING PATENTS.

comes public property, and the article may be freely manufactured by any one. It can never thereafter, as in so many cases in the Middle Ages, become a lost art.

WHAT IS A PATENT?-The term patent or letters patent is derived from litterae patentes, signifying that which is open or disclosed, in contradistinction to lettre de cachet, that which is sealed or secret. This term is the WHO MAY OBTAIN A PATENT?-In keynote of the whole principle upon order to secure a valid patent, the apwhich the patent system is built up, plicant must declare upon oath that he namely, disclosure. The disclosure believes himself to be the original and must be honest, absolute and unre- first inventor or discoverer of the art, served. The penalty for mental crook- machine, manufacture, composition or edness or for ignorance in giving out improvement for which he solicits a fully and freely the nature of the inpatent; that he does not know and vention is severe and direct, and is does not believe that the same was nothing less than forfeiture of the pat- ever before known or used; that the ent itself. The reason for this is per- invention has not been in public use or fectly logical and arises from the very on sale in the United States for more meaning, spirit and nature of the re- than two years before the application lationship existing between the pat- was filed, and not described in any entee and the government. The term printed publication or patent in this of a patent is 17 years. During this or any foreign country for more than term of 17 years the patentee obtains two years prior to the filing of his a monopoly under which he secures ex- application; and that the invention clusive right of manufacture, use and has not been patented to himself or sale. The patent itself, however, is in to others with his knowledge or conthe nature of a contract between the sent in this or any foreign country patentee and the government, presum- for more than two years prior to his ably for their mutual benefit. The application, or on an application for government grants to the inventor the a patent filed in any foreign country exclusive right of manufacture and by himself or his legal representatives sale for 17 years on condition that the or assigns more than twelve months inventor shall disclose fully the nature prior to his application. Any one of his invention or discovery, and shall who can subscribe to the above condiallow the public the unrestricted use tions may apply for a patent, irreof the invention after this term has spective of race, color, age or nationexpired. If he fail in making full dis- ality. Minors and women and even closure, he has not lived up to the convicts may apply for patents under terms of the implied contract and the our law. The rights even of a dead patent thereby becomes null and void. man in an invention are not lost, for It sometimes happens that an inventor an application may be filed in his discloses freely part of the invention, name by his executor or administrator, but cunningly conceals some essential and the rights of his heirs thereby step in the process, but if the case is safeguarded. The patent in this case tested within the courts and the real would issue to the executor or adfacts are brought to light, the patent ministrator and would become subject will be declared invalid. At the end to the administration of the estate like of the term of 17 years the patent be- any other property left by the deCompiled originally for Munn & Co., Patent Attorneys.

ceased. Even the rights of an insane person may not be lost, as the application may be filed by his legal guardian. If foreign patents for the same invention have been previously issued, having been filed more than twelve months before the filing of the United States application, the patent will be refused. The applicant must state his nationality. It often happens that two or more individuals have jointly worked upon the invention, and in this case the several inventors should jointly apply for the patent. Should they not so apply, the patent when issued will be invalid. If they are merely partners, however, and not co-inventors, they should not apply jointly for a patent, as the inventor alone is entitled to file the application. He may, however, assign a share in the patent to his partner, coupled with the request that the patent should issue to them jointly. It is of the greatest importance that these distinctions should be clearly understood; otherwise, the patent may be rendered invalid.

WHAT MAY BE PATENTED?-Any new and useful art, machine, manufacture or composition of matter, or any new and useful improvements thereon. The thing invented must be new and useful. These are conditions precedent to the granting of a patent. Of these two conditions by far the more important is the former, and it is concerning the interpretation of this word "new" and its bearing upon the invention that the principal work and labor involved in passing an application safely through the Patent Office is involved. When the invention has been worked out by the inventor and he is prepared to file his application, he or his attorney prepares the necessary papers as provided for by law, namely: An Oath. a Petition, a Specification consisting of a description of the invention and concludng with claims which specifically set forth what the inventor claims to be the novel features of the invention, and drawings which are prepared and filed with the case, and in due course the application is ready for examination in the L'atent Office. The question of whether the invention is new is then considered. The examination consists in searching through the files of the Patent Office among the patents that have been already issued, and through such literature as may bear upon the subject. The question of whether an invention is new is

one of fact, and one of the greatest importance, and upon the showing that the inventor is able to make during the prosecution of the case, depends largely the future success of the patent. The evidence adduced in proving that the invention is not new must be tangible and accessible. A patent would not be refused or overturned on a mere mental concept. There must be some evidence of a substantial character that serves to show that the earlier idea was reduced to practice or at least that there was such a description or drawing made as would be sufficient for one skilled in the art to reduce the invention to practice. If it has not been actually reduced to practice, it must be a concrete, not an abstract, idea.

It is essential that the application for a patent should be filed before the invention has been in public use or on sale for a period of two years. If the inventor has publicly used or sold his invention for a period of two years it becomes public property and he cannot regain the right to obtain a patent. He may, however, make models and experiment with his invention for a much longer period, provided he does not disclose his invention to the public or put it into actual use or on sale for a period of two years. The word "useful" is not one which usually gives either the Patent Office or the inventor a great deal of trouble, as any degree of utility, however insignificant, will serve to entitle the inventor

to a patent. It has often happened that an invention which appears, at the time the patent is applied for, to have no special utility, in later years, owing to new discoveries or improvements in the arts, is found to possess the greatest merit and value. Unless an invention is positively meretricious. therefore, it is difficult to assume that it either has no utility or never will have any. Patents are granted for "any new and useful art, machine, manufacture or composition of matter, or any improvement thereon." It is seen from the terms of the statute that almost any creature of the inventive faculty of man becomes a proper subject for a patent. The exceptions are very few. Patents will not be granted, for example, for any invention that offends the law of nature. Under this category may be mentioned perpetual motion machines. Inventions of an immoral nature will not be

considered. Medicines and specifics are not now proper subjects for letters patent, unless some important new discovery is involved.

ABANDONED APPLICATIONS.-While abandonment may arise in different ways, its most frequent occurrence results from a failure to properly prosecute the application. An applicant is given one year by the statute in which to respond to an action on his application by the Patent Office. This period of one year runs from the day on which the letter from the Office is dated. If the last day of the year falls on Sunday the applicant's response must be in the Patent Office on the preceding day, i. e.. Saturday. Where an applicant waits until the close of the year before acting on his case he does so at considerable risk, and if his response fails to arrive at the Office by the last day of the year little leniency will be shown him in viving the case except upon a showing of good and sufficient cause. Not only must the applicant's response come within the year, but it must be fully responsive to the last action by the Office. In other words, his action on the application must be all that the state of the case requires as shown by the last Office letter. An abandoned application may be revived upon petition to the Commissioner if the applicant can show that the delay in the prosecution of the case was unavoidable.

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APPEALS.--If an application for a patent has been twice rejected, the applicant may appear from the Primary Examiner to the Board of Examinersin-Chief. He may further carry the appeal to the Commissioner of Patents and in case he is not satisfied with the latter's decision he may carry the appeal finally to the Court of Appeals of the District of Columbia.

INTERFERENCE.-If two or more individuals have made inventions which can be expressed by the same claim or claims, which must be patentable, interference proceedings may be instituted to determine which applicant is the original or first inventor. Interference proceedings are instituted between applicants whose applications are pending or between a pending application and a patent already issued, provided the latter patent has not been issued for more than two years prior to the filing of the conflicting application. The proceedings are conducted before the Examiner of Interferences.

Appeal may be taken from the Examiner of Interferences to the Board of Examiners-in-Chief, and from the Board of Examiners-in-Chief to the Commissioner, and thence to the Court of Appeals of the District of Columbia. Not all the claims for a patent are necessarily involved, but only such as cover the particular feature of the invention which is declared to be in interference. The unsuccessful applicant by eliminating the claim or claims in controversy and all other claims readable upon the disclosure of the successful applicant, may procure allowance of other claims in his application. The disclosure of the successful party virtually becomes a part of the prior art and in the further pros ecution of the case it will be so treated. In determining the question of priority of invention witnesses are examined and the proceedings are conducted much in the same manner as in a suit at law. The first step in the proceeding consists in filing with the Commissioner a preliminary statement made under oath, giving the date at which the invention was first conceived and reduced to some tangible form, such as the making of drawings, the construction of a model, or the disclosing of the invention to another. The object of the subsequent examination and cross-examination is to substantiate the date of invention as claimed by the applicants respectively, and to establish the priority of invention.

REISSUES.-A reissue is granted to the original patentee, his legal representative or the assignees of the entire interest, when the original patent is inoperative or invalid by reason of a defective or insufficient specification. or by reason of the patentee claiming as his invention or discovery more than he had a right to claim as new, provided the error has arisen through inadvertence, accident or mistake, and without any fraudulent or deceptive intention. The reissue application must be made and the specification sworn to by the inventor or inventors if he or they be living. What is inadvertence, accident or mistake has been the subject of much litigation and as a general rule the courts require a clear showing of such. No new matter can be introduced into the reissue application, but its subject matter must be capable of being found within the four corners of the original

application. As two years' publication of the subject matter of an invention is a bar to the issue of a patent, the courts as a general rule will not sustain a reissue patent the claims of which are broader than those of the original patent where the reissue application is filed more than two years after the grant of the original patent. The original patent must be surrendered when a reissue application is made. The reissue patent is good only for the unexpired term of the original patent.

PATENTED ARTICLES MUST BE MARKED.-Articles manufactured and sold under a patent must be so marked that the public shall have notice that the article is a patented one. This notice consists of the word "Patented," together with the date when the patent was issued. Damages cannot be recovered in an infringement suit unless the patented articles are so marked or it be shown that the defendant was duly notified of his infringement, but continued after such notice to infringe.

INFRINGEMENT.-In case of an action for the infringement of a patent, the importance of the question of novelty appears from the special pleadings which the defendant may enter, which are as follows:

1. That for the purpose of deceiving the public the description and specification filed by the patentee in the Patent Office was made to contain less than the whole truth relative to his invention or discovery, or more than is necessary to produce the desired effect; or,

2. That he had surreptitiously or unjustly obtained the patent for that which was in fact invented by another, who was using reasonable diligence in adapting and perfecting the same; or,

3. That it had been patented or described in some printed publication prior to his supposed invention or discovery thereof; or,

4. That he was not the original and first inventor or discoverer of any material and substantial part of the thing patented; or,

5. That it has been in public use or on sale in this country for more than two years before his application for a patent, or had been abandoned to the public.

Damages for infringement of a patent may be recovered at law by action on the case, or in equity by bill, in

the name of the patentee or his assignee. The courts having jurisdiction over such cases have the power (1) to grant injunctions against the violation of any right secured by the patent; (2) to allow the recovery of damages sustained by the complainant through such infringement, or the profits obtained by the infringer arising from such infringement. The defendant may be compelled to furnish an accounting showing the amount of the articles manufactured and sold and the profits derived from such sale.

DESIGN PATENTS.-Design patents are issued for any new or original design, whether it be a work of art, statue, bas-relief, design for prints or fabrics, or for any new design or shape or ornament in any article of manufacture. The scope of the design patent was formerly very broad, but recent decisions and enactments have greatly restricted its availability and a design patent cannot now be obtained unless it possesses some inherent artistic quality. Mere utility is not sufficient to entitle a new design to letters patent. The terms of design patents are 32, 7 or 14 years.

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ASSIGNMENTS.-A patent or any interest therein may be sold or assigned like any other piece of property. inventor may sell or assign his interest or a part interest in his invention, either before the application is filed or while the application is still pending. Under these circumstances the patent may be issued to the assignee or to the inventor and assignee jointly. The patent, if already issued, may be assigned by the owner whether he be the inventor or assignee. The conveyance is effected by an instrument in writing stating the conditions under which the patent is assigned, and the assignment should be recorded in the Patent Office to protect the assignee, as the assignment is void as against any subsequent purchase or mortgagee for a valuable consideration unless it is recorded in the Patent Office within three months from the date thereof.

(Note: The provisions of the Patent Statutes relating to the filing of caveats were repealed by Act of July 1, 1910.)

The stamp "Patent Applied For" or "Patent Pending" simply means that an application for patent has been filed in the Patent Office. Action against infringers cannot be taken until the patent actually issues,

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THE UNITED STATES PATENT SYSTEM.

The fundamental principles upon which the present commercial supremacy of the United States is based can be found in three provisions of the Constitution: First, the granting of free speech; second, the offer of remuneration for the use of the products of the brain by providing a limited period during which a man shall enjoys the fruits of his efforts; and third, the protection of personal property by the provision that no person shall be deprived of his property without due process of law.

The Constitutional provision mentioned as second is as follows: "The Congress shall have power * ** promote the progress of Science and Useful Arts by securing for limited

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Times to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries."

Upon this foundation stands the United States Patent Office, established for the purpose of carrying out the intentions of the framers of the Constitution and developed far beyond their fondest dreams, by American ingenuity and perseverance.

The value of our patent system is eloquently outlined by Senator Platt, of Connecticut. In speaking on a bill for the reorganization of the Patent Office, he said:

"To my mind, the passage of the act of 1836 creating the Patent Office marks the most important epoch in the history of our development-I think the most important

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