to issue patents without petition, witnesses, oath, or fees. In Hogg v. Emerson (6 How., 437) it was held, that inventions very dissimilar might be united in the same patent; and in Goodyear v. Wait (3 Fish., 242) it was held, that the process and the product might be separated, and claimed in two reissues, the court remarking that this was within the discretion of the Commissioner. So in the case of Suffolk Company v. Hayden, it was held, that an invention might be included in a subsequent patent which was described in a preceding one.

Yet in all these cases there can be no doubt that it is within the discretion of the Commissioner to say that each patent shall cover but one invention, or that the subject-matter of a reissue is incapable of division, or that all the inventions, or parts of an invention, described in an application, shall be included in one patent, or in divisions founded upon that application. (L. J. Atwood ex parte, Commissioners' Decisions, 1869, p. 100.)

68. Assignment after rejection of 77. Definition of the terms

application valid.

as

signee, grantee, and licensee.

61. APPLICATION IS BY WAY OF PETITION.-The law (ut infra, p. 10, § 26) requires an inventor who desires to obtain a patent to "make application in writing to the Commissioner of Patents," &c. This application in writing has, from the origin of the Government, been by way of petition, generally with the specification annexed and referred to, or accompanied by the specification, filed at the same time. The form of the petition is not material. When filed, it is to be presumed to adopt the specification or schedule filed at the same time, and to ask for a patent for the invention therein described. (Curtis on Patents, § 271; Hogg v. Emerson, 6 How., 437, 480.)

62. THE APPLICATION MUST BE MADE BY THE ACTUAL INVENTOR, IF ALIVE, even if the patent is to issue or reissue to an assignee; but, where the inventor is dead, the application and oath may be made by the executor or administrator. (Patent Office Rules, July, 1870.)

63. FORM OF PETITION BY A SOLE INVENTOR.

To the Commissioner of Patents:

Your petitioner prays that letters patent may be granted to him for the invention set forth in the annexed specification. JOHN SMITH.

64. JOINT INVENTORS.-Joint inventors are entitled to a joint patent; neither can claim one separately; but

independent inventors of separate improvements in the same machine cannot obtain a joint patent for their separate inventions, nor does the fact that one man furnishes the capital and the other makes the invention entitle them to take out a joint patent. (Patent Office Rules, July, 1870.) A joint patent may well be granted upon a joint invention. There is no difficulty in supposing, in point of fact, that a complicated invention may be the gradual result of the combined mental operations of two persons acting together, pari passu, in the invention; and if this be true, then, as neither of them could justly claim to be the sole inventor in such case, it must follow that the invention is joint, and that they are jointly entitled to a patent; but a joint patent cannot be sustained upon a sole invention. (Barrett v. Hall, 1 Mason, 472.)

And if the circumstances are such as to show that two parties contributed to an invention, so as to make them joint inventors, a joint patent should be taken out. (Thomas v. Weeks, 2 Paine, 103.)

For if the invention patented, as in a joint patent, is the sole invention of one of the patentees, and not the joint invention of both, the patent is void. (Ransom v. Mayor, &c., of New York, 1 Fish., 252.)

One of two or more joint inventors is not the inventor, within the meaning of the act; and if he applies for a patent the Commissioner is bound to refuse it. (Arnold v. Bishop, MS. Appeal Cases, D. C., 1841.)

The man who reduces to practice the theory of another, who assists in the reduction of it to practice, cannot be considered as the sole inventor of the machine; and if one suggest the mode of operation or the principle of a machine, and the other reduce it to practice, neither can

be considered as the sole inventor, but the invention is joint. (Ib.)

If one of two joint inventors, without the other relinquishing his claim to a joint interest in the patent right, obtains a patent in his own name, he will be deemed. guilty of a fraud, and will, in equity, be considered as the trustee of the other. (Reutgen v. Kanowers, 1 Wash., 171.)

65. RELATIONS SUBSISTING BETWEEN JOINT INVENTORS. In the case of joint patentees, where no agreement or copartnership exists, the relation of copartners does not result from their connection as joint patentees; and when one joint owner of a patent transfers his undivided interest to a stranger, the assignee does not become the partner of his co-proprietor. In both cases the parties interested in the patent are simply joint owners, or tenants in common, of the rights and property secured by the patent, and their rights, powers, and duties, as respects each other, must be substantially those of the joint owners of a chattel. Part owners of goods and chattels are either joint owners or tenants in common, each having a distinct, or at least an independent, although an undivided, interest in the property. Neither can transfer or dispose of the whole property; nor can one act for the other in relation thereto, but merely for his own share, and to the extent of his own several rights and interest; and at common law the one had no action of account against the other, from his share of the profits derived from the common property. (Pitts v. Hall, 3 Blatchf., 201 206; Story on Partnership, § 89.)

One tenant in common has as good a right to use and to license third persons to use the thing patented as the

other tenant has. Neither can come into a court of equity and assert a superior equity, unless it has been created by some contract underlying the rights which belong to them as tenants in common; and, no such contract existing, one tenant in common cannot enjoin the other from use and sale. (Clum v. Brewer, 2 Curtis C. C., 506.)

Some agreement becomes necessary to enable them to work the invention at their joint expense and for their joint benefit. (Parkhurst v. Kinsman, 1 Blatchf., 496.)

If the partial owner is not a wrong-doer in exercising the rights secured by the patent, no property has been appropriated which belongs to the other proprietor of the patent, and the ground of damages fails. That this is the real relation of the parties, would seem to follow from their situation as tenants in common of a right to the exercise of the patent privileges. In respect to the disposal of the title to those privileges, they stand upon the same footing as tenants in common, or joint owners of other chattels, namely, each can dispose of his own share only. (Curtis on Patents, § 190.)

66. FORM OF PETITION BY JOINT INVENTORS.To the Commissioner of Patents:

Your petitioners pray that letters patent may be granted to them, as joint inventors, for the invention set forth in the annexed specification. JOHN SMITH,

THOMAS BROWN.

67. ASSIGNMENT BEFORE PATENT.-Patents may be granted and issued or reissued to the assignee of the inventor or discoverer, the assignment thereof being first entered of record in the Patent Office; but in such case the application for the patent shall be made and the specification sworn to by the inventor or discoverer; and