'This case, as presented to the court below, was within neither of the categories above mentioned. The court, therefore, erred in making the order to which the Commissioner objected. "The main question passed upon by the Commissioner, and which was supposed to underlie this case, is not before us for consideration. If it were, as at present advised, we are not prepared to say that the decision of the Commissioner was not correct. "The order of the court below, awarding the mandamus, is reversed with costs, and it is ordered by this court that the application of the relator be by that court overruled and dismissed." 263. PARTIES IN MANDAMUS.-The writ of mandamus, from its very nature and definition, is "a command issuing in the name of the sovereign authority." (Bouvier's Dict.) And although it is substantially a civil remedy, (2 Carter's Ind. R., 423,) yet in the United States it has always been issued in the name of the sovereignty by which it has been authorized. (Moses on Mandamus, 194.) The suit, therefore, is properly prosecuted in the name of the United States against the Commissioner of Patents. 264. PROCEEDINGS IN MANDAMUS.-The writ can only be obtained after a rule to show cause has been laid by the court and a copy of it has been served on the Commissioner of Patents. (Brosius v. Reuter, 1 Harr. and Johns., 481.) The rule is obtained by filing a petition, in which all the facts and circumstances entitling the party to the mandamus are stated, and which is verified by oath. (Evans's Practice, 404.) The petition should present to the court a prima facie case of duty on the part of the Commissioner to perform the act demanded, and an obligation to perform it. (Moses on Mandamus, 284.) It should also appear that a demand has been made upon the Commissioner to do the thing he is sought to be compelled to do, and that he has refused or neglected to do it, (Stephens's Nisi Prius, 23; 9 Mich. R., 328,) and that he has it in his power to perform the act. (Ridding v. Bell, 4 Cal. R., 333.) The Commissioner who appears to show cause why a mandamus should not be issued does so by what is sometimes called a return, sometimes an answer. (Evans's Practice, 404.) The return must either deny the facts on which the claim of the relator is founded or must state other facts sufficient in law to defeat the relator's claim. (10 Wend., 20; 35 Barb., 105; 37 Penn. S. R., 237.) When the return is made and filed, if insufficient, the relator may move to quash it, (Erans's Practice, 405; People v. State, 2 Barb., 554; Commonwealth v. Commissioners, 32 Penn. S. R., 218;) it may, however, be amended, or a supplementary return filed, should it prove defective, (Evans's Practice, 405,) and a return on leave of court may be. amended in matters of substance even after exceptions have been made. (Doug. R., 135; 10 Pick. R., 59.) The motion, however, for leave to amend should probably set forth specifically the points sought to be corrected. (State v. County Judge, 12 Iowa, 237.) Motions or applications for mandamus against the Commissioner of Patents may be heard before the general term of the supreme court of the District of Columbia in the first instance, or by one of the justices at chambers, or in special term, but not until the petition, verified by affidavit and stating the grounds of the application, has been filed and docketed, and motion to quash may be heard in the same manner. (Rules of Supreme Court of D. C.) Upon argument of the law, arising upon the facts disclosed, the court decide that a mandamus shall or shall not go. (Evans's Practice, 404.) The writ is served by delivering it to the person to whom it is directed. Courts enforce compliance with the peremptory writ by attachment of contempt. The application for an attachment is made by a motion, upon which the defendant may show cause, unless the contempt be gross, in which case the rule may be made absolute at first. (Tidd's Practice, 484.) SEC. XVI. Designs. 265. Subject-matter of design pat ents. 266. Models may be dispensed with. 270. Photographs. 271. Classification of designs. 272. Disputed questions. 273. Design may embrace a class of ornaments. 274. Designs patentable on account of utility. 275. Modes of operation not to be SEC. monopolized under a patent for design. 276. Applicant to elect the term of the patent on application. 277. No provision made for use and sale prior to application. 278. Design shown in a patent for 279. Number of claims allowed. 281. Form of petition. 265. SUBJECT-MATTER OF DESIGN PATENTS.-Any person who, by his own industry, genius, efforts, and expense, has invented or produced any new and original design for a manufacture, bust, statue, alto-relievo, or bas-relief; any new and original design for the printing of woolen, silk, cotton, or other fabrics; any new and original impression, ornament, pattern, print, or picture, to be printed, painted, cast, or otherwise placed on or worked into any article of manufacture; or any new, useful, and original shape or configuration of any article of manufacture, the same not having been known or used by others before his invention or production thereof, or patented or described in any printed publication, may, upon payment of the duty required by law and other due proceedings had, the same as in cases of inventions or discoveries, obtain a patent therefor. (Act of July 8, 1870, §71; vide supra, p. 34, § 71.) 266. MODELS MAY BE DISPENSED WITH.-The Commissioner may dispense with models of designs when the design can be sufficiently represented by drawings or photographs. (Ib., § 72.) 267. TERM FOR WHICH GRANTED.-Patents for designs may be granted for the term of three years and six months, or for seven years, or for fourteen years, as the applicant may, in his application, elect. (Ib., § 73.) 268. PATENTS FOR DESIGNS MAY BE EXTENDED.-Patentees of designs issued prior to March 2, 1861, shall be entitled to extension of their respective patents for the term of seven years, in the same manner and under the same restrictions as are provided for the extension of patents for inventions or discoveries issued prior to the 2d day of March, 1861. (Ib., § 74.) Upon extending a patent for a design its utility may be taken into account in estimating its value and importance to the public. (B. L. Solomon ex parte, Commissioners' Decisions, 1869, p. 49.) 269. PROCEEDINGS THE SAME AS IN OTHER CASES.-The petition, oath, specification, and other proceedings, are the same as for other patents. (Patent Office Rules, July, 1870.) 270. PHOTOGRAPHS.-Photographs are received for the illustration of works of design only. One must be pasted upon thick drawing-paper, but in every case where this mode of illustration is employed by an applicant he will be required to deposit in the office the glass or other "negative" from which the photograph is printed, so that exact official copies may be made therefrom when desirable. (Ib.) 271. CLASSIFICATION OF DESIGNS.-In the case of Bartholomew ex parte the Commissioner says: "Letters patent for designs have increased in importance within the last few years. Formerly, but few were granted; now, many are issued. To this day they have made so little figure in litigation that but three reported cases are known in which design patents have come into controversy. With their increase questions have arisen concerning their scope and character which have given rise to dispute and to inquiry as to the correctness of the current practice of the office in this branch of invention. While on the one hand it is insisted that the practice has always been uniform, and is therefore now fixed and definite, on the other it is asserted that there has never been, and is not now, any well defined or uniform practice either in the granting or refusal of design pat ents. "The act of 1836 made no provision for the patenting of designs. The earliest legislation upon this subject is found in the act of August 29, 1842, section 3; and the |