not patentable, because its manufacture imported no novelty, nor the exercise of any inventive talent. United States v. Morris, 2 Bond, 23. Contra, Oliphant v. Salem Mills Co., 5 Sawyer, 128. There is no liability unless the person who marked the unpatented article did so with knowledge that he had no right to do it, and with the purpose of deceiving the public. It is for the jury to find as to the intent. Walker v. Hauxhurst, 5 Blatch. 494. The statute is designed to guard the right of the public to use unpatented articles. To constitute the offense, it must be found that the word "patent" was affixed, that the article was not patented, and that the intent in marking it was to deceive the public. The words "Newell's patent, 1852," is within the law. The article need not be sold, to constitute the offense. If the prohibited word is attached to articles without any intent to use them or to deceive, the purpose is innocent. One who has instructed his workman to mark articles with the word "patent," intending to deceive, is not relieved from liability because he subsequently changes his mind without countermanding his order. Nichols v. Newell, 1 Fisher, 647. Where an article was stamped with the mark of two different patents, obtained by different patentees, one of whom had consented that defendant might affix his mark thereto, and the other patentee had not given such consent, the case was held not within subdivision three, which applies only to unpatented articles. French v. Foley, 11 F. R. 801. If the patents marked on the article issued have all expired, and there is no patent in force upon it or any part of it, there is no offense. Wilson v. Singer Manuf. Co., 12 F. R. 57, 9 Biss. 173. The offense created by this subdivision is that of stamping. Taking the articles stamped into another district with intent to sell them is not prohibited, and cannot be construed as a repetition or continuance of the act of stamping in the district in which they are removed. Pentlarge v. Kirby, 19 F. R. 501. If the superintendent of a corporation knew, or should have known, that the articles he stamped were not patented, the corporation is liable for his act in stamping them. But if he honestly believe they were patented, it is not liable. Tompkins v. Butterfield, 25 F. R. 556. It need not be alleged or proved that the articles falsely

stamped were patentable. If they were not, and the public would not be deceived by the marking, the defendant may show the facts. Winne v. Snow, 19 F. R. 507. Subdivision two of this section does not include the case of a patented article stamped with the mark of one who has no patent which includes or affects the article stamped, but who has a patent for a different article. The language cannot be added to by inserting after the words "the patentee" the words "of the same or any other similar article." French v. Foley, 11 F. R. 801. It is not required that the pleading allege that the stamping was done on a designated day. An allegation that it was done "in or about June, 1886," is sufficient on demurrer, if it is good according to the practice of the State in which the action was brought. Fish v. Manning, 31 F. R. 340. It must be alleged that the defendant had no patent; that the stamped article contained the patented improvement, and that the stamping was done without the consent of the plaintiff's assigns or representatives. Id. Suits to recover the penalty must be brought in the name of the informer. United States r. Morris, 2 Bond, 23. Where a suit was brought in the name of the informer for his own benefit and that of the United States, the latter was not considered a party, and a demurrer for misjoinder of parties was overruled. Winne v. Snow, 19 F. R. 507. Suit may be brought by one who is not specially damaged by the defendant's acts. Id. An action to recover the penalty can be maintained nowhere else than in the district where the stamping was done. The provision of § 732 that suits for penalties and forfeitures may be brought wherever the defendant may be found does not apply to actions under this section. Pentlarge v. Kirby, 19 F. R. 501. Jurisdiction depends upon the place where the offense is committed; not upon the residence of the parties to the action. Winne v. Snow, 19 F. R. 507. Service made upon the managing agent of a foreign corporation in a district where the stamping was done, confers jurisdiction, such service being allowed by the laws of the State in which it was made. Hat-Sweat Manuf. Co. v. Davis S. M. Co., 31 F. R. 294. A penalty of more than one hundred dollars cannot be imposed. It may be recovered in an action of debt. Stimpson v. Pond, 2 Curtis, 502. The jury may

assess as damages not less than one hundred dollars, and as much more as it sees fit. Nichols v. Newell, 1 Fisher, 647. It is assumed without discussion that the penalty is the amount specified for each offense. Tompkins v. Butterfield, 25 F. R. 556. The jury need not be satisfied beyond a reasonable doubt that the defendant attached the word "patented" to an unpatented article. If they are reasonably satisfied it is sufficient. Hawloetz v. Kass, 25 F. R. 765. Contra, Nichols v. Newell, 1 Fisher, 647; Tompkins v. Butterfield, 25 F. R. 556, 558.

Adee v. Peck, 39 F. R. 209; Lawrence v. Holmes, 45 Id. 357. This and the preceding section are to be construed together. Smith v. Walton, 51 F. R. 17, 56 Id. 499. In a complaint to recover the penalty here provided, the precise date of the false stamping need not be averred. Fish v. Manning, 31 F. R. 340. But the false marking must have been done within five years, and within the judicial district where suit is brought. Hotchkiss v. S. Cupples W. Co., 53 F. R. 1018. This section does not apply when the wrong invention is described in the patent. Russell v. Newark Machine Co., 55 F. R. 297; A. B. Dick Co. v. Fuerth, 57 Id. 834. As only a person can be an informer under this Act, an executor cannot, as such, begin an action qui tam under it, since he represents an estate; nor can he continue such an action begun by a deceased person. 10 Harv. L. Rev. 267, 268. If the false marking of several articles is one continuous act, there is but one offense and can be but one penalty. Hotchkiss v. S. Cupples W. Co., 53 F. R. 1018; Taft v. Stephens Lith. Co., 38 Id. 28.

Newgold v. American Electrical Novelty & Mfg. Co., 108 F. R. 341. Placing a mark on a part of a patented article which is not covered by its patent does not render the patent invalid. Dade v. Boorum & Pease Co., 121 F. R. 135. See further, Gandy v. Main Belting Co., 143 U. S. 587, 595, 36 L. ed. 272; Parker v. Haworth, 4 McLean, 370; Herring v. Gage, 15 Blatch. 124; Fairbanks v. Jacobus, 14 Id. 337; Washburn Mfg. Co. v. Haish, 9 Biss. 141; Hoyt v. Computing Scale Co., 96 F. R. 250; Schwebel v. Bothe, 40 Id. 478.

TITLE XLI

COPYRIGHTS

[See now the new Copyright Law in force July 1, 1909.]

The penalty cannot be recovered if suit is brought by more than one person. Ferrett v. Atwill, 1 Blatch. 151. Though separate transactions under this law may constitute separate offenses, yet the printing of many copies as a single continuous act is but one offense, and each imprint is a separate cause of action. Taft v. Stephens Lith. Co., 38 F. R. 28. The penalty imposed by this statute is for stamping or marking, as copyrighted, articles which may be copyrighted. The words "or other article," following the enumeration of book, map, &c., do not mean any article whatsoever, but such articles as are declared by the preceding sections to be the subject of copyright, only a part of which are specified by enumeration herein. Rosenbach v. Dreyfuss, 2 F. R. 217. If the article mentioned in the complaint may or may not be one which is copyrightable under the statute, it should be alleged to be so. Id. A summons in an action to recover the penalty provided for by this section must be indorsed with a reference to the statute under which the action is brought. But if the declaration served with the summons refers to the statute, the defect in the latter will be remedied. The error is not amendable under § 954 of these statutes, nor under the New York code of procedure. Brown v. Pond, 5 F. R. 31, 41. An indorsement as follows was ruled to be sufficient: "For $2,500 debt for a penalty imposed by title 60, ch. 3, of an Act of Congress entitled 'An Act to revise the statutes,' &c., approved June 20, 1874," the complaint served showing the nature of the action fully. Though there was an error in the date, the references, being to the only Act of Congress which contained such a chapter and title, cured that mistake. Brown v. Church, 5 F. R. 41.

The United States circuit courts, as well as the district courts, have jurisdiction of suits to recover the penalties imposed by this section. Taft v. Stephens Lith. Co., 37 F. R. 726. This section does not seem to require that the false notice shall be inserted upon one of the pages named in § 4962. Rigney v. Raphael Tuck & Sons Co., 77 F. R. 173, 175. This statute does not impose a penalty for each imprint of the word "copyrighted" wrongfully made on an engraving, map, or chromo; but if the number so marked is large, and the marking upon them is one continuous act, only one penalty is recoverable. Taft v. Stephens Lith. Co., 38 F. R. 28, 39 Id. 781. Miniature samples of a copyrighted photograph are not a publication. Falk v. Engraving Co., 54 F. R. 890. But this section is violated by the insertion in a weekly trade paper, with notice of copyright, of a cut or print, though crude, of a picture. Rigney v. Dutton, 77 F. R. 176.

23 A. G. Op. 353. The false notice must contain all the essentials of a valid copyright notice under § 4962. Hoertel v. Raphael Tuck & Sons Co., 94 F. R. 844. Prior to the amendment of 1897 this did not apply to a person knowingly selling a book with fictitious copyright notice unless he made the book or caused the notice to be inserted. Ross v. Raphael Tuck & Sons Co., 91 F. R. 128. The jurisdiction conferred on the circuit courts by this amendment was only prospective in action. McLoughlin v. Raphael Tuck Co., 191 U. S. 267, 48 L. ed. 178, affirming 115 F. R. 85, and 99 Id. 562. The statute has no extraterritorial effect. McLoughlin v. Raphael Tuck Co., supra.

Where the title in the first 3 and last 34 pages of the copyrighted English edition of a dictionary was different from the copyrighted domestic edition, the publisher of the English edition was prohibited by this section from inserting therein a notice of the domestic copyright. G. & C. Merriam Co. v. United Dict. Co., 146 F. R. 354. See further, Snow v. Mast, 63 F. R. 623.

Violating copyright of maps, charts, dra-
matic or musical compositions

R. S., s. 4965.

2 March, 1895; 28 Stat. 965.