specifications and drawings of each patent hereafter issued, together with suitable indexes, one copy to be placed for free public inspection in each capitol of every State and Territory, one for the like purpose in the clerk's office of the district court of each judicial district of the United States, except when such offices are located in State or territorial capitols, and one in the Library of Congress, which copies shall be certified under the hand of the Commissioner and seal of the [e] Patent-Office, and shall not be taken from the depositories for any other purpose than to be used as evidence. [R. S.] Res. No. 5 of Jan. 11, 1871, 16 Stat. L. 590. See the note to the preceding R. S. sec. 489. A Res. of June 28, 1902, No. 35, 32 Stat. L. 746, entitled "Joint Resolution Relative to the disposition of patent specifications and drawings in the western district of Pennsylvania," provided as follows: "That the set of United States patent specifications and drawings now on deposit in the clerk's office of the United States district court for the western district of Pennsylvania, pursuant to section four hundred and ninety, Revised Statutes, be removed therefrom and deposited in the patent department of the Carnegie Library, in the city of Pittsburg, Pennsylvania, subject to the uses specified in sections four hundred and ninety and eight hundred and ninety-four, Revised Statutes; and that hereafter the said patent department of the said Carnegie Library of Pittsburg shall be the place of deposit for the United States patent specifications and drawings referred to in section four hundred and ninety, Revised Statutes, instead of the clerk's office of the United States district court for the western district of Pennsylvania." Back issues. This section and R. S. secs. 491 and 492 next following do not apply to and regulate the production of drawings of back issues of the patent office. Letting Contracts, (1876) 15 Op. Atty.-Gen. 538. Sec. 491. [Additional specifications and drawings.] The Commissioner of Patents is authorized to have printed such additional numbers of copies of specifications and drawings, certified as provided in the preceding section, at a price not to exceed the contract price for such drawings, for sale, as may be warranted by the actual demand for the same; and he is also authorized to furnish a complete set of such specifications and drawings to any public library which will pay for binding the same into volumes to correspond with those in the Patent-Office, and for the transportation of the same, and which shall also provide for proper custody for the same, with convenient access for the public thereto, under such regulations as the Commissioner shall deem reasonable. [R. S.] Res. No. 5 of Jan. 11, 1871, 16 Stat. L. 590. Copies. Copies of specifications may be furnished to any applicant. (1812) 1 Op. Atty.-Gen. 171. Effect of official change. It was ruled by the Attorney-General in (1872) 14 Op. Atty. Gen. 58, that the transfer of the direction of publishing specifications and drawings required by the patent office, from the superintendent of public printing to the commissioner of patents, does not render an appropriation for such work inapplicable for the payment of the expenses incurred. and Sec. 492. [Lithographing and engraving.] The lithographing engraving required by the two preceding sections shall be awarded to the lowest and best bidders for the interests of the Government, due regard being paid to the execution of the work, after due advertising by the Congressional Printer under the direction of the Joint Committee on Printing; but the Joint Committee on Printing may empower the Congressional Printer to make immediate contracts for engraving, whenever, in their opinion, the exigencies of the public service will not justify waiting for advertisement and award; or if, in the judgment of the Joint Committee on Printing, the work can be performed under the direction of the Commissioner of Patents more advantageously than in the manner above prescribed, it shall be so done, under such limitations and conditions as the Joint Committee on Printing may from time to time prescribe. [R. S.] Res. No. 5 of Jan. 11, 1871, 16 Stat. L. 590; Act of March 24, 1871, ch. 5, 17 Stat. L. 2. See the note to R. S. sec. 489, supra, p. 7: Power to waive advertisement.-The power to waive an "advertisement and award conferred upon the committee of printing by this section is that therein expressed in case of an exigency of the public service. None other is implied in their power to prescribe rules, etc., for the action of the commissioner of patents. Letting Contracts, (1876) 15 Op. Atty.-Gen. 538. Liability of government on unlawful contract. An officer, who in giving out a. contract has failed to comply with the statutory provision requiring advertisement previous to letting the contract, cannot, by permitting performance thereunder to proceed to any extent, make such contract obligatory upon the government. Letting Contracts, (1876) 15 Op. Atty.Gen. 538. Sec. 493. [Price of copies of specifications and drawings.] The price to be paid for uncertified printed copies of specifications and drawings of patents shall be determined by the Commissioner of Patents: Provided, That the maximum cost of a copy shall be ten cents. [R. S.] This section was amended to read as above by the Act of May 19, 1896, ch. 204, 29 Stat. L. 124, entitled "An Act amending the statutes relating to the sale of printed copies of patents." The section was originally as follows: SEC. 493. The price to be paid for uncertified printed copies of specifications and drawings of patents shall be determined by the Commissioner of Patents, within the limits of ten cents as the minimum and fifty cents as the maximum price." Act of March 24, 1871, ch. 5, 17 Stat. L. 3. Sec. 494. [Commissioner of patents to report annually.] The Commissioner of Patents shall lay before Congress, in the month of January, annually, a report, giving a detailed statement of all moneys received for patents, for copies of records or drawings, or from any other source whatever; a detailed statement of all expenditures for contingent and miscellaneous expenses; a list of all patents which were granted during the preceding year, designating under proper heads the subjects of such patents; an alphabetical list of all the patentees, with their places of residence; a list of all patents which have been extended during the year; and such other information of the condition of the Patent-Office as may be useful to Congress or the public. [R. S.] Act of July 8, 1870, ch. 230, 16 Stat. L. 199. Sec. 495. [Custody of collections of exploring expeditions.] The collections of the Exploring Expedition, now in the Patent-Office, shall be under the care and management of the Commissioner of Patents. [R. S.] Act of Aug. 4, 1854, ch. 242, 10 Stat. L. 572. Sec. 496. [Disbursements for Patent Office.] All disbursements for the Patent-Office shall be made by the disbursing clerk of the Interior Department. [R. S.] Act of July 8, 1870, ch. 230, 16 Stat. L. 209. [SEC. 1.] [Certified copies of drawings-fees.] For photolithographing or otherwise producing copies of drawings of the weekly issues of patents, for producing copies of designs, trade marks, and pending applications, and for the reproduction of exhausted copies of drawings and specifications; said photolithographing or otherwise producing plates and copies referred to in this and the preceding paragraph to be done under the supervision of the Commissioner of Patents, and in the city of Washington, if it can there be done at reasonable rates; and the Commissioner of Patents, under the direction of the Secretary of the Interior, shall be authorized to make contracts therefor, one hundred thousand dollars. And certified copies of such drawings and specifications may be furnished by the Commissioner of Patents to persons applying therefor upon payment of the present rates for uncertified copies, and twenty-five cents additional for each certification. [26 Stat. L. 939.] This is a provision of the Legislative, Executive and Judicial Appropriation Act of March 3, 1891, ch. 541. [SEC. 1.] [Disposition of models.] * That all models of the Patent Office be retained by the Interior Department until provision is made for their care by Congress. [35 Stat. L. 924.] This is from the Deficiencies Appropriation Act of March 4, 1909, ch. 298. The [SEC. 1.] [First assistant and assistant commissioner.] First Assistant Commissioner of Patents and the Assistant Commissioner of Patents shall hereafter perform such duties pertaining to the office of Commissioner of Patents as may be assigned to them, respectively, from time to time, by the Commissioner of Patents. [38 Stat. L. 491.] This is from the Legislative, Executive and Judicial Appropriation Act of July 16, 1914, ch. 141. See R. S. sec. 476, supra, p. 4, and the notes thereto. Joint Resolution Authorizing the Commissioner of Patents to exchange printed copies of the United States patents with the Dominion of Canada. [Res. of Jan. 14, 1915, No. 3, 38 Stat. L. 1221.] [Printed copies of patents-exchange with Dominion of Canada.] That the Commissioner of Patents of the United States be, and he is hereby, authorized to exchange with the Dominion of Canada, under such terms of contract as may by him be deemed practicable, printed copies of patents now in the United States Patent Office and hereafter issued by the United States. [38 Stat. L. 1221.] [SEC. 1.] [Financial clerk - bond.] Financial clerk, who shall give bonds in such amount as the Secretary of the Interior may determine. [38 Stat. L. 1032.] This is from the Legislative, Executive and Judicial Appropriation Act of March 4, 1915, ch. 141. II. LETTERS PATENT, ISSUE, REQUISITES, VALIDITY, Sec. 4883. [Patents, how issued, attested, and recorded.] All patents shall be issued in the name of the United States of America, under the seal of the Patent Office, and shall be signed by the Commissioner of Patents, and they shall be recorded, together with the specifications, in the Patent Office in books to be kept for that purpose. [R. S.] This section was amended by the Act of April 11, 1902, ch. 417, 32 Stat. L. 95, so as to read as above set forth. The section was originally as follows: "SEC. 4883. All patents shall be issued in the name of the United States of America, under the seal of the Patent Office, and shall be signed by the Secretary of the Interior, and countersigned by the Commissioner of Patents, and they shall be recorded, together with the specifications, in the Patent-Office, in books to be kept for that purpose.” Act of July 8, 1870, ch. 230, 16 Stat. L. 200. It was first amended by the Act of Feb. 18, 1888, ch. 15, 25 Stat. L. 40, to read as follows: "SEC. 4883. All patents shall be issued in the name of the United States of America, under the seal of the Patent-Office, and shall be signed by the Secretary of the Interior or under his direction by one of the Assistant Secretaries of the Interior and countersigned by the Commissioner of Patents, and they shall be recorded, together with the specifications, in the Patent Office, in books to be kept for that purpose." Sections 4883-4936 constitute chapter 1 (entitled Patents") of title 60 ("Patents, Trademarks, and Copyrights") of the Revised Statutes. By Act of April 19, 1888, ch. 126, 25 Stat. L. 87, all patents theretofore signed by any assistant secretary were given the same effect as if signed by the Secretary on the date of execution. I. Nature of patent, 11 II. Validity of patent, 12 III. Cancellation of patent, 13 I. NATURE OF PATENT Authority to issue. This section only expresses the necessary effect of the Acts of Congress. The authority by which the patent issues is that of the United States of America. U. S. v. American Bell Telephone Co., (1888) 128 U. S. 315, 9 S. Ct. 90, 32 U. S. (L. ed.) 450. Power of Congress.- Congress, having created the monopoly, may put such limitations upon it as it pleases. Mast v. Stover Mfg. Co., (1900) 177 U. S. 485, 20 S. Ct. 708, 44 U. S. (L. ed.) 856. Nature and privileges of patent right.— A patent is a contract between the government on behalf of the people and the patentee. 0. H. Jewell Filter Co. v. Jackson, (C. C. A. 8th Cir. 1905) 140 Fed. 340, 72 C. C. A. 304; Railroad Supply Co. v. Hart Steel Co., (C. C. A. 7th Cir. 1915) 222 Fed. 261, 138 C. C. A. 23. Considered as property, a patent right is an incorporeal kind of personal property. Fruit-Cleaning Co. t. Fresno HomePacking Co., (N. D. Cal. 1899) 94 Fed. 845. And as incorporeal property it is not susceptible of actual delivery or possession, but the recording of a mortgage thereof in the patent office, in accordance with the Act of Congress, is equivalent to a delivery of possession, and makes the title of the mortgagee complete toward all other persons, as well as against the mortgagor. Waterman v. Mackenzie, (1891) 138 U. S. 252, 11 S. Ct. 334, 34 U. S. (L. ed.) 923, affirming (S. D. N. Y. 1886) 29 Fed. 316. The right and the privileges thereby granted, as incorporeal personal property, are entitled to the same rights and sanctions which attend other property. They may be transferred by oral agreement, and such agreement is not within the statute of frauds, nor within R. S. sec. 4898, infra, p. 249, requiring assignments to be in writing, and will be specifically enforced in equity when properly proved. Whitcomb . Whitcomb, (1911) 85 Vt. 76, 81 Atl. 97. Purpose and effect of patent right.— The public policy declared by the patent laws is that it is for the benefit of the public to stimulate invention and that inventors shall publish their inventions, and to that end, and in consideration of such publication, to become effective at the end of seventeen years, they insure to a patentee in the meantime absolute protection in the right to exclude every one else from making, using, or vending the thing patented without his consent. Rub ber Tire Wheel Co. v. Milwaukee Rubber Works Co., (C. C. A. 7th Cir. 1907) 154 Fed. 358, 83 C. C. A. 336, reversing (E. D. Wis. 1906) 142 Fed. 531. A "patent" is a monopoly created by law, and gives the right to exclude all others from making, using, and selling the invention or articles made in accordance therewith. National Hollow Brake Beam Co. v. Bakewell, (1909) 224 Mo. 203, 123 S. W. 561. The inventor of a new and useful improvement acquires thereby no exclusive right to it until he obtains a patent. Cook v. Sterling Electric Co., (C. C. Ind. 1902) 118 Fed. 45. Letters patent. In view of the fact that a record of the patent is preserved in the patent office, and that all its assignments are there recorded, the possession of the original letters may be comparatively unimportant; nevertheless, they are not valueless, but of intrinsic and substantial worth. The procurement of a copy of them would be attended with some inconvenience and expense. They are, like a title deed, a personal chattel. They are the evidence of their owner's exclusive right to the use of the invention and create a property interest in such invention. Paine v. Parkhurst, (C. C. A. 6th Cir. 1913) 205 Fed. 740, 126 C. C. A. 195. Construction.-A patent is a contract and its construction is governed by the same canons of interpretation that control the construction of other grants and agreements. National Hollow BrakeBeam Co. v. Interchangeable Brake-Beam Co., (C. C. A. 8th Cir. 1901) 106 Fed. 693, 45 C. C. A. 544. Seal. The seal which is used is the seal of the patent office, and that was created by congressional enactment. U. S. r. American Bell Telephone Co., (1888) 128 U. S. 315, 9 S. Ct. 90, 32 U. S. (L. ed.) 450. Effect of state statutes.- Rights acquired under the patent laws of the United States cannot be affected by a state statute. U. S. Consol. Seeded Raisin Co. r. Griffin, etc., Co., (C. C. A. 9th Cir. 1903) 126 Fed. 364, 61 C. C. A. 334. II. VALIDITY OF PATENT Presumption. A patent is a contract between the government on behalf of the people and the patentee, the validity of which must be presumed. Railroad Supply Co. v. Hart Steel Co., (C. C. A. 7th Cir. 1915) 222 Fed. 261, 138 C. C. A. 23. Necessity of signature.-A patent is void unless issued with the signature required by law. Marsh v. Nichols, (1888) 128 U. S. 605, 9 S. Ct. 168, 32 U. S. (L. ed.) 538; Marsh v. Scott, (1888) 125 Ill. 114, 16 N. E. 863. Prior to the Act of April 11, 1902, amending this section as above noted, it was held in Marsh v. Nichols, (1888) 128 U. S. 605, 9 S. Ct. 168, 32 U. S. (L. ed.) 538, that the signatures of all the officers named in the statute must be attached to the instrument or it would be. an incomplete document and ineffectual to confer the rights of a patent. 66 Signature of "acting commissioner."— Where the signature to a patent is in the name of a person as acting commissioner" the patent is valid on its face, and the court will take judicial notice of it without proof of office. York, etc., Line R. Co. v. Winans, (1854) 17 How. 30, 15 U. S. (L. ed.) 27; Wilson v. Rousseau, (1846) 4 How. 646, 11 U. S. (L. ed.) 1141; Woodworth v. Hall, (1846) 1 Woodb. & M. 248, 30 Fed. Cas. No. 18,016; Smith v. Mercer, (1846) 3 Pa. L. J. Rep. 444, 5 Pa. L. J. 529, 22 Fed. Cas. No. 13,078. In Woodworth v. Hall, (1846) 1 Woodb. & M. 389, 30 Fed. Cas. No. 18,017, it was held that an alteration made in the patent after the signature of the commissioner must be communicated to him and receive his sanction. Destruction of record. If the record is destroyed accidentally by fire or otherwise, the patent is not invalidated. Hogg t. Emerson, (1848) 6 How. 437, 12 U. S. (L. ed.) 505. Necessity of statutory requisites.— A patent is void if all the statutory requisites are not complied with. Roemer t. Simon, (1877) 95 U. S. 214, 24 U. S. (L. ed.) 384; Moffitt v. Gaar, (1860) 1 Fish. Pat. Cas. 610, 17 Fed. Cas. No. 9,690; Latta v. Shawk, (1859) 1 Fish. Pat. Cas. 465, 14 Fed. Cas. No. 8,116. |