Clerical error.-A clerical error of an examiner in failing to follow the rules of practice in the patent office is not sufficient ground for declaring a patent void. Deere v. Arnold, (N. D. N. Y. 1899) 95 Fed. 169.

III. CANCELLATION OF PATENT Suit to cancel patent.—The United States may maintain a suit in equity to cancel a patent obtained by fraud, mistake, or accident. U. S. v. American Bell Telephone Co., (1888) 128 U. S. 315, 9 S. Ct. 90, 32 U. S. (L. ed.) 450, reversing (C. C. Mass. 1887) 32 Fed. 591.

Suits may be maintained by the government in its own courts to set aside one of its patents, not only when it has a proprietary and pecuniary interest in the result, but also when it is necessary in order to enable it to discharge its obligations to the public, and sometimes when the purpose and effect are simply to enforce the rights of an individual. In the former cases it has all the privileges and rights of a sovereign. The statutes of limitation do not run against it. The laches of its own officials does not debar its right. U. S. v. American Bell Telephone Co., (1897) 167 U. S. 224, 17 S. Ct. 809, 42 U. S. (L. ed.) 144, affirmed (C. C. A. 1st Cir. 1895) 68 Fed. 542, 33 U. S. App. 236, 15 C. C. A. 569; U. S. v. Insley, (1889) 130 U. S. 263, 9 S. Ct. 485, 32 U. S. (L. ed.) 968; U. S. v. Nashville, etc., R. Co., (1886) 118 U. S. 120, 6 S. Ct. 1006, 30 U. S. (L. ed.) 81; Van Brocklin v. Tennessee, (1886) 117 U. S. 151, 6 S. Ct. 670, 29 U. S. (L. ed.) 845.

But when it has no proprietary or pecuniary result in the setting aside of the patent, is not seeking to discharge its obligations to the public, but has brought the suit simply to help an individual, making itself, as it were, the instrument by which the right of that individual against the patentee can be establishedthen it becomes subject to the rules governing like suits between private litigants. U. S. v. Beebe, (1888) 127 U. S. 338, 8 S. Ct. 1083, 32 U. S. (L. ed.) 121; U. S. v. American Bell Telephone Co., (1897) 167 U. S. 224, 17 S. Ct. 809, 42 U. S. (L. ed.) 144, affirming (C. C. A. 1st Cir. 1895) 68 Fed. 542, 33 U. S. App. 236, 15 C. C. A. 569.

Parties. Only the United States can maintain a bill to annul a patent on the ground of fraud in its procurement. Briggs t. United Shoe Machinery Co., (1915) 239 U. S. 48, 36 S. Ct. 6, 60 U. S. (L. ed.) 138.

In Mowry v. Whitney, (1872) 14 Wall. 434, 20 U. S. (L. ed.) 858, it was held that all suits to set aside, annul, or declare void a patent must be brought by or on behalf of the government except in the two cases provided by statute, viz.,

where there are conflicting claims to a patent or where there are two interfering patents.

Suit by private citizen.- The principle is established that the right to bring a suit in chancery to cancel or annul a patent issued by the United States lies with the government; and this is the reason a private citizen cannot, for himself, bring such a suit. U. S. v. American Bell Telephone Co., (1888) 128 U. S. 315, 9 S. Ct. 90, 32 U. S. (L. ed.) 450, reversing (C. C. Mass. 1887) 32 Fed. 591.

Procedure. A bill in equity is the proper remedy on behalf of the United States, when a patent for an invention has been obtained by fraud. U. S. v. Gunning, (S. D. N. Y. 1883) 18 Fed. 511, (S. D. N. Y. 1884) 22 Fed. 653, (S. D. N. Y. 1885) 23 Fed. 668.

Bill against two patents.- A bill for the repeal of patents because of fraud in their procurement is not objectionable for multifariousness because it assails two patents issued nearly a year apart, where the patents were issued to the same parties, related to the same subject, and were used in the same operation, the later patent being for an improvement upon the invention of the earlier one. U. S. v. American Bell Telephone Co., (1888) 128 U. S. 315, 9 S. Ct. 90, 32 U. S. (L. ed.) 450.

Sufficiency of bill. It must appear on the face of the bill that the suit was brought in behalf of the United States, by the proper district attorney, or it will be held bad on demurrer as not stating a case which entitled the United States to the relief sought. U. S. v. Doughty, (1870) 7 Blatchf. 424, 25 Fed. Cas. No. 14,986.

Information in name of Attorney-General. An information in the name of an individual" as he is attorney-general of the United States," and not in the name of or on behalf of the United States, is not authorized by any statute, sanctioned by any precedent, or supported by the authority of any judicial decision; and a demurrer thereto will be sustained and the information dismissed. Atty.-Gen. v. Rumford Chemical Works, (C. C. R. I. 1876) 32 Fed. 608.

Sufficient allegations of fraud. In a bill to procure the repeal of a patent for fraud in obtaining it, it is sufficient to allege that the patentee knew that he was not the first inventor and that his efforts to procure the patent were fraudulent because he was aware that he was obtaining a patent to which he was not entitled by law or in eqiuty. All the evidence which may be adduced to prove fraud need not be recited in the bill. It is sufficient if the main facts or incidents which constitute the fraud be fairly stated. U. S. v. American Bell Telephone

Co., (1888) 128 U. S. 315, 9 S. Ct. 90, 32 U. S. (L. ed.) 450.

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Duty to institute suit. There is no absolute duty imposed upon the AttorneyGeneral or any United States attorney, either by common law or by any statute, to institute a proceeding to annul patent for an invention when applied to by any party asserting its invalidity for want of novelty. New York, etc., Coffee Polishing Co. t. New York Coffee Polishing Co., (E. D. N. Y. 1881) 9 Fed. 578.

Suit to declare patent partly void. In Celluloid Mfg. Co. v. Goodyear Dental Vulcanite Co., (1876) 13 Blatchf. 375, 5 Fed. Cas. No. 2,543, it was held that a suit in substance to limit the effect of a patent to declare that it does not extend to a certain class of cases and pro tanto to have it adjudged void, and of no force, can only be sustained by the AttorneyGeneral, in the name and on the behalf of the United States.

Cancellation for fraud.-It has been held that since the defense that a patent issued was already covered by a prior patent is, by R. S. sec. 4920, infra, p. 309, open to every one charged with infringement, either at law or in equity, the government if seeking simply to protect the right of an individual ought not to be permitted to maintain a suit in equity to cancel a patent on the above ground, because it constitutes a perfect defense in any action brought by a patentee; and it seems the result is the same if the government is only seeking to protect the public at large, for the public is but the aggregation of all the individuals. U. S. v. American Bell Telephone Co., (1897) 167 U. S. 224, 17 S. Ct. 809, 42 U. S. (L. ed.) 144.

In U. S. v. American Bell Telephone Co., (1897) 167 U. S. 224, 17 S. Ct. 809, 42 U. S. (L. ed.) 144, the court said: "While [in U. S. v. American Bell Telephone Co., (1888) 128 U. S. 315, (9 S. Ct. 90, 32 U. S. (L. ed.) 450); and U. S. v. American Bell Telephone Co., (1895) 159 U. S. 548, (16 S. Ct. 69, 40 U. S. (L. ed.) 255)] there was rightfully affirmed the power of the government to proceed, by suit in equity, against one who had wrongfully obtained a patent for land or for an invention, there was no attempt to define the character of the fraud, or deceit, or mistake, or the extent of the error as to power, which must be established before a decree could be entered canceling the patent. It was not affirmed that proof of any fraud, or deceit, or the existence of any error on the part of the officers as to the extent of

their power, or that any mistake in the instrument was sufficient to justify a decree of cancellation. Least of all was it intended to be affirmed that the courts of the United States sitting as courts of equity could entertain jurisdiction of a suit by the United States to set aside a patent for an invention on the mere ground of error of judgment on the part of the patent officials. That would be an attempt on the part of the courts in collateral attack to exercise an appellate jurisdiction over the decisions of the patent office although no appellate jurisdiction has been by the statutes con

ferred."

Necessary proof. Before the government is entitled to a decree canceling a patent for an invention on the ground that it had been fraudulently and wrongfully obtained it must, as in the case of a like suit to set aside a patent for land, establish the fraud and the wrong by testimony which is clear, convincing, and satisfactory. U. S. v. American Bell Telephone Co., (1897) 167 U. S. 224, 17 S. Ct. 809, 42 U. S. (L. ed.) 144.

Injunction to restrain suits for infringement pending suit for cancellation.

In a suit brought by the direction of the Attorney-General to repeal letters patent a motion for a preliminary injunction to restrain the commencement or prosecution of suits for infringement will not be granted. The infringement of a patent is a trespass upon the exclusive rights granted, but the United States, as an owner or proprietor, has no interest in promoting such trespasses; and their prevention or the prosecution of. suits for their commission cannot be an injury to the United States as a proprietor. If the patent is repealed, "the suit may fall or may not; but at any rate the matter is entirely between the parties to the suit and not at all between the United States and either of the parties. U. S. v. Colgate, (S. D. N. Y. 1884) 21 Fed. 318.

Patent revoked by executive. When a patent has received the proper signatures and has had affixed to it the seal of the patent office, it has passed beyond the control and jurisdiction of that office, and is not subject to be revoked or canceled, by the President or any other officer of the government. McCormick Harvesting Mach. Co. v. Aultman, (1898) 169 U. S. 606, 18 S. Ct. 443, 42 U. S. (L. ed.) 875; U. S. v. American Bell Telephone Co., (1888) 128 U. S. 315, 9 S. Ct. 90, 32 U. S. (L. ed.) 450; U. S. v Schurz, (1880) 102 U. S. 378, 26 U. S. (L. ed.) 167.

I. History and purpose of act, 15. II. Title or description, 15. III. Construction, 16.

IV. Grant to patentee, 20.

V. Specification and drawings, 21.

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I. HISTORY AND PURPOSE OF ACT "The protection given to inventors and authors in the United States originated in the Constitution, § 8 of Art. 1 of which authorizes the Congress to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.' This protection, so far as inventors are concerned, has been conferred by the act of Congress passed April 10, 1790, and subsequent acts and amendments. The act of 1790, 1 Stat. 109, c. 7, granted the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery.' In 1793 (Feb. 21, 1793, 1 Stat. 318, c. 11) the word 'full' was substituted for the word sole,' and in 1836 (July 4, 1836, 5 Stat., 117, § 5, c. 357) the word 'constructing' was omitted. This legislation culminated in 84884 of the Revised Statutes, the part with which we are dealing being practically identical with the act of July 8, 1870, 16 Stat. 198, § 22, c. 230. It provides that every patent shall contain grant to the patentee, his heirs and assigns, for the term of seventeen years, of the exclusive right to make, use, and vend the invention or discovery.' The right to make, use and sell an invented article is not derived from the patent law. This right existed before and without the passage of the law and was always the right of an inventor. The act secured to the inventor the exclusive right to make, use and vend the thing patented, and consequently to prevent others from exercising like privileges without the consent of the patentee. It was passed for the purpose of encouraging useful invention and promoting new and useful improvements by the protection and stimulation thereby given to inventive genius, and was intended to secure to the public, after the lapse of the exclusive privileges granted, the benefit of such inventions and improvements." Bauer v. O'Donnell, (1913) 229 U. S. 1, 33 S. Ct. 616, 57 U. S. (L. ed.) 1041, Ann. Cas. 1915A 150, 50 L. R. A. (N. S.) 1185.

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II. TITLE OR DESCRIPTION

Form of title. The title to a patent need not be specific and the nature and design of the invention alone need be indicated. Sickles v. Gloucester Mfg. Co., (1856) 1 Fish. Pat. Cas. 222, 22 Fed. Cas. No. 12,841. But the title of the patent should not be repugnant to the specification. Goodyear v. Central R. Co., (1853) 1 Fish. Pat. Cas. 626, 10 Fed. Cas. No. 5,563.

Description of invention. It is enough that a patent so fully describes a process or a product that one reasonably skilled in the art may practice the process or manufacture the product, and that others may know with reasonable certainty whether or not they are infringing it. Standard Paint Co. v. Bird, (S. D. N. Y. 1910) 175 Fed. 346.

Description of design.-A design patent like a mechanical patent must describe the article in such full, clear, concise and exact terms as to enable persons skilled in the art to make and use the invention. James E. Tompkins Co. v. New York Woven Wire Mattress Co., (C. C. A, 2d Cir. 1907) 159 Fed. 133, 86 C. C. A. 323, reversing (S. D. N. Y. 1907) 154 Fed. 669.

Ingredients of chemical compositions.A patent for a chemical composition must not only give the names of the ingredients used in making the composition, but also the proportion of each, so that the invention may be practiced by those skilled in the art without further experimentation. Panzl v. Battle Island Paper, etc., Co., (C. C. A. 2d Cir. 1905) 138 Fed. 48, 70 C. C. A. 474, modifying (N. D. N. Y. 1904) 132 Fed. 607.

Means or mechanism to accomplish particular results.-A patent for a prescribed means or mechanism to accomplish a desired end must be limited to the particular means described, or their clear mechanical equivalents, and does not cover any other mechanical structure which is substantially different in its construction or in its operation. Union Match Co. r. Diamond Match Co., (C. C. A. 8th Cir. 1908) 162 Fed. 148, 89 C. C. A. 172. It is immaterial whether or not the means for accomplishing a result covered by a patent are illustrated therein, if they are sufficiently described in the specification. Hillard. Fisher Book Typewriter Co., (S. D. N. Y. 1907) 151 Fed. 34.

That a patent of a method for evacuating incandescent electric lamps by first intro

ducing into a tubular elongation of the bulb suitable substances capable of being gasified by heat and combining with the gases generated by the filament when brought to incandescence to form solid or liquid precipitations, and then exhausting the bulb by means of a pump and sealing the elongation, then bringing the filament to intensive incandescence and simultaneously heating the substance in the elongation, and finally sealing off the elongation, in the specification and claim directs that, after the partial exhaustion of the bulb by the pump, the pump connection is to be sealed off, but does not mention specifically the ordinary working" of the filament during the pump action, would not render the patent_process inoperative. Malignani v. Jasper Marsh Consol. Electric Lamp Co., (C. C. Mass. 1910) 180 Fed. 442.

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Statement of causes producing result. When a patent contains a sufficient disclosure of the claimed invention, it will not be invalidated either by the failure of the patentee to state the causes which produce the result, or by a mistaken statement thereof. Hemolin Co. v. Harway Dyewood, etc., Mfg. Co., (C. C. A. 2d Cir. 1905) 138 Fed. 54, 70 C. C. A. 480, affirming (S. D. N. Y. 1904) 131 Fed. 483. It is enough that a patent so fully describes a process or a product that one reasonably skilled in the art may practice the process or manufacture the product, and that others may know with reasonable certainty whether or not they are infringing it. Standard Paint Co. v. Bird, (S. D. N. Y. 1910) 175 Fed. 346, affirmed (C. C. A. 2d Cir. 1910) 182 Fed. 1023, 104 C. C. A. 669.

III. CONSTRUCTION

In general. The act of Congress giving protection to inventors should be fairly or even liberally construed; yet, while this principle is generally recognized, care should be taken not to extend by judicial construction the rights and privileges which it was the purpose of Congress to bestow. In framing the Act and defining the extent of the rights and privileges secured to a patentee Congress did not use technical or occult phrases, but in simple terms gave an inventor the exclusive right to make, use and vend his invention for a definite term of years. The right to make can scarcely be made plainer by definition, and embraces the construction of the thing invented. The right to use is a comprehensive term and embraces within its meaning the right to put into service any given invention. And Congress did not stop with the express grant of the rights to make and to use. Recognizing that many inventions would be valuable to the inventor because of sales of the patented machine or device to others, it granted also the exclusive

right to vend the invention covered by the letters patent. To vend is also a term readily understood and of no doubtful import. Its use in the statute secured to the inventor the exclusive right to transfer the title for a consideration to others. In the exclusive rights to make, use and vend, fairly construed, with a view to making the purpose of Congress effectual, resides the extent of the patent monopoly under the statutes of the United States." Bauer v. O'Donnell, (1913) 229 U. S. 1, 33 S. Ct. 616, 57 U. S. (L. ed.) 1041, Ann. Cas. 1915A 150, 50 L. R. A. (N. S.) 1185.

Rule of construction.-The rules for the interpretation of contracts govern the construction of a patent. O. H. Jewell Filter Co. v. Jackson, (C. C. A. 8th Cir. 1905) 140 Fed. 340, 72 C. C. A. 304. A patent is a contract, and the rules for the construction of contracts generally control in its interpretation; and when its terms are plain, and the intention of the parties clearly manifest therefrom, they must prevail; but if its expressions are ambiguous, or its validity or any claim is doubtful, that construction will be given which will sustain rather than destroy the patent. Denning Wire, etc., Co. v. American Steel, etc., Co., (C. C. A. 8th Cir. 1909) 169 Fed. 793, 95 C. C. A. 259, affirming (N. D. Ia. 1908) 160 Fed. 108. The proper construction to be given to the patent must be determined by the court, with due regard to the various provisions of the patent law, the principles thereof, as interpreted by the courts, and by ascertaining the true meaning of the language used in the specifications and claims of the patent. Brush Electric Co. v. Electric Imp. Co., (N. D. Cal. 1892) 52 Fed. 965.

Pioneer patent.-A pioneer inventor is entitled to a broad and liberal interpretation of his patent. McCormick v. Talcott, (1857) 20 How. 402, 15 U. S. (L. ed.) 930; Morley Sewing Mach. Co. v. Lancaster, (1889) 129 U. S. 263, 9 S. Ct. 299, 32 U. S. (L. ed.) 715; Sessions v. Romadka, (1892) 145 U. S. 29, 12 S. Ct. 799, 36 U. S. (L. ed.) 609; Hammerschlag v. Scamoni, (S. D. N. Y. 1881) 7 Fed. 584; American Bell Telephone Co. v. Spencer, (C. C. Mass. 1881) 8 Fed. 509; Standard Measuring Mach. Co. v. Teague, (C. C. Mass. 1883) 15 Fed. 390; Worswick Mfg. Co. v. Buffalo, (N. D. N. Y. 1834) 20 Fed. 126; Hammerschlag Mfg. Co. v. Bancroft, (N. D. Ill. 1887) 32 Fed. 585; Norton v. Jensen, (C. C. A. 9th Cir. 1892) 49 Fed. 859, 7 U. S. App. 103, 1 C. C. A. 452; Brush Electric Co. v. Electric Imp. Co., (N. D. Cal. 1892) 52 Fed. 965; Pittsburgh Reduction Co. v. Cowles Electric Smelting, etc., Co., (N. D. Ohio 1893) 55 Fed. 301; Goodwin Film, etc., Co. v. Eastman Kodak Co., (C. C. A. 2d Cir. 1914) 213 Fed. 231, 129 C. C. A. 575; Treibacher-Chemische Werke, etc. 2.

Roessler, etc., Chemical Co., (C. C. A. 2d Cir. 1914) 219 Fed. 210, 135 C. C. A. 108. Where patentees might fairly be considered pioneers in a practical art, as of flying with heavier than air machines, their claims are entitled to a liberal interpretation. Wright Co. v. Herring-Curtiss Co., (C. C. A. 2d Cir. 1914) 211 Fed. 654, 128 C. C. A. 158.

A patent for improvements in transmitting electrical impulses and signals, and in apparatus therefor, while for a combination of elements, all of which were taken from the prior art, discloses the first practical wireless telegraphic system, and shows invention of a primary character, which entitles it to a broad construction and liberal range of equivalents. Marconi Wireless Tel. Co. v. De Forest Wireless Tel. Co., (S. D. N. Y. 1905) 138 Fed. 657.

The liberal construction allowed to pioneer inventions cannot be invoked in favor of a patentee whose claim was limited to save it from anticipation by previous patents, so as to broaden the claim and practically make it cover what was rejected by the Patent Office. CottoWaxo Chemical Co. v. Perolin Co., (C. C. A. 8th Cir. 1911) 185 Fed. 267, 107 C. C. A. 373.

Liberal construction. Patents should be 'construed liberally, in accordance with the design of the Constitution and the patent laws of the United States, to promote the progress of the useful arts, and allow inventors to retain to their own use, not anything which is matter of common right, but what they themselves have created." Winans t. Denmead, (1853) 15 How. 330, 14 U. S. (L. ed.) 717; Brush Electric Co. v. Electric Imp. Co., (N. D. Cal. 1892) 52 Fed. 965.

A strict construction of the claims of a patent should not be resorted to, if the result would be a limitation on the actual invention, unless it is required by the language of the claim. Wagner Typewriter Co. t. Wyckoff, (C. C. A. 2d Cir. 1907) 151 Fed. 585, 81 C. C. A. 129, modifying (S. D. N. Y. 1905) 138 Fed. 108.

The court should proceed in a liberal spirit so as to sustain the patent and the construction claimed by the patentee himself, if this can be done consistently with the language he has employed. Bradley t. Dull, (W. D. Pa. 1884) 19 Fed. 913; Thomson-Houston Electric Co. v. Black River Traction Co., (C. C. A. 2d Cir. 1905) 135 Fed. 759, 68 C. C. A. 461, reversing (N. D. N. Y. 1903) 124 Fed. 495. But a patent cannot be given a construction broader than its terms, in order to cover something which might have been claimed, but was not. Universal Brush Co. v. Sonn, (C. C. A. 2d Cir. 1907) 154 Fed. 665, 83 C. C. A. 422, reversing (N. D. N. Y. 1906) 146 Fed. 517.

That interpretation which sustains and 7 F. S. A.-2

vitalizes the grant of a patent should be preferred to that which strikes down and paralyzes it. National Hollow BrakeBeam Co. v. Interchangeable Brake-Beam Co., (C. C. A. 8th Cir. 1901) 106 Fed. 693, 45 C. C. A. 544.

If the wording of a claim of a patent is fairly capable of two constructions, one of which will sustain the claim and the other defeat it, that which will preserve the invention should be adopted. Universal Adding Mach. Co. v. Comptograph Co., (C. C. A. 7th Cir. 1906) 146 Fed. 981, 77 C. C. A. 227, reversing (N. D. Ill. 1906) 142 Fed. 539. Under the rule that the language of a patent should be so construed as to save rather than destroy it, a claim in a patent of rotatably mounted bars . . . substantially as described as an element of a combination is not void because the specification and drawings show a rotatable and a fixed bar, there being no doubt as to the thing intended. Maunula v. Sunell, (C. C. Ore. 1907) 155 Fed. 535.

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While it is settled law that a patentee who has acquiesced in the rejection of a broad claim by substituting a narrower one cannot insist on a construction of the latter to cover that which was rejected, yet such rule does not debar him from a liberal construction of the claim as granted, nor from the benefit of the doctrine of equivalents. Heywood Bros., etc., Co. v. Syracuse Rapid Transit R. Co., (N.) D. N. Y. 1907) 152 Fed. 453.

The claims of a patent which are not ambiguous are to be interpreted according to the meaning of their own terms, and are not controlled or limited by any argument or representation made by the patentee's attorney before the Patent Office as to the scope of the invention or the features in which it differs from the prior art, where no amendment of the claims was required or made. Fullerton Walnut Growers' Ass'n v. Anderson-Barngrover Mfg. Co., (C. C. A. 9th Cir. 1908) 166 Fed. 443, 92 C. C. A. 295.

Where the validity of a patent is in doubt because the claims are ambiguous, that construction is to be preferred which sustains the patent rather than that which would render it invalid. Electric Candy Mach. Co. v. Morris, (E. D. Mo. 1905) 156 Fed. 972.

A patent is a contract, and the rules for the construction of contracts generally control in its interpretation, and when its terms are plain, and the intention of the parties clearly manifest therefrom, they must prevail, but if its expressions are ambiguous or its validity or any claim is doubtful, that construction will be given which will sustain rather than destroy the patent. American Steel, etc., Co. v. Denning Wire, etc., Co. (N. D. Ia. 1908) 160 Fed. 108.

When two constructions of a patent are